ISSUE 916 · April 2018
Changing the culture of a profession Page 34
Andrew Little, Employees and Reporting of Future of Minister of contractors unacceptable Law — What Justice in the gig conduct might economy happen? Page 6 Page 22 Page 44 Page 54 Get two for the price of one! Buy the hardcopy and receive the Red Book — free.
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LexisNexis and the Knowledge Burst logo are registered trademarks and Lexis Red is a trademark of RELX Inc. ©2018 LexisNexis NZ Limited. All rights reserved. MP022018MV New Zealand’s independent, online legal marketplace www.consensus.nz IZARDWESTON Call 09 886 9612 L A W Y E R S Izard Weston is pleased to announce that from April 2018 Dr Bevan Marten will join the firm as a partner. Bevan WIN NEW specialises in maritime and insurance law, and is the author BUSINESS of Maritime Law in New Zealand (Thomson Reuters, 2016). TODAY Bevan worked for Izard Weston as a solicitor before completing postgraduate qualifications at the University of Cambridge and the Max Planck Institute for Private Law in Hamburg. He has been lecturing in maritime, insurance, property and tort Extend your reach and work with clients law at the Victoria University of Wellington School of Law since 2012, while maintaining close links with the profession. across the whole country The firm also announces that in April Robert Stewart and Get work that perfectly matches your Tony Stevens are making the move to the independent bar experience and expertise and Hamish Walker is moving to another firm, after 20, 10, and 8 years as partners respectively. Marketing you and your fi rm while you’re busy with the important stu Robert joins Shortland Chambers in Auckland, Tony joins Capital Chambers in Wellington, and Hamish joins Duncan Cotterill based in Wellington. They all leave the firm with our WORK YOUR WAY very best wishes.
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people in the law 25 · DIA takes AML/CFT Act 6 · Andrew Little, Minister of Justice on the road to lawyers 7 · On the move and conveyancers 26 · Having your cake...? ▹ BY SALLY 10 · Letter to the editor MORRIS AND GEORGIA ANGUS
New Zealand Law Society Mediation 11 · Sexual harassment in 29 · Embracing the legal workplace Diversity ▹ BY PAUL SILLS 12 · New Zealand Law Society Courts Update 30 · New Zealand juries get better 6834 17 · Fees for ACC reviews and judicial guidance study appeals ▹ BY DON RENNIE shows ▹ BY LYNDA HAGEN 18 · Some issues with restraint of trade or non-compete Practice disputes ▹ BY ALAN SORRELL 31 · It's not that bad, except 22 · Will employees and it is ▹ BY KATIE COWAN contractors survive in the 34 · Changing the culture of gig economy ▹ BY CHRISTIE a profession ▹ BY NICK HALL AND WILLIAM FUSSEY BUTCHER, ANGHARAD O'FLYNN 24 · From Housing Law to AND GEOFF ADLAM Airbnb ▹ BY THOMAS GIBBONS
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4 Contents
44 · What tools does the Law 64 · Rise of the machines: practising Well Society currently have for the Artificial Intelligence in 81 · How nature improves our reporting of unacceptable law ▹ BY DAMIAN FUNNELL health ▹ BY RAEWYN NG conduct? ▹ BY THE LAWYERS COMPLAINTS SERVICE pathways in the Law Classifieds 48 · Should our Code of Conduct 66 · Elder law, for lawyers 82 · Will notices specifically address less concerned by 84 · Legal Jobs discrimination in the the tick of the clock 86 · NZLS CLE Ltd CPD Calendar workplace? ▹ BY KATE HENRY ▹ BY NICK BUTCHER 50 · It is time to say "time's Lifestyle up" ▹ BY OLIVIA WENSLEY Focus on... 89 · A New Zealand Legal Crossword 51 · Training lawyers to be business 68 · Should I stay or should I go developers - A curriculum for (back)? ▹ BY CRAIG STEPHEN 90 · Tail-end success ▹ BY EMILY MORROW 72 · Lawyers Complaints Tikanga and Ture Service 53 · E tipu, e rea! The use of te reo Māori is growing! Legal Research ▹ BY ALANA THOMAS 76 · Foundation's inaugural grants boost legal projects Future of Law 54 · New Zealand legal services and Legal Information lawyers - what might happen? 78 · Plundering Beauty: A 61 · Developments History of Art Crime during War ▹ BY LOUISA GOMMANS
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5 PEOPLE IN THE LAW · PROFILE April 2018 · LAWTALK 916
PEOPLE IN THE LAW PROFILE Andrew Little, Minister of Justice
Andrew Little was appointed Minister of Justice in the new Government at the end of 2017. He grew up in New Plymouth before heading to Victoria University of Wellington to study law. A diversion into student politics saw him become President of the Victoria University Students’ Association and of the New Zealand Union of Students’ Associations. After graduating with a law degree he became a lawyer with the Engineers’ Union before his appointment as EPMU national secretary in 2000. Mr Little entered Parliament in 2011 as a Labour list MP. He was Opposition justice spokesperson from February 2013 to November 2014 and from August to October 2017. He was Leader of the Opposition from to get out again? And to always pay attention in Professor 2014 to 2017. As well as being the Minister of Justice, Mr Quentin-Baxter’s constitutional law class as you never Little is also Minister for Courts, Minister of Treaty of know when his pearls of wisdom might crop up again. Waitangi Negotiations, and Minister responsible for the That the high you get from doing an all-nighter to get Government Communications and Security Bureau, the your law assignment in on time doesn’t last the whole Security Intelligence Service and for Pike River Re-Entry. of the following day. Andrew Little lives in Island Bay, Wellington with his And of course to drink water before bed, and expand wife Leigh and their son Cam. my cuisine beyond instant noodles. LawTalk asked Mr Little about his entry into the law and his objectives as Minister of Justice. What is one thing you would like to achieve as Minister of Justice? Why did you study law? Criminal justice reform. Our prison system is in chaos at Because I have a passion for late nights, caffeine, and the moment and requires long-term, innovative thinking the Socratic Method. rather than patchwork remedies. The managerial system In all seriousness, it was always going to be law. I grew up that promotes punishment and targets has not worked, in a politically charged environment – the Muldoon years. I and I’ll be working closely with the legal profession, was 16 when the Springbok Tour divided the nation, and it members of the public, and my colleagues to ensure we was hard to ignore the rampant injustice that underpinned rebuild a criminal justice system that is fair, humane, so many areas of our society and nationhood. and effective. In particular, two miscarriages of justice shaped my passion for law – that of Derek Bentley and Arthur Allan How can we improve access to justice, Thomas. The Bentley case in particular was an example and what changes would you like of the failings of a highly punitive system which needed to see in our legal aid system? vision and innovation when tackling crime. The justice gap is something that desperately needs So off I went to Victoria University Law School, bright- addressing. Equal access to justice is a fundamental eyed and bushy-tailed, ready to change the world one tenet of the legal system, and as long as the gap persists constitutional law lecture at a time. I consider this a systemic failure. Reviewing legal aid entitlements and thresholds to Is there anything you wish you’d been told as a ensure equality and fairness are at the heart of our justice student that you had to find out the hard way? system is one thing. Making sure our courts and tribunals That once you’ve entered student politics, it’s really hard are as user-friendly as possible is another.
6 LAWTALK 916 · April 2018 ON THE MOVE · PEOPLE IN THE LAW
PEOPLE IN THE LAW What do you see as the biggest issues facing ON THE MOVE the legal profession in New Zealand? The last 30 years have seen a shift towards a managerial, target-focused approach to justice. In turn, this has put pressure on legal professionals, court staff, prison staff, and the system as a whole. This approach is not effective for offenders, victims, legal professionals, or members of the public. The recent attention on sexual harassment in the High Court Judge sworn in profession suggests there may be some cultural issues about power and privilege we need to deal with. Former District Court Judge Grant Powell was sworn in as a judge of the High Court in Auckland on 1 March. What do you think is working or not working Justice Powell graduated LLB(Hons) from Auckland as a result of the reforms which were made University in 1987. He was a partner at Walters Williams to the Family Court three years ago? & Co and its predecessor firm from 1996 to 2003, leaving Public confidence in the Family Court has been under in 2003 to form the partnership of Powell Webber & threat since the reforms of 2014. I intend on initiating Associates. Justice Powell left in 2011 to practise as a a comprehensive review of the reforms, with further barrister sole. He was appointed a District Court Judge announcements on this to come imminently. The in August 2013. massive increase in the number of without notice applications tells me people want the assurance of a Deputy Judge Advocate court-mandated process, even if many of the issues General appointed in a separation could be resolved in a mediation with sticking points the subject of a judicial determination. District Court Judge Heemi Taumaunu has been I would, however, like to acknowledge the arbitrators appointed Deputy Judge Advocate General and Deputy and mediators who have worked within the FDR system. Chief Judge of the Court Martial. His appointment is Since FDR was introduced in 2014, more than 5,000 effective from 5 February 2018. Judge Taumaunu was mediations have been completed. Of the completed appointed to the District Court bench on 15 January 2004. mediations 80% have achieved at least some, if not He was admitted as a barrister and solicitor in 1993 and full resolutions as a result of FDR. This is thanks to practised in Gisborne until his judicial appointment. the tireless, and often under-appreciated work of our arbitrators and mediators across New Zealand. Crossley Gates joins Keegan Alexander partnership Are there any other areas in our justice system where you would like to see changes? Crossley Gates has joined the partner- For me it’s about the bigger picture – restoring the ship at Keegan Alexander. His practice pillars of equality, fairness, and kindness to the justice focuses on policy drafting, insurance system. From access to legal aid, to criminal justice, regulation and claims advice. He has through to the Family Court, changes are well overdue. provided extensive advice in relation I will not be complacent in my approach to justice, to the Christchurch earthquakes and and I will not shy away from tackling the hard issues acts for several Lloyd’s syndicates on front on. property and liability claims in New Zealand. Crossley was admitted in February 1979 and In a speech to the Law Foundation in December was previously a partner with DLA Piper NZ. you said you give much less weight to the absolute sovereignty of Parliament and Juno Legal welcomes Mitch Julian believe there needs to a stronger check and balance on it – “such as might be provided Mitch Julian has joined Juno Legal by a written constitution”. Do you think New as a lawyer based in Auckland. Mitch Zealand should have a written constitution? has strong corporate and commercial My personal view is ‘yes’, but that view is not experience gained in private practice widely shared amongst my government colleagues. and in-house legal roles with Tompkins Nevertheless, I think our recently announced intention Wake, Clifford Chance and British to legislate for senior courts to declare inconsistencies Telecom. He also has a background in between legislation and NZBORA along with a require- software development and technology. ment for Parliament to then consider such a finding will In addition to supporting the firm’s clients on a flexible go a long way to reducing the incidence of Parliament basis, Mitch is pursuing his own interests in technology legislating against basic human rights. ▪ and consumables.
7 PEOPLE IN THE LAW · ON THE MOVE April 2018 · LAWTALK 916
Kirsten Ferguson Colonel Lisa Ferris, was employees and employers on a wide appointed to Rainey promoted to Brigadier range of employment matters. Simon has Collins partnership on 23 February. This is represented clients at investigation meet- a significant promotion ings, disciplinary meetings, mediations Kirsten Ferguson has within the New Zealand with MBIE, hearings in the Employment been appointed a partner Defence Force, with Relations Authority, and matters on appeal of Rainey Collins from 1 Brigadier Ferris being to the Employment Court. January 2018. She is a the second woman since Rebecca Kroeze has been promoted to partner in the commer- World War II to be promoted to this rank. senior associate (family law). Rebecca is cial team, specialising Brigadier Ferris was admitted as a barris- responsible for Gaze Burt’s family law prac- in commercial contracts ter and solicitor in December 2002 and tice and is an experienced family lawyer. and transactions, and holds BCA and LLM degrees from Victoria She is actively involved with Collaborative intellectual property protection and com- University of Wellington. She joined the Advocacy, a specialist alternative dispute mercialisation. Kirsten was admitted as a New Zealand Army in February 2003 as resolution service. She is also a member of barrister and solicitor in September 2004. a Lieutenant in the Army Legal Service. the Family Law Section, and volunteers at Her appointment means the firm now has the North Shore Women’s Centre. a 50/50 male/female split of partners. Criminal justice reformer Senior New Daniel Collins joins Jeremy Sutton joins Zealander of the Year Buddle Findlay Bastion Chambers Kim Workman has been named Senior Daniel Collins has Jeremy Sutton joins family law practi- New Zealander of the Year 2018. Mr joined Buddle Findlay’s tioners Brian Carter and Lynda Kearns Workman was the instigator of JustSpeak, a Auckland office as a at Bastion Chambers in Shortland Street, network of young people who want change senior associate in the Auckland from 1 March. He will continue to in New Zealand’s criminal justice system. banking and finance focus on property-based pre-separation and After careers in the Police, Office of the team. Daniel has over 12 separation matters for clients with complex Ombudsman, State Services Commission, years of leading complex cases involving family trusts and/or small to Department of Māori Affairs, Ministry of transactions with top medium businesses, often where one party Health and Prison Service, since 2007 tier firms in Auckland, Dubai and Sydney, earns a lot more than the other. he has focused on justice reform, public including more than eight years at Clifford advocacy, policy and research. Chance. He specialises in leverage and acqui- Heaney & Partners At present Mr Workman is working sition finance, project finance, syndicated opens new offices on a book on the development of the and complex multiparty lending, secondary criminal justice system in New Zealand debt trading, special situation transactions Auckland firmHeaney & Partners has which examines the relationship between and corporate rescue and debt restructuring. opened new offices in Wellington and punitiveness and neoliberalism. Queenstown. The firm, which specialises Appointments at in public and professional liability disputes, Two senior promotions Turner Hopkins now has offices at 56 Victoria Street, at Gaze Burt Wellington and in Drift Bay Chambers, 10 North Shore firm Turner Hopkins has Bluff Terrace, Queenstown. Auckland firm Gaze Burt has announced announced a number of recent appointments. two senior promotions. Lizandra Bailey has rejoined Turner Emma Miles sets Simon Greening joined the Gaze Burt Hopkins as a partner. Lizandra was up new firm partnership on 1 March. Simon leads admitted in June 1995 and originally joined the employment team, acting for both Turner Hopkins in 2012 before spending Emma Miles has established Emma Miles Law, specialising in employment, relation- ship property, family, and civil disputes. Emma was admitted as a barrister and solicitor in June 2012 after completing an LLB at the University of Waikato. Before setting up Emma Miles Law she worked at Holland Beckett and Lewis Lawyers (emmamiles.nz). Defence Legal Services head promoted
The Director of Defence Legal Services,
8 LAWTALK 916 · April 2018 ON THE MOVE · PEOPLE IN THE LAW
time at an Auckland CBD Mahafrin Variava has law expert Professor firm. She is a commercial been appointed solicitor Rob Merkin QC to spe- lawyer and has worked in the immigration con- cial counsel. Professor for all types of business sulting team. Mahafrin Merkin will serve as from sole traders to completed an LLB from an extension of the medium to large cor- the University of Waikato Duncan Cotterill team porates. Lizandra has in 2012 and was admitted from his base in the a particular interest in in June 2014. She joined United Kingdom, with franchising and licensing. Turner Hopkins in October 2017 and her plans to visit New Zealand at least three Catherine Pendleton experience includes dealing with complex times a year. He is a past president of the has joined the firm as immigration matters. British Insurance Law Association, Vice- an associate in the liti- President of the International Association gation and dispute res- Ian Hunt appointed of Insurance Law, and has served as a olution team. Admitted to international sport consultant to the English and Scottish in December 1997, arbitrators panel Law Commission. Catherine has a broad background in litiga- Young Hunter litigation Taryn Gudmanz joins tion from her time as a junior barrister at partner and sports Princes Chambers Bankside Chambers and as a litigator in lawyer Ian Hunt was immigration, employment, judicial review appointed a member of Taryn Gudmanz has and professional disciplinary proceedings. the panel of arbitrators of joined Princes Chambers Joy Yuan has been the international Court in Dunedin as a barris- appointed senior solic- of Arbitration for Sport ter sole specialising in itor and is a member (CAS) from 1 January commercial litigation of the commercial and 2018. The CAS is an independent institution, and dispute resolution. property team. Joy was based in Lausanne, Switzerland, and with Before joining the bar, raised in both China offices in Sydney and New York, which was Taryn was a senior asso- and New Zealand and created in 1984 to provide dispute resolu- ciate with Anderson Lloyd. She has also completed an MBA in tion services in sport. The CAS jurisdiction worked with other law firms in Dunedin the United States in 2011. She was admit- is recognised by all Olympic sports, and and Wellington, was admitted as a bar- ted in August 2011 and joined the firm in many non-Olympic sports federations. rister and solicitor of the High Court of June 2017. She has extensive experience in Ian has 20 years’ experience as a sports New Zealand in 2002, and has also been commercial and property law. lawyer, advising individuals and organ- admitted as a solicitor of the Supreme Tim McSweeney has isations in a wide variety of sports, in Court of England and Wales. been appointed senior dispute resolution and governance. He is solicitor and is the immi- a former President of the Australian and Rebecca Davies joins gration consulting team New Zealand Sports Law Association and McVeagh Fleming leader. Tim has BA and is currently a director of High Performance LLB degrees from the Sport New Zealand. Rebecca Davies has University of Auckland joined the Auckland and was admitted in Duncan Cotterill City office of McVeagh December 2014. He has lived in a number appoints Rob Merkin Fleming as a solicitor of countries, including the UK, Ireland QC as special counsel in the Relationship and Australia and has regularly presented Property Team. Admitted seminars on immigration law. Duncan Cotterill has appointed insurance as a barrister and solic- itor in December 2014, Rebecca specialises in relationship prop- Following his retirement as a erty, trusts and estates and family law Judge of the Court of Appeal, the and also has a background in commercial Honourable Rhys Harrison QC has property and dispute resolution. returned to legal practice. Tony Stevens He will be available for arbitration, mediation and commencing as general advisory work. His office is at 5th Floor, a barrister Shortland Building, 70 Shortland Street, Auckland.
[email protected] Tony Stevens begins practice as a barrister 021 503 324 or 09 309 1680 sole at Capital Chambers, Wellington, in April 2018. Tony has extensive experience
9 PEOPLE IN THE LAW · ON THE MOVE April 2018 · LAWTALK 916
in large firms in Wellington and London, from Ireland after work- Henry as a graduate in May 2010 and has and at Izard Weston where he was a part- ing with the Chief State risen through the ranks in the Litigation ner for 10 years. His focus is civil, com- Solicitor’s Office in and Dispute Resolution Team. She has a mercial and regulatory litigation, dispute Dublin. He joined Young particular interest in construction related resolution and advisory work. Hunter in 2008 and was contracts and litigation. admitted as a barrister Glen Holm-Hansen Echo Haronga joins and solicitor of the High joined the firm in Guardian Chambers Court in February 2009. January as a senior asso- Simon specialises in immigration and ciate and is a member Echo Haronga has deportation appeals, and employment law. of the Litigation and joined Auckland’s Dispute Resolution Team Guardian Chambers Promotions at as a Senior Associate in as a criminal barrister. Hesketh Henry January 2018. Mr Holm- She has experience pros- Hansen is a general commercial and insur- ecuting and has gained Auckland law firm Hesketh Henry has ance litigator with significant experience considerable exposure announced a number of promotions and in assisting clients with investigations by as a criminal defence a new senior arrival. regulatory bodies. barrister since joining the independent Hak Jun Lee has been promoted to bar two years ago. Echo has experience Special Counsel. Mr Lee has been with Rice + Co Lawyers in representing clients in the summary the firm since October 2015 and leads its becomes Rice Speir jurisdiction and also advising and rep- rapidly growing Asian practice. He is a resenting those facing serious criminal property law specialist but manages clients Nathan Speir has joined offences. across all disciplines. Helen Rice in partner- Sam Lee has been promoted to senior ship from 1 April and Young Hunter appoints associate. Mr Lee has been with the firm the name of the firm Simon Graham to since August 2015 and specialises in the has changed from Rice partnership property field. He is an integral member + Co Lawyers to Rice of the firm’s Asian practice. Speir. Nathan joined Christchurch firm Young Hunter has Sarah Holderness has also been pro- the firm in 2014. He is an appointed Simon Graham as a partner moted to the role of senior associate. experienced litigator, heading the firm’s from 1 April. Simon moved to New Zealand Ms Holderness commenced at Hesketh compliance and enforcement team.
LETTER TO THE EDITOR Notable Quotes
the firm’s culture are disingenuous at best, Geoff Adlam, LawTalk Editor, replies: I just felt compelled to raise with and an appalling misrepresentation of the The Notable Quotes are built each month LawTalk the inclusion of a “Notable Quote” culture and attitude of Russell McVeagh by adding material as it comes to hand. in the latest edition of LawTalk [Issue 915, at worst. The Russell McVeagh announcement was March 2018, page 99]. The inclusion of this quote has the feel- made on 7 February and the quote was In particular, the quote from Russell ing of a cheap stunt and marketing tool to included at that time as it was a positive McVeagh HR director, announcing the try and provide cover for Russell McVeagh. initiative and the quote was interesting firm’s sponsorship of gay and inclusive As someone who is gay, I neither need, in its context. The matters relating to rugby club, the New Zealand Falcons. nor want, Russell McVeagh advocating or sexual harassment were first published by While I have absolutely no issue with the advancing diversity and inclusion in their Newsroom on 14 February and the story cause, I feel, in terms of the present envi- environment at this time because I know developed rapidly thereafter. Retention of ronment that Russell McVeagh finds itself for a fact that this is simply not true. the quote was considered for some time. in, the comments about the firm embracing I do hope LawTalk will take more care in At the end, it was decided to keep it as “diversty and inclusion … but also to show future when considering what to include something which should stand by itself we are creating and embedding a welcom- in its quote section. with all the contexts and interpretations ing working environment” demonstrating James Gallagher, Wellington. which could be given.
10 LAWTALK 916 · April 2018 FROM THE LAW SOCIETY
FROM THE LAW SOCIETY
Sexual harassment in the legal workplace
A significant part of this issue of look at whether the Lawyers and LawTalk is devoted to articles which Conveyancers Act 2006 and its explore the issue of sexual and other associated rules and regulations harassment in the legal workplace. allow us to take effective action. This is in response to unprece- The Law Society receives very few dented media attention and the complaints of harassment in the criticism that has followed. Much of workplace. We need to understand it has not shown the legal profession whether changes are required to in a good light. As a practitioner of the current rules or processes to over 35 years I have found the recent enable us to deal with this issue revelations to be deeply disappoint- effectively and supportively as we ing and unacceptable. I am so sorry move forward. that these women have had these Last month on International things happen to them. Women’s Day, there were 6617 The issue cannot be ignored any women and 6570 men practising longer. It has to stop. law in New Zealand. This came as no It is not an overreaction to say surprise as women have been grow- this may be viewed as a watershed ing in numbers in the profession moment. Change is required and since the 1990s. Yet women lawyers is inevitable. It must be supported achieving senior positions in the by all men and women in the legal legal professions remains woefully profession. It has to come from the unbalanced and many women leave inside and is the responsibility of all the profession altogether. of us. Do not be a bystander. This month the Law Society will Readers will have a range of views launch its Gender Equality Charter. about the issue and how it has been It is separate to the work that is portrayed but I hope we will agree being done in relation to harass- on one thing and that is, regardless ment, but it is equally as important. of anything else, as a profession It asks that workplaces where law we have to focus on the future and is practised make a commitment what we can do now to make the to a raft of initiatives that will over practice of law safe and rewarding time lead to more women achieving for everyone. A workplace culture senior positions and staying. free of sexual harassment and any We are hopeful that this is a form of bullying is a standard that turning point for the profession women and men are entitled to and that good will come from recent expect, full stop. events. The success or otherwise is The Law Society has announced going to be up to you and me and a number of actions to help address us having the courage to speak out the issues. Some of that work is when things are not right. This is starting immediately. I hope you the only way we can effect real and will take advantage of the free webi- lasting change. As I said above – do nar on Preventing and Dealing with not be a bystander. Harassment and Bullying on 4 April. Another initiative is the establish- Tim Jones ment of a working group chaired Vice-President (Auckland), New by Dame Silvia Cartwright to Zealand Law Society.
11 NEW ZEALAND LAW SOCIETY April 2018 · LAWTALK 916
Issues with Overseas Some Investment Amendment Bill problematic areas in The Law Society has told Parliament’s Finance and Expenditure Committee that a proposed requirement for lawyer certification in the bill Trusts Bill will be likely to result in an increase in conveyancing costs. The bill proposes requiring anyone doing conveyancing work for a purchaser to certify that the purchaser will not contravene the Act by buying the residential property. Attempts to codify and define Providing incorrect certification or failure to provide certification, could certain precepts of trust law in the result in a lawyer receiving a conviction and a $20,000 fine. Trusts Bill may have unintended In a submission on the bill, Law Society spokesperson Duncan Terris consequences, the New Zealand said the new requirement does not reflect the reality of the majority of Law Society says in its submission residential property sales. on the bill to Parliament’s Justice “It’s common with residential property sales (such as auctions) that a Committee. The bill aims to update buyer will have their first contact with a lawyer when they have already the Trustee Act 1956 and Perpetuities entered into a binding contract with the seller,” he said. Act 1964. If it later transpires that the purchaser was not entitled to purchase the “A hallmark of trusts law has property, severe complications could result, affecting not only the purchaser been the flexibility to evolve to but the property seller. Mr Terris said the increased obligations on lawyers meet unique circumstances via will increase their exposure to a risk of innocently or unwittingly aiding case law. The codification of some someone to breach the Act. This risk could, ultimately, be reflected in higher concepts in the bill is likely to stifle conveyancing fees. this flexibility,” it says. The Law Society told the committee that potential issues could be elim- Some aspects of the bill make the inated by simply placing the obligation to state that a purchaser is not legislation more practical – such as breaching the Act by buying a residential property, to where it logically the simplification of the mechanics belongs – with the prospective purchaser. It said an objective test has been for incoming and outgoing trustees, proposed in the Act which will enable a prospective purchaser to ascertain and allowing referral of matters for themselves whether they are eligible to buy the property. to alternative dispute resolution. The Law Society says this should be one of the first steps taken early in However, other aspects will be the home buying process, before lawyers typically become involved. problematic, the submission says, particularly the information disclo- sure provisions in subpart 3. “The clauses relating to the com- Military justice pulsory provision of information to beneficiaries are the most con- legislation amendment tentious provisions in the bill. As currently drafted, the requirements divergence queried will be difficult for trustees to apply in practice, are likely to have adverse impacts on family affairs in family The Law Society has pointed to a problem which could emerge with trusts, and are not proportionate proposed amendments to the Military Justice Legislation Amendment Bill. to achieving the aim of holding In a submission on the bill, the Law Society says it proposes changes to Part trustees to account.” 10 of the Armed Forces Discipline Act 1971 which contains special provisions The Law Society also notes that for dealing with mentally impaired persons. The amendments would mean many older trust instruments will the provisions of Part 10 correspond to the equivalent provisions in the not be drafted in a manner that is Criminal Procedure (Mentally Impaired Persons) Act 2003. consistent with the bill. These older However, the 2003 Act is the subject of proposed amendments contained trusts may also not allow amend- in the Courts Matters Bill. Coupled with the proposed amendments in the ment of the terms of the trust deed Military Legislation Amendment Bill, this would result in a divergence or resettlement, which will cause between the ordinary criminal justice process and the military justice difficulties for trustees attempting system relating to inquiries of fitness to stand trial. There are no features to comply with the new law. of the military justice system that would support that divergence, the Law Society says.
12 LAWTALK 916 · April 2018 NEW ZEALAND LAW SOCIETY
Annual regulatory Type of complaints made, year to 30 June* Type 2017 2016 2015 report tabled Breach of RCC Rules 522 360 523 in Parliament Negligence/incompetence 436 395 821 Overcharging 375 365 435 Inadequate reporting/communications 304 255 495 The New Zealand Law Society Report on Regulatory Discourtesy 187 153 158 Activities for the year to 30 June 2017 was tabled in Parliament on 26 February after being sent to the Minister Misleading conduct 175 122 286 of Justice in December. The full report is available on the Conflict of interest 167 153 191 Law Society website in the News and Communications/ Delay 152 147 256 Annual Reports section. Obstructing legal regulatory process 141 101 167 The report shows that complaints relating to property law made up 23% of all complaints lodged with the New Failure to follow instructions 120 128 231 Zealand Law Society’s Lawyers Complaints Service in *Complainants may complain about more than one matter, so the total number the year to 30 June 2017. The areas of law most relevant of types of complaints exceeds the actual number of complaints made. to personal circumstances were those where most com- plaints arose in the latest year. After complaints relating to property law came family law (17.8% of all complaints Origin of complaints, year to 30 June lodged) and trusts and estates (17.0%). Origin 2017 2016 2015 In the 2016/17 year 1,419 complaints against members Client/former client 661 769 768 of the legal profession were lodged. This continued the trend for fewer complaints to be lodged, down from Client – other side 235 289 279 1,459 in 2015/16, 1,611 in 2014/15 and 1,630 in 2013/14. Third party 154 75 190 The report says of the complaints which were closed Lawyer 116 87 119 during 2016/17, 75% resulted in a decision to take no Beneficiary 103 57 90 further action. When complaints which were resolved by negotiation, conciliation or mediation, plus those which NZLS own motion 100 82 122 were withdrawn are included, 84% of all complaints Regulatory authority 1 1 7 investigated resulted in no further action being required. Court 0 0 1 Complaints closed by the Early Resolution Service, which Other 49 99 35 was established in 2013, took an average of 28 days to res- olution, with the average time to conclude standard track Total 1419 1459 1611 complaints 231 days. The overall average time to conclude all complaints which were closed in 2016/17 was 148 days, down from an average of 160 days the previous year. Direction of complaints, year to 30 June Just under half (47%) of the complaints lodged with Direction 2017 2016 2015 the Lawyers Complaints Service were lodged by clients Against lawyers 1331 1363 1528 or former clients of lawyers. Another 17% were lodged by clients of other parties and 8% by lawyers. Slightly Against non-lawyer employees 39 48 29 over 7% of complaints were initiated by the New Zealand Against former lawyers 28 25 34 Law Society on its own motion. Against incorporated law firm 18 23 20 The report notes that, in the year to 30 June 2017, there Against former incorporated law firms 2 0 0 were 1,425 law practices operating trust accounts. The New Zealand Law Society’s Inspectorate team conducted reviews Against former non-lawyer employees 1 0 0 of almost 30% of these during the year. It referred 17 reports Total 1419 1459 1611 from the reviews to the Lawyers Complaints Service.
Writing for LawTalk Submission of articles to LawTalk is welcomed. Please contact the Managing Editor, [email protected] in advance. All articles must not have appeared elsewhere, although there are no objections to them subsequently being republished. Articles should be submitted as a MS Word document by the agreed deadline. Authorship of an article must be shown. Articles will be edited and appear at the discretion of the New Zealand Law Society. Any significant changes will be checked back with the author(s) before publication. Note that we try to avoid footnotes and articles up to 1800 words are preferred.
13 NEW ZEALAND LAW SOCIETY April 2018 · LAWTALK 916
Relationship Weapons brokering Property Act legislation changes framework sound recommended
The Law Society agrees with the Law Commission’s Some changes are needed to the Brokering preliminary view that the framework of the Property (Weapons and Related Items) Controls Bill to improve (Relationships) Act 1976 is sound and in general terms the regulation of weapons brokering consistent with achieves a fair and just division of property when part- New Zealand’s international treaty obligations, a Law ners separate. Society submission says. The bill will introduce more In its comments on the Law Commission review of the comprehensive controls on weapons brokering between Act, the Law Society says it also agrees that legislative foreign countries and will prevent New Zealanders and amendment in some areas would improve its applica- New Zealand-based entities from engaging in brokering tion. It suggests that, in line with the focus on making contrary to New Zealand’s obligations under the Arms the legislation more accessible, renaming the Act “the Trade Treaty. The Law Society recommends clarifying Relationship Property Act” would be more logical and the bill’s extraterritorial scope to ensure that it is pro- understandable for the public. portionate and effective. It notes that the bill will apply The Law Society says the Family Court should have to people who do not normally live in New Zealand and jurisdiction to determine all issues related to PRA pro- have engaged in brokering or weapon sales outside of ceedings, with the jurisdiction expanded to enable the New Zealand but who happen to be in New Zealand at court to deal with trust and company property in respect a particular time (for example, on holiday). The appro- of relationship property proceedings. priateness of this is questioned. “In our view, the Family Court should have power to treat property held in a trust as relationship property, wholly or partly, where such property would otherwise Special Fund have been classified as relationship property. There is clear rationale for reform because injustice arises when shows fall a trust has the effect of circumventing a number of provisions of the PRA.” The Law Society also says the Family Court’s The interest received by the Lawyers and existing powers for dealing with company matters Conveyancers Special Fund in the year to 30 June 2017 in respect of relationship property proceedings need was $6.99 million, down on the previous year, the New to be broader. It says the court needs power to prevent Zealand Law Society Report on Regulatory Activities for disposition of company shares to third parties while the year to 30 June 2017 states. The 24 community law relationship property matters are being resolved, to centres receive a large proportion of their funding from the temporarily remove a reckless spouse/partner as a Special Fund. Established in 1982, it collects interest from director if their actions are diminishing the value of banks on solicitors’ and licensed conveyancers’ nominated the shares or jeopardising company solvency, and trust accounts. The fund is vested in the New Zealand Law to remove or retain notices of claim under the Land Society and the New Zealand Society of Conveyancers Transfer Act 2017. jointly and is held by them in trust for the purposes spec- In its comments on out of court resolution, the Law ified in the Lawyers and Conveyancers Act 2006. Society says it considers the current FDR model in place The Act allows banks to retain 40% of the interest pay- for COCA matters is inappropriate for resolving rela- able on nominated trust accounts. After deduction of the tionship property matters, as these are often factually 40%, the banks are required to pay the remainder to the and legally complex. It says the lack of disclosure and Special Fund Management Committee. After deduction lack of clear rules around disclosure for out of court of administration expenses (including an audit fee), the resolution is the single largest impediment to speedy balance in the fund is paid to the Secretary for Justice and fair resolution of relationship property matters. for the purpose of funding community law centres.
Lawyers and Conveyancers Special Fund, year ended 30 June
Measure 2017 2016 2015 2014 2013 Interest received by Fund $6,998,000 $7,333,000 $6,862,000 $5,894,000 $5,466,000 Administration Expenses $28,000 $28,000 $28,000 $28,000 $28,028
14 LAWTALK 916 · April 2018 NEW ZEALAND LAW SOCIETY
Gender Equality Law Society Charter launch nears complaints BY LIESLE THERON resolution process
The Law Society’s Gender Equality Charter will outlined be launched in April. The charter, developed by the Law Society’s Women’s Advisory Panel, is a set of commitments aimed at improving the retention and Inquiries following the allegations made on advancement of women lawyers. Charter signatories sexual harassment in the legal profession prompted the are asked to meet these commitments over a two-year Law Society to release a public statement on its process period and report on progress to the Law Society. for investigating and resolving complaints about the The culmination of this work has coincided with media conduct of lawyers. reports about sexual harassment and assault in legal Acting Executive Director Mary Ollivier says while workplaces. This has caused the Women’s Advisory Panel confidentiality about investigations is required by the to reflect on the role of the charter in addressing these Lawyers and Conveyancers Act 2006, it is not true that issues. In particular, we considered whether the charter information on any of the findings is unavailable. should contain an explicit commitment to ensure a safe “Complaints and investigations into the conduct of working environment. lawyers are considered and determined by independent So, what is the role of the Gender Equality Charter? lawyers standards committees that are made up of both At its heart, the charter is about driving culture change lawyers and non-lawyers,” she says. in the legal profession. It is a forward looking tool that “Although standards committee decisions are gener- focuses on the positive steps that can be taken to retain ally required by the legislation to remain confidential, and advance women lawyers. committees can and do publish their decisions in During the consultation process we received a small summary form. This may include the names of the number of submissions that the charter should address lawyers involved.” sexual harassment and bullying. We decided that this Standards committee decisions which have been serious and important issue justified a separate work- published are available on the Law Society website (in stream. We didn’t think that it was appropriate to ask the For the Community/Standards Committee Decisions lawyers to voluntarily commit to ensure within two years section) and are also published in LawTalk. that their workplaces were safe. This is mandatory. Any Mrs Ollivier says publication typically occurs in employee in any workplace should have a safe working circumstances where a standards committee believes environment free from harassment. Right now. it is in the public interest or would enhance public The Law Society recently announced a raft of initiatives confidence in the legal profession, or if it believes to address sexual harassment in the legal profession. publication is necessary to protect the public or inform Details of these are provided at page 42. the legal profession. However, the Gender Equality Charter does also “A committee can also publish its decisions to educate have an important part to play in this context. As the legal profession on the standards that are expected noted in a recent Harvard Business Review article, of lawyers,” she says. research shows that harassment is more prevalent “Committees can take steps to protect the privacy of in workplaces where men dominate in management any victims when it publishes its decisions by removing and women have little power. Harassment is also more their details or simply publishing the facts of what took likely to be present in organisations where few women place in a way that preserves their privacy.” hold the core jobs. If a standards committee believes a lawyer may have Gender equality, and diversity, in leadership facilitate committed misconduct the lawyer can be prosecuted an environment where everyone can flourish, where by the committee in the New Zealand Lawyers and unacceptable behaviour is not tolerated and victims Conveyancers Disciplinary Tribunal, she says. know that they will be supported. “The Tribunal is an independent body and is admin- I hope that all lawyers who care about gender equality istered by the Ministry of Justice. As the Tribunal deals and who want to do everything possible to eliminate with the most serious conduct, the presumption is that sexual harassment and assault in their workplaces sign the process will be open and hearings will be public. up to the charter. The Tribunal can suppress details of the case if a request is made by the lawyer or it is necessary to protect the Liesle Theron is a member of the Women’s Advisory privacy of the victims.” Panel and Convenor of the Law Society’s Law Reform Committee. Her views are those of all members of the Women's Advisory Panel.
15 NEW ZEALAND LAW SOCIETY April 2018 · LAWTALK 916
Canterbury Westland 150th birthday coming up
The Law Society’s Canterbury Westland branch is planning a number of major events in October to celebrate 150 years of a Law Society in Canterbury. The foundation meeting of the Canterbury District Law Society was held on 16 October 1868. The small group of lawyers New in attendance then has grown to 1,441 lawyers now practising in the branch. Zealand The Canterbury District Law Society became a branch of the New Zealand Law Society on 1 Law Society February 2009. The Westland District Law Society, which merged with the Canterbury District submissions Law Society on the same date to become the Canterbury Westland branch, was founded on 31 January 1879. Copies of submis- The major events which are planned for October are: sions and comments Thursday, 25 October at 1pm: All practitioners in the Canterbury Westland branch who made by the Law hold a practising certificate will be invited to be part of a “profession photo”. The venue is yet Society in its law to be confirmed. reform role may be Thursday, 25 October: A formal Bar Dinner for 300 will be held at Rydges Hotel with invited found on the website guest speakers. at www.lawsociety. Saturday, 27 October: A Cirque du Soleil-themed formal ball for 700 guests will be held at org.nz/news-and- the Airforce Museum. communications/law- The organising committee, all members of which are pleased to be contacted, is Lana Paul, reform-submissions Susie Tait, Sarah Holder, Alexandra Beaumont, James Pullar, Sophie Goodwin and Zylpha Kovacs.
The Canterbury Westland Branch invites members of the Profession & Judiciary to SAVE THE DATE FOR THE 150TH ANNIVERSARY CELEBRATIONS
Thursday 25 October 2018 Formal Law Dinner
Saturday 27 October 2018 Gala Ball
For more information please contact: [email protected]
16 LAWTALK 916 · April 2018
UPDATE ACC Fees for ACC reviews and appeals
BY DON RENNIE
A recent case has highlighted an issue for lawyers and advocates who charge a fee for representing a claimant in a review or appeal against an ACC decision. Natasha Howell of Christchurch had her weekly ACC payments stopped. In June 2017 she engaged Andrew Cadenhead, an enrolled barrister and solicitor who does not have a current practising certificate but acts as an advocate. He agreed to represent her on a fee payable basis. She was given two options: to pay $5,000 to $6,000 upfront, or “all and any back paid weekly compensation payable to her by the Corporation in addition to any costs of whatever nature”. She was unable to pay the money upfront and chose the second option. At the time she says she was suffering severe pain, her mother was dying and she was “not thinking straight”. She says she did not understand the payment proposal in the contract. Because she wanted her weekly compensation being taken from the trust funds without the claimant’s agreement, payments to resume she felt she had no alternative but to accept. would be subject to a complaint to the New Zealand Law Society. At a mediation meeting on 12 February 2018 the ACC agreed to If the lawyer had no trust account, the ACC acting pursuant to reinstate her claim and resume weekly compensation payments, s 124, would have to pay the entitlement to the claimant and the and to pay her weekly compensation back to the date of the lawyer would have to recover the fee under the same rights as injury, on 13 June 2012, totalling $84,797. Mr Cadenhead claimed any other creditor. that, pursuant to the agreement she had signed, he was entitled Advocates do not usually have trust accounts so cannot receive to be paid the full amount of the arrears the ACC had agreed to financial entitlements on behalf of a claimant. A payment by ACC pay. He later agreed to reduce the fee to 50% of the back payment. to an advocate would prima facie be in breach of s 124. An advocate The law on payment of entitlements is does not have the same responsibilities and duties to the court as quite clear. Section 123(1) of the Accident a practising lawyer and advocates are not currently registered or Compensation Act 2001 provides that all subject to supervision or discipline by a governing body. entitlements are absolutely inalienable. Agreements or contracts which allow a lawyer or advocate to There are some, mainly statutory, excep- be paid from compensation recovered as a result of mediation tions set out in subsection (2). Section 124 or litigation are not binding on the ACC by virtue of s 299 which provides that the Corporation must provide prohibits contracting out of the Act. The ACC must follow the entitlements ONLY to the claimant. If there provisions of ss 123 and 124 and should not act on a request from is a lawyer acting for the claimant, the ACC the claimant to pay entitlements to anyone other than the claimant. could pay the entitlement to the lawyer’s Lawyers and advocates acting for an ACC claimant are not in a trust account to be held in trust for the privileged position with regard to payment of fees. ▪ client. The lawyer would render a bill for services provided and seek the client’s Don Rennie [email protected] is convenor of the New permission to use the money in the trust Zealand Law Society’s Accident Compensation Committee. account to pay the fee. The lawyer would He has worked for the ACC and in private practice and is have no lien or charge on the funds and any widely published in the areas of accident compensation and complaint about the fee charged or the fee personal injury.
17 COMMERCIAL LAW · UPDATE April 2018 · LAWTALK 916
UPDATE COMMERCIAL LAW Some issues with restraint of trade or non-compete disputes
BY ALAN SORRELL
prove is readily inferred from the willingness to seek interim This article focuses on the need for economic and efficient injunctions in comparison with the rarity of proceeding to a resolution of disputes where a restraint of trade has been included substantive hearing. in a transaction and is being breached. Two recent cases are of interest: Western Work Boats Ltd v Kelly A key reference point in any such discussion is the likely out- [2016] NZHC 2577 – a decision of Palmer J in the Tauranga High come in court. Usually the courts, by interim injunction, enforce Court on 28 October 2016 – and Morris-Garner v One Step (Support) restraints given in the context of a commercial transaction, Ltd [2016] EWCA Civ 180, a decision of the English Court of Appeal outside the employment context, between parties of relatively on 22 March 2016. equal bargaining power negotiated at arm’s length, eg, Brown v Brown [1980] 1 NZLR 484 (CA) at 502-503; Fletcher Aluminium Ltd Western Work Boats v O’Sullivan [2001] 2 NZLR 731 (CA) at [42]-[45]. Western Work Boats and Seaworks (the purchaser of an interest The courts will be reluctant to hold such an arrangement unrea- in Western Work Boats) sued the vendor Sean Kelly and his new sonable and therefore void (Fletcher at [42]). If it is not reasonable it company Pacific 7 Ltd. It was alleged Kelly was in breach of a is likely to be modified to the extent necessary to comply. Breaches restraint. The substantive proceedings also alleged the defendants of a contract of restraint “… are prime candidates for injunctive were engaged in a conspiracy by unlawful means and that the relief ” (Shell (Petroleum Mining) Company Ltd v Todd Petroleum second defendant Pacific 7 knowingly assisted or knowingly Mining Company Ltd [2007] NZCA 586 at [124-125]). received the benefits of Kelly’s breach. The difficulty in proving and assessing damages caused by a Palmer J found there was a serious question to be tried but breach often leads the court to find that damages will not be the balance of convenience and overall justice did not favour an adequate remedy. That is the rationale for the granting of an the granting of an interim injunction. He did grant an injunction interlocutory injunction. restraining the defendants from selling a disputed parcel of land. It is unusual for such disputes to proceed beyond the interloc- Discussing the balance of convenience, Palmer J notes that the utory stage to a substantive hearing including a damages claim injunction repeats the restraint which it asserts the defendants and a permanent injunction to reflect the are subject to and says (at [24]): term of the restraint. “But that cuts two ways. On the one hand, it would not constitute There are good reasons for this. Usually great hardship to be bound by something they are already bound the party in breach has commenced by. On the other hand, there is not much point in requiring in business and is not yet in profit. The something that is already required.” holder of the restraint will often have There was argument about the distinction between a contractual real difficulty proving the counterfactual obligation and a court order. The defendants disputed there was of business had the breach not occurred. a contractual obligation because the restraint was unreasonable Even if there is a downturn in that business and therefore unenforceable. They further submitted that being there will be disputes as to causation with bound by a court order was importantly distinct from having an a multitude of possibilities proffered by election to disregard a contractual obligation which they regarded the defendants as to why the downturn as unenforceable. They argued that would change their relative occurred. The effect may only slow growth, position with the plaintiffs. with attendant difficulties proving causa- tion with the coincidence of a change of Continuation of trade allowed ownership or control and other changes. The judgment found that it was appropriate to let the parties con- The parties will also consider the cost of tinue to trade, with the defendants aware of their legal risks with proceeding further – including discovery the potential to be found liable for damages. The judge accepted and expert evidence to prove accounting a submission, which he regarded as significant, that it would be matters – by comparison with the range easier to assess the plaintiffs’ loss from breach than it would be of damages likely to be awarded. to assess the defendants’ loss from cessation of trading. Evidence that the damage is difficult to Palmer J found the overall justice was preserved by the trading
18 LAWTALK 916 · April 2018 UPDATE · COMMERCIAL LAW
continuing, with the defendants being sometimes being reflected in the award Council affirmed inTang Man Sit, com- restrained from disposing of the land in (Eight Mile Style, LLC v New Zealand National pensatory and disgorgement damages dispute. Unusually there was no discussion Party [2017] NZHC 2603). are generally, indeed almost always, about the parties’ respective abilities to It is worth noting that this recent English inconsistent. An election is required meet damages claims and the weighing Court of Appeal decision of some 50 pages between them. Compensatory and of that on the judicial scales. The interim was anticipated by Allan J’s considerably restorative damages are not necessar- injunction was refused. His Honour was more compact decision in Denaro Ltd v ily inconsistent. Conceptually they are inclined to let costs lie where they fall. Onyx Bar & Café (Cambridge) Ltd [2011] capable of being cumulative, even if This argument would be implicit in most NZHC 52. they arise from the same wrong.” restraint of trade cases where interim Denaro was an appeal from the District The judgment then reviewed Wrotham injunctions are resisted. Whatever their Court. The submission that it was “…a clear, Park Estate Co v Parkside Homes [1974] 1 level of knowledge was before, defendants unequivocal, callous and deliberate breach WLR 798 (ChD), Attorney General v Blake will have closely considered their risks of the terms of the restraint of trade” was [2001] 1 AC 268 (HL), Experience Hendrix before resisting an interim injunction so described as “reasonably accurate.” The LLC v PPX Enterprises Inc [2003] 1 All ER as to continue to trade. If this case were purchaser nonetheless achieved warranted (Comm) 830 (CA) and WWF – World Wide to become generally accepted wisdom it turnover. The District Court awarded Fund for Nature v World Wrestling Federation would end the prospects for most interim compensatory damages equivalent to the Entertainment Inc [2008] 1 WLR 445 (CA). injunctions. goodwill after deduction of other valued Adopting criticism of WWF, he preferred As already noted, proof of damage for intangibles. A finding that the defendant the view that the decisions provided breach of a restraint is generally accepted operating company induced a breach of substantial support for the availability of as very difficult. It is also prohibitively contract was not appealed. restorative (or restitutionary) damages for expensive. Were this judgment to repre- Allan J’s discussion as to the availability breach of contract. sent the law, especially coupled with no or of damages for restraint of trade breaches Importantly, he found that the court an adverse costs award, the parties would began with reference to the damages was entitled to infer that despite achieving face proceeding directly to a substantive classifications suggested by Tipping J in warranted turnover, considerable turno- hearing with the usual delays. A surprising Premium Real Estate Ltd v Stevens [2009] ver must have been lost by reason of the number of the authorities involve con- 2 NZLR 384 (SC): former owner setting up business next sideration of restraints that have expired “[102] Against that background I door. Allan J found actual loss was inev- during such delays. Certainly, the restraint return to the terminology of damages. itable. In the context of a finding of total is likely to be moving substantially I leave aside nominal damages and failure of consideration for the restraint through its terms over the usual life of a exemplary damages, which have their there was an entitlement to recover the case. Forensic accountants seem agreed own particular features. On that basis sum properly attributable to the breach. that restraints have most of their value in the three types of monetary relief This statement came to be echoed in the the early stages rather than being evenly with which the courts are concerned Morris-Garner decision. spread over their life. as a response to civil wrongs can be described as compensatory damages, Non-compete and non- Morris-Garner v One disgorgement damages and restorative solicitation covenants Step (Support) Ltd damages. Compensatory damages are The Morris-Garner appeal concerned This leads to discussion of damages. The loss based. Disgorgement damages are non-compete and non-solicitation cove- High Court has long had a statutory right to based on giving up a gain. Restorative nants in agreements for the sale of shares. award damages in addition to or in substi- damages are based on restoring to the There were two transactions – a partial sale tution for injunction (s 13 Senior Courts Act plaintiff value transferred. As the Privy and a sale of the balance. The holder of the 2016). This right is derived from Lord Cairns’ Act and is discussed in Attorney General v Blake [2000] UKHL 45. Morris-Garner con- firms one approach differing from ordinary contractual damages focused on the loss to the plaintiff. This is an award reflecting an assessment of what the holder of the infringed right would have charged had the infringer negotiated for a release from that obligation or restraint. The holder of the right might never have granted such a release or licence but nonetheless the court will assume it would have, with reluctance
19 April 2018 · LAWTALK 916
accept for hypothetical release from the covenant immediately before the breach until any injunction took effect. Such a measure is sometimes called negotiating damages. This might be different from traditional damages but includes the risk that damages might exceed the profit made by the breach. His Lordship went on to address the difficult question of whether this method meant damages were an adequate remedy so as to render the grant of an injunction inappropriate. He rejected this notion and confirmed the reference point remains whether damages calculated in the usual way, not as negotiation or Wrotham Park damages, give an adequate remedy: “[133] I do not regard a decision in the present case upholding Wrotham Park damages as meaning that injunctions, which would otherwise be granted, are likely to be refused. In considering whether damages are an adequate remedy the primary focus must be on ◂
restraint experienced a significant down- that this type of award was a just response, whether damages, assessed in the ordi-
JAXPORT turn which it later attributed to the breach. that without such an award justice would nary way, will be an adequate remedy. The first instance judgment resolved manifestly not have been done and any The fact that, in a case such as the pres- liability, and the nature of consequential reasonable observer would think such ent, where no injunction was sought, a remedies, but not quantum. damages should be awarded as a matter Wrotham Park award was made, should bn The plaintiff had contended damages of practical justice. not be a ground for refusing relief that would be very difficult to prove and would Lord Justice Clarke dealt with a floodgate would otherwise be granted.” not be an adequate remedy. It sought an argument and damages being an adequate Citing Experience Hendrix v PPX Enterprises account of profits orWrotham Park dam- remedy, in words similar to Denaro: [2003] EWCA Civ 323 Longmore LJ adopted ages. The High Court found the circum- “[125] There is some force in the three important features which Peter stances were not sufficiently exceptional submission that an award of Wrotham Gibson LJ, in Experience Hendrix had to order an account of profits. The judge Park damages in the present case identified as justifying aWrotham Park accepted it would be difficult to establish would make the exception the norm. award (at [58]): damages not least because of the secrecy In many cases it may be difficult to say i) “there was a deliberate breach by the of the defendants. He found it was appro- what business the contract breaker defendant of its contractual obliga- priate that the plaintiffs have the option has obtained which the innocent party tions for its own reward; of damages in the amount they might would have obtained; and even more ii) the claimant would have difficulty in reasonably have demanded; influenced in so to say what has been the effect on establishing financial loss therefrom; part by the clause providing for consent the goodwill and reputation of the and not being unreasonably withheld. innocent party, and what business iii) the claimant has a legitimate inter- The Court of Appeal carefully reviewed the innocent party might, but for the est in preventing the defendant’s the same authorities as were considered in competition, have secured (both in the profit-making activity in breach of Denaro together with some others (Devenish period of restraint and thereafter). contract. Nutrition Ltd v Sanofi-Aventis[2007] EHC “[126] However, in relation to that In Attorney General v Blake [1997] EWCA Civ 2384; BGC Capital Markets (Switzerland LLC) two points arise. First, the test is not 3008; [2000] UKHL 45 [148]-[150] the House v Rees [2011] EWHC 2009 (QB)) and rejected whether the case is exceptional but of Lords discussed the formulation of cri- the appeal. They found that it was not an what does justice require. The position teria. Nicholls and Steyn LJJ discussed the essential precondition that an identifia- is different in relation to an account of dearth of judicial decisions on the subject, ble financial loss be proved. Flexibility of profits which is, truly, an exceptional that there was no lack of academic writing approach to achieve compensation may remedy. Second, the facts of this case but a noticeable absence of consensus. justify Wrotham Park damages where it are, as it seems to me exceptional.” Lord Nicholls rejected the Court of Appeal’s would be very difficult to establish “ordi- The amount of such damages is what criteria and favoured flexibility: nary” compensatory damages (at [118]). would have been reasonable for the “The court will have regard to all the cir- Various formulations were all endorsed: covenantor to pay and the covenantee to cumstances, including the subject matter of
20 LAWTALK 916 · April 2018 UPDATE · COMMERCIAL LAW
the contract, the purpose of the contractual The intersection of own money to fund its activities. provision which has been breached, the cir- Western Work Boats There is some basis for a deliberate cumstances in which the breach occurred, and Morris-Garner? breach being met by a more generous the consequences of the breach and the The prospect of obtaining an interim assessment of the level of restitution or circumstances in which relief is being sought. injunction is unlikely to change as a result compensation (McGregor on Damages, 19ed, A useful general guide, although not exhaus- of Morris-Garner. The judge’s assessment of 14-045). Calculation of the value of the tive, is whether the plaintiff had a legitimate the balance in Western Work Boats was unu- restraint at the date of the relevant trans- interest in preventing the defendant’s prof- sual and an outlier in a body of decisions action from which it arose would involve it-making activity and, hence, in depriving where the effect of a breach is found to be consideration of the portion represented him of his profit.” ([2001] 1 AC 268 at 285) sufficiently difficult to calculate to make by goodwill with the restraint forming As Lord Nicholls observed “[i]n these damages an inadequate remedy and lead to part of that. The figure may well change choppy waters the common law and equity the issue of an interim injunction. If such at a later date. For example, a part owner steered different courses. The effects of this an injunction is issued there is no release purchasing the balance of the business will are still being felt.” This statement signals from the restraint subsequent to grant of only be paying for the restraint relevant to the developing theories. that injunction, leaving damages prior to its that balance. At the date of a subsequent Lord Steyn noted counsel’s argument for issue the relevant focus. If damages in that breach the negotiation would be for the some criteria without rejecting them but period are exceptionally difficult to assess, entire business. It might also be argued founded his decision on other grounds. the court is likely to follow Morris-Garner. that with the passage of time the bond Lord Longmore also added a fourth such The difficulty in assessing damages is with customers might be more secure and feature. objectively assessed and generally not just the restraint less valuable. iv) The result of the defendant’s breach by comparison with restraint cases. The These examples serve to illustrate that of contract has been that it is doubtful likelihood of such difficulty is captured by while Wrotham Park damages might that interim relief could be obtained. Clarke LJ in the passages quoted above compensate where no other losses can Lord Longmore also emphasised these ([125]-[126]). be proved, the evidence needing to be led were only important features to be taken It is difficult to identify any particular addressing what the lost opportunity to into account, not essential factors. Having difficulties in assessing damages in Western negotiate a release was worth – essentially regard to Blake this caution seems well Work Boats. A Wrotham Park claim would the market value – may not necessarily placed. In the absence of such factors he not have avoided testing the enforcea- be much simpler than proving what the refers to para 14-046 to 14-048 of McGregor bility of the restraint. It may not even plaintiff subjectively lost from the breach. on Damages (19ed, 2014). He went on to have avoided evidence as to the financial It is true that in some cases Wrotham identify three disqualifying features: circumstances of the parties, as it would Park damages seem readily calculated i) calculating damage would not be so be relevant to their negotiating context. It without much debate as to quantum. difficult as to be impracticable; would however give a basis for striking a See for example Denaro. But precedent ii) such damages are likely to be excessive figure informed by the post breach trading. fluctuates widely McGregor( on Damages, if one cannot take into account what Wrotham Park damages are calculated 19ed, 14-010). Some commentators find actually happened after the time of at the date of breach. Therefore, as the the categorisation of this type of damages the first breach of covenant; alleged breaching party trades on, it faces difficult and artificial – see, for example, iii) if Wrotham Park damages were an unpredictable award plus interest at A Critical Introduction to Restitution, Steve awarded in the present (not untypical) 5% from the date of breach plus costs Hedley, 2001, page 245, and McGregor on case of breach of covenant, they would including disbursements such as experts. Damages, 20ed, 14-012. ▪ quickly become the norm in sale of The loser will pay both sides’ experts. The business cases.” plaintiff suffers such damage as the defend- Alan Sorrell [email protected] is a bar- Lord Longmore then identified various ant inflicts plus a credit risk on the start rister at Bankside Chambers, Auckland. factors which he found made Morris- up’s ability to meet damages. Often the He thanks Peter Watts QC for the idea Garner unusual (at [148] to [150]). One start-up has used some of the plaintiff ’s for this article. such factor was the modest nature of an award of a modest proportion of the profit, and another the absence of any good faith belief in the restraint being unlawful as evi- denced by the subterfuge and furtiveness.
Commercial parties will be troubled by Legal Accounting Bureau · Save time and money Kathy Kell this kind of approach. A contract is signed provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end with a restraint. One purpose is to evidence certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure the terms agreed in the context of facts and confidential www.accountingbureau.co.nz then shared at values negotiated. Why Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience then should the innocent party, usually come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. a purchaser, have to deal with subjective you remotely. services Practice Management software you can trust. factors such as awareness of breach?
21 EMPLOYMENT LAW · UPDATE April 2018 · LAWTALK 916
UPDATE EMPLOYMENT LAW Will employees and contractors survive in the gig economy?
BY CHRISTIE HALL AND WILLIAM FUSSEY
model with fetters on the degree to which The employee/contractor distinction is nearly as old as the worker can be controlled or integrated. work itself in New Zealand. Even the concepts of a “contract While there are possible variations, such as of service” and a “contract for services” have the quaint ring of casual employment or engaging workers another era. through a labour hire company, these More recently, the increase in “on-demand” app-based ser- options do not provide a neat solution. vice providers such as Deliveroo, Uber, TaskRabbit, and Lyft are We are not alone in seeking to address changing the way in which we work. Agile business models call this problem. Other countries are grappling for a business to be able to draw in resource on an “as and when with similar issues. At the forefront are required” basis, flexing resource needs to manage client demand some of our most successful gig model and current innovations. Added to this, many individuals are businesses. no longer satisfied with working full-time for one employer – an accountant may moonlight as a blogger, a teacher may sell Gig workers as independent organic cakes at a weekend market, and a dad may take a series contractors – the of short-term engagements to spend more time with the kids. In Australian perspective addition, the high fixed cost of labour is forcing organisations to In December 2017, the Fair Work break down roles into tasks (in the same way that disruption of Commission in Victoria found that Uber the music industry broke down albums drivers were independent contractors, into songs), giving each task to the most rather than employees. Like New Zealand, efficient resource. Australia operates a binary structure, But where does this leave contracts “of where individuals are classified as employ- service” and “for services”? ees or contractors. The gig economy business model makes The Commission considered a range financial sense. It enables business to of factors, similar to those that our connect end users with service providers courts would look at. Decisive factors on a timely basis, provides workers with So how do in the Commission’s decision were that greater flexibility and avoids the costs we achieve a in Australia drivers were not required associated with an employment model. balance that to accept a certain percentage of rides However, the model does not work well allows business offered, and were not permitted to use for vulnerable workers forced to accept to grow in an branded vehicles or clothing. In addition, work whenever and wherever it is offered, agile, flexible the individual involved in that case used and to try and make ends meet when it and cost the ride app intermittently and irregularly, is not. The gig economy places degrees of effective manner, working the use of the app around his separation within the traditional employer/ while ensuring other commitments. employee relationship and, with that, that asymmetry reduces responsibility. in bargaining Is there a middle ground? New Zealand’s current model is binary, power between The United Kingdom has taken a different forcing businesses to choose between an an organisation approach. The workforce is split into three employment model, with the minimum and its workers broad categories: employee, worker and entitlements and termination restrictions does not lead to independent contractor. The “worker” cat- that brings, or an independent contractor unfairness? egory provides a reduced set of minimum
22 LAWTALK 916 · April 2018 UPDATE · EMPLOYMENT LAW
protections, including the minimum than workers. Deliveroo drivers are was influenced by the fact that the indi- wage, paid holidays, statutory sick leave, managed by an algorithm that commu- viduals were highly integrated into the rest breaks and protection from unlawful nicates with them via their smartphone, business. They received ongoing super- discrimination. However, workers do not with drivers being given deliveries based vision from LSG, had the same rosters, receive unfair dismissal rights or statutory on their radius from the job, in order to uniform and meetings as LSG employees, redundancy pay. maximise efficiency for the company. A and performance issues and requests for The distinction between a worker and decisive factor in the decision was the increased hours were dealt with by the an independent contractor has caused ability of Deliveroo drivers to substitute LSG line manager directly. Indicators of an issues, with many gig businesses arguing their labour with another worker, both independent contractor status, such as the that their people are true independent con- before and after accepting jobs. Another individuals advertising their services, being tractors in business on their own account. claim against Deliveroo is due to be heard registered for GST, employing others and This has been called into question by the in the Employment Tribunal in July 2018, running a business on their own account, courts in a series of cases. so it will be interesting to see whether a were notably absent. The court left open In late 2017, the UK Employment Appeal similar result emerges. the possibility that even if the plaintiffs Tribunal (EAT) found that Uber drivers Interestingly, the UK cases have primar- had been hired as employees of the labour were workers rather than independent ily been supported by the Independent hire company, there may have been a dual contractors. The EAT rejected an argument Workers’ Union of Great Britain. One of the or joint employer relationship. that Uber acted as an agent for the drivers. commitments of the New Zealand Labour The court acknowledged that the “tradi- It instead considered that sufficient control party going into the last election was to tional binary notion of employment, and was exercised over the way in which the extend the right to organise and bargain unitary concept of employer, is increas- drivers worked to classify them as workers. collectively to contractors who primarily ingly being challenged by innovative ways Although there were factors that pointed sell their labour. of working and structuring relationships”. towards drivers being independent In this context a labour-hire agreement is contractors, such as being permitted to What is the position not an “impenetrable shield” and every work for direct competitors, paying tax in New Zealand? situation must be assessed on its facts. on a self-employed basis, and providing In New Zealand, our courts currently Irrespective of the model adopted in New their own vehicle, the EAT found that the remain faced with a binary employee/ Zealand there will be businesses who try to drivers were not operating businesses on contractor model. The Minimum Wage operate at its boundaries. In an increasingly their own account. Drivers were expected (Contractor Remuneration) Amendment competitive market, small margin gains to behave in accordance with the compa- Bill, a member's bill proposing to introduce can spell the difference between success ny’s requirements – those with a rating a contractor minimum wage, was narrowly and failure, and fixed labour costs remain a below 4.4 received quality interventions voted down just prior to last year’s election. large item on the books of many companies. to help them improve and could have their The new Labour-led Government has The UK experience has indicated that the accounts deactivated if improvements expressed a commitment to introduce creation of a middle ground for dependent were not made. Drivers were obliged to “statutory support and legal rights” for contractors will not be a silver bullet, and accept at least 80% of trip requests to dependent contractors in its first year in we can expect further litigation in this space, retain their account status and had to office. The detail of what this might entail particularly off the back of legislative change. follow the prescribed route when trans- is unclear, but any differentiation between The gig economy is, however, creating porting passengers. This case is likely to dependent and independent contractors new ways in which human labour can be be subject to further appeal. is likely to have the effect of creating a deployed, and with it new challenges in The UK Supreme Court is currently middle ground between employers and balancing productivity and innovation deliberating the issue for the first time in contractors, similar to the UK position. against worker rights. We can expect a case involving Pimlico Plumbers, a large- In the interim, our courts have indicated some movement in the short-term from scale plumbing service. When the Court of a willingness to apply the traditional tests our new Government as it tries to achieve Appeal heard that case, the fact that the in new ways in order to protect vulnerable a balance between supporting business to plumbers used branded vans and had a workers. For example, in the recent case innovate and workers to be flexible, while contractual obligation to work minimum of Prasad v LSG Sky Chefs New Zealand still ensuring that the most vulnerable in weekly hours weighed in favour of the Ltd [2017] NZEmpC 150, the Employment our working population receive adequate plumbers being workers rather than inde- Court found that independent contractors protection. It is not an easy task. ▪ pendent contractors. The Pimlico Plumbers of labour hire company Solutions Personnel decision is being watched with interest by Ltd were, in fact, employees of the end-user Christie Hall [email protected]. many others in the UK construction sector, client, LSG Sky Chefs. com is a director and the New Zealand which uses a similar model. Although the individuals had signed Law Leader of EY Law Ltd. She is In a recent case with the opposite result, documents confirming an independent also a member of the Law Society the UK Central Arbitration Committee contractor relationship, in applying the Employment Law Committee. William (which resolves collective employment tests set out in the Bryson v Three Foot Six Fussey [email protected] is disputes) found that Deliveroo drivers Ltd [2005] NZSC 34 case, the court found a solicitor in the EY Law Employment were independent contractors, rather the individuals to be employees. The court and Health & Safety practice.
23 PROPERTY LAW · UPDATE April 2018 · LAWTALK 916
UPDATE PROPERTY LAW From Housing Law to Airbnb
BY THOMAS GIBBONS
Enhance supply, limit demand, and make position is that a body corporate cannot Housing law has seen a rapid pace of sure tenants are looked after. The KiwiBuild do so: that the Unit Titles Act 2010 is, change over the last few years. Various programme, still taking shape, may provide drawing on its predecessor, designed to pieces of legislation, case law, and law further reform in this area. allow unit owners to sell and rent as they reform include: There are further topics for considera- see fit. Potentially, effects can be managed • The Housing Accord and Special Housing tion. It is worth noting that, during the last through body corporate operational rules, Areas Act 2013, which creates a regime few years, we have also seen significant but not rental arrangements themselves. for the creation of special housing areas increases in house prices, and latterly Land covenants remain an option for those outside normal RMA processes. increased rents and rental availability who want to completely prohibit short • The Productivity Commission’s reports constraints, particularly in cities. The tools stays, but these remain an instrument for on Using Land for Housing (2015) and described above mostly enhance supply; individual owners to be bound, not a body Better Urban Planning (2017), which are only the OIA changes are designed to curb corporate tool. not law, but are relevant to housing demand. The preferred position in New Zealand issues. But there are other demand levers. The – that there is no ability to use body cor- • Holler v Osaki [2016] NZCA 130, on land- last few years have seen a massive increase porate operational rules to restrict short lord responsibility for tenant negligence: in Airbnb and short stay arrangements. stays – is largely the same in Australia, the decision landlords love to hate. Why, some media stories ask rhetorically, where a growing number of cases have • The Auckland Unitary Plan, which is would a person rent a flat through normal come to this conclusion. Where their unit mostly about housing. channels for $250 a week when they can title laws go, we often follow. • HIF – the Housing Infrastructure Fund rent it through Airbnb for $100 a night. However, in late 2017, a decision of the for high growth areas, with the initial There have been stories of scams, but also Privy Council, on appeal from the Turks $1 billion of loans to local government stories of a belated recognition by local and Caicos Islands, a Caribbean jurisdic- now fully allocated. authorities that these type of arrangements tion, suggested that a body corporate rule • The National Policy Statement on Urban are having an impact on rental and housing could restrict short stays. O’Connor v The Development Capacity, which requires supply. Auckland Council has proposed Proprietors, Strata Plan No. 51 [2017] UKPC local authorities to provide for suitable additional rates to capture these arrange- 45 is not binding precedent in Australia or levels of development-ready land. ments; Queenstown Lakes District Council New Zealand, and can be seen as context • The Healthy Homes Guarantee Act 2017, has consulted on resource consent require- specific – even perhaps poorly reasoned – providing for landlord obligations in ments, with many submitters noting the but may yet influence the next generation relation to tenanted housing. housing supply impacts. of short stay decisions. • The Overseas Investment Amendment It could be argued that it makes little Bill 2017, which restricts the purchase of sense to restrict purchases by overseas Conclusion houses by overseas persons (for com- persons while not restricting short stays. Housing law remains an active area of ment, see my article in LawTalk 914, The former is a demand-management tool, reform. Supply, demand, quality, and February 2018). the latter a supply management tool, but responsibility levers are all being pulled. In each will affect both supply and demand. the meantime, a test case on the regulation Supply, demand The fact that local authorities are seeking of Airbnb within a body corporate is yet and short stays to step in suggests that short stays are a to be taken. Watch this space. ▪ Policy-wise, it seems we want more houses, serious supply issue. better use of land (that is, more intensifi- Thomas Gibbons thomas.gibbons@ cation); and then to make sure we allocate Short stays and unit titles mccawlewis.co.nz is a director of rights and responsibilities between land- DIY regulation does not always work. A Hamilton law firm McCaw Lewis. He has lords and tenants in the tenant’s favour, live issue is the extent to which bodies written and presented extensively on and to restrict some purchases to ensure corporate can restrict short stays, or short/ property law and is author of A Practical the levels of supply remain appropriate. term letting. At present, the preferred Guide to the Land Transfer Act 2017.
24 LAWTALK 916 · April 2018 UPDATE · AML/CFT
UPDATE AML/CFT DIA takes AML/CFT Act on the road to lawyers and conveyancers
and proportionate to the size of the busi- performing your risk assessment and Last month the Department of ness and takes into account the level of developing your AML/CFT compliance Internal Affairs (DIA) and the New Zealand risk different activities or clients present. programme are the first things that need Police’s Financial Intelligence Unit (FIU) Therefore a sole practitioner’s or small to be completed and if you haven’t started conducted a series of roadshows through- business’ AML/CFT compliance programme addressing these obligations, you need to out the country. would likely not address the range of activi- start now.” These were aimed at helping lawyers ties and client numbers that a multi-branch Ms Reid says it’s important to note that and conveyancers to better understand law firm’s compliance programme would lawyers and conveyancers are expected to their obligations under the Anti-Money typically include,” Ms Reid says. be compliant with the obligations from 1 Laundering and Countering Financing of She says roadshow presenters empha- July – so starting as early as possible on Terrorism (AML/CFT) Act 2009. sised that the best place to start learning these tasks is the key to being ready. The DIA is the supervisor for the AML/CFT about the obligations under the Act is resources to begin this work are available Act for lawyers and conveyancers as well through the DIA guidance for lawyers and on the DIA webpage link. as a number of other professional and conveyancers that was released before Meanwhile, the DIA will send a road- financial sectors. The FIU is charged with Christmas and can be found on the DIA’s show survey and key themes document to analysing the reports provided by reporting website at dia.govt.nz. DIA stresses that to lawyers and conveyancers who attended entities relating to suspicious activities and find out what activities are captured under and/or registered for the roadshows. Any ‘prescribed transactions’ (large cash trans- the Act and whether you would be covered questions can be emailed to amlphase2@ actions and international funds transfers). under the Act, its ‘plain English’ guidance dia.govt.nz The DIA says the roadshows outlined should be the first resource turned to. The There are also a number of guidance what lawyers and conveyancers need to guidance has just been updated to reflect notes on the Law Society website under do to prepare for the legislation, which goes some minor editing adjustments, but no Practice Areas in the Practice Resources live on 1 July 2018. material changes have been made. section. “They outlined the regulatory approach “To find out what activities are captured For those who couldn’t make it to the DIA would take as supervisor and specif- under the Act and whether you would be roadshow, there will be a live webinar in ics around the work that captured law- covered under the Act, DIA’s ‘plain English’ April and a recording will be made availa- yers and conveyancers need to complete guidance should be the first resource you ble on the Law Society and DIA websites. before 1 July in order to comply with the turn to,” Kate Reid says. The DIA says details will be provided to Act. The FIU provided some case study “Appointing a compliance officer, lawyers shortly. ▪ examples of recent money laundering proceedings as well as some detail on the reports that need to be filed by reporting entities,” says Kate Reid, DIA’s Director Phase 2 AML/CFT. She says some attendees and sole practitioners voiced concerns about the Capital Chambers welcomes amount of work required to be compliant, Tony Stevens to the Independent Bar the cost of compliance and the ongoing effort needed to maintain an AML/CFT Tony’s practice is in civil, compliance programme. commercial and regulatory “DIA’s supervisory approach focuses litigation, dispute resolution and advisory work. on ensuring reporting entities deliver a programme that is practical, workable
25 RELATIONSHIP PROPERTY · UPDATE April 2018 · LAWTALK 916
UPDATE RELATIONSHIP PROPERTY Having your cake …? A review of the Supreme Court’s decision in Horsfall v Potter
BY SALLY MORRIS AND GEORGIA ANGUS
property. It is wholly owned by Horsfall confirmed that 88 Riddiford Having been registered as the the Mark Horsfall Family Trust, Holdings Ltd would be that entity. beneficial owner of a half share of which was settled by Mr Horsfall The settlement date for the a property, Ms Potter was entitled in March 1996. purchase of the properties was to a half share of the sale proceeds • Horsfalls Ltd was established in 31 January 2003. Two of the three regardless of how the initial pur- 1998. This company was a licensed College Street properties were chase was funded. real estate company and took over on-sold before that date. In January On 21 December 2017, the Supreme Mr Horsfall’s real estate business. 2003, Ascot and Mr Horsfall agreed Court released its decision in Horsfall • 88 Riddiford Holdings Ltd was that an entity associated with Mr v Potter [2017] NZSC 196. The case incorporated in 1999 to buy the Horsfall should buy out Ascot’s examines the circumstances in property at 88 Riddiford Street, interest in the third College Street which a jointly owned property Wellington. Mr Horsfall said he property. The property was trans- might not be beneficially owned incorporated this company to ferred into the joint names of Mr by the parties on the title. Although develop the property without Horsfall and Ms Potter. this decision largely turned on the tainting 168 Group Ltd for tax The College Street property was court’s view of the evidence, the purposes. eventually sold in 2004 and Mr court sets out some general princi- Horsfall transferred virtually all of ples to be applied when considering Purchase of College the sale proceeds to 168 Group Ltd. spouses' intentions and whether Street property these give rise to a trust. In 2001, Horsfalls Ltd was acting Ms Potter’s claim for the vendor of a commercial under section 44 Facts property in Hutt Road, Wellington. A Mr Horsfall and Ms Potter separated Mark Horsfall and Diana Potter met conditional sale and purchase agree- in April 2008. The parties were in 1997. They started living together ment was entered into between the unable to agree on the division of in 1998 and married in October vendor and Ascot Resources Ltd. To their relationship property, which 2002. Ms Potter refused to sign a encourage Ascot to complete the led to Family Court proceedings. contracting out agreement before purchase, Mr Horsfall told Ascot that Ms Potter brought a claim under the wedding, despite Mr Horsfall’s an entity of his would purchase a s 44 of the Property (Relationships) attempts to persuade her to do 50% share in the property. In reli- Act 1976 (PRA) relating to the College so. The Supreme Court noted that ance on this joint venture, Ascot Street property. She claimed that the this undoubtedly put Mr Horsfall confirmed the purchase. property was relationship property, on notice that, if the relationship Ascot never settled the purchase as it was owned by the parties ended, there was the prospect of a of the Hutt Road property. Instead, jointly. Ms Potter said the property relationship property dispute. a company that owned three prop- was purchased in the parties’ joint Mr Horsfall’s background was erties in College Street took over the names because they intended to in property development, man- Hutt Road contract on the basis that build an apartment on the top floor, agement and investment. He also Ascot would acquire its College which would become their family worked as a commercial real estate Street properties. It appears that home. Therefore, when Mr Horsfall agent. Mr Horsfall incorporated Ascot and Mr Horsfall agreed that an transferred the sale proceeds to 168 several companies to deal with the entity of Mr Horsfall’s choice would Group Ltd, this was to defeat her different aspects of his business: be the beneficial owner of 50% of rights under the Act and she was • 168 Group Ltd was incorporated the contract to purchase the College entitled to relief under s 44. in 1996 to own a commercial Street properties. Eventually, Mr Mr Horsfall’s position was that
26 the beneficial owner of the College Street Supreme Court considered the relevance argument was impossible. The court noted property was 168 Group Ltd. He denied of the decision in Potter v Potter. In that that the fiscal advantages could only be that the parties ever intended to live in an case, the parties purchased a property as achieved if Ms Potter did hold her half- apartment on the property. He claimed the tenants in common but Mr Potter funded share beneficially. Accordingly, she was the legal ownership of the property was just a the purchase price. The parties entered legal and beneficial owner and there was strategic ruse, to limit the risk of scrutiny into a property sharing agreement with no room for a resulting trust. from Inland Revenue and any potential the intention that the property would be It has been held in cases following Potter adverse consequences that may arise as transferred to a family trust. However, the v Potter that this principle can be confined a result. Accordingly, he argued that as parties separated before the transfer was to circumstances where the presumption neither the property nor the proceeds were completed. of advancement applies and the presump- relationship property, the transfer of the There was a dispute over the sale pro- tion can only be rebutted by evidence of proceeds to 168 Group Ltd was not for the ceeds from the property. Mr Potter claimed the underlying fraudulent purpose. The purpose of defeating Ms Potter’s rights. the property was held on resulting trust for Supreme Court noted that in accordance him. He said the only reason Ms Potter was with s 4(3) of the PRA, the presumptions Decisions in the lower courts allocated a half interest in the property was of advancement and resulting trusts do In the Family Court, Judge Walsh found to facilitate a quicker gifting programme, not apply to this case. Accordingly, the in favour of Ms Potter. This decision was relying on the exemptions from the gift court considered that Mr Horsfall’s claim reversed in the High Court by Simon France duty regime that was then in force. should be addressed in terms of what the J but reinstated by the Court of Appeal. The Court of Appeal in that case consid- documents say and an assessment of the In reaching this conclusion, the Court of ered “[t]he difficulty is that gift duty could common intention of the parties, particu- Appeal relied heavily on Potter v Potter have been legitimately reduced only if Ms larly the understandings of Ms Potter. [2003] NZLR 145 (CA). Potter’s half-interest had been a beneficial one”. The court held that in those circum- Common intentions of the parties Supreme Court stances, “[i]t is assumed that [Mr Potter] The court observed that, on the face of majority decision would not have intended to defraud others the documents, Ms Potter obtained a half The Supreme Court dismissed the appeal by pretending that his wife had a beneficial interest in the property and, in the absence by a majority. William Young J gave the interest when in reality he had intended of a shared common intention that the judgment. to retain the beneficial interest all along”. property be held on trust for another party, On appeal to the Privy Council, this she acquired a joint beneficial interest in Potter v Potter finding was not challenged. However, the the property. As a starting point, the majority of the Privy Council commented that Mr Potter’s A right to property that depends on the
27 RELATIONSHIP PROPERTY · UPDATE April 2018 · LAWTALK 916
common intentions of the parties has a “contractual flavour” of the property could give rise to a claim and brings into play the Contract and Commercial Law Act 2017 under s 44. (CCLA). Section 73 of the CCLA provides that no person is entitled In considering the evidence, Elias CJ to any property under a disposition made by or under an illegal agreed with the approach taken by Simon contract. The court held that on Mr Horsfall’s best case, he and Ms France J and concluded that Ms Potter was Potter acquired the College Street property in accordance with an not a beneficial owner of the College Street informal oral agreement between them that they would purchase property when it was in her name. the property jointly to conceal the identity of the true owner and mislead the Commissioner of Inland Revenue. However, s 73 of Conclusion the CCLA renders such a trust of no effect. It follows that, subject It will be difficult for a party who jointly to the possibility of relief under the CCLA, Mr Horsfall and Ms registers the title of a property in his or her Potter were the beneficial owners of the property. spouse’s name to avoid potential tax liabil- Despite this finding, the court noted thatPotter v Potter is still ity to later argue that his or her spouse held relevant. Where the circumstances surrounding the transfer of title as trustee only and had no beneficial property and the direct evidence are equivocal, it may be that interest in the property. This is because, in the case for a trust rests substantially on the basis that the only those circumstances, the desired benefit reason for putting the property in the name of the transferee was can legally be obtained only if beneficial to secure a tax advantage. In those circumstances, the Supreme as well as legal ownership is transferred. Court considered it open for a court to conclude that since the Even if it can be established that there was hoped for advantage could legally be obtained only if beneficial a common intention between the parties, as well as legal ownership were transferred, the understanding this opens to the door to the CCLA, ren- between the parties should be construed accordingly. dering the common intention trust of no effect. Ultimately, a party in Mr Horsfall’s Was the College Street property relationship property? shoes will not be able to have his or her As set out above, the Supreme Court considered that the beneficial cake and eat it too. ▪ ownership in the College Street property was acquired jointly unless this was inconsistent with the common intention of the parties. Sally Morris sally.morris@morrislegal. The court did not find anything in Mr Horsfall’s evidence regard- co.nz is a partner and Georgia Angus ing what he said to Ms Potter that would be inconsistent with the [email protected] property and the proceeds of its sale being relationship property. a senior solicitor at Morris Legal in In considering Judge Walsh’s findings in the Family Court, the Auckland. majority found that he must be taken to have accepted the critical evidence of Ms Potter and rejected the narrative advanced by Mr Horsfall. Although the majority accepted that it was open to Simon France J to reach a different view of the facts, the court considered Simon France J’s assessment to be incomplete and faulty. Ultimately, the court restored Judge Walsh’s findings of fact and held that there was no resulting or other trust.
Were the payments made in order to defeat Ms Potter’s rights? After concluding that the property was relationship property, the court found no escape from the conclusion that Mr Horsfall’s actions were for the purpose of defeating Ms Potter’s claims. Mr Horsfall’s business affairs were conducted in a way to result in him having control of the assets but nonetheless having a low Recognised industry Serving legal assets profile. The court held that this was to protect his wealth experts. documents for over from claims, including claims under the PRA. 30 years. Elias CJ’s dissent Elias CJ dissented. She considered that the only question in appli- Fast, professional, nationwide cation of s 44 was whether Ms Potter was a beneficial owner of process serving for solicitors and the College Street property at the time of its sale. If she was, the government agencies. court could infer that the payment of the proceeds of sale to 168 Group Ltd was a disposition in order to avoid the proceeds falling P: (09) 302-2476 E: [email protected] within “property owned jointly” under s 8(1)(c) of the PRA. Elias W:www.docuserve.co.nz CJ did not consider that any basis other than the joint ownership
28 LAWTALK 916 · April 2018 MEDIATION
MEDIATION Embracing Diversity Part 2 – The unity behind diversity
BY PAUL SILLS
subatomic level everything exists for an understanding of life. Whether you are a student Humans are a diverse, different, as states of energy and information of spirituality, quantum physics, religion or the modern collection of individuals inhabiting that vibrate at certain frequencies. self-help industry, all roads head in the same direction: the planet, competing for our share The difference between an atom of • At a level deeper than our daily existence we are all of what’s available. lead and an atom of gold is in the the same – there is no diversity. This statement is true, and also frequency of vibration of energy and • Diversity manifests because of the different ways we not true. To understand this paradox information at the subatomic level. interact with existence. we must examine diversity on two At the quantum level of existence • We all live with the same questions we spend our different levels: our experience of all possible states exist at the same life trying to answer: “Who am I and what am I here being part of a complete whole, time (wave/particle duality) and it is to do?”. and diversity as part of the human through observation that any particu- If we start with an acceptance of our underlying “same- condition. One is life and the other lar state manifests (into what we call ness” and our interconnection to all things, then it is is our life’s experiences, according to reality). Have a look at the phenom- easier to see that there can be unity in diversity within Eckhart Tolle. One we share, and the enon that Einstein called “spooky our everyday interactions too. This is the concept of other sets our individual identity, action at a distance” – which is only “unity without uniformity and diversity without frag- reality and perspective. This article possible through wave mechanics. mentation” (Ibn al-Arabi – Sufi philosopher 1165–1240). discusses the unity aspect. We see quantum physics at work This shifts the focus from unity based on a mere tolerance The study of metaphysics tells every day. For example, in the con- (of physical, cultural, linguistic, social, religious and us that we exist as part of a col- trolled release of energy from the ideological differences) towards a unity based on an lective consciousness. There are sun, the operation of your smart- understanding that our differences enrich us all. many labels for this: God, Allah, phone, and your television. However, This idea dates back to ancient times in both Western the Universe, the Matrix, the Force like metaphysics, the principles are and Eastern cultures. The concept of unity in diversity (yes Star Wars). Metaphysics says we poorly understood and applied. was used in non-Western cultures (for example North are part of a holographic universe At the quantum level we are all the America and in Taoist societies) in 400-500 BC. and are all holons (something that same – simply states of energy and In the premodern Western culture this idea is also is simultaneously a whole and a information. So, what sets us apart implicit in the organic conceptions of the universe that part). To be part of a holographic from each other? It is the influences have been manifest since the ancient Greek and Roman universe means to be connected (where we place our attention, our civilisations through to medieval Europe and into the to everything within that universe. thoughts, feelings, emotions) we Romantic era. The Big Bang theory proceeds from apply to those states of energy and “Unity in diversity is the highest possible attainment a point in time when everything information that dictate how we see of a civilisation, a testimony to the most noble pos- was within a singularity and con- the world around us and therefore sibilities of the human race. This attainment is made nected. The relationship continues the diversity that we perceive to exist. possible through passionate concern for choice, in in an expanded universe despite the Abraham Maslow and Carl Jung an atmosphere of social trust.” – Michael Novak. increased distance between parts showed us that we are the same If these universal principles were more readily under- – connection continues from the when it comes to our needs. The stood and accepted, we could draw on them when point of origin as a wave. Mankind five different levels in Maslow’s resolving conflict by recognising and appealing to shared has understood these principles since hierarchy of needs are: interests and principles. This may assist in keeping the before recorded history yet they are • Physiological needs; parties grounded and connected in a way that allows still not part of our everyday language. • Security needs; them to acknowledge and explore their differences in In case metaphysics or spiritual- • Social needs; a more secure and useful way. ▪ ity do not work for you, quantum • Esteem needs; physics also tells us that at the level • Self-actualising needs. Paul Sills [email protected] is an Auckland of our existence we are all the same We all have the same desire to grow, barrister specialising in commercial and civil litigation. and there is no diversity. At the to protect our children and to strive He is also an experienced mediator.
29 COURTS April 2018 · LAWTALK 916
COURTS New Zealand juries get better judicial guidance, study shows
BY LYNDA HAGEN are now integrated with a set of judges’ directions,” Yvette Tinsley says. written questions to assist jurors. “But there is little research that evaluates the extent to By contrast, traditional summations which jurors actually understand judicial instructions, Changes to judges’ summing-up were often repetitive, confusing and and how judges can most effectively instruct juries.” in New Zealand criminal trials have laced with legal jargon. The New Zealand analysis of 45 randomly chosen led to jurors getting more helpful “New Zealand has adopted this trials held between 2013 and 2015 was matched by an guidance, enabling them to focus practice, but until now there has Australian team led by Associate Professor Jonathan better on the facts at issue. been no testing of whether it works,” Clough and Professor James Ogloff, backed by the This was the high-level conclusion Associate Professor Tinsley says. “Our Victorian state government and judiciary. The Australian of a comparative study, conducted study shows that New Zealand juries team also taped a re-enactment of an actual jury trial over several years, and supported feel they get more guidance from with four different summing-ups, including a conven- by the Law Foundation. The study judges. They structure their deliber- tional and a fact-based approach. analysed 45 New Zealand trials using ations in ways that are more helpful Yvette Tinsley says the Australian juror interviews “fact-based question trails” and com- because they focus on the facts at were reminiscent of the interview findings from their pared them with a similar number issue more readily than in places original study of New Zealand jurors, before fact-based of cases in Victoria, Australia, where where that guidance is not given.” questioning was adopted. traditional summing-up methods are The latest study follows earlier “In New Zealand it has clearly changed the way jurors generally used. Law Foundation-backed research are approaching their task. We also tend to be more Victoria University of Wellington on juror comprehension, before efficient in our summing up and deliberations,” she says. Associate Professor Yvette Tinsley, the advent of fact-based question Yvette Tinsley and Warren Young are now working who led the New Zealand research trails, by Associate Professor with their Australian counterparts on specific findings team alongside Dr Warren Young, Tinsley and Dr Young, a former Law and recommendations for change in both countries. says our courts were unique in using Commissioner. It found that while These will be published in international legal journals fact-based question trails as standard most jurors thought that judges’ from later this year. ▪ practice to improve juror compre- summaries were clear and helpful, hension of judges’ instructions. the majority of them actually mis- Lynda Hagen [email protected] Decision trees and question trails understood the law. is Executive Director of the New Zealand Law are increasingly used in many “Existing research shows that Foundation. Further information about the Law common law jurisdictions. In New jurors experience considerable dif- Foundation and its grants can be found at www. Zealand, judges’ oral summaries ficulty comprehending and applying lawfoundation.org.nz
30 LAWTALK 916 · April 2018 PRACTICE
PRACTICE It’s not that bad, except it is
BY KATIE COWAN
[Names used in this article are fictious]
40s) that I needed some extra help None of them come close to what I am a nerd about a weird thing: complexity managing. He laughed, and said, the Russell McVeagh summer clerks theory. I get very excited about it, and it is a hopeful “Here’s what you need to do. Go allege. And if things like this had salve for me. home, look deep into the mirror, and only happened to me alone, it might When a system is complex it means many factors say ‘Harden the fuck up’.” I never not be an issue. interact from within and without the system in ways asked for help in that office again. But we all have these stories. It often unknowable in advance, and these factors affect Later, I was working on a matter is a pretty ordinary conversation what the system does or what happens in it. The brain with a client who was overtly sexist among the women lawyers I know is an example of a complex system, as are biological and made me feel uncomfortable of all ages (harassment is obviously environments. Changes to one part of the system being alone with him. I told the not a privilege granted only to the (increased amygdala activity, the addition of wolves) lead lawyer on the matter (straight, young). When my friends and I swap cause changes to seemingly unrelated other parts of the white, male, in his 40s). He laughed, anecdotes like these we all quickly system (a person’s ability to assume the best, changes and said, “Oh that’s just Matt. Make couch them in “But that’s not that in river paths). That is so hopeful. sure you don’t bring up any of that bad; I’m lucky really”. We do that The legal industry is grappling with the Russell new age feminist shit around him. because saying that these kinds of McVeagh allegations right now, just as the world is He doesn’t like it.” incidents are bad, and affected us reckoning with the #MeToo movement. Harm has been Later, I was working alongside a negatively, and should not happen, done, on a wide and terrible scale, and it is not a one-off. team with a team leader (straight, would make us annoying and diffi- It is pervasive. It is part of the culture. white, male, in his 40s), and a cult to the male lawyers we work Culture is a complex system humans create together. handful of young lawyers in their with, especially those over 40. We I was a young female lawyer once. I interviewed for twenties. This lawyer delighted in would get told not to be so sensitive, a summer clerkship at a firm where one of the inter- “playfully” sexually harassing his that the real world is a rough and viewing partners (straight, white, male, in his 40s) took (straight) male juniors with com- tumble place, indeed that we should obvious pleasure in putting the young female interview- ments about porn and their bodies “harden the fuck up”. And because ees on the spot, with sexual references, watching them and sex lives, joking he should keep these individual incidents were not squirm to continue being impressive while they asked an HR lawyer on retainer. When I directly violent or sexual, we did a man twice their age for a prestigious job. It made me did not laugh at that, he said, “Oh shrug them off. We do shrug them uncomfortable, and I quietly said come on, is anyone really bothered off. Women do a lot of shrugging off, so to one of the other interview- by this?” I told him I was, and then I you guys. And so the culture persists. ers. I was told, “That’s just Greg, went into the next office and cried. You see it’s not that bad, except isn’t he funny? You get used to it.” Some years before that I had been being even a little scared of your Unsatisfied, at the offer dinner some raped, and having to expressly ask co-workers, and being scared to weeks after, I asked Greg directly an older man who was responsible call anyone out, negatively impacts why he felt he needed to be that for giving me work and paying me your capacity to do your work. It’s way towards young women whom not to introduce sexual conversa- not that bad, except having to pass he had power over. In response, he tions at work was triggering for me. compliance tests where you laugh laughed and bought me a mojito. I remained shaken up for a couple at sexist or sexual jokes made by Later, at a time when I was strug- of hours. your bosses really chips away at gling with severe anxiety and work your sense of worth and power. It’s that was more difficult than I had We all have stories not that bad, except at least 24% training for, I told my supervising Are any of these incidents that big of women have experienced sexual partner (straight, white, male, in his of a deal? None of them are extreme. assault, and you have no way of
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knowing who is among them (we do not generally let everyone at the office know). It’s not that bad, except trauma recovery takes a long time, and sexuality of any kind in the workplace can reinforce the trauma. It’s not that bad, except that it happens to nearly every female and queer young lawyer, and many young male lawyers too; it’s a handful of problematic incidents writ large across the whole profession. It’s not that bad, except after over two decades of women law graduates equalling or outnumbering men graduates the men still wildly outnumber women in leadership positions across the profession. You will note that I am not naming names, not trying to take anyone down. That’s because the point here is not about these specific men. It is about the impact these incidents had on me as a young female lawyer. For the most part #MeToo isn’t about taking people down, except in the worst cases. It is about the impact the terrible things had on us, and finding camaraderie and empowerment in sharing experiences that we thought were isolated or would isolate us if we talked about them. In my case, all of these incidents served to make me permanently wary of senior men in the profession, and know that my “place” was not yet as an equal part of it. It made the profession a scarier, colder, unhealthier place. It made staying in the profession less appealing. It definitely worsened my anxiety. A lot of men new to this issue ask why women don’t speak up. There are lots of valid reasons not to speak up, but the one that got me is that when I did speak up, on three different occasions, I was told by three those things do not arise in isolation. different supervisors (all straight, white, males, in their Workplace cultures where bravado 40s) that I should not make a fuss about something so and “work hard, play hard” is prized, trivial. I was told to harden up. I was told the problem or where alcohol flows freely, or I had raised, a problem big enough to make me feel where attempts to ask for help, uncomfortable doing my work or being alone with a notify a mistake, or privately report client, was not a problem, or was not convenient. And We would get a problem are met with punishment who was I to argue? I was just a young female lawyer. told not to be so or rebuke, or where the business We are notoriously frivolous and whiney. You are almost sensitive, that model demands that junior lawyers required to roll your eyes when we sincerely ask you to the real world be worked so hard they get “used help us address situations you yourself (straight, white, is a rough and up”, these are fertile grounds for male, in his 40s) would not find to be a problem. tumble place... sexual harassment and bullying There is a reason we have workplace laws on harass- And because of all kinds, even if the two seem ment. It is because it is too much of a burden to place these individual unrelated on the surface (complex on the harassee, a person with inherently less power, incidents were not system fun, remember everyone?). to speak up and call out and enforce their entitlement directly violent Because the really bad grievances to a safe workplace. It is too much to ask. Work should or sexual, we did like rape and sexual harassment be a 100% no exceptions safe place without our input, shrug them off. We happen in cultures where incidents from the day we arrive until the day we leave. do shrug them off. like the ones I mentioned are con- It is the job of employers to establish and maintain a Women do a lot of sidered “not that bad”. Criminal culture that is safe. If we are to truly reckon with these shrugging off, you acts are the tip of an iceberg that obligations, our culture discussion must go beyond the guys. And so the has, below its surface, things like specifics of sexual activity and harassment, because culture persists. fear-based relationships, “conform
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on feminism (get thee some Lindy West or Chimamanda Ngozi Adichie or Emily Nagoski, my dudes). It gets changed by those same men asking why they are going to strip clubs with their colleagues, or question- ing why their firm’s leadership is still mostly male and white. It gets changed by people not laughing when the managing partner jokes about blowjobs at a team meeting. Honestly, guys, it gets changed by having more women in charge. Because the one time I spoke up to a woman supervisor about a client (straight, white, male, in his 40s) behaving threateningly towards me, she immediately stepped in and stopped him from having contact with me anymore. She then asked if I was okay and if I needed anything else to feel comfortable. The “I’ve got your back”-ness of it all felt almost radical. In the end, our culture gets changed by all of us engaging with this joint profession-wide reckoning with the tip of the iceberg and its murky support culture lurking underneath. Because it really is all that bad. ▪ or else” attitudes, power-based hier- changed by vulnerable junior female archies, punishment for mistakes, clerks taking a stand against a major Katie Cowan katie@ extreme work hours, sexist jokes, law firm and refusing prestigious symphonylaw.co.nz is a former racist jokes, homogenous leader- jobs. It gets changed by universi- lawyer. She is now director of ship, and a focus on billables as the ties refusing sponsorship money Symphony Law, a consulting sole marker of worth and success. from firms alleged to allow serious practice for lawyers. Katie hosts This element of the culture discus- sexual harassment. It gets changed The New Lawyer podcast and sion is vital not just because cultures by individual men, especially those writes on matters affecting the with these features are more likely in leadership, educating themselves legal profession. to lead to sexual harassment; the worst things that can happen are not the only things we get to care about. These cultures, with and Trusted practice management without actual sexual harassment, do their own serious damage even software for NZ lawyers if it never reaches the point of police Easy to learn, easy to use. Save time and involvement. It’s all bad. ! But I am hopeful, because culture increase profits. That’s what users say is a complex system, and it is a thing New: Document management & Internet banking. Free installation and humans create together. That means training. Visit our website for testimonials from firms just like yours. humans, even individual humans, can change it for the better. www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd In this case, our culture gets
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LAWTALK 916 · April 2018 PRACTICE
PRACTICE
Changing the culture of a profession
BY NICK BUTCHER, ANGHARAD O’FLYNN AND GEOFF ADLAM
The New Zealand Law Society is now developing a range of measures and processes to confront sexual harassment in the legal profession head on. Preventing and dealing with harassment in workplaces had been one of several directions identified by the Law Society’s Women’s Advisory Panel over 2017. The move towards the Gender Equality Charter had been the main focus, however. Discussion grew within the legal profession after publication in the December 2017 issue of LawTalk of a personal account of sexual harassment in the legal workplace.
Lawton established the #MeToo in place is flexible enough to meet The parameters changed for- Blog at the end of February. Within current needs.” ever in February. A story on the a week it had received over 100 Among the key actions announced Newsroom website about alle- posts detailing incidents of sexual (see accompanying story) are the gations of sexual harassment in harassment in the legal services establishment of a working group Russell McVeagh quickly developed industry. Ms Lawton says she will to consider what improvements can into a wider focus on the whole deliver all comments received to the be made to enable better reporting profession as it became clear it Law Society on 9 April. of harassment was time for action. The very public At the beginning of March the “It is essential that all lawyers are spotlight now illuminated the whole Law Society announced the meas- able to practise in a workplace envi- profession. Scrutiny of the ability ures it was planning to take. ronment in which they are free from of the Law Society to even reveal any harassment. The working group if it had received complaints (it “It must stop” will look at whether the Lawyers cannot) moved to the mechanisms “There is no place for a culture of and Conveyancers Act 2006 and available for reporting and investi- sexual harassment in our profes- its associated rules and regulations gating sexual harassment. It quickly sion. It must stop. The Law Society allow us to take effective action,” became clear that few if any com- is determined to do all it can to said Ms Beck. plaints or inquiries which related tackle a complex issue in an inno- “What are we aiming for? We must to sexual harassment were making vative and practical manner,” Law focus on the culture and underlying their way to the Law Society. Society President Kathryn Beck said assumptions which exist in some What had been kept within the in a public statement. law firms and legal workplaces. As confines of law firms and other “As regulator of the practice of with the Gender Equality Charter, organisations spilled out into the law the Law Society fully appre- the change has to come from inside, public arena, decades later than it ciates that it must always assess driven and assisted from outside.” should have. Legal researcher Zoë whether the regulatory framework Ms Beck says as well as prevention
35 PRACTICE April 2018 · LAWTALK 916
the working group will particularly “That sticks and stones and practising in New Zealand, of whom focus on why complaints weren’t harden up attitude from some of 6617 were women and 6570 were being made to the society, and how the older generation is still alive men. There are now more women to best receive and deal with them. in many workplaces. People have lawyers than men and it is clear Justice Minister Andrew Little enjoyed success as workplace bul- that with significantly more women was reported in mid-March as stat- lies and so they carry on doing it. entering the profession (60% of new ing that it was a “real worry” that Now we are seeing a real challenge admissions) and significantly more women working in legal workplaces to that, not just because of the men leaving it (95% of lawyers in had felt not able to complain. Mr Health and Safety at Work Act but practice for 40 years or more are Little said that personally he had because society is recognising the men) this will continue to increase. never heard stories of harassment mental harm of workplace bullying. While the media and the #MeToo in the profession. Schools nowadays create anti-bully- Blog have uncovered instances of “I’m absolutely stunned,” he told ing cultures so the new generation sexual harassment in law firms, the NZ Herald website. “If there’s one coming into the workforce have an there has been little research across thing lawyers ought to understand expectation of business culture.” the profession. Josh Pemberton’s from their studies, it’s about power She says sexual harassment is 2016 report First Steps: The Experiences ... and yet some lawyers have been endemic across the law profession and Retention of New Zealand’s Junior conducting themselves in a way and if people are aware of it occur- Lawyers, reported on 40 interviews that’s an abuse of their power ring, they cannot stay silent. with junior lawyers and former towards their staff. Under rule 2.8 of the Conduct and junior lawyers along with an online Client Care Rules, a lawyer who has survey completed by over 800 Health and Safety at reasonable grounds to suspect that junior practitioners plus a number Work Act also applies another lawyer has been guilty of of former lawyers. A high 68% of to mental harm misconduct must make a confiden- survey respondents were women The discussion on reporting of inci- tial report to the Law Society at the and 86% were aged between 20 and dents focused on the Law Society’s earliest opportunity. 29, with 20% working in big private powers and obligations and on indi- “All law firms should include in law firms, and 56% in medium and vidual processes and policies at legal their policy that if they are satis- small law firms. A survey of 27 of workplaces. Alongside the wider fied that sexual harassment has the respondents who were no longer issue of how to change culture and occurred and they are satisfied that working in the law on why they left long-held assumptions was also the it amounts to misconduct then they showed that “dissatisfaction with required action from any employer should formally report that solicitor workplace culture” was the reason to ensure a safe workplace. to the Law Society,” says Ms Dalziel. given by 60% and this was also cited Employment and Privacy law as the most important reason of all specialist Kathryn Dalziel says Don’t assume all 20 possibilities. it should be noted that there are complaints are true but Only two-thirds of respondents obligations under the Health and do investigate them (66.7%) were satisfied with mech- Safety at Work Act 2015 in relation She says the ‘Me Too’ campaign by anisms (such as human resources to mental harm which sexual har- senior women in other industries staff or an approachable senior) for assment falls under. including the film industry is help- resolving any workplace issues that “Health encompasses both ing women to come forward and arose. physical and mental health so all share their experience in the legal “This issue came up frequently businesses including law firms have community. in interviews with both current a responsibility to prevent harm,” “However we also need to and former practitioners. One she says. remember that just because some- interviewee at a big firm said of her While physical harm is considered body says something, that doesn’t employer’s human resources staff: an assault, the mental harm caused make it true. These things need ‘I do not envy them that position by sexual harassment is equally to be properly investigated. There because I think it’s a position full significant. needs to be a fair process for both of conflict. Their first duty has to be “People go to work and they’re parties. However, given the climate to … the partners but I think they expected to get home safe and that of change we are in, women are feel- hold themselves out to be or are includes that they were not harmed ing empowered to come forward. held out to be or are perceived to mentally by someone’s words,” she Equally though, men who are being be the engine of pastoral care. [It is says. bullied or sexually harassed should perceived that] you should be able also speak up about it.” to go and honestly talk to your HR Workplace bullying manager but in reality, I don’t think Ms Dalziel says one of the biggest Law firm culture you can. Our HR department is … developing areas under the Act is At International Women’s Day on full of heart and they do really try workplace bullying. 8 March there were 13,187 lawyers to deal with issues that staff have
36 LAWTALK 916 · April 2018 PRACTICE
What are we aiming for? We must focus on the culture and underlying assumptions which exist in some law firms and legal workplaces... the change has to come from inside, driven and assisted from outside.
and make the firm a happier, inclusive place but their have been coming out, I think we to staff via our intranet portal and loyalties are always going to be divided.’ Another put are going to see a more equal focus going forward policy refreshers will it simply: ‘At the end of the day, HR are employed by with workplace bullying, including be sent to all staff on a regular basis.” the partnership’.” sexual harassment on health and Bell Gully, Chapman While the report did not focus specifically on sexual safety,” she says. Tripp, Kensington Swan, harassment, the evidence of a pervading culture is hinted Ms Dalziel says policies are good MinterEllisonRuddWatts, Simpson at throughout and emerges in the section on gender. but sometimes they turn into a piece Grierson and Wynn Williams all Two-thirds of female respondents felt that gender had of paper in a drawer collecting dust. state they have policies in place a bearing on their prospects or future in law. “People are now having a big con- which address sexual harassment “There were a number of accounts of explicitly dis- versation about it. It’s really impor- in the workplace. criminatory behaviour. One respondent said: ‘I’ve … had tant that law firms do this. But it’s Bell Gully’s processes and poli- my head patted in the office by a male work colleague not just about sexual harassment. cies include a code of conduct and and been told not to be upset at “banter” when I quietly It’s about working on conversations formal harassment complaints tell [a colleague] he’s crossed a line around me when he’s that make people feel comfortable procedure: “Our firm is committed judging the interns by their looks’. One respondent said at work so that they can do the best to providing a safe and supportive that, at her firm: ‘Female employees are referred to as within their job.” work environment for our people. “battery hens”, and disparaging comments about other Without a good work culture, pol- We have clear processes and policies female practitioners (including judges) are common. icies are next to useless, Ms Dalziel in place, which include a code of These include comments about women being “on their says, because they’re not likely to conduct and formal harassment period” … and about female judges “power tripping”… be challenged or upheld. complaints procedure.” complaints [involving] support staff have been dismissed The recent public discussion and Most of the responding large firms as a “chick thing” about “bitchiness” and “defending outrage has clearly caused law firms say they keep staff informed. their turf because they’re women”,’.” and legal workplaces around the “We regularly communicate the One interviewee commented “I’ve heard senior part- country to look at their practices support available to staff, which ners in the law firm I summer clerked for make some and the policies they have in place. includes approaching our People and seriously eyebrow-raising comments about women”. Performance team, staff advocates Another respondent who had worked at a top-tier The larger firms and the firm’s Employee Assistance firm said: “I was objectified, I was sexually harassed LawTalk asked 14 of the largest New Programme – a programme offering by clients. I saw sexual harassment, and worse, within Zealand law firms (comprising 22% free, independent and confidential the firm.” of all lawyers working in firms) if counselling support available to all The lack of any definitive recent research into the they had a policy and process which staff,” MinterEllisonRuddWatts says. workplace culture of the New Zealand legal profession addressed sexual harassment in The firm says its Harassment has prompted the Law Society to carry out a national their workplace and if people knew and Bullying Policy specifically survey. This is now being prepared and details will who to contact if they experienced addresses sexual harassment. It be advised. a sexual harassment incident. A sets out MERW’s commitment to number did not respond or declined providing a safe, respectful and Policies and practices in law firms to provide information. All of those supportive workplace for all staff New Zealand’s 1962 law firms employ 8429 lawyers and which did reply have policies, some and procedures for how the firm about as many others in supporting roles. The workplace of which have been in place for a will respond to concerns. culture and the practices and actions taken by firms to long time. Buddle Findlay has a “It is also reviewed regularly provide mechanisms to protect their employees and harassment, bullying and discrim- to ensure alignment with legisla- to develop a culture which focuses on safe and equal ination policy and supporting pro- tion and other changes.” MERW opportunity vary widely. cedures and processes. The policy also requires all staff to complete Kathryn Dalziel says about a decade ago workplaces was introduced in 2000 and the firm Safetrac’s Anti Bullying and Anti became very interested in sexual harassment policies, says it is reviewed and updated on Harassment module, with annual but largely nothing meaningful happened. an annual basis. refresher courses. “They were appended to everyone’s employment “Staff are briefed on all firm agreements but then it just sort of slid away in the policies at the time of recruitment; Policy re-examination absence of people telling their stories. Now the stories all policy information is available Wynn Williams has had a detailed
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Behaviour of this type is completely unacceptable and cannot be condoned in any workplace at any time, and it is paramount every employer implements the right policies and procedures to ensure employee safety.
harassment policy for over six years to complaints continues to reflect Many of the allegations and sto- which addresses sexual harassment. contemporary guidance around ries which have emerged over the The policy has been updated at diversity, equality and wellness.” last months have focused on New times, but managing partner Jared The Simpson Grierson policy Zealand’s large law firms. Most have Ormsby says recent events have includes a range of confidential long histories and carry forward the brought about a re-examination. internal and independent support traditions and mindset of times long “We’ve pulled it out again to services “to ensure anyone can con- gone (10 of the biggest 14 law firms see whether it needs any further fidently speak up or seek help with- had their origins before 1880). update.” out fear of being disadvantaged”. “In our view, having the right He says the policy is a detailed “We have an anti-bullying and policies and procedures in place and comprehensive one which sets harassment policy in place and to protect employees and ensure out who people should approach. following the recent stories we their safety is basic business prac- “In terms of the partners, their have communicated with everyone tice. However, the issues raised supervising partner obviously is in the firm to emphasise the high here extend beyond bullying and a first port of call, but of course if standards of behaviour we expect, harassment into broader principles that person is the person who is our policy and how to access the of workplace culture, where safety, involved, it sets up the alternative available support should they have diversity and inclusion are front and channels for them to approach.” any concerns or issues to raise,” says centre. Having the right culture in Mr Ormbsy says the policy has a Chapman Tripp. place will do more to ensure this detailed formal process but an alter- kind of unacceptable behaviour is native process can also be adopted Several support channels less likely to occur,” MinterEllisonRuddWatts says. depending on the seriousness of Chapman Tripp says its staff have The firm says it unequivocally condemns workplace the matter. several internal and external support harassment and bullying of any kind, as has been the “The focus really is on enabling channels, including an Employee subject of recent media reports. people to feel that they don’t have Assistance Programme and external “Behaviour of this type is completely unacceptable to hesitate in bringing something counselling. These are available to and cannot be condoned in any workplace at any time, forward, and we don’t want the everyone for any issues – and do not and it is paramount every employer implements the policy or the process to be a bar- need to be work-related. right policies and procedures to ensure employee safety." rier to that. There’s nothing wrong Kensington Swan’s policy and The issues raised over the last months are not just with people coming forward when process addressing sexual harass- about protecting staff from bullying and harassment, they have any concerns, whether ment in the workplace outlines the but extend to broader matters about workplace culture, they’re at the more serious end of remedies available to staff and what where safety, diversity and inclusiveness are front and the spectrum or the less serious.” they should expect to happen if they centre, it says. Simpson Grierson says its har- raise a complaint. “MinterEllisonRuddWatts has worked hard to build assment policy acknowledges the “Our staff do know who to con- a strong diverse and inclusive workplace culture, and firm’s responsibility to ensure that tact if they experience a sexual we have a great deal of confidence in our strengths in harassment is not condoned or harassment issue – we have harass- these areas. The recent coverage has provided a good tolerated and that any complaint ment officers as well as those of us opportunity to continue an internal conversation with all is handled appropriately, fairly and who are in more formal roles, such our people about our firm’s culture and values, and how promptly. It has also taken another as myself,” says People Director we can continue to improve. This process has started and look at the policy. Sandra Gilliam. will continue. We are proud of our culture and workplace “In light of recent events we have The formal policies and processes record but we are not complacent and will continue to taken the opportunity to review this are an important ingredient, but it is be vigilant and intolerant of unacceptable behaviour.” policy to ensure we are doing all clear that establishing and ensuring Wynn Williams national managing partner Jared we can to keep our employees safe the right culture and a respectful Ormsby says the way forward starts with firm culture and that our process for responding and welcoming workplace is key. and with the leadership within the firm.
38 “What kind of example do the Simpson Grierson also places a 2013. They are respecting people, having integrity, being leaders set, and what does the firm lot of emphasis on having a strong collaborative, and being astute and dynamic.” tolerate? And what kind of culture culture and positive, open dialogue “It’s what you tolerate that becomes part of the culture is accepted in a firm. That’s always with its staff, the firm says. and what is accepted,” says Jared Ormsby. “People are going to be one hundred percent “This helps us keep day-to-day people and people always make mistakes and do things more effective than any policy. activity in step with our company that are wrong unfortunately and you can’t control We’re lawyers, we’re focused on values and supports ongoing efforts everything about human behaviour. But I think you being lawyers, so we want people to maintain a safe and enjoyable can significantly lessen the likelihood of these kind of to enjoy their work of course, but we environment for all employees and things if you build a strong culture and you make it clear want them to enjoy it appropriately.” students who spend time with us.” that it’s not part of your culture or your environment Mr Ormsby warns against the Chapman Tripp says as part of its does not tolerate it.” “entitlement” expectation in the ongoing health, safety and wellbeing profession. programme in 2018, it is running Medium law firms “We’re a very privileged profes- anti-bullying and harassment train- Law firms with between four and nine partners or sion; we have the ability to go to ing for everyone in the firm. directors employ 23% of the lawyers who work in law university, to come into the law firm, “We are also running workplace firms. Fewer resources available for staff management and if we’re really good lawyers, to psychological health training for and other HR functions are balanced by smaller and work our way up in that law firm partners and managers, reinforcing less compartmentalised workforces. and to become owners of the busi- the importance of mental health and Managing partner and Crown Solicitor at Invercargill’s ness. And that’s a great thing – it’s wellbeing and giving them the skills Preston Russell Law, Mary-Jane Thomas has been prac- a privilege and it’s something we to identify issues and help promote tising law for about 30 years. Her firm has nine partners should all look to maintain and psychological health at work,” the and a total of 19 lawyers. value. But it can also build into an firm says. She says the firm doesn’t have a specific policy entitlement mindset … and I think “We have a strong healthy culture addressing sexual harassment, for reasons she will we have to be really careful of that based on five core values developed happily defend. in law firms.” by staff and partners together in “I’m not a great believer in having policies on things
39 PRACTICE April 2018 · LAWTALK 916
that I think are more a cultural issue. For example, I who runs the team that our lawyers can go to if they work a lot with health and safety as an employment need to arrange counselling. I don’t find out about it. lawyer. The purpose of health and safety is to protect life Most of these lawyers would come to me but sometimes and limb, a relatively simple concept but it has turned people don’t want me to know that they’re finding an into a nightmare of paper. People forgot what the end aspect of a trial tough. Again that’s part of the work goal was: to protect people’s safety at work. What it culture we’ve created,” she says. has become is a lot of ticking of boxes for people with respect to policies,” she says. You can’t buy a culture Miss Thomas says if a company’s culture is correct, Mary-Jane Thomas says a culture has to come from the issues such as sexual harassment are less likely to occur, top and be led by those senior staff members. and a policy becomes a lower priority. She also says “You set guidelines of what is and what isn’t accept- that despite not having a policy, the firm has a clear able behaviour by how your senior people act. If your procedure that all staff are aware of if such incidents senior people are acting in a certain way, and someone and behaviour occur. steps outside that cultural model, then you will be lis- “In our firm whether you are male or female, if you’re tened to. How people conduct themselves in a firm is treated in a manner that is inappropriate – and that’s passed on from the top,” she says. not just sexual harassment, it’s bullying too – there are In Christchurch Kathryn Dalziel’s two-partner firm people in our leadership that staff can go to and they Taylor Shaw has a policy which addresses sexual har- will be listened to. It’s also important that they have assment and all staff are aware of who to contact if they confidence that this won’t detrimentally affect their experience an uncomfortable incident. career by speaking up.” Ms Dalziel says that without a good work culture, In theory, if a colleague’s behaviour towards a person policies are next to useless, because they’re not likely isn’t professional, regardless of where that colleague to be challenged or upheld. sits in the business hierarchy, any employee should be “This includes talking about work functions and the able to access help without it causing further problems. behavioural expectations in respect of alcohol. We social- But Mary-Jane Thomas says the risk to the career of ise at our firm regularly and I would hope that anyone someone making a complaint is probably one of the would come and talk to me if they thought someone’s biggest concerns for young lawyers trying to make their behaviour had crossed the line,” she says. mark in the competitive legal sector. “I’ve had a both a senior practitioner and even a judge “If the culture in a workplace is such that you would lurch at me and touch my breasts. I’ve had my bottom be seen as being weak or a troublemaker, then you rubbed as well as having been in an environment where wouldn’t complain, you’d just leave that company. I jokes were made about women by men. I tended to see it in the courtroom too from time to time where a simply brush it off, or challenge them with words like, young lawyer is being yelled at by a judge. The lawyer ‘how would you like it if I did that to you?’ doesn’t complain, but what does happen is that some “I dealt with these issues as they happened at the of these young lawyers stop doing court work. A lot of time. But I do have some regret about that because, people remove themselves from an environment because like many other women, I feel we should have put our they don’t feel confident that anything will change if heads above the parapet before now. I was younger and they did say something, or that it would cause more worried about the impact on my career and making a harm than good,” she says. fuss about what a lot of people during that time would She adds that in the law profession, people tend to have perceived as a storm in a teacup scenario. The thing steer away from confrontation because it is perceived that saddens me is that women are still experiencing as being career limiting if you do speak out. this in 2018. It’s time to say when.” Some medium-sized firms contacted by LawTalk said Soul destroying case details that while they had no specific sexual harassment policy The firm’s office is a very open environment, she says. and to the best of their knowledge had never had a “As a managing partner I tell all new staff, ‘if you’ve problem or complaint, consultation about recent events got a problem, whatever it is, come and see me and if I among the partners had resulted in a decision to create can’t fix it or help, I’ll find someone that can’.” a policy. She says it has to be that way as the lawyers, particu- Sharp Tudhope in Tauranga has 10 partners and 36 larly those in the criminal team are often exposed to other staff, many of whom are women. The firm says it harrowing case details and facts related to sex crimes. has a comprehensive staff manual and says it is com- Miss Thomas says criminal lawyers are often perceived mitted to ensuring all employees receive fair treatment as being quite tough. in the workplace. “That’s part of the culture and women who are Its ‘Fair Treatment’ policy aims to ensure all staff enjoy practising in this area of law probably strive for that a workplace free from harassment and unwanted or perception more so. But some of the case details can unacceptable behaviour of any kind. be quite soul destroying. We have a designated person, If an employee feels that they are being harassed,
40 LAWTALK 916 · April 2018 PRACTICE
You set guidelines of what is and what isn’t acceptable behaviour by how your senior people act. If your senior people are acting in a certain way, and someone steps outside that cultural model, then you will be listened to. How people conduct themselves in a firm is passed on from the top.
discriminated against or unfairly firms and say they regularly talk to staff about what them. Our staff are well aware from treated they have a choice of infor- unacceptable behaviour looks like. the many conversations we have mal or formal procedures, depend- “Because we work with victims of abuse every day, about other people’s workplaces ing on how they would like their we have a standing contract with a psychotherapist for that we would find such behaviour concern to be dealt with. any staff member who requires EAP. This provides an totally unacceptable. We also hire Sharp Tudhope says there is a independent ear for any concerns – particularly for our people for their excellent attitudes, choice of people for employees to graduate and junior staff,” Ms Hill says. and our male employees are colle- contact if an incident occurs and “We have a small office space, so there is high visi- gial and respectful.” all employees are assured that any bility of behaviour in the office. We have a messenger Thirteen people work at Dunedin discussion will be kept in confidence system installed on our computers so concerns can be firm Polson McMillan Lawyers, and and that they will not be victimised immediately and confidentially raised with senior staff, principal Sally McMillan says her for raising concerns. even if they are on the phone. sexual harassment “policy” is largely It says counselling is also availa- “Our clients occasionally do not respect boundaries of accidental, but simple and effective: ble to all staff. lawyers or support staff. All staff know to escalate these “I employ mainly women”. Other firms said that they had concerns to senior staff, where the client is advised to “I currently have only one (care- formulated a policy but it had not cease their conduct. The firm has terminated its retainer fully selected) male, who assures me been extensively talked about with with sexually inappropriate and/or threatening clients that he has never sexually harassed staff, so they were unsure as to in the past.” a colleague, or suffered sexual har- whether all employees were aware Rotorua firm Sandford and Partners has eight staff and assment himself. All of my female of its existence. does not have a sexual harassment policy, but partner staff have been sexually harassed Paul Sandford says as a team the firm has regular weekly in the legal workplace, except for Small law firms meetings and has discussed the issue. two – one of whom has only ever The smaller an enterprise, the less “The associate and staff solicitor are both my children, worked in all-female firms.” likely it is to have specialists work- and one of the legal execs is the daughter of our prac- Ms McMillan says women-only ing in human resources and other tice manager. We occupy relatively small premises and practices and chambers are very supporting roles. There are also because of the office layout we can hear most people common in the New Zealand legal fewer people available to discuss most of the time so staff interactions are relatively profession. an issue with or from whom to ‘public’. Our discussions really mean that if anyone “Why is that? The absence of seek advice. On the positive side, has a problem they can approach myself, my partner having to deal with sexual har- small workplaces can mean higher or the practice manager – whoever they feel the most assment mightn’t be specifically visibility of staff interaction and the comfortable with. Any such complaint will be dealt with articulated as a reason for our choice ability to be more selective of who quickly and given priority.” – in our profession, being branded ‘a you have in your workplace. feminist’ has never been a compli- Wellington firm Cooper Legal People know who to contact ment – but, in discussions between specialises in human rights abuse “We do have a [harassment] policy, and yes, people ourselves, lawyers in women-only and has two partners. know who to contact – one of the partners, the office practices extol the virtues of a work- “Cooper Legal is a small office, manager or the Law Society,” says Dyhrberg Drayton place in which we don’t have to deal so we do not have a written policy. Employment Law partner Steph Dhyrberg. “Obviously, with the suite of issues, including However, we have a number of as employment lawyers, all our staff know their rights sexual harassment, which seem to procedures in place to manage any and options.” arise in the workplace once a critical issues like this in the workplace,” Much more importantly, says Ms Dhyrberg, the two gender mix is reached, and the egos says partner Amanda Hill. firm partners role model good behaviour and don’t and libidos – of both sexes – get in Ms Hill and principal Sonja tolerate sexist comments, jokes or behaviour. the way. In the end, I think many Cooper come from a background of “We have called out the occasional client or colleague woman lawyers simply vote with working in large and medium-sized for unacceptable conduct, so our staff know we support their feet.”
41 What is the New Zealand Law Society doing?
The Law Society has embarked upon behaviour in the legal profession to the Law Society. being developed. As well as seeking a plan of action which addresses any Chaired by Dame Silvia Cartwright, the five-member information on harassment, this will structural or systemic problems in working group will include two lawyer members, chosen include questions on stress and reporting and outing incidents of after a call for expressions of interest in participating. wellbeing. It is designed to take an sexual harassment. It is also imple- Development of an online facility and dedicated in-depth look at the legal workplace menting a range of actions which helpline which enables reporting of concerns related environment. have the objective of being practical to workplace harassment. The objective is to make it Development of more local means to openly and fully address easier for people to raise and discuss sensitive matters branch and national events which the issue of sexual harassment in arising in their workplace. address how to deal with difficult the legal profession. This includes A free NZLS CLE Ltd webinar on preventing harass- people, bullying and harassment. ways to confront and overcome neg- ment and bullying will be available to all lawyers on 4 Provision of more information ative workplace cultures and also April. This will be a similar format to the very successful and practical guidance through to provide support for people who unconscious bias webinar delivered last year. Law Society publications, beginning are affected or otherwise harmed. Completion of a review of the National Friends with this issue of LawTalk. The information below states the Panel and identifying or recruiting members who are Inclusion of information which position when LawTalk went to particularly well placed to provide support and advice addresses harassment and bullying print on 23 March. on sensitive matters. in Law Society publications for Establishment of a working The Law Society will organise and facilitatemeetings young lawyers. group to examine whether the of key interest groups to look more generally at harass- Development and maintenance existing legislative framework and ment in the legal profession and ways in which this can of centralised information resources processes enable adequate report- be addressed. This will be followed by establishment of and support available from organi- ing, support for those affected and a national committee to work on the issue. sations both within and outside the effective action in relation to har- A national survey of all lawyers which looks at the legal profession. This will draw upon assment or inappropriate workplace current workplace environment for legal practice is the Practising Well initiative.
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Other alternatives for We do understand that there may be situations reporting sexual assault where the victim does not feel comfortable speaking to the perpetrator’s BY ANGHARAD manager/supervisor or a O’FLYNN senior staff member, for any number of reasons. However, we would still encourage you, as a Policies, open discussion, good to the perpetrator’s manager/super- witness, to report it, while processes and a supportive environ- visor or a senior staff member, for keeping the identity of ment may still not mean that staff any number of reasons. However, the victim confidential if in legal workplaces feel comfortable we would still encourage you, as a required. approaching their managers or col- witness, to report it, while keeping leagues. The Law Society is working the identity of the victim confiden- to establish an outside alternative tial if required. If the perpetrator’s and some organisations also have actions go unreported, there is a What is the obligation of a senior law firm arrangements for outside assis- risk that they will continue their if either harassment or assault, committed tance. Two other alternative, the inappropriate behaviour and may by a staff member, is brought to their New Zealand Police’s Adult Sexual go on to victimise others. attention? Is this a black and white/right and Assault team and New Zealand’s “If at any time the person being wrong issue? Or are there grey areas? Sexual Abuse Prevention Network, harassed fears for their safety, the “If a manager/supervisor receives a report of sexual have provided some guidance on matter should be reported to Police harassment, it is imperative that the matter is inves- what to do if you are in this position. immediately.” tigated thoroughly and, if substantiated, dealt with The Adult Sexual Assault teams appropriately. What the appropriate response is will vary are specialist teams that investigate What help can the depending on the circumstances. If criminal offending reports of sexual assault where the Police provide to those is reported, the matter should be referred to Police.” victim is 18 years or older at the time experiencing harassment? of reporting the offending. There are “Police can offer advice and will be Sexual Abuse Prevention Network a number of such specialist teams able to suggest steps that the victim (responses from Fiona McNamara, General Manager) based around New Zealand. can take both to protect themselves and to address the perpetrator’s The Sexual Abuse Prevention Network is a Charitable Police Adult Sexual behaviour.” Trust and a collaboration of Wellington Rape Crisis, Assault team Wellington Sexual Abuse HELP Foundation and WellStop. (responses from Detective Senior Please explain the Adult “The Sexual Abuse Prevention Network provides Sergeant Anthony Tebbutt, National Sexual Assault Team’s consultancy services and professional development Coordinator) definitive line between programmes to address sexual violence. harassment and assault. Is “Consultancy services include facilitated strategic What can be done if you there a scale of severity? planning, policy development and advice on sexual witness ongoing sexual “Sexual harassment is unwanted harassment prevention and response initiatives that harassment, but the victim/s, behaviour of a sexual nature. This can be implemented into the workplace. for whatever reason, don’t can be physical comments, verbal “Professional development includes training on sexual want it reported to senior staff? comments or non-verbal action. harassment, healthy workplace relationships – including “Sexual harassment is completely “Sexual assault is a term used discussing professional boundaries and appropriate inter- unacceptable and nobody should to describe a range of sex crimes actions between staff at all levels and staff and clients, have to tolerate it in their workplace. committed against a person. It is appropriate response to sexual harassment incidents and “We would encourage anyone who any unwanted or forced sex act on implementation of workplace policies and procedures. is the victim of sexual harassment, or or behaviour that has happened “If someone has experienced sexual abuse, including who witnesses sexual harassment, to without a person’s consent. sexual harassment, there are a number of specialist sup- report it to the manager/supervisor Sexual assault may include: port services throughout the country. These can provide of the perpetrator, or to another • Rape (sexual intercourse without support to the person affected as well as to those who manager/senior staff member. consent); are supporting them.” “We do understand that there • Indecent assault (unwanted may be situations where the victim sexual touching); For more information visit sexualabuseprevention. does not feel comfortable speaking • Acts of indecency (exposure). org.nz or email [email protected]
43 PRACTICE April 2018 · LAWTALK 916
PRACTICE What tools does the Law Society currently have for the reporting of unacceptable conduct?
BY THE LAWYERS COMPLAINTS SERVICE
lawyer, whether they were the victim of lawyer’s duty to protect confidential Recent events have shone a light on the conduct or became aware of what took non-privileged information. harassment and unacceptable behaviour place as supervisor, employer, colleague “2.8.2 Where a report by a lawyer to the in our profession. It has rightly provoked or witness/bystander. The obligation on Law Society under rule 2.8 may a conversation about how to eradicate lawyers to report unacceptable conduct breach the lawyer’s duty to pro- behaviour which has no place in the prac- applies equally to lawyers who witness tect confidential non-privileged tice of law and is contrary to the values the conduct as to those directly involved. information, the lawyer should we stand for. The obligations for making a confidential also advise his or her client of the Essential work is being undertaken to report are set out in rules 2.8 and 2.9 of report.” help create a culture where the victims the Lawyers and Conveyancers Act 2006 The rule requires all lawyers to submit a of harassment or unacceptable behaviour (Lawyers: Conduct and Client Care) Rules confidential report to the Law Society if feel more enabled to seek support from 2008. It is likely that a great deal of the they have reasonable grounds to suspect the New Zealand Law Society. Even with unacceptable behaviour currently being another lawyer has been guilty of mis- the best support, we know that making discussed should be reported under these conduct. The definition of misconduct is a complaint and investigating it can be a rules. set out in section 7 of the Lawyers and confronting experience for victims. We are Rules 2.8 and 2.9 provide a mechanism Conveyancers Act 2006. committed to exploring ways to address for lawyers to disclose information in This essentially provides that miscon- this and a working group has been estab- situations where they are concerned duct includes conduct that occurs at a time lished with this as one of its aims. about the conduct of other lawyers. The when a lawyer is providing regulated ser- Questions have also been raised about broad purposes of these two rules are the vices which would reasonably be regarded the mechanisms that are currently in place protection of the public and the mainte- by lawyers of good standing as disgraceful to ensure sexual harassment, assault, nance of the integrity and reputation of or dishonourable. It might also amount to discrimination, bullying and other forms the profession. Both are vital to ensuring a wilful or reckless breach of any practising of unacceptable conduct are reported lawyers retain the trust of the public and condition or restriction or of any regulation so that the conduct can be challenged, clients they serve. or practice rule relating to the provision of investigated and addressed. What tools regulated services. It also includes grossly do we currently have to report this type Reporting misconduct excessive charges for legal work. of behaviour to stop it from reoccurring? – Rule 2.8 Misconduct can also include conduct Two main channels under the current Rule 2.8 provides: that is not connected with the provision rules are designed to capture the types of “2.8 Subject to the obligation on a lawyer of regulated services which would justify conduct being discussed. to protect privileged communica- a finding that the lawyer is not a fit and The first channel is via the lodging of a tions, a lawyer who has reasonable proper person or is otherwise unsuited to complaint. grounds to suspect that another the practice of law. The second channel is via the provision lawyer has been guilty of miscon- The reporting lawyer is not expected to of a confidential report, which can lead duct must make a confidential act as judge and jury and make a defini- to an investigation of the lawyer’s con- report to the Law Society at the tive decision about whether the reported duct that is independent of the reporter. earliest opportunity. conduct is misconduct. Instead, any lawyer Confidential reports can be made by any “2.8.1 This rule applies despite the who is concerned about another lawyer’s
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“It is not difficult to see in some forms Harassment of conduct, or in convictions of some “It is not possible to deny harassment, kinds of offences, instant demonstration including sexual harassment, exists in the of unfitness for the Bar. Conduct may legal profession … The rules make no spe- It is not possible show a defect of character incompatible cific reference to harassment, but they do to deny with membership of a self-respecting require lawyers to uphold the rule of law, harassment, profession; or, short of that, it may show which will include the legal obligation not including sexual unfitness to be joined with the Bench and to discriminate against or treat unfairly any harassment, the Bar in the daily co-operation which other practitioner by reason of colour, race, exists in the the satisfactory working of the courts ethic or national origin, sex, marital status, legal profession demands.” — Ziems v Prothonotary of the or religious or ethical belief of that other … The rules Supreme Court of NSW (1957) 97 CLR 279, practitioner. On these grounds, unwanted make no specific 298 cited in Auckland Standards Committee and inappropriate behaviour towards other reference to No 1 v Murray [2015] NZLCDT 6. lawyers which amounts to discrimination harassment, but “To maintain the reputation of the can also amount to unsatisfactory conduct they do require solicitors profession ... and sustain public or misconduct.” — Duncan Webb, Kathryn lawyers to confidence in the integrity of the profession Dalziel and Kerry Cook Ethics, Professional uphold the rule it is often necessary that those guilty of Responsibility and the Lawyer (3rd ed, of law. serious lapses are not only expelled but LexisNexis NZ Ltd, 2016) at 399. denied readmission ... otherwise the whole A Deputy Legal Complaints Review profession and the public as a whole, is Officer also made the following personal injured. A profession’s most valuable observations in a letter to LawTalk: asset is its collective reputation and the “Sexual harassment is disrespectful, conduct should stand back and consider confidence which that inspires.” discourteous and does nothing to promote whether it is likely that a reasonable “We consider the lack of integrity or maintain proper standards of profes- member of the legal profession would demonstrated by the misconduct in this sionalism in lawyers’ dealings with others. consider the behaviour falls within the matter, particularly when accompanied Sexual harassment could be an indication scope of misconduct. We recommend by failure to recognise it as such, means of a lack of integrity on a lawyer’s part. that lawyers confide in a trusted colleague that strike off is the only proper response While such conduct could be addressed or seek advice from a National Friends in order to protect the public and the in the human rights and employment Panel member (see below) when deciding reputation of the profession.” — Bolton whether they should make a formal report. v Law Society [1994] 2 All ER 486 (CA) at The New Zealand Lawyers and 492 and National Standards Committee v Conveyancers Disciplinary Tribunal has Poananga [2012] NZLCDT 12 at [41] cited typically found misconduct to be: in National Standards Committee v Denham • Dishonest or misleading conduct (Court/ [2017] NZLCDT 30 at [39] and [34]. client or third party); A number of sources of legal com- CHANGE OF ADDRESS • Serious and repeated client care or trust mentary have also commented on this Dear Colleagues, account breaches; type of conduct and its reflection on the Polson McMillan is on the move. • Gross or serious negligence resulting in profession: As from Tuesday 3 April our loss to the client; offices will be located at Level- • Taking advantage of a vulnerable client; Avoid discrimination, 5, Forsyth Barr House, The Octagon, Dunedin. • Repeated rules breaches over a lengthy harassment and bullying Our mailing address will be - period of time; “A lawyer is ethically obliged to recognise PO Box 5547, Dunedin • Serious convictions; the essential dignity of each individual Our phone and fax numbers and • Instances where the lawyer has obtained in society and the principles of equal our email addresses all remain any inappropriate financial benefit from rights and justice, an obligation that the same. the client. applies to lawyers’ relationships. Their We look forward to seeing you soon While discrimination, sexual harassment status as professionals, coupled with in our new premises. and assault are absent from the list, they their responsibility to protect individual Sally McMillan would not appear to be out of place. Indeed, rights, means that lawyers should lead Principal T +64 3 477 2238 | F +64 3 474 5588 the findings and observations made by the by example in a non-discriminatory con- [email protected] Tribunal in relation to other instances of duct.” — GE Dal Pont Lawyers’ Professional www.polsonmcmillan.co.nz misconduct could also be applied to much Responsibility (5th ed, Thomson Reuters, of the behaviour being discussed: 2013) at 704.
45 PRACTICE
jurisdictions, sexual harassment is also conduct of a type that could result in a determination of ‘unsatisfactory conduct’ being made against a lawyer … Some situations where an allegation of sexual harassment is made could result in a lawyer’s conduct being considered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal, which exercises jurisdiction over misconduct and has the power to suspend or strike a practitioner off.”— Letters to the Editor, LawTalk 914, February 2018, page 17. Reporting Unsatisfactory Conduct – Rule 2.9 What if it does not fit the definitions of misconduct? “Rule 2.9: Subject to the obligation on a lawyer to protect priv- ileged communications, a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of unsatisfactory conduct may make a confidential report to the Law Society, in which case rule 2.8.1 will likewise apply.” If the conduct being discussed is not likely to be misconduct, it could amount to unsatisfactory conduct, which can be reported under the provisions of rule 2.9. Lawyers can choose to submit a report if they have reasonable grounds to suspect another lawyer has been guilty of unsatisfactory conduct. The definition of unsatisfactory conduct is set out in section 12 of the Lawyers and Conveyancers Act. This essentially provides that unsatisfactory conduct includes conduct that occurs at a time when a lawyer is providing regulated services which falls short of the standard of competence of diligence expected of a reasonably Rule 13.2.1- a lawyer must treat others involved in court processes competent lawyer or conduct that lawyers of good standing would with respect. regard to be unbecoming or unprofessional. It can also include a Rule 2.3 – a lawyer must not use the law or legal processes for contravention of a practising condition or restriction. It might also improper purposes and not cause unnecessary distress, embar- include a breach of any relevant provision or regulation relating rassment or inconvenience to a person’s reputation, interests to the provision of regulated services. or occupation. This could be engaged if, for example, a senior lawyer attempted to use employment law mechanisms to dissuade Other relevant rules another lawyer from disclosing harassment, etc. Harassment and bullying and other inappropriate behaviour could Rule 2 – a lawyer must uphold the rule of law (see the quote breach a number of Conduct and Client Care Rules, including: above from Ethics, Professional Responsibility and the Lawyer). Rule 10 – a lawyer must promote and maintain proper standards It is fair to say that the rules and regulations established under of professionalism in the lawyer’s dealings. the Lawyers and Conveyancers Act typically apply to conduct Rule 10.1 – a lawyer must treat other lawyers with respect and that occurs in the course of providing legal services to a client. courtesy. That is not the case with misconduct (see section 7(1)(b)(ii) of the Rule 11 – a lawyer’s practice must be administered in a manner Act. An argument could also be made that harassment of a legal that ensures duties to the court …. and the reputation of the legal colleague or employee in the workplace could also be deemed profession is preserved. to be sufficiently closely connected to the work a lawyer does to Rule 11.3 – a lawyer practising on own account must ensure fall within the scope of legal work (as discussed in Orlov v New that the conduct of the practice and employees is at all times Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC competently supervised and managed by a lawyer qualified 1987; [2015] 2 NZLR 606). A lawyer can also be found guilty of to practice on their own account. ‘Competently managed and unsatisfactory conduct for a breach of the rules, even if it did not supervised’ presumably would include that the practice meets occur when providing legal services (EA v ABO LCRO 237/2010, 29 health and safety requirements – including that it is a safe working September 2011). environment for employees. Rule 12 – a lawyer must, when acting in a professional capacity, Who can you talk to? conduct dealings with others, including self-represented persons, You can discuss your concerns with an experienced practitioner with integrity, respect, and courtesy. from the National Friends Panel on a confidential basis, in advance Rule 13.2.1 – a lawyer must not act in a way that undermines of submitting a complaint or confidential report. They have experi- the processes of the court and the dignity of the judiciary. ence in ethical matters and may be able to assist with any concerns.
46 PRACTICE
◂ Texas A&M University bna
which cannot be answered in a single way. Allegations need to be considered and determined in compliance with the rules of natural justice. “While the claim that harassment will amount to unsatisfactory conduct or mis- conduct is uncontroversial, the victims of harassment rarely seek to remedy the situation formally. The seriousness of such complaints is frequently underestimated, particularly by senior members of the profession. There is an unwillingness to make a complaint against a lawyer for fear of a legalistic response to the complaint, which will only exacerbate the problem. That it is frequently necessary to prove the harassment occurred (with consequent ramifications for the harasser) means making the complaint can be arduous and possibly damaging. Even if the harassment is proved, the consequences for the victim (such as transferring within a firm or being marked out as a complainant) can be nearly as harmful as the harassment.” — Duncan Webb, Outside of the Friends Panel, talking to a While not specifically mentioned in Kathryn Dalziel and Kerry Cook Ethics, trusted senior colleague on a confidential the legislation, it would be expected that Professional Responsibility and the Lawyer basis can be invaluable – this could be a any report must be in writing in accord- (3rd ed, LexisNexis NZ Ltd, 2016) at 400. chambers mate or an experienced lawyer ance with the requirements relating to a The steps required to prove unacceptable you have worked with. Most senior lawyers complaint. conduct has occurred must always be are very happy to offer support and assis- As part of the process of referring the balanced with the protections that must tance to other members of the profession matter to the standards committee it is be afforded to any victims of the conduct. facing ethical and professional dilemmas the usual practice of the Law Society to This is not a simple issue. or challenges in their professional lives. If contact the report writer to discuss the The Law Society is working to create you choose to approach a fellow lawyer investigation process and what restric- an environment where reports and com- for assistance, ensure that it is someone tion there may be on the disclosure of plaints can be made in a way that limits you trust and feel comfortable talking to. the report. While this might appear to be the adverse consequences that can flow Care should be taken at the beginning contrary to the confidential nature of the for the victim, while preserving the alleged to establish the relationship – a lawyer/ report, it is one of the ways to ensure that wrongdoers right to natural justice. client relationship on a pro-bono basis will protection is afforded to the victims of any “Harassing behaviour is wrongful ensure that the matter is privileged so that unacceptable conduct and is necessary if behaviour; however; a change of culture issues relating to reporting do not arise for the matter is to be investigated. If there is necessary rather than a change in the the senior lawyer. are any issues with disclosing the contents rules to remedy the worrying incidence of of the report, these must be considered such conduct.” — Duncan Webb, Kathryn What happens to a report by the standards committee in advance Dalziel and Kerry Cook Ethics, Professional when it is received? of commencing any investigation. Responsibility and the Lawyer (3rd ed, When a confidential report is received it is LexisNexis NZ Ltd, 2016) at 400. triaged by experienced Law Society staff. What can be achieved The Law Society recognises that unac- It is then referred to a lawyers standards through reporting? ceptable behaviour needs to be addressed committee for consideration as to whether As indicated above, we accept that the through a combination of regulatory over- the contents of the report should be inves- reporting and investigation of this type sight and cultural change. Greater use of the tigated as potential unsatisfactory conduct of conduct can be immensely harmful current reporting channels, combined with or misconduct under section 130(c) of the to the victims and that has led to under targeted education and support for victims, Lawyers and Conveyancers Act. reporting in this area. It is a complex issue can play a key role in achieving this. ▪
47 PRACTICE April 2018 · LAWTALK 916
PRACTICE Should our Code of Conduct specifically address discrimination in the workplace?
BY KATE HENRY
illnesses or other condition that amounts to a disability The intense media focus on sexual harassment under the HRA? and other inappropriate sexual behaviour in law firms Overseas, law societies and other regulators of the has forced us to confront the issue of sexual harassment legal profession have taken the view that lawyers have within our profession. The Law Society is considering a special obligation to ensure compliance with anti-dis- taking a number of steps to address this issue as part crimination legislation. This is a valid point. One of the of its wider commitment to gender equality. While the fundamental rules in the Conduct Rules is that lawyers Law Society’s focus on sexual harassment and gender are obliged to uphold the rule of law (Rule 2). There is equality is positive and is likely to raise awareness and a strong connection between the rule of law and the lead to improvement in these areas, consideration should maintenance of human rights. The Universal Declaration be given to widening this focus to include all forms of of Human Rights (which includes the right to be free unlawful discrimination in the workplace. Furthermore, from discrimination) states in its preamble that human I believe there is a strong argument for lawyers’ obli- rights are to be protected by the rule of law. As lawyers, gation to comply with anti-discrimination legislation our obligation to uphold the rule of law means we should to be specifically referenced in the Rules of Conduct and be leading the way when it comes to compliance with Client Care (“Conduct Rules”). anti-discrimination legislation in the workplace. Broadly, the combined effect of the anti-discrimina- tion provisions in the Human Rights Act 1993 (“HRA”) Rule 2.8 is subjective and the Employment Relations Act It can be argued that the Conduct Rules are sufficient to 2000 is that employees, applicants deal with issues of sexual harassment and discrimination for work and other workers have in law firms. The Lawyers and Conveyancers Act 2006 statutory protection from sexual states that misconduct includes conduct ‘that would and racial harassment and unlawful reasonably be regarded by lawyers of good standing as discrimination on the prohibited disgraceful or dishonourable’. Rule 2.8 of the Conduct grounds. If an enquiry into unlaw- Rules places an obligation on lawyers who suspect ful discrimination in law firms was While, with another lawyer of misconduct to make a confidential undertaken, it may well reveal that hindsight, it report to the Law Society. While, with hindsight, it forms of unlawful discrimination seems clear seems clear that most forms of sexual misconduct in the other than sexual harassment or sex that most workplace would amount to professional misconduct, discrimination are also prevalent forms of sexual there is no escaping the fact that Rule 2.8 is subjective. within legal practice. How many misconduct in It requires the lawyer to consider what a lawyer of ‘good older lawyers face discrimination the workplace standing’ would regard as disgraceful or dishonourable on the grounds of their age when would amount conduct. This may be particularly difficult when lawyers they apply for positions or when to professional of otherwise good standing may have committed the they are at risk of being selected misconduct, act of sexual harassment or, despite their knowledge of for redundancy? How good are there is no the harassment, failed to do anything about it! law firms at making ‘reasonable escaping the Regulators of lawyers in other jurisdictions have seen accommodations’ for employees fact that Rule fit to include rules that specifically address workplace who suffer from a mental or physical 2.8 is subjective. discrimination in their codes of conduct. In England
48 LAWTALK 916 · April 2018
and Wales, equality of opportunity of ‘any person’ under the heading and diversity feature prominently in “lawyers’ relationship with stu- the Solicitors Regulation Authority’s dents, employees and others”. The Code of Conduct (“SRA Code”). commentary to the Rule states: “A lawyer has a special respon- Outcome focused sibility to comply with the The SRA Code is outcome focused. requirements of human rights It sets out 10 mandatory principles laws in force in Canada, its and goes on to list various manda- provinces and territories and, tory outcomes. Principle 9 of the specifically, to honour the obli- SRA Code requires solicitors to run gations enumerated in human their business or carry out their role rights laws.” in the business “… in a way that In Australia, the issue of discrim- encourages equality of opportunity ination and harassment is dealt and respect for diversity”. Under with in the Australian Solicitors Section 2, Equality and Diversity, the Conduct Rules under a section titled SRA Code goes on to list a number “Law Practice Management”. The of mandatory outcomes solicitors Rule provides that in the course of must achieve. In the course of their practice, solicitors must not engage professional dealings, solicitors in conduct which constitutes dis- must not unlawfully discriminate crimination, sexual harassment or against or harass anyone (not just workplace bullying. their clients). They must make Finally, a further issue is the use reasonable adjustments to ensure of non-disclosure agreements to employees with disabilities are avoid complaints of misconduct. not at a substantial disadvantage The SRA has recognised this issue to those who are not. They must also in respect of settlements of sexual approach recruitment and employ- harassment and discrimination ment in a way that “encourages claims. On 12 March 2018, it issued a equality of opportunity and respect ‘warning notice’ to firms in England for diversity”. Significantly, solicitors and Wales against using NDAs to must ensure that discrimination prevent the reporting of professional complaints are dealt with ‘promptly, misconduct. Firms were advised fairly, openly and effectively’. The that NDAs must not stipulate or give professional obligations in respect of anti-discrimination SRA Code specifically provides the impression that the reporting legislation. Having the expected behaviours set out in that if a UK court or tribunal has of the matter to the SRA (and some the Conduct Rules would remove any ambiguity about found that a solicitor has committed other agencies) is prohibited. Any whether such acts amount to misconduct and should an unlawful act of discrimination change to the Conduct Rules should or should not be reported. It would also empower those that can be used as evidence that address the use of NDAs. lawyers or other employees who are subjected to sexual the solicitor has failed to achieve a With the recent media atten- harassment or other forms of unlawful discrimination mandatory outcome. tion on sexual harassment in law to take action. ▪ The Federation of the Law firms, now is a good time for the Societies of Canada’s Model Code Law Society to push for an amend- Kate Henry [email protected] is a direc- of Professional Conduct prohibits ment to the Conduct Rules so that tor of Auckland specialist employment law firm Just harassment and discrimination they specifically set out lawyers’ Employment.
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49 PRACTICE April 2018 · LAWTALK 916
PRACTICE
look closer to home. Now is the time to It is time to say fight against the injustice which is rife within the legal profession, and to call “time’s up” on sexual harassment and “time’s up” other obnoxious behaviour. It should go without saying that the vast majority of the legal profession consists of BY OLIVIA good people – I have worked with some WENSLEY true gentlemen and amazing women. These individuals must stand up against those who are bringing the profession into What has been revealed to date is only disrepute with appalling behaviour. The “Finally, we are talking about it” is the tip of the iceberg. What looms beneath peers of those who offend, who stand by being chanted all over the country. I have the surface is ugly. and simply look the other way are enabling been amazed by the outpouring of support The truth is, the vast majority of inci- this behaviour to continue. since writing my LinkedIn piece We Need dents will remain concealed. For many Don’t just pay lip service to the prob- to Talk About Law’s Dirty Little Secret. involved, the emotional stress of reliving lem in the hope it goes away. This issue “You are very brave for speaking out” is such experiences is not worth the toll it is not going away. It has hit a nerve, and what I have been told over and over again. takes. Many still have a deep fear that resonated with so many who have been Which bemuses me – this is a problem in they will not be believed if they do come frustrated for so long. We now have a voice. itself. It should not be considered “brave” forward, and that it will seriously hurt their A voice we have had all along, but have felt to simply speak the truth, as it proves there future career. powerless to use. is indeed something to be afraid of. In the wake of the Otago University Law “I can’t believe we are finally being I would like to say thank you to those School scandal, it has become apparent listened to” is what I hear over and over of you who have reached out with mes- that positive culture needs to be estab- again from so many who have experienced sages of support, and to share your own lished not just in law firms, but at a grass- sexual harassment and other abuses. The stories. I am honoured to have your trust roots level. This is where the tone should be young professionals at the bottom of the and confidence. I have been staggered by set for the future of the whole profession. hierarchy who are used to being dismissed the seriousness of many of these stories, Cultural change must also be enacted and treated like they do not matter: they and it has strengthened my conviction that from the top down – it must be driven now have a voice. there is an endemic problem with sexual by the decision makers with the power, In mid-March I spoke to the Minister harassment in the legal profession. Not just who need to make a conscious decision of Justice, Andrew Little, and I have been in New Zealand, but globally. to protect the vulnerable in their employ. encouraged by his support. We can all agree For too long, this issue has been This is the chance, as a profession, to on one thing – we NEED to do better for neglected. “This is nothing new, this behav- take a good hard look in the mirror, and our future generations. iour has been happening for decades,” is to enact change. Real change. Not just 2018 will be historic for the legal profes- what I am hearing from those who have “window dressing” for PR, but a chance sion. It will be the year we collectively stand been in the profession a long time. I have to make a real, positive difference to the up and say TIME’S UP to this behaviour. ▪ heard disappointment that this is still profession’s culture. something many women have to endure. It is up to the strong to protect the weak. Olivia Wensley practised in-house and But now we are talking about it. And talk- Lawyers are meant to be the guardians of in law firms from 2008 to 2016. She is ing, and talking. All across the country this society, fighting for justice. It is time to Head of Customer Success at Automio. is the topic being discussed in boardrooms, across many professions. The floodgates are now open. It is embarrassingly overdue, DOING DISCOVERY? www.lawflow.co.nz but it is finally happening. Let’s be clear on one issue – this is not LawFlow is a web-based discovery system designed, developed and just a Russell McVeagh problem – it is an hosted in New Zealand, used by New Zealand law fi rms since 2012. industry-wide problem. This is not the time to deflect, blame ∂ Generate discovery lists and electronic bundles and minimise the problem. The first step Full-text search your discovery documents ∂ Remote access via any web-browser is acceptance. Acceptance that there is a ∂ And much more! problem. Acceptance that cultural change ∂ is required in the profession as a whole to Take a free, fully-functional trial today! Visit our website for details www.lawfl ow.co.nz protect future generations.
50 LAWTALK 916 · April 2018 PRACTICE
PRACTICE Training lawyers to be business developers – A curriculum for success
BY EMILY MORROW
• Networking; Almost daily a client will say something along these lines • An overview of what business development means in the context to me: “[name of a lawyer] would make a great partner in this of the law; firm if (s)he could only develop and manage a successful partner • How to prepare/implement an optimal business development level practice. Unfortunately, however, (s)he lacks those skills. plan; and Can those skills be learned and, if so, how?” I usually reply: “So, • Gravitas, self-presentation and communication skills. is this individual a good – or even great – lawyer but not adept at The more specific skills include: business development? How important is it to your firm to train • Public speaking – excellent oral communication skills for your lawyers to be successful ‘rainmakers’?” appropriate “audiences”; Younger solicitors often say to me “I know I need to demon- • Writing professional articles – excellent written and promotional strate the ability to build and manage a practice before I will skills; be seriously considered for partnership, but I don’t even know • Developing an online presence; what I need to know.” • Becoming involved in the larger community to enhance your Despite business development skills being critical to pro- professional profile; fessional success in the law, very little emphasis is given to • Converting a potential piece of work into a new instruction; teaching lawyers what this means. Sometimes a partner mentors • Delegation, leading a team, pricing work for clients, billing and a solicitor, opens doors and champions that person’s success. related skills which become critical as one’s practice grows. However, because mentoring younger lawyers about how to That said, such a curriculum must be tailored to the needs of build and manage a practice usually involves non-billable time, a particular firm. For example, if a firm is focused primarily on it tends to take a back seat. high net worth individual clients and their businesses, certain Business development skills can be strategies will be appropriate. Conversely, if a firm is targeting taught and learned like other professional large, institutional clients or public sector/government work then capabilities, assuming an individual is different capabilities may be needed. motivated; understands why and how the Training of this type can be done with groups of various sizes. skills correlate with professional success; If the group is relatively small, then the approach can be more receives support; and is provided with interactive and hands on. If, instead, the training is offered to a the necessary training. Although some larger group, then I generally intersperse lecture style presentations lawyers are natural business developers, with interactive exercises. In either instance, one must provide everyone can enhance these skills and skills that are immediately useful. I often develop realistic hypo- benefit from doing so. theticals for individuals and groups to work on and practice the capabilities we have discussed. The curriculum model Here is what a sample curriculum might include: What might be included in a curriculum to Business development: An overview focusing on the basics teach business development skills? What of business development including networking, public speaking, are the core capabilities and how do you article writing and general “do’s and don’ts”. The approach needs “teach” them? There are general skills and to be practical and results oriented with an outcome of giving also some quite specific capabilities. participants an overall understanding of how to build a practice The general skills consist of: and the tools to do so. • The ability to influence others effectively Influencing/relationship building skills:The ability to influ- (without being manipulative) and build ence in both formal and informal settings is critical to success high trust professional relationships; in building a professional profile. This capability is key to the
51 PRACTICE SNAPSHOT OF THE PROFESSION
other necessary “soft skills”, including work on temperament, communication skills, strategic questioning and professional rela- tionship building/networking in a business development context. This works well as a “prerequisite” workshop and is best offered early in the process. Networking skills: Understanding what networking is (and is not), why it is crit- ical to have a high functioning network, identifying different networking styles, and developing a strategic networking plan are all key skills. This segment can also address how to “convert” a professional relationship in one’s network into a new instruction, “cold” versus “warm” calling and the like. Preparing and implementing a business development plan: A key component to building a successful practice and profes- sional profile is having a roadmap that gives your efforts direction and coherence. Such a plan must be practical, tailored, achiev- able and yet challenging. I often provide participants with a business development to reinforce each other to build a profile; practice builders and/or managers. The plan template and suggestions on how to • Capitalising on the benefits of articles secret is to do things: firstly, give lawyers draft their own plans. We also discuss how to obtain new instructions; and the tools they need to be effective business to develop a compelling “individual brand” • Tailoring your writing style and content builders and then do so in a way that is and an excellent “elevator speech”. to your audience. direct, achievable and non-confronting. Oral presentations: Knowing how to do Community involvement and professional This can be easier said than done. Having the following is critical: profile raising:This workshop can focus spent many years building a successful • Identify the best public speaking oppor- on the role of community involvement law practice myself and then working with tunities and ideal audiences; in building an external profile, including other lawyers to help them do the same, • Obtain public speaking opportunities identifying and evaluating opportunities, I’ve given a lot of thought to what works (“get the gigs”); serving on high profile boards and other (and doesn’t work). Hence this article. • Prepare a presentation that will resonate positions, pursuing leadership opportuni- I have found it is best to be flexible, with a particular audience including how ties and the like. In other words, how to go with the energy that is already there, to choose topics; get the greatest benefit from investing time make the process engaging and see what • Capitalise on the benefits of a pres- and energy in non-billable engagement in works for each group. Whether it’s making entation and subsequently obtain new your community. a cold call to a prospective referral source instructions and build one’s professional Delegation, team building and man- or client, lining up a speaking engagement, network; and agement: If a lawyer builds a successful pitching an article to a top publication, • Develop self-presentation skills: how to practice, then knowing how to delegate networking one-on-one or in a group, it’s be appealing, interesting and memorable optimally, build and manage a team, critical to remember that “nothing ventured in a good way. negotiate costs for work and bill effectively is nothing gained”. Also, learning how to do Writing articles: Similarly, knowing how, become key skills for professional “sur- things right the first time avoids needing to when and what to write is important vival” and client care. Such skills include break a lot of bad habits later on. ▪ including: how to triage work to team members, keep • Identifying the best opportunities and work flowing through the team, cultivate/ Emily Morrow www.emilymorrow. publications; retain team members, enhance commu- com was a lawyer and senior partner • How to get your article published quickly nication with clients and work smarter with a large firm in the United States. and reliably; rather than harder. She now lives in Auckland and provides • Writing articles that will interest your Lawyers know how to think critically, tailored consulting services for lawyers, optimal audiences - choosing topics; to learn new skills and use knowledge. barristers, in-house counsel, law firms • Using your articles and public speaking Nevertheless, many lawyers are not good and barristers’ chambers.
52 LAWTALK 916 · April 2018 TIKANGA AND TURE
TIKANGA AND TURE E tipu, e rea! The use of te reo Māori is growing!
BY ALANA THOMAS
of understanding te reo Māori in the legal Te Reo Māori is growing in the law profession. (Unsurprising that as legal sector and we need to grow with it. professionals, we strive to know it all). What’s great to see is that a lot of people are already on board; a lot of people see Lawyers speaking te reo that there is a need to understand te reo Secondly, last month at a Judicial right direction. Māori, and a lot of people want to learn Conference of the Waitangi Tribunal, We know that as legal professionals we and support the growth of te reo Māori in every lawyer who attended gave their want to be good at something straight our industry. Kai tawhiti. appearance (or the start of) in te reo Māori. away, and tend to stay clear of situations How do I know that the use of te reo There were over 25 lawyers there and where fumbling over words and struggling Māori is growing? Let me list a few things over half of those lawyers were not Māori. to say what you want to say is, no doubt, I have noticed in the past month: But why should I be surprised? You would going to happen. So, with the support of think that given it is a Māori legal setting, LawTalk, we hope to provide some tools, Te Reo Māori i te Ao Ture this would be the norm? Sadly, it’s not. phrases, words within these monthly arti- Firstly, our team recently launched a Te In my 10 years practising within this cles so that you can practise in the comfort Reo Māori i te Ao Ture poster designed jurisdiction, this was the first time I heard of your office. specifically for the legal profession. every single counsel mihi to the panel in Otirā ko te mutunga iho (but at the end The purpose of the poster was to have te reo Māori. As a side note, we should of the day), we still have a lot to do and a simple phrases that legal professionals can be encouraged that we are making moves long way to go to ensure te reo Māori is in use in an everyday setting, whether that be in the right direction when Professor Pou a state of strength in the law community. in the office, in client meetings, in court or Temara and Professor Sir Hirini Moko Mead I am reminded of a well-known kōrero just between colleagues in the lunchroom. comment on the level and use of te reo by one of the most respected leaders of Having these posters displayed in our office Māori by the Waitangi Tribunal bar. Hats the north, Sir James Henare, when he said, means that these everyday phrases can be off to the Wai 898 Te Rohe Potae Inquiry. “He tawhiti kē to tātou haerenga ki te kore seen regularly, used regularly and hopefully Tēnei ka mihi. e haere tonu, he tino nui rawa ta tātou will start to become normalised within our mahi ki te kore e mahi tonu – We have mahi (work). Te reo at work come too far not to go further, we have When the poster was launched, we Lastly, there is the use of te reo Māori in done too much not to do more”. Nō reira, received over 250 emails from firms, emails. e te hunga e noho ana i te ao o te ture, we in-house counsel, universities, legal Many lawyers, academics and law firm have begun our journey and are starting education providers and the judiciary, all staff that I regularly email, now greet and to make significant progress, but we must wanting a copy but also wanting to support sign off their communications to include go further as we have done too much not the call for more te reo Māori resourcing te reo Māori kupu. Ka wani kē. to do more. ▪ and te reo Māori initiatives within the law. Seeing te reo Māori all the time is key to A few of those people also shared with me ensuring it becomes a regular part of your Alana Thomas alana.thomas@ what they were doing to support the use of day, and small changes like this are huge. kaupare.co.nz is a director of Kaupare te reo Māori in their office, kei runga noa For those who aren’t quite rowing this Consultancy. Before practising law, she atu rātou. How awesome are they? waka yet, this is the way we are heading, so worked as a Deputy Registrar at the The response from these posters alone jump on board to avoid being left behind. Māori Land Court in Whangarei. Alana shows me there is support, there is growth, But maybe you have reservations? Maybe is fluent in te reo Māori and is a strong but also, that there is a desire to learn you are not a good paddler? Don’t worry, advocate for the use and promotion of more about te reo Māori and the benefit we are here to help the waka go in the te reo Māori within the law.
53 FUTURE OF LAW April 2018 · LAWTALK 916
FUTURE OF LAW New Zealand legal services and lawyers – what might happen?
Predicting or speculating on future developments is ▴ Michael Smyth fraught with danger. So many things can intervene. It can also be unfair to ask someone to look forward, with a myriad of possible influencers always ready to take things in new and unexpected directions. At the same time, marshalling current themes and practices and tracking their possible growth and adoption can be a very helpful way of benchmarking the current state of an enterprise or the wider industry in which it sits. LawTalk asked five innovative New Zealanders working in the legal services industry about the changes needed today and what they think could happen over the next few years. They were each asked the same questions and asked to limit their answers to around 300 words per question. Michael Smyth ( [email protected]) is a sole practitioner and director of Approachable Lawyer Ltd. He has been in private practice for 23 years, six of those working in London. ▴ Claudia King Michael has a particular interest in understanding how legal services can be delivered more efficiently to meet client needs. to simplify the discovery process. Before He contributed a series of four articles to LawTalk in 2017 which that he worked for a decade in London at looked at the results and some of the themes uncovered by his two multinational law firms, returning to survey of 79 legal services users. New Zealand for two years as Bell Gully’s Claudia King ( [email protected]) is CEO and founder of Litigation Support Manager. Andrew is Automio, which aims to enable the automation of legal tasks also creator and organiser of LawFest, an through the use and development of technology. Automio won an annual event designed to show the latest innovation award for the APAC region in the 2017 Janders Dean & developments, topics and trends in the LexisNexis Innovation Index. Claudia was admitted as a barrister intersection of technology and the law. and solicitor in 2007 and practised law at Dennis King Law until Gene Turner ( gene.turner@lawhawk. her retirement from practice in July 2017 to focus on Automio. nz) is Managing Director of LawHawk, an Simon Tupman ( [email protected]) is a consultant to online document generation service for law firms on leadership, culture and change. He is the organiser of lawyers and procurement specialists. Gene the annual Future Firm Forum which had its 10th anniversary in founded LawHawk in 2016 after working Queenstown in 2017 and which brings together law firm leaders for 17 years as a corporate and finance and staff with international speakers to look at the latest devel- lawyer, with the last six as a partner at opments affecting the legal services industry. Simon began his Buddle Findlay. He has an MBA (Dist) career as a lawyer before emigrating from the United Kingdom from Victoria University of Wellington and developing a career over 20 years as a speaker and author. and is on the Advisory Board of the Andrew King ( [email protected]) founded Australasian College of Law’s Centre for E-Discovery Consulting in 2011 with the aim of using technology Legal Innovation.
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What are the biggest changes you think New Zealand legal services providers need to make to remain viable? Michael Smyth: Technology is an accelerator of change. It enables businesses to deliver solutions and outcomes quicker and more efficiently than ever before. If your clients are embracing technology (which most are) then you need to embrace it too. If you don’t, then your clients will go elsewhere. Efficiency means delivering good advice quicker and at a fraction of the cost. Put simply, if you deliver legal services the way you always have, then you are behind the curve. Law firms need to ask how they can use technology to reduce their overheads and pass those savings on to their clients. For example, we don’t yet know the capabilities of artificial intelligence. Can it do the job of a paralegal or junior lawyer? Will certain types of law become commoditised? Can you automate a con- veyancing transaction to limit (or eliminate) the amount of time a lawyer needs to spend on the transaction? Think also about how your clients want to receive their legal advice. Some clients are sophisticated ▴ Simon Tupman enough that they don’t need you to draft an entire document for them but would rather collaborate with you in the drafting process to reduce the cost. It’s not that they want to pay less necessarily, but they want to see value in your output and don’t measure value by how long you have spent doing something but by the value to their business. Think also of your lawyers. They don’t want to be chained to a desk in the city and will demand more flexibility in how they work. Whatever their gender they will want to be paid the same based on the quality of the work they produce and not how many hours they spend in the office filling ▴ Andrew King out timesheets. So as technology uptake contin- ues, innovative pricing solutions and remuneration structures need Efficiency to be developed to ensure value is means still being delivered and law firms delivering remain viable. good advice Claudia King: The biggest change quicker and New Zealand legal services pro- at a fraction viders need to make is to improve of the cost. leadership and decision-making Put simply, if processes. The traditional partner- you deliver ship model means many law firms legal services are not run like proper businesses, the way you and are not led by people with an always have, ▴ Gene Turner inspiring vision for the future that then you are is communicated to everyone in the behind the firm. Decisions by firms are slow curve.
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and often based on emotion and their needs as clients. Jump in any be much more than lawyers manag-
Renate Meijer fear, rather than well-researched Facebook group for Kiwi businesses ing reputational and legal risk. The and thought-out business strategies. and you’ll see the non-lawyer mem- growth of in-house counsel augurs Partners and practice managers bers helping each other with legal well for their future. often don’t understand what new problems based on what they find in Law firms on the other hand face technologies do and how these Google and their own experiences. much bigger challenges which will ba technologies support their firm’s To remain viable firms need to require them to completely re-think strategic plan (if they even have a spend time really understanding how they operate if they are to strategic plan), and they are holding what their clients want. Once firms remain viable. The fundamental firms back. understand this they can set strate- difference today compared with 10 To remain viable firms need to gies to better serve their clients and years ago is that legal services has create leadership teams with the working out what technology they become a buyer’s market. Clients right people who can inspire and need to improve the client experi- call the shots not the lawyers. Law facilitate innovation, and create ence is a key factor. This avoids the firms have to understand and be agile decision-making processes scattergun approach that most New prepared to meet new criteria for so they can make better decisions Zealand law firms are taking when purchasing legal services such as faster. The current leadership teams choosing their technology. pricing, convenience, and overall at many firms will not be the leader- Simon Tupman: There are effec- commercial value. Time, and ship teams firms need to go forward, tively two groups in New Zealand billing by the hour, has already so some difficult decisions will need who provide legal services: law become irrelevant. Increasingly, to be made by firms. firms and in-house counsel. The by their numbers and assisted by Another big change firms need latter group is gaining ground social media, the new generation to make is to drastically improve and learning fast about how best of employees are calling the shots the client experience. Many firms to add commercial value to their when it comes to the conditions of operate the way they always have, clients and how to operate most their employment. Employers need without understanding what it is effectively and efficiently. For this to shape new vibrant workplace their clients really want from their group, I think the challenge will cultures that break away from the lawyers. There is also a large and continue to be how best to resource traditional structures and offer a growing number of people who their departments, and how best to whole new way of flexible working, refuse to use lawyers because they exert influence on their CEOs and autonomy, high-trust and motiva- consider lawyers out of touch with boards so that they are perceived to tion. Numerous studies and ‘best
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providers are moving into the legal business model based on selling market. time, which rewards inefficiency Innovation through leveraging and discourages innovation. Moving technology is becoming a game to fixed fees, retainers and subscrip- changer for providing legal services. tions for agreed deliverables will be It is the opportunity to do things game-changing. better, better than what we do at Look externally, and to the future: present and for less money. The Most law firms are still inwardly profession is only starting to take focused, with emphasis on main- advantage of the opportunities that taining and defending outdated technology brings – opportunities practices that have worked in the that many other industries have past, rather than what will work embraced for many years. best in the future. Many legal services can now Firms need to look outwards, be commoditised, whilst others towards the wider economy and will look at new business models, best practices for the future. Looking pricing structures together with at the most innovative legal services leveraging technology to help their providers and other professional firms practise law more efficiently. services firms in New Zealand and Being tech savvy is becoming an overseas, it’s easy to see plenty of essential skill for practitioners and opportunities and room for long will become more so as technology term first mover advantage. evolves further. It is not necessary to Find their clients’ real problems: understand how it works, but more if I talk to organisations every day it can help add value to what you do. who have problems that lawyers Technology will never do everything, could help with but currently aren’t critical skills like analysis, judgement involved with, or even aware of. employer’ benchmarks show that and problem solving are just as There is a huge amount of work those organisations who invest in important as they have ever been; that is now being done without a their people are more productive it is just that technology can be used lawyer anywhere in sight, because and profitable. to assist in this. even though it has important legal There will be some casualties as The law firms of tomorrow will aspects: the progressives take on the con- be the ones that innovate through • It is not sufficiently “legal” for servatives, but it is both inevitable leveraging technology, to deliver lawyers to want to do it the way and imperative if firms want to stay more efficient legal services. Those it is currently done; or ‘ahead of the curve’. This will require that are open to innovation and • The way it is currently done visionary leadership, something embracing technology will be the makes lawyers too expensive at that has been as scarce as hen’s ones that lead the way. The ones that the prices lawyers want to charge. teeth in the 30 years I have been choose not to, could be left behind Develop new solutions for them: involved in the profession. by an increasingly competitive Lawyers either don’t understand Andrew King: The profession is market. their clients’ real problems, or facing considerable change with Gene Turner: aren’t interested in addressing them growing pressures forcing law Change the business model, from because: firms to operate more efficiently selling time to selling solutions: Many • It doesn’t fit with perceptions of and effectively in how they deliver law firms’ problems come from a what lawyers should do; or their legal services. Most law firms are facing greater pressures from their clients to Robert Stewart reduce costs, whilst delivering Shortland Chambers is pleased to announce that Robert Stewart a faster and more accurate legal has joined as a member. service. They also face greater Robert practices civil and commercial litigation with an emphasis on competition from other firms that defamation and media law. Robert advises some of New Zealand’s are already leveraging technology to largest media entities, and he has led and appeared in a number of significant defamation and media law cases. provide a more cost-effective offer- We wish Robert well in his career at the bar. ing to their clients. There are now new sources of competition, where professional services firms, technol- www.shortlandchambers.co.nz ogy companies and alternative legal
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• Lawyers don’t want to invest in who prefer to sit in the back office law will remain the same, however those who see the new ways of working. and do research are probably a opportunities in exploring new ways to innovate and Lawyers should come up with new dying breed. drive efficiency and adapting to change will lead the solutions for these problems before Claudia King: One of the major way. They will be able to - someone else does. What’s really developments I see is new business 1 Make their firm more efficient and ultimately prof- crazy is that most lawyers will only models (ie, the way law firms make itable; and become interested when they can money) becoming more common as 2 Deliver a better and more valuable service to clients. see their competitors already doing law firms find ways to better serve To address these growing challenges many legal pro- this work, and it’s too late! their clients and themselves. Instead fessionals are recognising they need to look to technol- of billing a fee for a specific service, ogy. The greater access to technology and innovative What do you see as the firms will start using subscription processes should help level the playing field, enabling major developments models to create recurring revenue smaller firms to compete with larger ones. For lawyers which will happen in the for access to a range of legal services embracing technology and new business skills it will delivery of legal services and resources, as well as selling open new opportunities, which will make them more in New Zealand over legal products like contracts, legal valuable. the next five years? documents, legal courses and legal Routine and repetitive administrative tasks are being Michael Smyth: Artificial intel- guides. Legal products can be sold automated, freeing up lawyers to spend more time work- ligence is already here, but how over and over again online without ing with their clients to create better outcomes. Tasks like it can be used to best serve the much extra effort. accessing case law, research, manage documents, dictate, client is still really to be discovered. It’s encouraging to see some law- bill and communicate will change further. Many of these But I don’t believe AI will replace yers already questioning whether tasks are now being performed quicker, cheaper and lawyers completely anytime soon. there is a better way they can use more accurately through the assistance of technology. Nevertheless, there are plenty of their skills and expertise to serve There will be more opportunities to practise law other ways in which law firms can their clients and earn revenue, outside of the traditional law firm model. You will not deliver a more streamlined service rather than exchanging time for necessarily need state of the art offices in Shortland Street. to their clients without using artifi- money by providing services. More It is becoming easier to have support services through cial intelligence. I believe the quality law firms will do this, and firms will embracing accessible technology and on demand ser- of online solutions for legal prob- start looking at the hidden gold in vices, all with considerably less overheads. lems will improve, thereby making their firms – the huge amount of Even if the legal profession is not currently embracing it easier for clients to access legal intellectual property their firms some of the technologies available, it is important to services without being saddled with own (every law firm has shitloads keep abreast of what opportunities that technology may the lawyer’s hourly rate. of IP) – and will look at how they bring. Being a LawFest member and attending LawFest Lawyers will likely become more can make these valuable assets 2019 provides the opportunity to learn more about how mobile and the desire for big city generate revenue for them. The the profession can deliver legal services both today and offices with all their overheads internet provides a huge amount into the future. and associated traffic problems of opportunity to generate new Simon Tupman: I think legal services will become will diminish. Clients will be much revenue streams and this extends much more accessible and affordable with solutions more comfortable to reach out to to lawyers as long as they are available for straightforward work at the push of a button their lawyers remotely to avoid entrepreneurial. This means we’ll on an iPhone. Buyer sophistication will force legal service unnecessary visits to the city office see lawyers gaining skills outside providers to meet the market by embracing technology and get answers quicker. of the law, like leadership, strategic and redesigning their business models. In the process The commoditisation of basic planning, coding, sales, financial, we will see new structures, new automated processes, legal services will push lawyers to and digital marketing skills. and new styles of law firm emerge to take advantage either become more specialised or To execute these new business of a latent market for legal services. get involved in more complex legal models firms will need well thought- In-house counsel will continue to grow in numbers problems which require a greater out business strategies and ‘buy in’ and influence, offering better career options than private emphasis on lateral thinking rather to this new direction from everyone practice. than an encyclopaedic knowledge in the firm. Technology is a crucial Traditional law firm structures (partners, senior of the law. The top lawyers will be factor in both setting and executing associates, etc) will disappear to be replaced by more those who have a greater command these strategies, as the only way to agile, accommodating and innovative models. Law firm of the soft skills, such as the abil- deliver these new business models personnel may reduce with only the essential workforce ity to collaborate effectively with is to use amazing tech. So strong, retained full-time; the rest of the work will be contracted others, read a room, empathise inspiring leadership will be key to out to specialists in their respective legal or operational with a client, negotiate a good price, rolling this out. fields. Firms will be populated by more non-lawyers deliver a persuasive argument, Andrew King: How legal services with new skills essential for service delivery. Traditional manage complex projects, or sim- are delivered has changed and will offices may be a thing of the past as progressive firms plify complex issues in a way that continue to do so. scale down, work from home or use hubs to carry out anyone can understand. Lawyers The fundamental practice of essential work. Increasing emphasis will be placed on
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making law businesses great places to work by adopt- on lawyers’ desks (rather than being confined to secretarial ing a ‘one team’ inclusive approach and by providing staff) and they had considerably less memory that my phone sufficient inspiration to engage the team. To facilitate does now. Email was starting to become mainstream but all of this, I believe it would help to de-regulate the it was used more as an internal communication tool than legal services industry in New Zealand so as to allow anything else, although that didn’t stop my supervising non-lawyers to be directors of law firms and to allow partner giving me typed memoranda if he needed me to for alternative service providers similar to the UK and do something. Correspondence was dictated, amended Australia. Failure to do so could prove to be a hindrance (sometimes many times), sent by post, and if you received for incumbents and start-ups looking to make the most a reply in a few days that was considered quick. We had fax of the brave new world. It could also be the final nail in and telex, but that was only for urgent matters. The pace the coffin for the New Zealand legal profession. was much slower. Gene Turner: There won’t be one particular thing, it So if I jumped into a Tardis to go back to those days I probably won’t all happen at once, and it won’t stop after five wouldn’t believe how antiquated we were. Similarly, if I had a years. It will be a wide variety of small and continuous crystal ball in the 90s I would be shocked to learn how I work improvements that all build on and reinforce each other. now – the thought of running a virtual paperless office back Everywhere I look, I see systems developing that are then was beyond comprehension. made up of combinations of people and technology. The pace of change suggests that the scale of changes Increasingly, those combinations are being linked which occurred in the last 20 years will now happen in the seamlessly by APIs (application programming interface). next 10. Therefore, anyone would be naïve to think that it will Stephen Ward, the founder of Billy Bot from the United be the same in 10 years as it is now. We can guess what it Kingdom, recently spoke at a series of events organised might be like, but I suspect we will just be guessing – unless by the College of Law’s Centre for Legal Innovation. you have a Tardis. “Billy” was a fantastic example of how this type of Claudia King: Yes I think there will be a crazy amount of system can quickly grow from a very small base by change in the next 10 years, so the legal profession in 2028 adding more and more connections. will look really different. In 10 years law firms will likely As more integrated end-to-end business process have high performing workforces made up of: solutions are developed, legal services will increasingly Lawyers (human ones) performing higher value legal work, become embedded into those broader processes and like advocacy and advising on more complex commercial solutions. Legal compliance and delivery of many legal transactions. services will happen automatically, and mistakes through Legal technologists (humans) who work with the firm’s digi- human error will be less common. tal workforce to create lawyer bots (software that automates There will be a lot more collaboration than has been tasks that have traditionally been carried out by lawyers), the case. Law firms will collaborate with each other, and create and recommend other technology solutions for and with other solution providers and clients. Clients the firm’s human lawyers and the firm’s clients. will collaborate more with each other, particularly in Lawyer bots and other technologies that support the firm’s legal compliance. human lawyers to carry out higher Those lawyers that are involved in building and main- value legal work, and carry out taining these systems will be very well positioned for lower value legal work for the firm’s the future. As well as the more predictable licensing clients. This is the firm’s digital revenue they should be able to earn from providing workforce, and it will include AI and these systems, they should also be best positioned to Blockchain-based smart contracts. seamlessly pick up whatever additional legal assistance Each of these three workforce is required. groups will work together to ensure Other firms could find that there is less legal work an excellent client experience for the fixing mistakes or providing similar advice to multiple Routine and firm’s clients. Firms need to start clients, and where legal support is required, it auto- repetitive planning for their digital workforce matically goes somewhere else. There may be limited administrative now. opportunity to crack into this new work from a weak tasks are My vision for the future is that competitive position. being we will no longer have written automated, legislation and contracts like we Do you think the New Zealand legal freeing up do today. Legislation and contracts profession in 2028 will be very lawyers to will instead be created using AI different to the profession in 2018? spend more legal bots, so instead of reading Michael Smyth: When I started my legal career in the time working legislation and trying to apply it to early 90s in London I had a stash of 10p coins so I could with their a specific situation, a person who ring the office from the High Court if something was clients to wants to understand how the law wrong with the document I had been given to file; not create better applies to them will ask an AI legal many had mobile phones. A year or so in, PCs were put outcomes. bot about their situation and then
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the bot applies the law to that per- legal tech companies, with some led in the bottle. There is no going back to ‘the good old days’. son’s situation. This does away with by lawyers, who have identified a Firms that ignore the trends and their ramifications the need to draft written legislation problem and developed a solution do so at their own peril. Professor Stephen Mayson, – instead the law can be written in to address these issues. former director of the UK-based Legal Services Institute, logic flows. When a person asks There will be further evolution stated as far back as 2007: “The profession would be well an AI legal bot to apply the law to and innovation in how legal services advised to lose its current tendency to equate the legal their specific situation, the AI legal are delivered. services market with the legal profession. The market bot can then, if required, go on to In this age of disruption, you may grow and prosper; the legal profession may not.” record the intentions of contracting cannot stand still, as it will be Take note. parties using a variety and combina- important to remain curious and Gene Turner: I hope so! The way law is currently tion of technologies and mediums, open to change. The profession practised didn’t work well for me, and I know it doesn’t including smart contracts, video, should continue to ask themselves: work well for a lot of lawyers. text, audio and illustrations. “how can we do this better – to deliver There is good reason for hope though. Every other Andrew King: Ten years is a long legal services that are more efficient, area of our life is changing so much, so why should time, but we will continue to see profitable, whilst providing greater law be any different? even greater change in how legal value and outcomes for their clients.” I think it will happen more quickly and naturally than services are delivered. The legal Simon Tupman: Yes. I think many expect, and a lot of the current barriers to adoption of profession of 2018 is already very the legal profession as we know it new ways of working will disappear. For example, software different to that of 2008. will become increasingly irrelevant that is currently only used to a limited extent because it is There will inevitably be further and will eventually disappear to be new, separate and server based, and requires training on automation of tasks that are replaced by a competitive ‘legal how to use it with other systems, will become integrated time-consuming, costly and pres- services industry’, one full of into other cloud-based systems we already use so that we ently performed by humans. The opportunity and one that is already don’t even notice it – just like we now use Siri and Google profession will be able to focus on taking shape thanks to some fun- Maps without thinking. practising law and providing expert damental events and changes in Clients and law firm staff will legal advice for their clients, instead our society. Generational change, increasingly demand improvements of being restricted by time-consum- technology and globalisation are from their law firms. At present a ing administrative tasks. just three of the major triggers of lot of them don’t know any better, We are a long way off lawyers change that are revolutionising the and assume that their law firms are being replaced by robots. Problem world of business, not just the legal better than they actually are. solving, creative thinking and profession. Law firms will increasingly want expert legal advice will be in higher For decades, lawyers and law to make the changes anyway, either demand. The technology should firms have had a monopoly on the because they are losing work and help to make lawyers' life easier delivery of legal services but not realise they need to improve in order and more efficient. anymore. Buyers of legal services to remain viable, or because they There should be greater access no longer need to consult a lawyer can see the opportunities it creates. to justice for those who may not or a law firm to access legal services, I hear the talk about diversity and always seek legal services due thanks to deregulation (overseas), how law firms need to satisfy their to cost. This will be provided by the emergence of law firm/lawyer client needs without sacrificing all non-traditional sources, which will substitutes (accountants, online the other areas of lawyers’ lives, include ‘robo-advice’ and ‘chat-bots’ documentation, expert applications but little seems to be changing. for straightforward legal problems. that automate traditional tasks), While the issues and solutions are The billable hour should become and ‘NewLaw’ innovation start-ups complex, my view is that the tech- outdated as clients look for more such as Riverview Law (UK), Hive nological changes that are coming innovative cost structures, where Lawyers (Australia) and Valorem will be at the core of addressing the the goal is to improve value for (United States) who have taken real work/life balance issues that play clients – so firms will be expected steps to meet the needs of a buy- a part in the wider discussion. We to produce more for less, but with er’s market through specialisation, can already see through our work the technology now available this restructuring and automation and with lawyers that automation is transition is manageable. in the process, are redesigning the removing a lot of the hours, stress The technology available is DNA of the ‘legal market’. and repetitiveness from their work, improving all of the time. There are These trends are not temporary and allowing them to do work that an increasing number of New Zealand fads. You cannot put the genie back is much more enjoyable. ▪
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FUTURE OF LAW Developments
Lawyers vs AI waiting for a plane or with one eye on the clock to get LawGeex is a software company based in Tel Aviv, Israel. out the door to pick up the kids. The margin of efficiency Early in 2017 it released software that uses artificial intel- is likely to be even greater than the results shown here. ligence to study contracts, pinpointing any language or “This research shows technology can help solve two requirements that seem unusual. problems – both making contract management faster The company’s Contract Review Automation soft- and more reliable, and freeing up resources so legal ware is marketed as the quickest and easiest way for departments can focus on building the quality of their businesses to review and approve incoming contracts. human legal teams.” LawGeex claims to save 80% of the time required to “We’re not claiming to be more accurate than lawyers review and approve, and 90% of the cost when com- all the time and in any type of work,” LawGeex CEO pared to manual review. It has focused its marketing on Noory Bechor says. “What we are showing is that on in-house teams – not as a substitute for lawyers, but as the mundane, repetitive, simple stuff, technology can a time-saving tool for the “time intensive and mundane actually do a better job that humans.” task” of reviewing contracts. More details: The full study can be downloaded from In February the company released the results of a www.lawgeex.com/AIvsLawyer/ recent study it had carried out with independent audit- ing by legal academics from Stanford University, Duke Techlaw intern programme University and the University of Southern California. The Simmonds Stewart and the University of Auckland Law study involved 20 lawyers with experience of reviewing School have launched a techlaw intern programme. This contracts at large companies and global law firms. They offers law students paid intern positions at companies were matched against a LawGeex AI platform which in the high-growth tech centre. had been trained to evaluate legal contracts. The train- The aim is to provide law students interested in tech- ing had involved tens of thousands of contracts using nology and entrepreneurship real-world experience in machinelearning and deep learning technologies. the tech sector. Each student will be paid up to 100 The study involved five non-disclosure agreements, hours of basic legal work for a tech company. Initially with participants given four hours to review them the programme offers internships to between five and and to identify 30 legal issues, including arbitration, eight University of Auckland law students. confidentiality of relationship, and indemnification. The Participating companies include Jude, Endace, 9 participants were given a score for Spokes, Pacific Channel and Auckland UniServices. accuracy of issue identification. Simmonds Stewart will provide training to partici- The result showed that the human pating students, as well as pairing the student with a lawyers averaged 85% accuracy – Simmonds Stewart buddy who will support the student against 95% accuracy attained by and supervise their work where required. Penultimate the AI. And, more tellingly, the AI “We’re not and final-year students may apply. Applications for the finished its task in 26 seconds. The claiming to be first intake closed on 13 March 2018. humans averaged 92 minutes. more accurate More details: https://simmondsstewart.com/join-us/ LawGeex understandably ensured than lawyers all techlaw-programme/ the results were well publicised, the time and including the following comment in any type of New NZ legal technology organisation from University of Southern work... What brings vendors and users together California Professor of Law and we are showing Newly-formed organisation LegalTechNZ aims to bring Economics Gillian K Hadfield: is that on the together people with a shared interest in improving the “This experiment may actually mundane, use of technology in the legal sector. Its stated vision is understate the gain from AI in the repetitive, “a thriving New Zealand legal sector which understands legal profession. The lawyers who simple stuff, and applies technology to improve the efficiency of and reviewed these documents were technology can access to legal services in New Zealand”. fully focused on the task: it didn’t actually do a Among its membership, LegalTechNZ includes sev- sink to the bottom of a to-do list, better job that eral prominent law firms, InternetNZ, Spark, Kōwhiri, it didn’t get rushed through while humans.” TrustUs and Dacreed.
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The organisation’s chair, Simon having it forced on them”. IO was launched in February and says it was founded on Stockdale, is CEO of New Zealand “As a Technology Media and IP the premise that legal AI can finally fulfil the guarantee contract review software company law firm we see every day how tech- that everybody deserves access to true justice: “The goal Pagemap. nology is impacting the way that is to empower David to beat Goliath”. “As vendors we often see substan- business is carried out. Law is not The United States-based startup describes itself as tial changes in how law is delivered immune to this,” says Mr Mahood. “legal AI for the #MeToo era”. “The first generation of in other markets through the tech- “We see that technology, when legal AI focused primarily on helping the biggest firms nological advances, sometimes used right, can improve the way represent huge corporations and the 1%. People like using software developed in New lawyers provide services to their Harvey Weinstein hire some of the richest lawyers … Zealand,” he says. clients. We recognise that there is to obscure abuses. Many of these lawyers then boast “Vendors want to find a better a risk lawyers will want to carry on about using an army of AI and human lawyers to stomp way to engage with the New doing what they currently do – but on victims and ensure they don’t get a fair day in court. Zealand legal profession and help as in other industries the customer We want to finally empower the people most in need it transition to a digital future, for will drive the change whether or not of justice.” the benefit of the legal sector, its lawyers want it.” Attorney IO specialises in finding relevant case con- clients and the New Zealand legal More details: legaltech.org.nz nections from “millions of legal cases in our collection” tech providers.” which it says are a low-cost opportunity for attorneys to Hudson Gavin Martin part- “Legal AI for the get a second pair of eyes on their work product. ner Tim Mahood says his firm #MeToo era” More details: www.attorneyio.com became involved in establishing Legal AI startups are now almost LegalTechNZ because it wanted to a daily event with many targeting Some recent legal AI research help ensure that the industry “is the larger, more lucrative end of the AI, legal ethics, smartphones and lawyers prepared for the change rather than market. One of the latest, Attorney Legal ethics and how they fit with new developing AI and
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other technological processes are Gabriel, Dangerous Robots – Artificial starting to exercise the minds of the Intelligence vs Human Intelligence (11 academic community. “The first part February 2018). Available at SSRN: of this article defines the brave new https://ssrn.com/abstract=3121905 world of AI and how it both directly and indirectly impacts the practice Using AI to hire people of law,” the authors state. “Part two What happens if a company decides explores legal ethics considerations to delegate its hiring decisions to when selecting and using AI ven- a computer, instructing it to “Pick dors and virtual assistants. Part good employees”? Even if the com- three outlines technology risks and puter could use all the employer’s potential solutions for lawyers who available data and find anything else seek to embrace smart phone tech- it needs on the internet, how would nology while complying with legal it deal with diversity? ethics obligations.” The authors also More details: Sullivan, Charles urge the legal profession – “known A, Employing AI (18 February 2018). for coming late to the technology Seton Hall Public Law Research Paper. dance” to step in now to take control Available at SSRN: https://ssrn.com/ of AI’s impact on the profession. abstract=3125738 More details: Jacobowitz, Jan L. and Ortiz, Justin, “Happy Birthday Artificial Agents and Siri! Dialing in Legal Ethics for General Principles of Law Artificial Intelligence, Smart Phones, Artificial agents challenge general and Real Time Lawyers” (8 January principles of national and interna- 2018). Texas A&M University Journal tional law, says Professor Antje von of Property Law, 2018; University of Ungern-Sternberg of Germany’s Trier Miami Legal Studies Research Paper University. She proceeds to look No. 18-2. Available at SSRN: https:// at the principles of responsibility, ssrn.com/abstract=3097985 explainability and autonomy and concludes that lawyers will have to Robots and their define the areas of law that require criminal liability an explanation for artificial agents’ “If we are attacked by an intelligent activities. Artificial agents do not robot, can we impose criminal liabil- only challenge existing principles of ity upon robots? How can we defend law, they can also strengthen them ourselves legally?” asks Professor as well, she concludes. Gabriel Hallevy of the Faculty of More details: von Ungern- Law, Ono Academic College. Posing Sternberg, Antje, Artificial Agents We see that the question: “Does the growing and General Principles of Law (28 technology, intelligence of AI robots subject January 2018). German Yearbook of when used right, them to legal social control, as any International Law (Forthcoming). can improve the other legal entity?” Professor Hallevy Available at SSRN: https://ssrn.com/ way lawyers attempts to work out a legal solu- abstract=3111881 provide services tion to the problem of the criminal to their clients. liability of AI robots. He concludes We recognise that if all of its specific requirements that there is a are met, criminal liability may be Developments aims to risk lawyers will imposed upon any entity – human, provide information on new want to carry on corporate or AI robot. “AI robots products, services, research doing what they have no soul. Thus, there is no sub- and other information on currently do – stantive legal difference between the the Future of Law which but as in other idea of criminal liability imposed is likely to be of interest industries the on corporations and on AI robots. to New Zealand lawyers. customer will It would be outrageous not to sub- The Law Society does not drive the change ordinate them to human laws, as warrant or endorse any of whether or not corporations have been.” the items included. lawyers want it. More details: Hallevy, Prof.
63 FUTURE OF LAW April 2018 · LAWTALK 916
FUTURE OF LAW Rise of the machines: Artificial Intelligence in law
BY DAMIAN FUNNELL
What’s happening today There have been tremendous advancements in Today most of the applications of machine learning in law artificial intelligence (AI) over the past decade. Where are focused on automating low-value, repetitive tasks. these will take us no one really knows, but it is becoming There are a number of AI-powered products and ser- increasingly clear that AI will have a profound impact vices on the market, but development has been slower on industry and on our everyday lives. than in industries such as medicine or finance. Law is a Just to be clear, we’re not talking about sentient difficult market for vendors to crack due to the natural machines that are able to ‘think’ and act independently. disinclination for lawyers to disrupt the way that they Not yet, anyway. It’s not yet clear whether humans will work. It’s hard for vendors to justify the high investment ever develop machines that truly think for themselves. required to develop AI-based products when they can There are those of us who doubt it and those (such as be such a hard sell to a very traditional industry. Elon Musk, who believes that such machines will become Differences between jurisdictions can also increase ‘our biggest existential threat’) who are convinced that the cost and complexity of developing such products. it will happen. Ironically, these intra-jurisdiction issues will diminish For now the most promising and effective applications once we have AI-based tools that help us understand of AI have been in machine learning, where a computer and adjust for them. (or, most commonly, a network of computers) learns and There are products, such as Ross Intelligence in the improves from experience, rather than explicit program- US, that market themselves as ‘supercharging lawyers’ ming. It is practically impossible to program a computer through artificial intelligence, but often these products to anticipate every driving scenario, for example, so are complex, highly proprietary and don’t quite live up instead companies like Google have created advanced to the hype. machine learning algorithms that learn and improve We have yet to see much in the way of AI-based from their every interaction with the world. These research tools and I find this surprising, as I have seen findings are stored in centralised databases, meaning first-hand how even experienced lawyers can drown in that all autonomous vehicles in the network benefit (ie, information, struggling to find what they’re looking for. learn) from experiences of the others. I find that some of the most exciting areas of machine Machine learning capabilities are currently limited to learning development in law are as follows: performing narrow sets of tasks. So we have autonomous Start-ups, such as Kira Systems from Canada which vehicles that go where we tell them, rather than cars produces a number of machine learning contract analysis that can think for themselves. tools. The Amazon Go store in Seattle in the United States Innovative firms, such as Pinsent Masons in the UK, is an amazing example of machine learning in action. which are developing in-house AI-powered tools to per- Amazon uses machine learning to figure out what form a range of tasks, such as providing a Brexit advisory products customers remove from the shelves and from service to clients. Dentons, one of the largest firms in the store. Instead of having to go through a checkout, the world, has also set up Nextlaw Labs, which aims to Amazon Go customers simply grab what they want and reinvent the business practice of law via technology. As walk out. The computer tallies up the sale and charges well as working to develop its own technology, Nextlaw the customer’s account. Labs has made investments in a number of startups So how will the rapid advancement of machine developing AI technology. learning technologies affect the legal industry? Should Deep-pocketed technology firms such as IBM, which lawyers celebrate or fear the emergence of AI in law? is working hard to develop their ‘Watson’ machine Let’s take a look at the status quo and what’s likely to learning platform to supplement, and possibly one day happen in the near future. replace, trained professionals in various professional
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sectors. Although this work is information from a variety of interesting and is likely to result sources and performing a fairly in lots of patents, it’s unclear how repetitive set of tasks using that effective these companies will be information. I doubt it will be too in commercialising it. The elephant long before we see tools emerge might dance, but it often has trouble that are capable of performing these keeping up with more nimble com- tasks. At first they will assist the law petitors in this start-up age. firm to make this process more effi- Disruptors from outside the cient and less error prone, but over industry: services such as Wevorce time they will become capable of in the US use natural language managing entire transactions from processing and machine learning end to end, only alerting the user to help couples divorce, often when they encounter situations that without involving lawyers at all. they’re unfamiliar with and unable There are similar services that to handle on their own. help you write a will and perform We’ll also see generic AI-based other such tasks. These products tools, such as Amazon’s Alexa and go beyond the relatively simple Google’s Assistant make inroads into form-builders (such as Automio the corporate world. These tools are and Justly, both local companies already changing how we interact that you should check out), which with our homes (I use mine to turn produce standard documents based my lights on and off, etc). One day on user input. This new generation they will profoundly change the of ‘intelligent’ services use machine way that all of us interact with learning to provide sophisticated technology in our offices. client interaction capabilities. They will allow us to issue increasingly complex and abstract On the horizon instructions to our computers in Over time we’ll see increasingly plain spoken English, such as ‘set powerful and cost effective tools my Out of Office’ or ‘delete the performance of lower value tasks, for example, it could for analysing and producing doc- paragraph that says xyz and replace result in significant benefits at the micro (firm) level, but uments. I don’t think it will be too it with abc’. They will also acquire huge problems at the macro (industry) level. If there are long before we’re able to feed com- legal ‘skills’, allowing them to do significant reductions in the need for junior staff then plex documents into such tools and increasingly sophisticated tasks how will the industry continue to attract and develop have them marked up and reviewed that you and your staff perform young talent? in a matter of seconds. manually today, for example: ‘search Also, as the need to have experienced lawyers involved The natural extension of this for all file notes containing qrs’, etc. in such transactions reduces we may see lawyers technology will be into areas such excluded from them altogether. as corporate discovery, where vast Industry impact Firms that are slow to adopt machine learning tech- amounts of information needs to be While it’s clear that AI and machine nologies may find it difficult to compete and to survive. discovered, ingested and analysed learning technologies will disrupt We’ve seen similar things happen in industries such in a short period of time – usually in the legal industry, no one really as photography (film disrupted by digital cameras), complete secrecy. Imagine what a knows how quickly this will happen architecture/drafting (drawing disrupted by CAD) and game-changer it would be if, instead or to what extent. accounting (industry disrupted by Xero). We’ve even of locking a team in a room for a few Personally, I doubt we’ll ever have seen it in my industry, which has only just started to weeks to manually review hundreds the technology to replace expe- be disrupted by the cloud. of documents (in the hope that they rienced lawyers with computers, In all of these industries we’ve seen once strong won’t miss important details out of at least not in our lifetimes. To be companies falter if they were unable or unwilling to sheer boredom), we could instead able to do so would imply that we adapt in the face of technological disruption. I suspect feed those documents into an app were able to create machines that we’ll see the same thing happen in law. to have them analysed in real time can think for themselves and I am Personally, I think practitioners should both celebrate and with a much lower propensity sceptical that we’ll ever develop and fear the emergence of artificial intelligence in law. for error, omission or accidental such technology. It certainly will be interesting to see where it takes the disclosure. I do think that the commoditisa- industry. ▪ Over time these AI-powered apps tion of low-value legal services will and services will evolve to take on create some unique and significant Damian Funnell damian.funnell@choicetechnology. increasingly complex tasks. Take challenges for the industry. co.nz is a technologist and founder of Choice conveyancing for example, which If computers displace junior Technology, an IT services company, and involves gathering and analysing lawyers and legal execs in the panaceahq.com, a cloud software company.
65 PATHWAYS IN THE LAW April 2018 · LAWTALK 916
PATHWAYS IN THE LAW Elder law, for lawyers less concerned by the tick of the clock
BY NICK BUTCHER
One of the perks of practising elder law can be found in the little traditions such as a plate of home baking offered at a meeting. That’s right, scones and slices are not myths nor folklore and can often moderate the tone of a serious conversation. After all, elder law is about planning for after life by putting the necessary legal foundations in place to take care of those left behind. Bill Herbison and Fleur McDonald from Pier Law have eaten more than their share of treats during their many years of dealing with older clients. “There have been quite a few times when I’ve met clients at ▴ Bill Herbison and assistant Jock the their homes to be offered cups of tea and freshly-baked scones,” West Highland Terrier. says Ms McDonald, a senior associate with the firm. The discussions are often longer than the textbook lawyers’ clock would allow. They’re personal and can often stray off the The firm’s other offices are at Styx Mill subject, but building trust with their clients through face-to-face and Kaiapoi. contact is what they believe makes a successful elder law practice. Fleur McDonald joined Pier Law late last Mr Herbison, who is the Christchurch firm’s managing director, year after spending 13 years with another has been practising law for 40 years. He loves the classics, has law firm and establishing herself as an filled the family home with his own hand-built furniture and elder law specialist. owns more than a few restored automobiles. “I like the one-on-one contact with “I love dealing with older people. They’re more settled, apprecia- clients. That attracted me to this area. tive. They don’t necessarily quiver about the bill. I share a little of As Bill said, you do get to share a part of myself with them which they appreciate, and often they’ll say to yourself with them. It gives clients a sense me later – how did that bit of furniture go that you were making?” of being an equal part of what you’re doing in relation to their will and estate plans,” The vagaries of elder law she says. Pier Law has many other specialty areas including residential, Ms McDonald says practising elder family and relationship, employment, business and insurance law. law leaves you with a unique feeling of Mr Herbison has a team of seven solicitors and legal executives satisfaction. who do most of the transactional and conveyancing work for “It’s hugely rewarding when you can see the firm, but dealing with older people does require a more that your clients are feeling comfortable seasoned skill set. about what they’re doing. I’ve had clients “It’s very face-to-face and personal. I have three branches with tell me that they didn’t understand what the main one in New Brighton where I started. I make sure that a previous lawyer was talking about. For on Tuesdays I’m always there for our elder law clients,” he says. me it is incredibly important that they Largely each hour of those Tuesdays is filled up by older people are then able to fully understand and tell wanting to make changes to their wills, create powers of attorney, their children or loved ones what their and generally put structures in place to protect their assets. plans are.”
66 LAWTALK 916 · April 2018 PATHWAYS IN THE LAW
arrive at their office. As lawyers, we don’t appreciate that stress the same because we are living it all the time.” The keys to success Plenty of empathy and an ability to be able to build relationships is a key part of the skill set needed for lawyers considering elder law as a practice area. “You’ve got to be able to adapt to each situation. Dealing with Mr Smith will be completely different to dealing with Mrs Jones. You need to be able to read people well,” Ms McDonald says. “You need to be able to give them time and possess a great deal of patience. It’s not a quick process. What might take half an hour with a conveyancing client could ▴ Bill Herbison ▾ Fleur McDonald take twice as long with an elder law client,” Mr Herbison says. Ms McDonald says rushing an older client just leaves them flustered and it’s counterproductive. When Bill Herbison started practising as a lawyer the Enduring Power of Attorney forms contained two pages, but that’s changed. “We’re investigating putting out a tai- lor-made form, which might simplify it.” Technology and the future Fleur McDonald expects big changes ahead because the generation who are currently in their forties will be more technologically friendly by the time they reach 70 or 80. But she doesn’t think artificial intelligence will replace lawyers in this practice area. “But in saying that, whether it’s the current generation or the next, as you Establishing trust is vital to any long- retirement homes. slow down, everything slows down. The term relationship. “Sometimes a person isn’t physically able patience needed for a senior citizen client “When you’re dealing with older clients, to easily come and see us and I’ve always isn’t going to change. The way we might they expect to be dealing with you, not said, ‘if that’s the case, we’ll come and see deal with it such as a Skype meeting rather someone who has been brought in at the you, it’s not a problem’,” Mr Herbison says. than a face-to-face might change, but the last minute because you’re suddenly not Often when Bill Herbison heads out formula we use in explaining the whole available. If you’re the person they’ve been to see clients his four-legged personal process will not.” building trust and rapport with over the assistant, Jock the West Highland Terrier, She says there might be opportunities years, they need to know that they can comes too. He’s been known to break the to use artificial intelligence for behind the keep coming back to you,” she says. ice by providing a calming influence on scenes work but elder law will always need many clients. that personal touch. House visits with a dog in tow “They love him. He’s usually in my office In May, Fleur McDonald will feature as While many of their clients visit the Pier too and gets a lot of attention. We’ve all a presenter at elder law conferences being Law offices, it is not uncommon for both got our techniques. It can be stressful for held by NZLS CLE Ltd in Wellington and Bill and Fleur to make visits to houses or people when they’re visited by a lawyer or Auckland. ▪
67 FOCUS ON April 2018 · LAWTALK 916
FOCUS ON... Should I stay or should I go (back)? Suburban practice in Christchurch
BY CRAIG STEPHEN
later established a more permanent Christchurch’s legal profes- office,” says Practice Manager Julie sion is heavily based in the suburbs. Beijen. Given the city’s recent history this The firm already had a branch makes perfect sense. office in Barrington, but the enforced The city has 1240 lawyers and, move led to a reconsideration of its before 2011, most of them were objectives. based in the CBD, particularly along “That really kicked off the move and around Durham Street. to a more established presence in With more than a thousand the suburbs. We then set up small buildings within the four avenues offices in Ilam and Upper Riccarton.” demolished following the quakes, Ms Beijen says that due to the people and businesses were forced nature of the firm’s work it did to look at suburban Christchurch not see a need to return to the city ▴ Chantal Morkel, associate at locations such as Addington and centre. Cavell Leitch Riccarton. “We are very much private-client “Obviously firms had to find based so there’s a strong, residential alternative accommodation after conveyancing component to the the quakes, and that meant out business and a very strong family of the CBD,” says New Zealand law litigation side as well. There’s no Law Society Canterbury Westland need for us to be in town anymore, Branch Manager Malcolm Ellis. we don’t do any civil or criminal “Some of them have stayed, litigation now, and we have found some of them have come back. The that with our private client work, suburbs offer a good setup, such our mainly mum and dad clients as parking, but when a firm does love the fact we are not in the CBD come back, they find car parks are now. The offices are easy to get to a premium and a bit of a headache.” and there’s ample parking. ▴ David Houston, partner at “There are lots of positives about Weston Ward and Lascelles Suburban life the move so it was an easy deci- One firm that has stayed put in its sion not to return to town, and to new location is Cameron and Co, establish ourselves in bigger offices which until 2011 had its main office in the ‘burbs, and that has also made in Landsborough House on Durham us more visible. We did once line Street. The seven-storey building, up next to our competitors, but which housed two other law firms, standing alone in the suburbs we was demolished in late 2012. stand out.” “It was a no-go zone, so we Ms Beijen says the changing originally relocated to warehouse residential nature of the city is also premises in Leslie Hills Drive [in working in their favour. ▴ Julie Beijen, Practice Manager Riccarton], which is where we “Our client base has always been at Cameron and Co
68 over this side of the city and we have formerly based on Chester Street ▴ Cathedral Square, 2009 pre- been able to tap into a large base of West (opposite the old courts build- earthquake Geof Wilson bnd clients who have moved into this ing) and now resident on Leslie Hills part of the city. The suburbs south Drive in Riccarton. was leaning towards where I was. of the CBD have experienced a huge The five-storey office building was There was liquefaction already population explosion and we have badly affected by the 22 February pumping out around the building.” found we have been able to estab- quake, and partner David Houston After the building was red-stick- lish a good presence.” initially suspected there was a blaze ered, the firm had to scramble The firm is in the process of amal- in the building. around to get a temporary base. gamating its Ilam and Riccarton “The old stone church over the “We ended up in an old villa in offices with its Upper Riccarton road had collapsed, and due to the Papanui Road with three or four of base, while retaining the Barrington ensuing dust cloud I assumed our us to an office which wasn’t good, office. building was on fire. When I got but at least through our connections to the bottom, having had to push with Law Alliance New Zealand we Scrambling around away parts of the ceiling, I saw that were able to get laptops and cell- Also enjoying life in the outskirts the elevator shaft on the outside of phones and what have you out of are Weston Ward and Lascelles, the building had come away and Auckland. And then we discovered
69 FOCUS ON April 2018 · LAWTALK 916
▸ The collapsed stairwell from Cavell Leitch in the Clarendon Tower building the building we are at now, which we have named Weston Ward and Lascelles House,” he says. About three weeks after the quake the firm got a court order for access to the old building. A team of about 20 manoeuvred through the lique- faction and got up to the fourth floor where they rummaged around for anything salvageable, despite the lean on the adjacent hotel. “We threw everything out of the fourth floor in taped up wool sacks, put it all in a truck to my and our neighbour’s garages and then slowly, piece by piece, reassembled files and everything else, and got things up and running.” He says the firm initially looked to rent the Riccarton property but was able to buy it for “quarter of a million more than we intended to originally offer”. “It’s been a great move from our clients’ point of view as they love the access and carparking. When we first moved here a lot of our staff said they were glad that we moved into only a two-storey building.” David Houston says the firm – which began in 1883 – has no inten- tion of returning to the city, due to the nature of their work – largely commercial and common law “with a heavy bias toward family law” and their client base. “We are very happy where we are, the building is named after after a stint in the United States ▴ Cavell “The only disadvantage living us, it’s been a good investment, pursuing my professional running Leitch’s new in Lyttelton might be if the court clients love us because we are close career as a long distance trail and premises, changed a court time at short notice enough to the city but also near the mountain athlete. in the BNZ and if I didn’t know, though the arterial roads.” “I loved living in Lyttelton and Centre Christchurch court runs really well would spend a lot of time running and is very professional.” Law and long- in the hills there, training for a She says as well as her run- distance running place in the 2016 100km World ning, the advantages of living Sole practitioner Shannon-Leigh Litt Championships which I qualified for and working in Lyttelton were also moved out of the city – in her with the New Zealand B standard; the “tranquillity of the town and case to Lyttelton – but not because however, I did not end up going. easy going feeling with a slightly of the quakes. “Running long distances helps alternative edge”. She moved to the Bay of Plenty clear the mind and goes well with before taking off overseas. On her the law which can be stressful deal- Back to the action return she had a good incentive to ing with criminal clients.” Naturally the outskirts of a city isn’t choose the hilly port town to live Ms Litt has moved back to suitable for all practitioners, and and work in. Christchurch in order to be closer larger firms tend to find they need “I had returned to Christchurch to the courts. to be in a city’s heart and near their
70 main business feed. ▴ Lyttelton harbour Nathan bnd Cavell Leitch is one firm that has returned to the CBD, moving in March 2017 from Addington to the BNZ Centre remotely at offices, including one in Cashell Mall. This is not far from its former base in near the airport, before moving to the Clarendon Tower building, which was badly hit by more stable premises just off Lincoln the February 2011 quake and later demolished. Road in Addington two weeks later. An associate, Chantal Morkel, says during the mag- Ms Morkel says while that nitude 6.3 jolt, the stairwell collapsed. The firm was ensured the firm was able to con- based on levels 14-16, and about 70-80 staff members tinue its business, it was never going were unable to go past level 11. to be a permanent move. “We were trapped for about five or six hours and, As well as feeling it was important eventually, with the help of the Fire Brigade, we were they moved back to the city as part able to track down the building through some of the fire It’s been a of the rebuild, it was essential for exits. Ceiling boards had come down and there was a lot great move their own business and their almost of water and a lot of nails had popped out. Fortunately, from our 100 employees. no one was injured other than some people treading clients’ point “We have always been in the on those nails. of view as they city, since the days when the firm “It was extraordinarily frightening, there were a number love the access started many moons ago, our heart of aftershocks throughout the time we were trapped in the and carparking. was definitely in the heart of the building, some of magnitude five and even six, so we were When we first city. Our intention was always to shaken around a good bit. But we all kept ourselves calm, moved here a be there, it’s a wonderful place to and were confident that we would get out. Fortunately, lot of our staff be, close to other professionals, the we had made contact with the Fire Brigade early on, so said they were banks and commerce,” she says. they knew where we were, and we were rescued when glad that we Cavell Leitch’s new premises, in they were able to come along that evening.” moved into the BNZ Centre, takes up almost Initially the firm moved mainly to temporary premises only a two- half a city block where Whitcoulls at the BNZ on Riccarton Road with some others working storey building. once stood. ▪
71 LAWYERS COMPLAINTS SERVICE April 2018 · LAWTALK 916
LAWYERS COMPLAINTS SERVICE
Complaint resolution summaries
Censure and fine allow her and her expert to enter the site Censured for unless she agreed to bend over through a for disrespect window down to the skirting board level failing to comply to sign a piece of wood. She said she reluc- John Revans Eichelbaum has been tantly agreed to do so, so as not to waste with standards censured and fined $10,000 for failing to time and money. She said that it was clear treat another lawyer with courtesy and she was not dressed appropriately to under- committee respect. take such a manoeuvre. When doing it, she In finding unsatisfactory conduct on Mr hurt her head. Ms B alleged Mr Eichelbaum direction Eichelbaum’s part, the lawyers standards laughed after she signed the wood. committee hearing the complaint said She further said that during a conversa- [Names used in this article are fictitious] that it considered his conduct “was of a tion about possible settlement of the case serious nature”. on behalf of her client, Mr Eichelbaum A barrister has been censured and “The committee further considers his threatened that she would be named fined $1,000 for failing to provide docu- conduct to be at the higher end of the personally in a conspiracy case if she did ments to a lawyers standards committee. unsatisfactory conduct spectrum,” the not agree to settle the case. The committee was considering a com- committee said. Ms B also referred to instances of bullying plaint about the barrister, Carstone, from “In the committee’s view, Mr arising out of an unrelated matter, where she a former client. Eichelbaum’s conduct towards the com- said Mr Eichelbaum had made and repeated The committee emailed Carstone on 18 plainant lawyer, Ms B, was not only an a suggestion that she had assisted in a fraud May 2017 requiring production of various isolated incident, but persistently occurred or crime by making a false police complaint, documents by 31 May. over a lengthy period of time. despite her telling him that she had nothing When nothing was received, the first of a “The committee considers that Mr to do with the complaint. She further said number of reminders was sent to Carstone Eichelbaum, caused Ms [B] a great deal of Mr Eichelbaum had sent her a copy of an on 12 June. distress and that the cumulative effect it offensive letter (which contained expletives), Nothing was received in response to had on her was significant.” which he had received from the complainant. either the first or the subsequent remind- Ms B said the letter had nothing to do with ers. The standards committee decided to The complaint her and was inappropriate. inquire of its own motion into his conduct Ms B complained about the way Mr and sent Carstone a notice of hearing, invit- Eichelbaum had behaved in a dispute Public interest ing submissions – in particular whether the with her client over undisclosed defects The committee said it was “necessary and barrister willfully obstructed or resisted in a property he had purchased. She said desirable in the public interest to direct the standards committee in the execution that he had failed to treat her, as opposing publication of the summary of the determi- of its powers. Carstone did not respond. counsel, with the required respect and nation, including Mr Eichelbaum’s identity. In its investigation into the matter, the courtesy expected from a member of the “The committee considers that Mr committee noted that Carstone’s failure legal profession. Eichelbaum’s conduct was serious and that to comply with the notice requiring pro- Ms B told the committee that on one the reputation of the profession and the duction of various documents meant that occasion, Mr Eichelbaum – when she told need to protect consumers of legal services the committee was unable to investigate him as a courtesy what she intended to outweighed the interests and privacy of Mr a complaint from a former client to the do next in the proceedings – had replied Eichelbaum and his relatives and clients. fullest extent. using swear words and alleging “there is “The committee also takes into account “It has hindered the committee’s enquiry no courtesy between us”. Mr Eichelbaum’s disciplinary history and and prevented the committee from dealing Further incidents had arisen as a result of the High Court judgment dated 28 July with his former client’s complaint in an her request to have an expert visit the site. 2015” (Eichelbaum v Canterbury Westland efficient and timely manner,” the commit- At the first proposed visit, Mr Eichelbaum Standards Committee No 2 of the New tee said. refused to allow Ms B and her building con- Zealand Law Society [2015] NZHC 1896). “Non-compliance without lawful jus- sultant to attend the site. Mr Eichelbaum As well as the censure and fine, the tification with directions of a standards had also made inappropriate remarks. committee ordered Mr Eichelbaum to pay committee is a serious matter.” On a second proposed visit, he would not $5,000 costs. The committee observed that reasonable
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engagement with the complaints process Wickfield] from his obligations under Wickfield disputed that he had provided and mandatory compliance with direc- [rule] 6.1.” advice, saying instead that he was simply tions to provide information is necessary The committee found unsatisfactory providing information to Mrs Clennam’s for the Lawyers Complaints Service and conduct by Wickfield. children. standards committees to comply with the Both the committee and LCRO on review, focus of the Lawyers and Conveyancers Background found Wickfield had provided advice and Act 2006 (LCA) which requires a “respon- Mrs Clennam and Mr Clennam had been that there was a contract of retainer for sive regulatory regime”. married for about 30 years when Mrs legal services to be provided. The committee determined that Clennam died. Both had been previously Carstone’s failure to comply with the married and had children from their prior Decision committee’s direction to produce various marriages. “In the committee’s view, [Wickfield] materials relating to a complaint about Mr and Mrs Clennam became occu- should not have provided any advice to him was unsatisfactory conduct, on the pants of a retirement village, and bought [one of Mrs Clennam’s children and her basis that in the absence of evidence to the a licence to occupy. Mr Clennam acquired husband] as he was, in essence, acting for contrary, Carstone had willfully obstructed Mrs Clennam’s interest in the licence to the estate and at the same time providing or resisted the standards committee in occupy by survivorship. advice on possible claims against that the execution of power confirmed on the Mrs Clennam’s family said there was an estate,” the committee said. committee by s 147 of the LCA. agreed understanding that the surviving The committee fined Wickfield $5,000 As well as the censure and $1,000 fine, spouse was to have the right to use the and ordered him to pay $1,000 costs. the committee ordered Carstone to pay apartment until death or until it was sold. On review, the LCRO reduced the fine to $1,000 costs. It was also agreed that they would make $1,000, but confirmed the $1,000 costs provision in their wills to ensure the shares order. they had originally contributed would be “The situation in which [Wickfield] found disbursed to their respective families. himself is not unique and the pitfalls of Lawyer conflicted However, Mr Clennam elected not becoming engaged as [Wickfield] did bear to make a claim against Mrs Clennam’s drawing to the profession’s attention,” the when providing estate under the Property (Relationships) LCRO said. Act 1976 (PRA). advice On Mr Clennam’s death his estate went to his children but not to Mrs Clennam’s [Names used in this article are fictitious] children. Failure caused One of Mrs Clennam’s children and her A lawyer in a firm that was acting husband, who knew Wickfield socially, met loss for client for an estate should not have provided with the lawyer regarding the administra- advice on possible claims against that tion of Mr Clennam’s estate. Wickfield said [Names used in this article are fictitious] estate, a lawyers standards committee he would make enquiries about the estate has said. and provide them with any information to A lawyer’s failure to comply with the This was a breach of rule 6.1 of the which they might be entitled. Lawyers and Conveyancers Act (Trust Lawyers and Conveyancers Act (Lawyers: Wickfield subsequently emailed Mrs Account) Regulations 2008 caused direct Conduct and Client Care) Rules 2008, the Clennam’s daughter and her husband, in loss to a client, a lawyers standards com- committee said. which he raised the possibility that there mittee has found. Rule 6.1 states that “a lawyer must not might be a constructive trust claim in rela- The committee ordered the lawyer to pay act for more than one client on a matter tion to Mrs Clennam’s cash contribution the client $8,500 compensation and $3,000 in any circumstances where there is more towards the purchase of the occupation towards the client’s legal costs. than a negligible risk that the lawyer may licence. He said there was a potential The lawyer, Leeford, acted for the client, be unable to discharge the obligations argument that Mr Clennam’s estate would Mr Wigsby, on the purchase of a property owned to one or more of the clients”. have a defence because he elected not to for the client and his mother. Rule 6.2 states that rule 6.1 applies when- make a claim against Mrs Clennam’s estate The mother’s two cousins made separate ever lawyers who are members of the same under the PRA. However, Wickfield also contributions towards the purchase price. practice act for more than one party. said that a constructive claim could put Leeford’s firm initially advised Mr “Accordingly, the fact that another Mrs Clennam’s children in a position to Wigsby that the funds from the cousins member of the law firm was acting in the negotiate with the beneficiaries of Mr would need to be recorded as a gift to estate … does not absolve [the lawyer, Clennam’s estate. satisfy banking requirements. However,
73 LAWYERS COMPLAINTS SERVICE April 2018 · LAWTALK 916
when the funds were paid in to the trust Censure and allegations. account, they were subsequently recorded Ms C’s lawyer filed a second complaint, as a loan. fine for serious which repeated the allegations Ms C made A dispute arose between one of the and also provided further evidence (see cousins and Mr Wigsby over the amount contraventions "Censure and Fine For Disrespect", page 72). of the contribution and whether the pay- The Legal Complaints Review Officer ment was a gift or a loan. That cousin then John Revans Eichelbaum has been (LCRO) reversed the committee’s decision filed proceedings in the Disputes Tribunal censured and fined $10,000 for unsatis- on Ms C’s complaint and returned the against Mr Wigsby. factory conduct that a lawyers standards matter to the committee to reconsider. It was “not surprising” that confusion committee has described as “serious”. The LCRO specifically directed the would arise as to whether the payment of One of the breaches – threatening, bul- committee to take into account all the $12,000 was a loan or a gift, the committee lying, insulting and intimidating a person material provided by Mr Eichelbaum and noted. he pursued court action against – was Ms C’s lawyer. It was also not surprising that Mr Wigsby sufficiently serious that the committee adopted the view that he did and relied on considered whether the matter should be Reconsideration the advice Leeford’s firm had given him referred to the Lawyers and Conveyancers In reconsidering the issue, the committee’s that the payment was a gift. Disciplinary Tribunal. view was that the new evidence produced Leeford gave evidence at the Disputes The committee found, however, that Mr indicated “that Mr Eichelbaum displayed Tribunal, and the referee noted that he Eichelbaum’s conduct was “at the higher a pattern of conduct that was threatening, “was unable to explain the inconsistency end of the scale of unsatisfactory conduct”. bullying, insulting and intimidating”. in the documents”. “Mr Eichelbaum by his conduct The Disputes Tribunal considered that Background caused Ms [C] a great deal of stress. Mr the sums were lent to Mr Wigsby, who was Mr Eichelbaum is a barrister and also a Eichelbaum’s conduct towards Ms [C] was ultimately ordered to pay $12,000. director of a company (company B) that not only an isolated incident but persis- “All of these issues could have been purchased a property from two people as tently occurred over a long period of time avoided if the funds paid by [the cousin] trustees of a family trust. The complainant, (approximately five years).” had been properly and clearly recorded in Ms C, was one of the two people. The committee listed three specific [Leeford’s firm’s] trust account. They were A dispute arose relating to alleged instances of the behaviour: obliged by the Trust Account Regulations undisclosed defects to the property, and Mr Eichelbaum’s correspondence to to do so,” the committee said when finding company B filed court proceedings against Ms C stating: “you should be ashamed of unsatisfactory conduct on Leeford’s part. Ms C and the trustees of the family trust. yourself for attempting to sneak out of your The committee said it was appropriate As a result of Ms C’s dealing with Mr obligations in this way – what would your to make an order requiring Leeford to pay Eichelbaum throughout the proceedings, students think?” $8,500 – the amount Mr Wigsby had to pay Ms C filed a complaint with the Lawyers Threatening Ms C with false court pro- the cousin to satisfy her claim against him. Complaints Service. ceedings, and Mr Wigsby also made a claim for legal The standards committee considered Intruding on Ms C’s private property to costs, and the committee said it consid- that complaint and decided to take no serve documents on her. ered a contribution of $3,000 towards Mr further action, mainly due to lack of evi- “Mr Eichelbaum’s conduct towards Ms Wigsby’s costs of $7,404 to be appropriate. dence to substantiate or corroborate the [C] was unnecessary, unacceptable and below the standard both required and expected of a lawyer.” Having considered all the incidents over the course of the proceedings, the enduring The Partners of Heaney & Partners are nature of Mr Eichelbaum’s behaviour and pleased to announce the promotion of the cumulative effect it had on Ms [C] the Alice Robertson to the position of Senior committee considered that Mr Eichelbaum Solicitor effective from 1 April 2018. had breached rules 10 and 12 of the Lawyers and Conveyancers Act (Lawyers: Conduct Alice has been with the firm since May 2016 and Client Care) Rules 2008, “as he failed and works with the firms’ litigators for their to treat Ms [C] with integrity, respect and insurer, real estate and council clients. courtesy,” the committee said. The committee also found unsatisfac- tory conduct by Mr Eichelbaum because
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there was a period of time during the practice of law”. has been breached. We will have to recover proceedings in which he breached the “There are excellent reasons for princi- that from Mr [C] later”. independence requirements of the Rules. pals to limit who can give undertakings, to During this time Mr Eichelbaum acted as closely monitor undertakings that are given, LCRO’s analysis a barrister for the company of which he and to be able to ensure they are honoured.” “[Bunsby] says there is no breach of the was a director in proceedings. undertaking because he will honour it,” The committee’s third unsatisfactory The undertaking the LCRO said. conduct finding was imposed because Bunsby’s firm acted for joint vendors sell- “I accept that [Bunsby] genuinely holds Mr Eichelbaum used information obtained ing a property. One of the vendors, Mr C, that belief and fully intends to honour the in the District Court through discovery in held a quarter share, which was subject to undertaking. another forum without obtaining prior a Property (Relationships) Act 1976 claim “However, his contention that he did not consent from either Ms C or the District in favour of Ms D. breach the undertaking is not accepted as Court. That breached rule 8.30(4) of the As the claim notice presented an obsta- correct. As neither of the two events that High Court Rules. cle to settlement, a lawyer employed by authorise him to release the funds has As well as the censure and fine, the Bunsby’s firm offered the following under- occurred, [Bunsby] is bound to a contin- committee ordered Mr Eichelbaum to pay taking to Ms D’s lawyer: uing obligation he can no longer fulfil.” $3,000 costs. Ms D “will remove the notice of claim Bunsby argued that he could substitute “In the committee’s view, it is necessary on the basis that we undertake to hold his money for Mr C’s share of the sale pro- and desirable in the public interest to [Mr C]’s share of the sale proceeds in our ceeds thereby honouring the undertaking. direct publication of the summary of the trust account until an agreement can be However, the LCRO said the substitu- determination, including Mr Eichelbaum’s reached between the parties (or a Court tion argument “relies on an incomplete identity,” the committee said, noting its order is issued).” analysis of the benefits the undertaking finding of unsatisfactory conduct was Ms D’s lawyer removed the notice of had for Ms [D]”. based on “serious contraventions”. claim and settlement took place. One of the benefits to Ms D was preser- The joint vendors were unable to agree vation of the status quo, which improved on how the proceeds should be divided her negotiating position with Mr C. between them and Bunsby’s firm retained “[Bunsby] upset the status quo. He the entire settlement funds. Later, when deprived Ms [D] of that benefit, and Unintentional the vendors had finally resolved their imposed an added burden on her by allow- dispute, Bunsby’s firm paid out $72,500 ing Mr [C] immediate use of all the money. breach of to Mr C. Six days later, Ms D’s lawyer wrote “Providing security is better than noth- to the firm requesting confirmation of the ing, but it is not sufficient to honour the undertaking exact amount of Mr C’s share and that the undertaking,” the LCRO said. firm still held that amount. As well as the fine, the standards com- [Names used in this article are fictitious] After a brief period of confusion, because mittee ordered Bunsby to pay $1,000 costs. Bunsby was not aware of the undertaking, The LCRO confirmed the committee’s A lawyer who unintentionally Bunsby confirmed that Mr C’s share had finding of unsatisfactory conduct by breached an undertaking has been fined been paid out. Bunsby and the orders it made. It con- $4,000 by a lawyers standards committee. However, Bunsby immediately told Ms sidered the level of fine imposed to be “a The lawyer, Bunsby, applied to the Legal D’s lawyer: “you may treat it as if we were justifiable and justified amount”. It also Complaints Review Officer (LCRO) for a holding the funds so that no undertaking ordered Bunsby to pay $1,200 costs. review of the decision. Bunsby claimed the decision was incorrect because he had made a genu- QUEENSLAND AGENCY WORK ine mistake and because the undertaking would be honoured out of his own funds. Situated on Queensland’s Gold Coast, we have over 40 years’ experience advising clients throughout He claimed on those bases there had been Queensland. Two of our solicitors have practised in New no breach of the undertaking. Zealand and we have many New Zealand clients.
Even if there was a breach, Bunsby All types of agency work accepted: www.gsslaw.com email: [email protected] said, the penalty was too severe in the • Estate Administration (including resealing of Probate) phone: +61 7 5532 5944 circumstances. • Conveyancing, settlements, property searches Australian Member of However, in confirming the committee’s • Family Law International Lawyers Group determination, the LCRO (in LCRO 131/2017) • Commercial law, commercial litigation, debt recovery (www.ilgonline.org) said “undertakings are fundamental to the
75 LEGAL RESEARCH April 2018 · LAWTALK 916
LEGAL RESEARCH Foundation’s inaugural grants boost legal projects
the criminal justice system. The Michael and Suzanne Borrin Foundation announced Whiti Te Rā 2018 is a kaupapa Māori five inaugural grants totalling over $1.7 million in February. The conference which will include socio-legal Foundation was established by District Court Judge Ian Borrin research, legal education, and presenta- shortly before his death in March 2016, in memory of his parents. tions from leading legal and academic Judge Borrin left $38 million in his will to the Foundation, to figures in the area of criminal justice. support legal research, education and scholarship in New Zealand. Organisers says it’s being held because of As well as the inaugural grants, the Foundation announced a the failure to address the disproportionate collaborative relationship with the New Zealand Law Foundation, incarceration of Māori. which includes a commitment to contribute up to $150,000 a year The conference, which follows the inau- to co-funded projects. gural hui in 2017 in Rotorua, will consider Details of the inaugural grants: how policies, practices, and mindsets can be changed to shift the status quo. It will be He Whaipaanga Hou update research held in Auckland at a date to be announced. By Nick Butcher “The hui in 2017 was spurred by the A research project on New Zealand’s criminal justice system Waitangi Tribunal’s findings that the and how it affects Māori has received a grant of $614,420 over Department of Corrections was in breach of 18 months. its Treaty obligations, by failing to address This is a large-scale research project led by Treaty of Waitangi the disproportionately high rates of Māori expert and indigenous rights legal scholar Moana Jackson. re-offending,” says Tania Sawicki Mead, Mr Jackson of Ngāti Kahungunu, Rongomaiwahine and Ngāti JustSpeak’s director. Porou descent, received an honorary doctorate in law from Victoria The 2017 conference featured justice University at the end of last year. He graduated from the same advocates Kim Workman and Annette university with a Bachelor of Laws in 1969. Sykes, and one of the outcomes was to In 1988, Mr Jackson undertook ground-breaking research establish a working group to achieve some on Māori and the criminal justice system for the then Justice of the goals that were set. Department. His investigation into the justice system and its bias Ms Sawicki Mead says the Whiti Te against Māori led to the seminal report He Whaipaanga Hou, which Rā ‘Call to Action’ set out a number of has reshaped the national debate and changed understandings goals under three key areas: prevention, of Māori law. rehabilitation and reintegration, including The update project he has been leading follows on from that specific calls for drug law reform, bringing work, again tackling New Zealand’s criminal justice system, its Te Ao Māori perspectives and alternatives institutions, operations, policies and effectiveness in relation to into the justice and education system, and Māori. repealing the Bail Amendment Act. Moana Jackson says, currently, 51% of men in prison are Māori, Attendees for this year’s hui are due to and 64% of women in prison are Māori. come from several different sectors and “These are shameful figures. Since this issue was first highlighted backgrounds, including lawyers, academics, 30 years ago, little has changed. The Borrin Foundation grant will advocates, ex-prisoners, community leaders support our essential research into why our country continues to and government officials. JustSpeak says imprison Māori men and women at such high rates. I hope our the conference will enable conversations report will lead to a more open and imaginative discussion about between people who would not normally the criminal justice system,” he says. meet, with the intention that such conver- sations and relationships will be the catalyst Grant will boost group’s hosting of for much more. second hui on criminal justice JustSpeak expects a broad range of By Craig Stephen people to use their collective experience A grant of $43,210 will help the justice advocacy group JustSpeak and expertise to build an action-oriented host an annual conference this year on transformative change in plan at the conference to deliver a more
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effective and empathetic approach, WorkBot – to answer questions in practice, and what New Zealanders see as fair and just by Māori, for Māori. about employment law – being when couples divide property after a relationship ends. “This grant will enable JustSpeak employed, working conditions, The interdisciplinary research team will be led by to bring many Māori voices and rights and protections for employ- Associate Professor Nicola Taylor, Professor Mark perspectives together to be heard ees, and how to resolve disputes. Henaghan and Dr Megan Gollop. on how we achieve transformational LagBot – to answer questions Phase One of the research began in November 2017 and change in criminal justice, and to about prisons – going in, being in, runs to May 2018. It involves a commissioned nationwide build on the progress made at Whiti and being released. It is designed random telephone survey of New Zealanders aged 18 Te Rā last year,” says JustSpeak for whānau and wider community, and over. Phase Two – from May 2018 to May 2020 – board member Julia Whaipooti. prison staff, advocates of prisoners, will involve a nationwide online survey and individual and organisations who work with interviews with New Zealanders who have experience Access to justice through people inside prison or who are of dividing relationship property after separation. digital innovation being released from prison. “The dramatic demographic and social changes over By Angharad O’Flynn Spearheaded by General Manager the past four decades, including the ways in which rela- In 2017 Wellington Community of Community Law Wellington, tionships and families form and function, mean it is vital Law successfully developed and Geoffrey Roberts, and Wagbot’s that any changes to the Property (Relationships) Act 1976 launched Wagbot, a Facebook lead developer, Matthew Bartlett, are informed by public opinion and the perspectives of Messenger chatbot that answers the project will also work with separated couples on their experience of dividing their students’ and parents’ questions Citizen AI. relationship property,” Associate Professor Taylor says. about problems at school. A wholly-owned subsidiary of The Wagbot project demonstrated Community Law Wellington, Citizen Māori legal academics to the potential in using artificial intel- AI will research, develop, and pro- benefit from grant ligence systems to increase access mote artificial intelligence systems By Nick Butcher to information. for public benefit. Ngā Pae o te Māramatanga Summer Legal Research Now, Wellington Community The grant also supports legal Internships are to be offered, thanks to the Borrin Law is leading the Access to Justice research and legal writing work Foundation. Through Digital Information project for the Community Law Manual – a The grant of $39,000 will be allocated over three after receiving a $492,000 grant comprehensive, plain English guide years to provide summer legal research internships over three years from the Borrin to New Zealand law. in collaboration with Ngā Pae o te Māramatanga, and Foundation. The content of the manual will be will focus on promoting Māori legal scholarship and This project will make informa- used along with publications such nurturing young researchers. tion on tenancy law, employment as Lag Law as the base information Co-Director of Ngā Pae o Māramatanga, New Zealand’s law, and law related to prisoners for the chatbots. Māori Centre of Research Excellence, Professor Jacinta freely accessible to the two million Ruru, says they’re incredibly excited to partner with New Zealanders who regularly use Relationship property the Foundation. Facebook. division research “This will create a new and prestigious ongoing opportu- The grant is for the design and A grant of $577,225 over two years nity to positively increase relevant Māori legal scholarship development of three ‘chatbots’: has been made to the University of for the benefit of Aotearoa New Zealand,” she says. RentBot - to answer questions Otago and a team of social science The Borrin Foundation intends to actively seek out about tenancy law, and the legal researchers. The project will conduct high-performing individuals and organisations who rights and obligations of renters socio-legal research into how sepa- will contribute to its vision through legal research and and landlords. rating couples divide their property scholarship, legal writing and legal education. ▪
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77 LEGAL INFORMATION April 2018 · LAWTALK 916
LEGAL INFORMATION Plundering Beauty: A History of Art Crime during War
BY LOUISA GOMMANS
Louisa Gommans, solicitor at Wellington firm Rainey Collins and founding co-trustee of the New Zealand Art Crime Research trust, talks to Judge Arthur Tompkins, author of the recently published Plundering Beauty: A History of Art Crime during War.
Tell me how you became involved in the week before the book was being launched, study of art crime during war? at the first Art Crime Conference, in a small “As with so much else in life, it’s a tale of serendipitous coincidence, hilltop town in Umbria, Italy. I went to or rather a series of them. Back in 2009 I was doing some work Umbria for the conference and whilst with Interpol relating to, of all things, forensic DNA, and I was at there, Noah invited me to return the a conference at Interpol’s General Secretariat in Lyon, France. At following year, in 2010, to teach the Art a meet and greet drinks function on the first night, I introduced in War course. And I’ve been back each myself to a guy standing at the bar, thinking he was attending year since then. It’s a tough thing, having the conference, but he told me he was just popping in for a free to abandon a New Zealand winter for an glass of wine on his way home, and that he worked in Interpol’s Umbrian summer each June.” Stolen Art Unit. I had no idea Interpol had such a thing, but was fascinated by the stories he told. Do you have a favourite artwork that Thinking about it on the flight back to New Zealand, I realised has been stolen, or story about one? that a number of the issues I was working with Interpol on – “My favourite stolen art work is probably cross-border criminal jurisprudence, the interaction between the Four Horses of the Basilica San Marco different countries’ legal systems, and the like – were directly – the Four Horses is the artwork with the relevant to stolen art. Art is often stolen in longest history of larceny, probably now one country, travels through several differ- reaching back more than 1500 years, give ent countries, and then re-emerges, often or take a century or two, and spanning years and continents removed from the Art is often stolen two continents and some of history’s most original crime, after passing through many in one country, savage wars. hands in a wide variety of transactions. travels through They were taken from Rome to When I got home I found out about a con- several different Constantinople around 400-500BCE, then ference in Madrid to celebrate the return countries, and from there to Venice by the Fourth Crusade of some stolen maps, one of which had then re-emerges, in the opening years of the 13th century, been to the New World with Columbus. I often years then to Paris by Napoleon, but back again emailed one of the conference organisers, and continents to Venice after a mere 17 years. They are Noah Charney. removed from the only surviving cast quadriga from the Noah didn’t have any space for another the original Classical World, and it’s extraordinary that speaker at that conference, but he invited crime, after they’ve survived at all. me to write a chapter for a book of art passing through In terms of paintings, Gustav Klimt’s crime essays he was editing. I did that, many hands in a Portrait of Adele Bloch-Bauer is a real favour- sent it to Noah, and the following year, by wide variety of ite. The recent Helen Mirren film,Lady in another coincidence, I was in England the transactions. Gold, got most of the history right (unlike
78 LAWTALK 916 · April 2018 LEGAL INFORMATION
◂ Portrait of a collaborator in the chaotic days of the Adele Bloch- Liberation of Paris, but the information Bauer, Gustav she eventually provided to the Monuments Klimt, Neue Men was vital in the astounding work they Galerie, New did as the Allies fought their way into York Germany following the D-Day landings.
You’ve just had a book published in London, Plundering Beauty: A History of Art Crime During War It was an engrossing project, taking the historical section of the course I teach in Italy each year and working it up into book form. Covering 2,000 years in under 200 pages was a bit of a challenge, and there’s a lot I had to leave out. But the remarkable thing is that the artworks survive at all – these fragile, vulnerable things of lasting beauty, testaments to centuries of creative genius, get tossed and battered and lost and stolen and displaced during wartime, but somehow manage to survive it all. ◂ Rose Valland’s Plundering Beauty is published by a spe- memorial cialist art publishing house in London, so plaque, Jeu de we’ve taken special care with the quality of Paume, Paris the binding and paper stock, the printing, and with the colour and black and white illustrations, over 50 of them. Getting the images right was itself a lengthy but fas- cinating learning curve: finding and then getting in touch with the institutions who now own the artworks or the copyright and getting reproduction permission, sourcing images of high enough quality so they’d print well, and making sure the printed colours match as closely as possible to the original. And the cover – that went through George Clooney’s The Monuments Men, which got much of the art about a dozen iterations, with mock-ups right, but the rest badly wrong). going back and forth to London.” ThePortrait’s history, right from the time it was painted in Vienna in the early 20th century, through to its theft by the Nazis at Tell me about the actual writing the beginning of World War II, its ending up in the Belvedere in of Plundering Beauty? Vienna after the war, the long obstruction of its return to Ferdinand “Over the years, first as a lawyer and then Bloch-Bauer’s heirs by the Austrian state and the Viennese art as a judge, I’ve written a lot. And in the establishment, the final recognition of the injustice done by its art crime area I’ve contributed chapters theft, and its ending up back on public display in New York, is a to two books of collected art crime essays, remarkable tale that encapsulates so much of the history of art and in 2016 I edited a book called Art Crime crime during war. and Its Prevention. So when I started on Rose Valland is a particular heroine of the fight against art Plundering Beauty, I knew what I was crime. She was an unpaid volunteer curator at the Louvre at the getting myself in for. outbreak of World War II, and worked tirelessly to safeguard the I had a lot of the material already assem- French national collections, both before the Nazi occupation and bled, in the form of the extensive lecture afterwards. After the Nazis established their stolen art clearing notes prepared for the course I teach. But I house at the Jeu de Paume museum she was sent to work there. knew that to transform that material into a Indeed, you can still go there and see the memorial plaque attesting book would require a front to back re-write, to her work. and that every word would need to be For four years Rose eavesdropped on the Nazi art thieves, and carefully considered and thought about. meticulously recorded the stolen art at the Jeu de Paume and And I had a deadline to meet. where it was sent to in Germany. She was very nearly shot as I had agreed a chapter structure with
79 the commissioning editor at the London And what about art crime ▴ The Four Horses of the Basilica San publishers; I knew how many chapters here in New Zealand? Marco, Venice, Italy I needed to write and what each would “There is a surprising amount of art cover, and how long each chapter would crime in New Zealand. A few years back be. I set myself a goal of finishing one I co-founded the New Zealand Art Crime at an Australasian university, focusing on chapter a month for a year. I work best in Research Trust, and annually we run a day- art theft, fraud, forgery, smuggling and the early morning, so I got into the habit long Art Crime Symposium, in Wellington. vandalism.” of getting up very early, and writing before One of my fellow trustees, Penelope The fourth annual Art Crime Symposium my day really started. I managed to stick Jackson, recently published Art Thieves, will happen on Saturday, 22 September, reasonably closely to my timetable, so in Fakes and Fraudsters: The New Zealand Story at the City Gallery, Wellington. This year the end the manuscript went to the pub- (Awa Press, 2016), and I know there’s a lot the theme is, “Provenance matters” and lishers by the agreed deadline. more out there than she could include in will feature a wide range of researchers, Once a manuscript is submitted, you her book. And another of the trustees, practitioners, art world professionals and have to turn around and go through the Ngarino Ellis, from Auckland University’s others. ▪ whole thing word by word again. I did this Art History department, teaches every first with the editor in London, and then second year what I think is the only uni- Louise Gommans is a solicitor at with a wonderful French-based freelance versity-level course in art crime available Wellington law firm Rainey Collins. editor and translator, Abigail Grater. She not only corrected my many typographical, grammatical and syntactical errors and infelicities, but also cast a critical and all-seeing eye over it, suggesting changes in pacing and sequencing, reworking passages to promote greater clarity, and Providing Professional Indemnity and specialist insurance correcting factual mistakes or ambiguities. The physical arrival of the books into the products to the Legal Profession stores in March was delayed, first by some Visit www.justitia.co.nz for further information and application forms unspecified problem at the Suez Canal in Or Contact: Mr Ross Meijer, Aon New Zealand January, then by the major snowstorm 04-819-4000 that hit the United Kingdom. But it has [email protected] finally arrived.”
80 LAWTALK 916 · April 2018
PRACTISING WELL How nature improves our health
BY RAEWYN NG
In Japan they call it forest bathing or shinrin-yoku, a term created by the government in 1982 to encourage city dwellers into nature for preventative healthcare and healing. In other places they call it ecotherapy, nature therapy or nature appreciation but it really doesn’t matter what it’s called – mostly we know it as getting outside. Although we mainly spend our working lives indoors, we’re still a nation that likes to get outside and we’re lucky that we can access green spaces easily even from the middle of our biggest cities. Traditional societies have always recognised the healing prop- erties of nature and instinctively we know that getting outdoors is good for us, but research is increasingly showing how nature can improve our health. The New Zealand Government has recognised nature’s heal- ◂ ing power and the link between healthy environments and the area of the brain that’s usually stim- healthy societies. This has resulted in ulated during stress and after periods of Pimthida the Department of Conservation and the intense mental and physical work. Mental Health Foundation partnering to Restores mental energy and improves
promote and strengthen the connection concentration: Being in nature not only bnd between health, wellbeing and nature. lifts our mood and promotes feelings of The concept of forest bathing is to calm and balance, it also helps us focus immerse yourself in the forest (or nature and be more productive. In 2010, a study generally) to clear your head and engage published in the Journal of Environmental all the senses to connect with the envi- Psychology discussed the effects of the ronment. This means no counting steps outdoors on vitality. Part of the study or intense tramping, no focus on how far involved participants taking a 15-minute you have to run or how high your heart silent walk – half the group walked indoors rate should be, and no music or devices and half outdoors along a tree-lined path. to distract you. All you have to do is sit Those that walked indoors experienced or walk slowly and take a look around – a Although we no change in vitality whereas those that form of mindful meditation. mainly spend walked outdoors showed a significant Nature has been demonstrated to our working increase in energy levels. improve our health in a number of ways: lives indoors, Lowers stress levels: Being in forest Improves mental health: Long hours on we’re still a environments has also been shown to devices and in front of TV and computer nation that lower cortisol (stress hormone) levels, heart screens are associated with rising levels likes to get rate, blood pressure and muscle tension of depression, anxiety and isolation. Being outside and and increase the body’s parasympathetic in nature is an opportunity to disconnect we’re lucky response (the rest and recovery function from technology, connect with ourselves that we can of our autonomic nervous system which and clear the head. It’s been found that access green is the flip side to the fight and flight or 20 minutes of forest bathing alters blood spaces easily sympathetic response). Chronic stress flow to the brain in a way that promotes even from the supresses the parasympathetic response relaxation. In particular, haemoglobin to middle of our as well as our ability to heal and recover. the prefrontal cortex is decreased. This is biggest cities. Lower your chronic stress levels to allow
81 PRACTISING WELL April 2018 · LAWTALK 916
your body to restore itself. It’s also been said that office workers with a view of nature from Will a window will report lower stress levels and higher job satisfaction. Lowers inflammation:Terpenes, which are chemicals produced by plants to protect them from predators and found in many Notices essential oils, have been shown to have anti-inflammatory effects in people by inhibiting proinflammatory pathways in bronchitis, PAGE 82 lung disease, skin inflammation, and osteoarthritis. It’s been Campbell, Nevis Ann shown that exposure to terpenes through forest bathing has Dewasirinarayana, Don Piyasena anti-inflammatory effects and you can also access their benefits Ellin, Vanessa Jane through using various essential oils. Jones, Brendon James Improves immunity: The connection between chronic stress PAGE 83 and lowered immunity is well known so it follows that the stress lowering effects of nature will have positive impacts on our Nelson, Nicolas Frank immune system. However, other ways that forests can improve Nortje, Marcel Louis our immunity have also been studied. Park, Robert Kendall Phytoncides are aromatic oils emitted by plants and trees con- Phekoo, Vinod taining anti-microbial properties that help the plant fight disease Phillips, Thomas Michael and protect them from harmful organisms. Phytoncides have also Sandoy, Mana been found to improve our immune systems – when we breathe in Southorn, Arthur Richard - aka phytoncides, they increase the number and activity of the white Southorn, Dick blood cells called natural killer (NK) cells which help kill tumours Thomson, Noeline Bernice Eleanora and virus-infected cells in our bodies. Waters, Alistair Paul After three to four days in the forest, NK cells can be raised Williams, Dylan James by as much as 50% but you’ll still get benefits from a short time amongst the trees. Campbell, Nevis Ann Would any lawyer holding a will for the above-named, Taking advantage who died at Taupo on 27 November 2017, please Taking advantage of the healing powers of nature doesn’t have contact Malcolm S Lake: to take days or weeks – a short walk in nature during your lunch [email protected] 07 349 4348 break can do wonders for your health. If you can’t get amongst PO 560, Rotorua 3040 the trees, look for somewhere with vegetation of some kind or the sea. Dewasirinarayana, Don Piyasena You may already spend good amounts of time outside, but if you Would any lawyer holding a will for the above-named, want to forest bathe like the Japanese, consider what your mind is formerly of Hokitika but latterly of Invercargill, Retired Doctor, born in 1926, who died on 30 January doing and where your attention goes. Usually it’s in daydreams and 2018, please contact Megan Robertson, AWS Legal, making mental notes and not in the present moment. Even though Invercargill: you’ve physically taken yourself into a green space, sometimes [email protected] we forget to take our minds there too. 03 211 1370 Keep these simple steps in mind when you shinrin-yoku: PO Box 1207, Invercargill 9840 • Leave your phone, tablet, camera and other distractions behind Ellin, Vanessa Jane so that you can be fully present; Would any lawyer holding a will for the above-named, • Forget about setting goals and having expectations, just wander late of 18 Greenleaf Way, Northcross, Auckland, around and go where you want; mother and fitness instructor, born on 18 September • As you stroll pay more attention to the things you see, or how 1971, who died on 2 February 2018, please contact the ground feels beneath your feet with each step; Sandra Callanan, Lewis Callanan, Solicitors [email protected] • Find a place to take time to sit, listen and watch what’s hap- 09 479 5344 pening around you; PO Box 35361, Browns Bay, Auckland 0753 • If you’re with others, try to resist talking until you finish. We’ve always inherently known that nature makes us feel good, Jones, Brendon James now the science is showing us the link between our individual Would any lawyer holding a will for the above-named, health and the environment. ▪ late of 10B Cambourne Road, Papatoetoe, Auckland, Plumber, who died on 26 February 2018 aged 53 years, please contact Susan Tracy, Cairns Slane: Raewyn Ng is a movement coach with an interest in wellbeing [email protected] and holistic health, managing stress and living a balanced 09 307 9655 lifestyle. See www.mybod.co.nz PO Box 6849, Auckland 1141
82 LAWTALK 916 · April 2018 CLASSIFIEDS · WILL NOTICES
Nelson, Nicolas Frank Southorn, Arthur Richard - aka Waters, Alistair Paul Would any lawyer holding a will for the above-named, Southorn, Dick Would any lawyer holding a will for the above-named, late of Eketahuna, Farmer, born on 18 December 1958, Would any lawyer holding a will for the above-named, late of Katikati, Horticulturist, born on 13 July 1970, who died on 20 January 2018, please contact Peter who lived in the Tauranga and Mount Maunganui who died on 7 December 2017 aged 47 years, please Lindstrom, Innes Dean Tararua Law: area, who died on 16 May 1999 at Tauranga contact Sue Adams, c/- Kaimai Law Katikati: [email protected] Public Hospital, please contact Paul Fitzgibbons, [email protected] 06 376 0074 Nicholsons, Solicitors : 07 549 4890 PO Box 157, Pahiatua 4941 - DX PP88501 [email protected] PO Box 56, Katikati 3166 06 757 5609 Nortje, Marcel Louis PO Box 68, New Plymouth 4310 Williams, Dylan James Would any lawyer holding a will for the above-named, Thomson, Noeline Bernice Eleanora Would any lawyer holding a will for the above-named, late of Belmont in Auckland, Graphic Designer, who late of Te Puke, born on 27 February 1993, who died Would any lawyer holding a will for the above-named, died on 26 February 2018, please contact Siobhan on 25 February 2018, please contact Mark Kirkland, late of Mangonui, retired, born on 16 June 1934, O’Sullivan, Kemps Weir Lawyers: Fenton McFadden: who died on 24 June 2007, please contact Patrick [email protected] [email protected] Anderson, Sanderson Weir Ltd: 09 525 4593 07 573 8681 [email protected] PO Box 62566, Greenlane, Auckland 1546 - DX PO Box 36, Te Puke 3153 DP72013 09 369 9010 PO Box 6078, Auckland 1141 - DX CP20517
Park, Robert Kendall Would any lawyer holding a will for the above-named, late of 54 Wake Street, Hamilton, born 28 July 1954, who died on 2 February 2018, please contact Hayley Roberts, McCaw Lewis: [email protected] 07 958 7472 PRACTICE FOR SALE PO Box 9348, Hamilton 3240 - DX GP20020 NZ AND WWW Phekoo, Vinod A third generation legal practice office, based in Would any lawyer holding a will for the above- Wellington with a client base all over New Zealand named, late of 34 Cranberry Place, Bucklands Beach, and overseas, is for sale. The opportunity is offered to Manukau, Bank Manager, born on 11 July 1950, who purchase a broad based practice and to further develop died on 1 February 2018, please contact Boon Toh, various areas within the strong on IT systems practice. Boon B Toh, Solicitors: If wanted, the vendor could be retained for a period as [email protected] consultant and mentor. 09 620 6133 PO Box 27562, Mt Roskill, Auckland Interested practitioners please contact the address below for further information: Phillips, Thomas Michael [email protected] Would any lawyer holding a Will for the above- named, late of 4 Saxon Street, Waterview, Auckland, unemployed, born on 9 October 1962, who died on 13 February 2018, please contact John Boyle, Boyle Lawyer - North Shore DX Law Mathieson, Solicitors: Partnership opportunities [email protected] 09 837 6004 DX Law, based in Milford on Auckland’s North Shore, is looking PO Box 21 640 Henderson, Auckland 0650 - DX for a lawyer to join a dynamic team in a fast-growing practice. DP92555 The successful candidate will need to be able to speak Sandoy, Mana Mandarin, as well as having good English skills. An academic Would any lawyer holding a will for the above-named, background would be an advantage. At least 2 years’ experience late of 45 Sarsfield Street, Herne Bay, Auckland, Age in Property Law, Commercial Law, Family Law and/or Care Worker, born on 4 July 1934, who died on 6 Employment Law is a requirement. January 2018, please contact Sebastian Tolich, Employment is offered on a full-time basis and there are distinct Richard Allen Law : future partnership opportunities available. [email protected] 09 361 0331 PO Box 78326, Grey Lynn, Auckland Please email your CV and cover letter to [email protected]
83 LEGAL JOBS · CLASSIFIEDS April 2018 · LAWTALK 916
EMPLOYMENT – SENIOR ASSOCIATE • Highly regarded team | located in Viaduct Harbour • Cutting-edge employment law issues LAW NORTH LIMITED • Exceptional client base and exciting work • Work alongside talented and dynamic lawyers Kerikeri, Bay of Islands Kensington Swan is not your ordinary leading law firm. We value the people who make us who we are – our teams and our clients. We Law North Ltd is based in Kerikeri, it’s clients are from Kerikeri prize excellence through diversity, creative thinking and providing our the other Bay of Island’s towns and the large Mid and Far North clients with an unbeatable experience. Our large national employment community. The firm has large and diverse range of clients. Kerikeri team is a leader in this area, and is involved in many significant cases. is a modern, rapidly developing town that provides good schooling We excel at delighting clients and delivering the outcomes they seek. and a wide range of community, sporting and recreational activities. This role will give you access to high quality, complex, and rewarding A great place to bring up a family and enjoy the relaxed lifestyle. work in a collaborative and supportive team. You will work with major international and national companies, and be supported to bring your JUNIOR SOLICITOR client relationship management and leadership skills to the fore. We seek a motivated Junior Solicitor who has recently graduated, Ideally, we are seeking someone with 7+ years PQE in employment law with up to 1 year PQE, have very good research skills, and interested with a strong commercial background and a passion for employment law. in working with a Director who has a strong Local Government, You will have: Civil Litigation and Family Property practice. • a good understanding of litigation with relevant experience in the Employment Relations Authority/Employment Court (or civil POTENTIAL DIRECTOR Courts) We are also looking for a very experienced property conveyancing • the ability to confidently interface with clients and build strong Solicitor (5+ years) with a desire to become an owner. The relationships position is full time, requires someone committed to the BOI area • a desire to always get the best outcome for your clients and the and to become part of a progressive firm that is planning for the strategic mindset to achieve that • a strong commercial radar future. You would need experience in a commercial practice and • an aspiration to take your career as a recognised expert in the can expect to be involved in a wide range of private client work. employment law practice area to the next level The ability to relate to clients and establish a personal relationship • a commitment to contribute to a positive and engaging team is important and to become involved in the community. environment. If either of these positions sounds like you, please send For further information or a confidential discussion please your covering letter and CV to [email protected] visit our website: https://www.kensingtonswan.com/careers/ or contact Rose Ritchie on 09 375 1199. www.lawnorth.co.nz
SENIOR / INTERMEDIATE SOLICITOR GilbertWalk er is a specialist advisory and dispute resolution practice based in Auckland. We practise across a broad range of civil disputes, including We are a two partner boutique Takapuna practice commercial, construction, insurance, property, trusts and seeking an intermediate / senior solicitor with 5 regulatory matters. We are currently acting on a wide years + PQE experience to join our firm to work in range of interesting and challenging matters for high profile clients. the area of property and commercial law with a view We are seeking a lawyer with 5 years plus experience to to becoming a partner. join our busy team. We maintain a low ratio of senior to The role requires a solicitor who is experienced in junior lawyers. You can expect to work with each of our three partners. All of our lawyers engage directly with our managing residential and conveyancing files and clients and appear regularly in court and in other dispute has broad understanding of trusts. resolution forums. We work in an open and collegial environment. You will have good communication skills as the role We are interested in hearing from candidates with an includes client contact, good time management outstanding record of academic and professional skills, can work independently and understand the achievement. importance of attention to detail. Applications should be sent to: Martin Smith, Gilbert Walker, PO Box 1595, Shortland Street, Auckland, or emailed to [email protected] Please apply in writing with your CV to Tony Horrocks For further information about our firm, please at [email protected] or Wendy Hampton contact any of our partners or staff, or visit at [email protected] our website: www.gilbertwalker.com
84 LAWTALK 916 · April 2018 CLASSIFIEDS · LEGAL JOBS
Mental Health Review Tribunal
VACANCY FOR BARRISTER OR SOLICITOR MEMBER OF THE MENTAL HEALTH REVIEW TRIBUNAL
The Ministry of Health is seeking senior and experienced candidates for appointment as the barrister or solicitor member for the Mental Health Review Tribunal (the Tribunal). Tribunal members are appointed by the Minister of Health under the Mental Health (Compulsory Assessment and Treatment) Act 1992 to consider applications for review of patients subject to that Act.
The Tribunal is a specialised tribunal that deals with difficult legal issues concerning mental health. It makes determinations and recommendations involving fundamental human rights with significant implications not only for the patients themselves but also for their families and the community. The lawyer member is by convention the convener.
You must be a barrister or solicitor with a current practising certificate, preferably in a current law practice, and have an interest in the mental health area.
All applications should include a curriculum vitae and must address the applicant’s suitability to be appointed based on these key appointment criteria: • an ability to perform in public office in a semi-judicial role; • a reputation for integrity, honesty and independence; • decision-making skills including impartiality and sound judgement; • communication skills, including the ability to communicate well with legal and medical professionals, as well as people receiving mental health services; • an ability to think analytically, quickly and express themselves with clarity especially under pressure; • an ability to apply knowledge of mental health legislation to COMMERCIAL & PROPERTY SENIOR LAWYER individual situations; • cultural awareness, sensitivity and knowledge; and • Well established firm in Christchurch CBD and Redcliffs • an empathetic and sensitive attitude to mental health • Succession planning opportunity with partnership consumers. potential All applicants should supply two written references that address • Commercial and property team the above criteria. These two referees should also be available for Young Hunter is looking for a senior lawyer to join its subsequent verbal follow-up. All applications must also include commercial team to become part of its succession plan. a standard Ministry of Health Statutory Bodies and Committees The position may appeal to a lawyer who already has application form. To obtain this form and any further information a practice and is looking for a new opportunity with please contact Giles Bollinger ([email protected]) partnership prospects. at the Ministry of Health. The role will include a development pathway within a well-established Christchurch firm where the successful applicant will work alongside well-regarded lawyers. Applications should be sent to: Our commercial team offers comprehensive advice in Giles Bollinger respect of all aspects of commercial and property law, Office of the Director of Mental Health and Addiction Services conveyancing, trusts and estate planning from offices Protection Regulation and Assurance based in the Christchurch CBD and in Redcliffs. Ministry of Health, PO Box 5013, Wellington 6145 Information on the Mental Health Review Tribunal can be Please email your application to: obtained from the Ministry of Health website (www.health.govt. Keely Marbeck [email protected]. nz). Interviews will be conducted for shortlisted applicants in May and June 2018. If you would like more information or to confidentially discuss the role further, please contact Chris Cooper, Keely Marbeck or Michael Toomey ph 03 3793880 Applications close 5pm, Monday 30 April 2018.
85 PRO BONO CPD Calendar
PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION
INTRODUCTION TO CIVIL Sandra Grant This workshop is an excellent opportunity for recently Auckland 21-22 May LITIGATION SKILLS Roderick Joyce QSO QC admitted practitioners to develop practical skills in civil Wellington 15-16 Oct Nikki Pender litigation in an intense small-group workshop. You will learn Christchurch 26-27 Nov 9 CPD hours Paul Radich QC how to handle a single fi le from beginning to end, be able Pru Steven QC to identify and understand the various steps in the process, James Wilding develop the practical skills you need to handle this and a range of other litigation fi les, competently and confi dently.
EXPERT WITNESS Director: This practical two-day programme focuses entirely on Wellington 21-22 Jun PROGRAMME Terry Stapleton QC working with expert witnesses. You will receive mentoring from experienced faculty members and valuers from Deloitte 13.5 CPD hours on how to brief, examine and cross-examine experts. For Programme Partner: all litigators from civil, criminal, family and other specialist jurisdictions with at least fi ve years’ experience. Applications close 8 May. COMPANY, COMMERCIAL AND TAX
MĀORI BUSINESS Chair: Māori collectives and iwi are major players in the New Wellington 27 Jun CONFERENCE: Matanuku Mahuika Zealand business landscape. This conference will take a close CONTEMPORARY LEGAL look at the practical and legal considerations to be aware ISSUES of, whether as part of or engaging with Māori collectives and iwi. It will cover structuring, tax, intellectual property, 6.5 CPD hours investment, social enterprise and more – plus two superb keynote speakers. CRIMINAL
DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Jun-Nov PROGRAMME Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is 11* CPD hours made up of several parts. *CPD hours may vary, see website
INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Auckland 20-21 Jun CRIMINAL LAW PRACTICE being an e ective criminal lawyer. This workshop will benefi t all practitioners wanting to be appointed to level one of the 13 CPD hours criminal legal aid list, and those recently appointed to level one.
LITIGATION SKILLS Director: This highly regarded residential week-long advocacy training Christchurch 26 Aug - PROGRAMME Daniel McLellan QC course is open to applicants with at least two years’ litigation 1 Sep experience. It’s hard work, great fun and most participants 55 CPD hours Deputy Director: say it’s the most e ective value-for-money course they’ve Belinda Sellars ever attended! Applications close 6 June. EDUCATION
EDUCATION LAW 2018 Chair: Join us for Education Law 2018 featuring management & Auckland 7 May Patrick Walsh governance sessions: H & S; employment; Education Council Wellington 8 May 6.5 CPD hours update; access to students on school premises; and BoTs dealing with issues. Student issues covered are: jurisdiction, Human Rights/Bill of Rights, and restraint & seclusion. FAMILY
ADVANCED LAWYER Chair: As lawyers representing children we hold a privileged Wellington 28 May FOR CHILD – OUT OF THE Usha Patel position, advocating for some of the most vulnerable COMFORT ZONE members of our community. With further changes on the horizon join us to be updated, consider modes of practice and 7.5 CPD hours receive insights to challenge yourself at the Advanced Lawyer for Child Intensive. GENERAL
PREVENTING AND Steph Dyhrberg Employees have a right to a safe and healthy workplace Webinar 4 Apr DEALING WITH Susan Hornsby-Geluk which fosters a culture of professionalism. This webinar will HARASSMENT AND Hamish Kynaston identify and discuss environmental red fl ags – the work hard, BULLYING play hard mentality, power imbalances, and what should ring alarm bells. It will discuss steps you can take and tools 1.5 CPD hours that can be used. It will provide guidance for dealing with complaints, the investigation process, and the di¢ culties and sensitivities of dealing with sexual harassment claims.
For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz PRO BONO Online registration and payment can be made at: www.lawyerseducation.co.nz
PROGRAMME PRESENTERS CONTENT WHERE WHEN GENERAL
ANTI-MONEY Representatives of DIA Lawyers and conveyancers will be covered under the Anti- Webinar 12 Apr LAUNDERING and Police Money Laundering and Countering Financing of Terrorism ROADSHOW Act 2009 from 1 July 2018 onwards. This FREE webinar will help you determine whether activities you carry out 1 CPD hour are covered by the Act and what you need to do to be ready for 1 July and beyond. The three presenters will be representatives of the Department of Internal A airs and the Police Financial Intelligence Unit. This webinar covers the same content as the DIA’s roadshow of in-person workshops around the country.
ELDER LAW 2018 Chair: Elder Law 2018 o ers a broad range of topics with a stellar Wellington 30 May Ingrid Taylor line-up of presenters. Discuss will be: tricky PPPR issues; Auckland 31 May 6 CPD hours cross-border tax; PRA reform issues for elders; undue infl uence etc; sunset relationships; disposal of deceased’s remains; best practice; and testamentary promises. PRACTICE & PROFESSIONAL SKILLS
SMART WRITING – MORE Ralph Brown A workshop vital for lawyers at all levels, support sta , Auckland 1-2 May CLARITY, LESS TIME! indeed, anyone wanting to improve their writing skills. You’ll learn a writing and editing method you can use for life and 7.5 CPD hours as a result, spend less time writing, editing and explaining to clients what you meant. In turn this will help to build better relationships for you, your clients and the business.
STEPPING UP – Director: All lawyers wishing to practise on their own account whether Christchurch 10-12 May FOUNDATION FOR Stuart Spicer alone, in partnership, in an incorporated practice or as a Auckland 2 5-7 Jul PRACTISING ON OWN barrister, will be required to complete this course. (Note: Wellington 13-15 Sep ACCOUNT 2018 From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up.) Developed with the Auckland 3 8-10 Nov 18.5 CPD hours support of the New Zealand Law Foundation.
TRUST ACCOUNT Philip Strang To qualify as a trust account supervisor, you must complete Various Jul-Nov SUPERVISOR TRAINING 40-55 hours’ preparation, attend the assessment day and pass PROGRAMME all assessments. The training programme consists of self-study learning modules to help you prepare for assessment. 7.5 CPD hours
TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Various 19-20 Sep ADMINISTRATORS training is for new trust accounting sta , legal executives, legal secretaries and o¡ ce managers. 4 CPD hours
PROPERTY
PROPERTY LAW Chair: The Biennial Property Law Conference will provide Auckland 18-19 June CONFERENCE Debra Dorrington practitioners, at all levels, with an unmissable opportunity for CHANGE: IT’S two days of stimulating engagement on topics of essential INEVITABLE! importance and interest in the property law fi eld.
13 CPD hours
PRA INTENSIVE – Chair: Relationship property law in New Zealand continues to Auckland 20 Jun KEEPING AHEAD OF THE Amanda Donovan evolve and adapt rapidly. This intensive will look at the PACK recent Supreme Court decision Scott v Williams, both the legal implications, as well as forensic accounting analysis. It 6.5 CPD hours will delve into contemporaneous relationships, update you on the PRA and trusts and provide practical tips and tricks to ensure your practice and procedure are up with the play.
To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111. LEGAL INFORMATION CPD Calendar
PROGRAMME PRESENTERS CONTENT WHERE WHEN TRUSTS AND ESTATES
VARYING TRUST DEEDS Grey Kelly Drafting trust deeds has changed enormously and a Webinar 2 May Kimberly Lawrence common problem for trustees administering trusts is that 1.5 CPD hours circumstances have changed but there is limited ability to adapt. If you are a lawyer who administers trusts, drafts trust deeds or who undertakes trust litigation you should attend. Legal executives who work with estate and trust administration will also will benefi t from attending.
TRUSTS AND THE PRA Andrew Watkins This one-day interactive workshop will arm you with the Dunedin 8 May Simon Weil knowledge required to face the challenges of managing Christchurch 9 May 6.5 CPD hours your client’s expectations in respect of potential PRA issues, trusts and related structures. Join this workshop and develop Wellington 10 May strategies to withstand challenges in this ever-changing Hamilton 15 May environment. Auckland 16 May
IN SHORT
PROPERTY – Grania Clark Property subdivisions can entail a myriad of issues that need Auckland 5 Apr SUBDIVISIONS Rae Hill to be worked through and can prove to be a risky, exciting and potentially profi table venture for your clients. This 2 CPD hours seminar will take a practical approach to subdivisions from the viewpoint of the developer and working e ectively and e ciently with local government to give e ect to consents.
TRUSTEES – THE Ross Knight As practitioners we are all likely to be faced with situations Auckland 19 Apr CHALLENGES OF Juliet Moses where our clients have never anticipated their own diminished INCAPACITY capacity and left it too late to either retire voluntarily or transfer their power of appointment. This seminar will 2 CPD hours consider steps that you can take to mitigate this risk, how to remove a trustee who has lost capacity, the transfer of assets to new trustees, and some practical solutions when drafting trust deeds.
EMPLOYMENT LAW – June Hardacre Understanding the obligations to employees when buying or Auckland 3 May BUSINESS SALE & Simon Mitchell selling a business is essential in helping to ensure a smooth PURCHASE transition from one owner to another. Following on from a session at the Auckland CPD Top-Up Day in February 2018, 2 CPD hours this seminar will look at some of the key obligations that arise, including; requirements regarding employment contracts, vulnerable employees, consulting with employees, and redundancy entitlements.
REGISTER NOW
NZLS CLE Property Law Conference Change: It’s Inevitable! An unmissable opportunity for two days of stimulating engagement on topics of essential 13 importance and interest in the property law fi eld. CPD hours
18-19 June 2018
Visit www.lawyerseducation.co.nz for more information
For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz LAWTALK 916 · April 2018 LIFESTYLE CPD Calendar
1 2 3 4 5 6 7 8
PROGRAMME PRESENTERS CONTENT WHERE WHEN
TRUSTS AND ESTATES 9 10
VARYING TRUST DEEDS Grey Kelly Drafting trust deeds has changed enormously and a Webinar 2 May Kimberly Lawrence common problem for trustees administering trusts is that circumstances have changed but there is limited ability to 1.5 CPD hours 11 12 adapt. If you are a lawyer who administers trusts, drafts trust deeds or who undertakes trust litigation you should 13 14 attend. Legal executives who work with estate and trust administration will also will benefi t from attending. A New 15 16 17 TRUSTS AND THE PRA Andrew Watkins This one-day interactive workshop will arm you with the Dunedin 8 May Simon Weil knowledge required to face the challenges of managing Christchurch 9 May 18 your client’s expectations in respect of potential PRA issues, 6.5 CPD hours Wellington 10 May trusts and related structures. Join this workshop and develop Zealand 19 20 strategies to withstand challenges in this ever-changing Hamilton 15 May environment. Auckland 16 May 21 IN SHORT Legal 22 23 24 PROPERTY – Grania Clark Property subdivisions can entail a myriad of issues that need Auckland 5 Apr 25 26 SUBDIVISIONS Rae Hill to be worked through and can prove to be a risky, exciting and potentially profi table venture for your clients. This Crossword 27 28 2 CPD hours seminar will take a practical approach to subdivisions from the viewpoint of the developer and working e ectively and e ciently with local government to give e ect to consents. 29 30 TRUSTEES – THE Ross Knight As practitioners we are all likely to be faced with situations Auckland 19 Apr SET BY MĀYĀ CHALLENGES OF Juliet Moses where our clients have never anticipated their own diminished INCAPACITY capacity and left it too late to either retire voluntarily or transfer their power of appointment. This seminar will Across Down 2 CPD hours consider steps that you can take to mitigate this risk, how to remove a trustee who has lost capacity, the transfer of assets J O H N S C O P E S A M I D 1 Delicacy an ideal repository for 1 Headless school right model on to new trustees, and some practical solutions when drafting A I L R L C O E Christie’s sparkler (7) paper, but it could send you to trust deeds. S I G M A A T A G L A N C E O H P T L A T P 5 Angers friend in Bani travelling to sleep (10) EMPLOYMENT LAW – June Hardacre Understanding the obligations to employees when buying or Auckland 3 May N I C E O N E A R R O Y O S African country (7) 2 Targetted injured, avoiding leader (5) BUSINESS SALE & Simon Mitchell selling a business is essential in helping to ensure a smooth O N M E P 9 Making limp-topped Eton cake 3 As naive as a pub with no money? (8) PURCHASE transition from one owner to another. Following on from a E Q U I T A B L E N O R M A session at the Auckland CPD Top-Up Day in February 2018, V R H U I C E C one shouldn’t accept from Rita 4 Gripped hat Rendell lost (10) 2 CPD hours this seminar will look at some of the key obligations that arise, O U T R E T E N N E S S E E West (9) 5 Heavenly cloud of Sayers’ tailors? (4) including; requirements regarding employment contracts, L W L D E 10 Rob (old-fashioned sort) finding 6/30 Symmetry Dürer affected vulnerable employees, consulting with employees, and U N N E R V E B L A R N E Y redundancy entitlements. T O I R R R T A drug during wild party (5) for problematic work (normally I N T E S T A C Y R I F E R 11 Run rakes with head removed; featuring a 28 and several 29s; may O E T C A O U D N O D E S T O N E W A L L S they’ll cut down (8) involve 1 across, 1 down, or 7; could 12 Board game holding Cockney be a 20) (6,7) minced oath to be “lizard” (5) 7 Security involves need to head off Solution to March 15 Get hold of the Entire Mandela? monetary extortion (9) 2018 crossword REGISTER NOW (4,6) 8 17’s brother found by the Tasman? (4) Across 17 Chadian, oddly, was the first 13 Where ‘N’ may be found – on a 1. John Scopes, 6. Amid, 10. Sigma, guilty party (4) northbound underground railway. 11. At a glance, 12. Nice One, 19 Rendell one intending to 6 (This examination may feature in a 6 NZLS CLE Property Law Conference 13. Arroyos, 14. Equitable, doesn’t have? (4) 30!) (4-6) Change: It’s Inevitable! 16. Norma, 18. Outre, 19. Tennessee, 20 Like “And Then There Were 14 Shy, retiring, you outsiders? Or 20. Unnerve, 22. Blarney, None” (but not like Willy Loman) (10) scheming? (10) An unmissable opportunity for two days of 24. Intestacy, 25. Rifer, 26. Node, 22 Clincher found behind galley and 16 Prescribed rituals revealed 27. Stonewalls. future, and before reader (5) cravings besetting one (9) stimulating engagement on topics of essential 13 23 Pot’s other half decorating law 18 Bills of fare include “CSI: the importance and interest in the property law fi eld. CPD hours Down enforcement (8) Comeback” – they’re shaped by 1. Jason, 2. High Court, 27 A movement for equality – at tension (8) 18-19 June 2018 3. Slap on the wrist, 4. Orate, first, it may show one’s 3(5) 21 Move it around to find what led 5. El Alamein, 7. Monty, 8. Deep Space, 28 Fisher and Shepherd are to 6 (6) 9. Clarence Darrow, 14. Evolution, (fictional) examples of French vet 24 That is not very bright, backing Visit www.lawyerseducation.co.nz for more information 15. Butler Act, 17. Resentful, (etc) I persecuted (9) into organic compound (5) 21. Noted, 22. Bryan, 23. Yards. 29 “Reckon’s us treated as 25 Delays ones found in can (4) birdfood,” you might say (7) 26 Correct rising change in sea 30 See 6 Down level (4)
For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz 89 TAIL-END April 2018 · LAWTALK 916
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Dunedin court opening 1902: Who is that woman?
The Picture The Story Dunedin’s High Court re-opened in February after another In the middle of the front row is Ethel Benjamin, New Zealand’s refurbishment. The courthouse was first opened on 23 June first (and, in 1902, only) woman lawyer. She had been admitted 1902, and the photo shows members of the Otago legal pro- on 10 May 1897 and it had needed a change in the law on 11 fession with many resplendent in wigs and gowns and proudly September 1896 to enable that. She was not welcomed by standing in front of their new courthouse. many members of the profession. She was not invited to the The profession had marched from the old courthouse. 1899 Otago Bar Dinner or to the dinner organised in 1902 to Dunedin’s Evening Star breathlessly reported the impres- celebrate the opening of the new courthouse (Janet November, sive occasion: “They came down the stone steps by twos, In the Footsteps of Ethel Benjamin, Victoria University Press, and so walked through the streets, forty-nine altogether, 2009). thirty-one of the party, the barristers, distinguished by the In his chapter on the history of the profession in Otago wearing of wigs and gowns. Out by themselves in front were in Portrait of a Profession Ian Gallaway describes the 1902 the two stipendiary magistrates with their clerks, and the procession: “Miss Benjamin again proved something of an procession of lawyers was headed by the sheriff and the embarrassment, as none of the profession was anxious to be president and vice-president of the Law Society, followed paired with her in the procession, but Mr JM Gallaway, who immediately by the Council of that body. The unique and had always been a champion of her cause, came to the rescue interesting spectacle was watched by a large muster of and walked with her.” (Portrait of a Profession, Robin Cooke citizens all along the route.” QC Editor, 1969, page 339). The courthouse was officially opened by the Acting Premier, Some evidence of the opinion of many (but not all) male Sir Joseph Ward. After many speeches, the Evening Star Otago lawyers emerged when Law Society Otago branch described the final actions: “The proceedings concluded with manager Debbie Ericsson removed the frame from the group the singing of ‘God save the King’, started by Mr Haggitt. After photo so that it could be duplicated. Pasted to the back was a the Court adjourned the Crown Prosecutor invited Ministers and typewritten list of the people in the photo … all of the people the members of the Bar to his room to have a glass of wine.” except one. Ethel Benjamin’s name is missing. North Korea has
❝ There is no justification.❞ Notable Quotes — Florida lawyer Walter “Chet” Little, 44 tearfully apologises to his family and former colleagues before being sentenced to two years and three months’ imprisonment for engaging in insider trading. He improperly obtained the information ❝ The government has commandeered the radio station and from his law firm’s databases. closed the maternity wing of the hospital – an insidious step to deter births on the island and force women to give ❝ I write to express my profound disappointment and deep birth in Australia. Already, war memorial commemorative sense of shame in the organisation I work for under your events have been instructed to play the doggerel Australian leadership.❞ anthem, Advance Australia Fair, in preference to God Save — The beginning of an email from a (unnamed) junior lawyer the Queen or the Indigenous anthem.❞ to Ontario Deputy Attorney-General Patrick Monahan in — Part of the legal challenge launched by human rights which she outlined a culture of bullying, harassment and lawyer Geoffrey Robertson to the UN High Commissioner discrimination in the Civil Law Division of the Ministry of for Human Rights over Australia’s revocation of Norfolk the Attorney-General. The 2016 email has finally resulted Island’s right to self-govern. in a report, “Turning the Ship Around”.
90 LAWTALK 916 · April 2018 TAIL-END
manipulated photos to remove people who have fallen out of favour; without the sophisticated techniques available today, it appears that the Otago District Law Society did its best to remove her from the written record. However, she stands proud in the front row over 115 years later and she is probably the only person who is instantly recognisable. A salute to Ethel Benjamin and to her supporters. ▪
❝ If they muck it up, they don’t get paid.❞ ❝ I’m a lawyer who happens to be on television, not the — Property Law Section chair Duncan Terris tells Parliament’s other way around.❞ Finance and Expenditure Committee that real estate — English barrister Shaun Wallace, one of the chasers on the agents have a financial and practical interest in correctly UK TV show The Chase. He will visit New Zealand this year certifying matters proposed in the Overseas Investment to promote his autobiography Chasing the Dream. Amendment Bill. ❝ Lawyers have basically stopped requesting these reports, ❝ This has been going on for decades. It occasionally comes because they are taking so long … which leaves the families up in Parliament, occasionally comes up in the media and in a state of limbo.❞ then it all dies away until someone highlights it again.❞ — Masterton lawyer Jess Hunt is disappointed that a section — Nelson barrister John Sandston after his 15-year-old client 132 report by Oranga Tamariki was emailed to her at 11:56pm was held in a police station for six nights because there on 16 February 2018 after being requested by a judge on were no beds in any Oranga Tamariki facility. 24 October 2017 and due at the end of November.
91 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
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