ISSUE 915 · March 2018

Snapshot of the Profession

Stu Webster Future of Law Gender Equality Snapshot ‘Attorney at Charter released of the Law’ Profession

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People in the law 26 · Search and Surveillance 6 · Stu Webster 'Attorney review aims for greater at Law' in sunny clarity and transparency California ▹ BY NICK BUTCHER in statute ▹ BY YASMIN 9 · On the move MOINFAR-YONG 13 · A young lawyer balancing the law and Future of law parenthood ▹ BY ANGHARAD 28 · Rise of the Machines: Driverless O'FLYNN Vehicles ▹ BY DAMIAN FUNNELL 29 · Client-centric innovation New Zealand Law Society strategy - five steps 15 · The Future of Law for planning for the 6863 16 · New Zealand Law Society future ▹ BY DANIELLE FALCONER 32 · Turning your big legal idea into Update a reality ▹ BY ANTON SMITH 21 · Liquidation of corporate trustees ▹ BY BRENT NORLING Practice AND ANNA CHERKASHINA 35 · Law Society releases 24 · Fifty years since the Woodhouse Gender Equality Charter Report ▹ BY DON RENNIE to legal profession 41 · Gender and Equality: an alternative view of the new policy on equitable engagement ▹ BY JOANNA TREZISE

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4 Contents

43 · Snapshot of the New Lawyer Lifestyle profession 74 · Watch out for lawyer 92 · A New Zealand Legal Crossword creep ▹ BY KATIE COWAN 93 · Cycling in Amsterdam: Mediation beware of the killer 59 · Embracing Practising Well bikes ▹ BY JOHN BISHOP Diversity ▹ BY PAUL SILLS 76 · Trauma at work ▹ BY KATE GEENTY 96 · A lawyers' cricketing XIII ▹ BY CRAIG STEPHEN Courts Pro Bono 60 · Study to assess sexual violence 78 · The Good Lawyer 98 · Tail-end court pilot ▹ BY LYNDA HAGEN Project ▹ BY ANGHARAD O'FLYNN 80 · McCaw Lewis' active community Practice cont. involvement ▹ BY CRAIG STEPHEN 61 · Social media and networking in 81 · Unlocking potential through the workplace ▹ BY ANGHARAD the Litigants in Person O'FLYNN Service ▹ BY DARRYN AITCHISON 63 · Focus on... Porirua ▹ BY CRAIG STEPHEN Legal Information 66 · Verify emailed instructions. And 83 · New legal books watch those property purchase received ▹ BY GEOFF ADLAM inquiries ▹ BY GEOFF ADLAM Classifieds 69 · Lawyers Complaints 84 · Will notices Service 85 · Legal Jobs 89 · NZLS CLE Ltd CPD Calendar

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5 PEOPLE IN THE LAW · PROFILE March 2018 · LAWTALK 915

PEOPLE IN THE LAW PROFILE Stu Webster ‘Attorney at Law’ in sunny California

BY NICK BUTCHER

“I was comfortable and could have Many lawyers, after 30 years of practice, are probably stayed on as a partner but I imagined thinking more about changing down a gear rather than accelerating myself aged 95 sitting on a rocking chair in their career. a retirement home. I wondered if I’d regret But that’s far from the case for former Napier lawyer Stu Webster it if I didn’t take this opportunity and the who three years ago moved to the United States to become an answer was a resounding ‘Yes’,” he says. ‘Attorney at Law’. It would be fair to say Stu has led and continues to live a life A $1.5 billion class action less ordinary but that’s a style he is comfortable with. Twenty- The differences in the United States are four years as a law firm partner in New Zealand only whetted far from subtle. The country has about 1.5 his appetite for a move to Los Angeles where he had to sit the million practising lawyers, whereas New gruelling bar exam, alongside people much younger than him Zealand has only 13,000. who had already studied American law. The cases Stu Webster has been involved Stu Webster, who is now 56, gained an honours degree in law in are also of a more Herculean size. at Victoria University and was admitted in 1984. There was the US$1.5 billion class action “Some people in their 30s and 40s think about what they are case which came about while he was going to do for the rest of their working life. Some have five or six undergoing his California Bar course. careers. For people in law, they might want to take the judicial That opportunity landed after he met route or as a law firm partner, retire at 65 or whenever the young a criminal barrister from the United partners want to make you a consultant. For me, I’d written a book Kingdom who was doing some work for about the firm I was with, Sainsbury Logan & Williams. I could a firm based in Pasadena, a city within Los become a grumpy old partner and improve my golf handicap; Angeles County. however I don’t play golf,” he says. “It involved 12,000 Nigerians who live in Living in the United States wasn’t as complicated as it could Bayelsa State in coastal Nigeria. There had have been as Stu’s partner Kat had a Green Card, having worked been a significant gas explosion in 2012 on in North America for 13 years, and so she assisted Stu in applying an exploratory rig. The crater formed by the for his permanent residence. explosion swallowed the rig without trace and the ensuing uncontrolled gas-fuelled Why LA? fire burned on the surface of the water for After exploring other parts of the US, Los Angeles was chosen 46 days before it was extinguished. It had purely for practical reasons as there’s a direct route from there a massive effect on the fishing industry to New Zealand. He says many Kiwis perceive Los Angeles as a there,” he says. city that’s all concrete, and no style. But after three years, Stu says The California-based oil company nothing could be further from the truth. Living in a city with a Chevron had a war chest of lawyers fight- metropolitan population of 18 million, one of the benefits is that ing to have the class action tipped out, with every conceivable interest appears to be catered for. the case lasting about three years. “If you have an interest, for example, in collecting stamps Eventually, a judge decided not to certify depicting hummingbirds, there’s probably a club or incorporated it for class action status in the US. society catering especially for that,” he says. The plaintiffs are still working out Setting up a new life in California was a bold move, but on whether to pursue a compensation claim reflection Stu, who became a law firm partner at the age of 28, against the company through the Nigerian says it was the right one. courts.

6 LAWTALK 915 · March 2018 PROFILE · PEOPLE IN THE LAW

part of a typical JD in that state. “Day one consisted of a three-hour exam in the morning made up of three one-hour essays which could be on any one of the 17 topics or comprise a cross-over of several topics in the one essay. In the afternoon there was a three-hour performance test based on a case file and library and an assigned task such as an objective client opinion or court brief. Day two consisted of two, three-hour multi-choice exams morning and afternoon, consisting of 100 questions each. Day three was a repeat of day one involving three essays in the morning and a performance test in the afternoon. The marathon – six, three-hour exams over three days back-to-back – was physically and mentally gruelling,” he says. ▴ Stu Webster ▴ A commissioned caricature of Stu The pass rate threshold (called the “cut score”) required to pass is set at an inten- He says being involved in that case was First Stu had to establish that his Victoria tionally high level. worth its weight in experience. University LLB(Hons) was the equivalent “It gave me an opportunity to see how or better than that of a Juris Doctor Degree Bar set high a case runs in the United States. It’s not or JD. “In California you have to get 1440 out of like LA Law where everything happens in So a transcript of his 30-something-year- a possible 2,000 marks which is roughly the courtroom. As in New Zealand, the old degree was produced, independently 72%,” Stu Webster says. overwhelming majority of the work is done assessed, accepted and no further univer- The cut score is an attempt by the behind the scenes and is heavily reliant on sity study was required. California Bar to provide a balance comprehensive discovery.” The Bar exam varies from state to state, between the interests of protecting the Another difference involves law firm and even those who have passed the public against incompetent lawyers on recruitment in California. Bar exam in other states have to sit the the one hand and creating diversity of “Under the California Constitution, California exam if they want to practise representation on the other. But perhaps there’s a prohibition on restraints of trade there. And because of that rule, other states it is worth pondering as to why the number and non-competition clauses in contracts have done the same in kind in response of people passing the Bar exam has also of engagement. What that means is that to California and do not offer reciprocity. been in decline in the state of California. law firm partners are free to take their cli- California’s Bar exam was not for the The cut score was set more than 30 years entele, carve it out of the firm they’re with faint hearted as Stu remembers the three- ago and hasn’t been reviewed since. and bring it to a new firm. So, recruiters day written and practical exam marathon. “It got to a 30-year low in February last will happily invite existing partners with “I’d liken it to having done the New year. Only 34% of all people sitting actu- portable practices to come over to the other Zealand degree and then turning around ally passed the exam. That included new side, whether it is for greater specialisation and having to study and memorise all of graduates, foreign attorneys and people or more money. It happens a lot in the US. those topics again for a three-day exam. out of state who might have passed the In New Zealand, however, many firms still With the California examination I had to Bar exam in say Indiana or Washington DC. have restraints of trade on partners look- study all 17 assigned topics which form “Some blamed the decrease on ing after former clients of a firm within a particular radius for a finite number of years,” he says. While some of the cases in California Nura Taefi are vastly different to those Stu worked Shortland Chambers is pleased to announce that Nura Taefi on in New Zealand, after three decades has joined as a member. practising law, these were exactly the fresh Nura practices commercial and civil litigation. She receives challenges he was looking for. instructions in a wide range of areas, with a focus on contract, negligence, intellectual property, employment, human rights, The California Bar privacy, media, trust, and relationship property matters. exam conundrum We wish Nura well in her career at the bar. Before he could really sink his teeth into these cases, there was the hurdle of passing www.shortlandchambers.co.nz the California Bar exam to overcome.

7 PEOPLE IN THE LAW · PROFILE March 2018 · LAWTALK 915

candidates from non-ABA (American Bar Association) accredited Stu and his partner Kat set up a company called Pinecone to law schools,” he says. help New Zealanders and Americans work and do business in He says in the state of New York the cut score is closer to 1350 each other’s countries including Overseas Investment Office work. (or 62%). The pass rate in California has become a reform issue for the The Kiwi accent advantage Supreme Court of California and the State Bar of California. For a man who has lived and breathed California air over the past Some of the plans have included reducing the exam to two days three years, Stu’s accent is remarkably intact. It’s as if he took a or lowering the cut score more in line with New York and the piece of New Zealand to the sunny state with him. majority of other states. Delaware (at 1450) is the only state with He explains that there was a time back in the so-called ‘olden a higher cut score than California but is not seen as significant days’ when sounding American, even if you were not, was some- because only 200 candidates sit the bar exam annually. thing to be honed if living in the United States, so that you were “But they’re not convinced that’s the solution and lowering the part of the normal. cut score hasn’t happened yet. The high threshold to pass means But he says his distinctive Kiwi accent has been worth its weight it is rejecting disadvantaged sectors of the community in greater in gold around the boardroom table and in meetings. percentages and thereby affecting diversity. Black Americans and “They remember the Kiwi with the clipped vowels. Everyone Hispanic people are suffering from the low pass rate. So are Asians, told me to keep my Kiwiness. They love our idiosyncrasies, they Pacific Islanders and others where English is a second language. love to talk about how dangerous it is to play rugby,” he says. From my experience, it is hard enough to do the Bar exam even when English is your first language,” he says. Civil Court informalities In New Zealand it is normal for everyone to stand for the judge A language of its own when he or she enters the courtroom, but not in California. Ironically he likens some of the subject matter in the California “It’s organised bedlam. Nobody stands for the judge and the Bar exam to a foreign language. judge will stroll in with a cup of coffee and have a conversation “Constitutional law in the United States is a language unto itself. I with attorneys and parole officers. The clerks will be having their may as well have been learning how to speak Norwegian because we own conversation with court staff or mental health people whilst don’t have the same kind of established, thoroughly litigated constitu- the bailiff, who carries a firearm in court, is confiscating mobile tion in New Zealand. The US has had a constitution for 200 years and phones or asking people to remove their baseball caps. And the judge it governs a lot of what happens there in the legal framework. Coming is dealing with the case at the same time. The prisoner has been to grips with the First Amendment rights in terms of freedom of brought up from the cells and is sitting there in handcuffs and the speech, search and seizure under the Fourth judge says hello to the defendant and asks how their day is going, Amendment, the Miranda warning under and the defendant is politely speaking back to the judge,” he says. the Fifth Amendment, cruel and unusual Most Superior Court judges have their own dedicated court- punishment under the Eighth Amendment rooms. Quite often they will decorate them with mementos was challenging. When I was doing the Bar or ornaments. In one high-profile case that Stu observed in a exam only 16% of foreign lawyers like me Downtown court called the “Grim Sleeper” case, the accused had doing the exam at the same time passed.” been arrested many years after the alleged offending based on a Stu Webster says the California Bar exam close DNA match from a donor relative. The police set a trap by is held twice a year with 4,000 people having an officer pose as a waiter in order to collect a DNA sample sitting it in February and 8,000 sitting it from the accused’s half-eaten hamburger. That case was notable not in July at the end of the academic year. only for delivering a guilty verdict in these unusual circumstances It’s held in a series of huge convention of entrapment but because of the judge’s considerable array of centres up and down California with as ornamental ducks placed strategically on her desk in open court. many as 1500 candidates in the same Stu lists his specialist areas of practice as: room sitting the exam either by laptop or • Civil litigation and dispute resolution in handwriting. • Business law “So there are formidable odds for • Labour law and workplace safety people who want to move to California • Contract law and practise law. But there are a few of us • Corporate law here who have come from foreign juris- • Local government law dictions. Typically, New Zealanders don’t • Immigration tend to keep their home country practis- • Professional discipline ing certificate. I have, which is why I call • Indigenous rights myself a cross-border consultant because • Mediation & arbitration I’m paying practising fees in New Zealand • Overseas Investment Office applications too. It allows me to advise on immigration As Stu Webster states on his website… “I do legal stuff, I do wit- matters for either New Zealanders coming nessing stuff and I do certification stuff – all to help Kiwis and to the US or Americans who are moving Americans get ahead. I don’t even mind doing things for the odd to New Zealand,” he says. Australian, Brit or other foreigner for that matter.” ▪

8 LAWTALK 915 · March 2018 ON THE MOVE · PEOPLE IN THE LAW

PEOPLE IN THE LAW ON THE MOVE

New staff join specialist employment lawyer in the Holland Beckett United Kingdom and New Zealand and has extensive experience in employment law. Two new lawyers have joined Holland Jackie has a particular expertise in senior Beckett Law. executive employment issues, redun- James McDougall has dancy, personal grievances, disciplinary joined as a senior solici- processes, employment agreements and tor in Holland Beckett’s dispute resolution. Rotorua office. James is Megan Compton is in a litigator with a back- the corporate advisory ground in insurance and team and joined the commercial litigation. firm in 2015 as a senior Admitted in 2011, he associate after practising previously worked at international firms in large national and in Auckland and London. international practices Benjamin Corbett in Auckland and London. joins the firm’s corpo- She specialises in corporate and commer- rate advisory team in cial law services including mergers and Tauranga. He will advise acquisitions, commercial agreements and on a range of corporate intellectual property advice. Megan has a matters, including cor- particular interest in the tourism sector. porate finance and M&A. Associate Judge Ben was admitted in 2015 Terence Ng joins Buddle and has worked at one of New Zealand’s Findlay partnership of High Court largest law firms and in-house at an NZX technology company in Auckland. Buddle Findlay has appointment appointed Terence Two new partners Ng as a partner in its Wellington Queen’s Counsel Kenneth appointed by Auckland office. He Johnston was sworn in as an Associate Anthony Harper joins the banking and Judge of the High Court in Wellington on financial services team 12 February. Associate Judge Johnston Anthony Harper has pro- and specialises in bank- graduated BA/LLB from Victoria University moted two lawyers in its ing and finance, corpo- in 1979. He also holds a Graduate Diploma Christchurch office to the rate and commercial, and property law. in Human Resources Management from partnership. Terence’s clients are based both in New Victoria University, and an LLM(Dist) from Jackie Behrnes joined Zealand and offshore. He regularly advises the College of Law of England and Wales. the firm’s employment offshore clients on the issues involved in Associate Judge Johnston was admitted team in early 2017. investment structures, setting up busi- as a barrister and solicitor of the High She has worked as a nesses or acquiring assets in New Zealand. Court of New Zealand in February 1980. After periods at the Crown Law Office in Wellington and practising criminal law in London, he joined the Wellington office of Watts & Paterson, now part of MinterEllisonRuddWatts. After 17 years at MinterEllisonRuddWatts he joined the independent bar in September 1997. He was appointed Queen’s Counsel in July 2016. He was chair of the New Zealand Teachers’ Disciplinary Tribunal from 2005 to 2016 and a Deputy Chair of the Health Practitioners Disciplinary Tribunal from mid-2014.

9 PEOPLE IN THE LAW · ON THE MOVE March 2018 · LAWTALK 915

Buddle Findlay promotes financial products, financial and energy Lynne Van is pro- nine senior associates derivatives, capital markets, funding agree- moted to special coun- ments, corporate governance, company sel. Based in Auckland, Buddle Findlay has promoted nine lawyers and commercial law. Lynne is an expert to senior associate. Victoria Brunton litigator with extensive Brett Rawlings is is based in Wellington experience in insolvency, based in Auckland and and specialises in envi- property, securities specialises in tax and ronment and resource enforcement and recov- advises clients on all management and local eries. She was recently ranked as a “Next tax aspects of domestic government law. She Generation Lawyer” in the 2018 Legal 500 and international cor- has worked for another Asia Pacific Guide. porate acquisitions and large firm, the Ministry Aimee Edwards is structuring, inbound and for the Environment, and as a planning promoted to special outbound investment, and financing and solicitor for the Government Legal Services counsel. Aimee is a financial services. in London. highly experienced Jessica Wilsher Rachael Balasingam trust and asset planning specialises in corporate is Wellington-based lawyer with over 17 and commercial law and and specialises in envi- years’ experience. Based is based in Auckland. Her ronment and resource in Christchurch her prac- broad practice includes management, and tice focuses on trusts, asset protection, drafting, negotiating and local government law. elder law, estate planning and wills. advising on commercial Rachael has worked Pip Breitmeyer has contracts and transac- for another large firm, been promoted to senior tions, as well as advising on corporate a boutique resource management and associate. Pip is in the governance and company law matters. local government firm, and the Office of Christchurch banking Kathy Wilson special- the Auditor-General. and finance team. She ises in environment and Danielle Elley in was admitted in 1998 resource management, the Christchurch office after graduating BA local government, and specialises in general and LLB(Hons) from the public law in Auckland. commercial and corpo- University of Otago. She has worked on Kathy has appeared rate law, commercial cross-border financing transactions in in the High Court, and residential property, the UK. Environment Court, and trust law. Danielle Jessica Hanning has Boards of Inquiry and Council hearings primarily advises on been promoted to senior and also represents clients in negotiations commercial and residential property associate. She is in the and mediations. acquisitions, leasing, financing (including Auckland litigation team Diana Thomas spe- refinancing, commercial and private lend- and specialises in com- cialises in public law ing) and corporate and private structuring. mercial litigation with and advises government Jenna Silcock a particular focus on departments, Crown specialises in envi- construction disputes. entities and private ronment and resource Jessica was admitted in 2011 and has BCom clients on a range of management, and local and LLB(Hons) degrees from the University public, regulatory and government law and is of Otago. commercial matters. She based in Christchurch. Jullion Nelson Parker is based in Wellington and advises clients She advises a wide has been promoted to on statutory decision-making, compli- range of local authority, senior associate in the ance with administrative law obligations government and corporate clients on a Auckland corporate and the legislative process, Privacy Act variety of resource management matters advisory team. Admitted requests and preparing Privacy Impact including RMA consenting, designations, in 2012 after graduat- Assessments. district and regional planning, appeals and ing with BSc and LLB Katie Williams is enforcement. from the University of based in Wellington Canterbury, Jullion spe- and specialises in Further promotions cialises in intellectual financial regulation, at Anthony Harper property and technology. payment law (including Joey James has been clearing and settlement Anthony Harper has announced the promoted to senior systems), application promotion of a number of staff to senior associate in the litigation of consumer laws to positions, from 1 January 2018. team in Auckland. Joey

10 LAWTALK 915 · March 2018 ON THE MOVE · PEOPLE IN THE LAW

specialises in commercial litigation and Kensington Swan Amy Jardine is a provides general advice in various dispute appointments senior associate in the resolution procedures. Auckland corporate He was admitted in 2011 Kensington Swan has appointed three and commercial team. after graduating BCom/ new special counsel and two new senior Amy advises clients on LLB from the University associates, from 1 January 2018. a broad range of com- of Auckland. Rachel Burt is a mercial arrangements, Dominic Fitchett has special counsel in the ranging from strategic been promoted to senior Wellington employment transactions to all aspects of daily oper- associate. Based in the team. She is an experi- ations. She has special expertise in com- Christchurch property team, he has wide enced advocate and liti- mercial contracting, consumer law and experience in commercial leasing, sale and gator who advises clients mergers and acquisitions. purchase of businesses, residential and across the board on all Reece Leggett is a commercial conveyanc- manner of employment senior associate in the ing. Dominic was admit- law and health and safety issues. Rachel Auckland litigation team. ted in 2002 and has BA/ is a qualified mediator and has extensive He has experience in a LLB from the University experience in representing clients at medi- wide range of dispute-res- of Otago. ation and in the Employment Relations olution methods, and has Sarah Chin has been Authority and the Employment Court. appeared before arbitra- promoted to senior asso- Michelle Hill is a tors, mediators, and the ciate in the Auckland special counsel in the courts. Reece has expertise in helping clients corporate advisory team. Sarah was Auckland property team. resolve commercial and civil disputes, with admitted in 2011 after gaining an LLB at She joined the firm in a particular focus on competition law. Victoria University of Wellington. She spe- 2014 and specialises in cialises in a wide range of corporate and the commercial property Two partners appointed commercial law matters, field, with a particular by Bell Gully and regularly acts as emphasis on commercial New Zealand counsel on leasing, development projects (including Laura Littlewood is trans-Tasman matters. subdivisions) and unit titles. She has a corporate and com- Alice Chan has been advised owners and tenants of a wide mercial partner with promoted to associate. range of commercial buildings including specialist expertise Alice is a member of the shopping malls, retail strips and offices. in technology, data, Auckland banking and Nick Summerfield privacy, cyber security finance team and was admitted in 2014 is a special counsel in and e-commerce. She after graduating BCom/LLB(Hons) from the the Auckland banking was admitted in 2003 University of Auckland. She acts for both and financial markets after gaining BCom and LLB(Hons) degrees banks and borrowers on team. Nick specialises from the University of Auckland. Laura a wide range of lending in investment funds, worked as a lawyer in London from 2006 and financing matters. including KiwiSaver and to 2010 and in Bermuda in 2011. Her expe- Sarah Anderson also advises companies rience includes extended secondments has been promoted to wanting raise capital by issuing shares or to Vodafone, to a global consumer goods associate. Based in the bond in the capital markets. He advises franchisor and to Virgin Management. Auckland construction companies across all industries on financial Jesse Wilson is a commercial litigator team, she specialises in markets matters. with expertise in company and shareholder construction projects. Sarah was admit- ted in 2014 after gaining LLB(Hons) and LLM(Hons) degrees from the Universities of Otago and Auckland. Jordan Wright has been promoted to Legal Accounting Bureau · Save time and money Kathy Kell associate. A member of provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end the Christchurch cor- certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure porate advisory team and confidential www.accountingbureau.co.nz she advises on a wide range of business Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience matters. Jordan graduated LLB from the come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. University of Canterbury and was admitted you remotely. services Practice Management software you can trust. in 2013.

11 PEOPLE IN THE LAW · ON THE MOVE March 2018 · LAWTALK 915

disputes, competition Hayden has been a member of Bell Gully’s promoted to partner. law and regulatory inves- income tax team for eight years. AJ leads the employ- tigations. He was admit- Bridget Thompson is an Auckland- ment team and advises ted in 2005 and holds BA based senior associate who specialises in clients on all aspects and LLB(Hons) degrees banking and finance. She was admitted of employment law. from the University of in 2010 and worked for White & Case She was admitted as a Auckland and an LLM LLP in London from 2013 to 2016 before barrister and solicitor from Stanford University. joining Bell Gully. She has undertaken a in February 2011. Ashley- Jesse has advocacy experience in leading secondment to the ASB legal team since Jayne represents clients at mediations, trials and appeals and he has experience joining the firm. in the Employment Relations Authority, in all courts, arbitration and mediation. Michael Tilley is an Auckland senior Employment Court, and Human Rights associate. He specialises in competition jurisdictions, as well as representing and Nine other senior and regulatory matters and advises cli- advising sports players and clubs in dis- appointments ents on all aspects of mergers and joint ciplinary and general matters. at Bell Gully ventures, collaborative activities, cartel Kirsten McMullen has investigations and misuse of market power. been promoted to senior Bell Gully has announced the promotion Admitted in New Zealand in 2013 he was associate. Kirsten joined of a special counsel and eight new senior a senior legal counsel at the Commerce the firm in 2009 as a associates. Commission before joining Bell Gully. summer clerk. She has Glenn Shewan becomes a special Rosemary Wooders has joined the worked in the litigation counsel in Auckland. Glenn is a specialist firm’s Auckland office as a senior associate. department since her competition, regulatory and overseas Admitted in 2009 she is an experienced admission to the bar in investment lawyer, advising on merger employment lawyer. She spent almost five October 2010. She assists clients with a control, cartels and misuse of market years in London working for London law range of legal matters, including contract power claims. He was admitted in 2003 firms Dundas & Wilson (now CMS Cameron and tort law, commercial disputes, insol- and worked at Allens in Melbourne from McKenna) and Macfarlanes. vency, Māori land law, dispute resolution, 2005 to 2007, and Linklaters in the United negotiation and debt recovery. Kingdom from 2007 to 2011. Parvez Akbar Adri Lock is a senior associate in the heads Fiji ACC Carl Rowling joins Sport firm’s Auckland commercial property Hawke’s Bay board team. She was admitted in South Africa Employment law specialist Parvez Akbar in 2004 and New Zealand in 2012 and has has been appointed chief executive of the Napier lawyer Carl Rowling is one of a broad range of property experience, with Fiji Accident Compensation Commission. four new members appointed to the a particular focus on retail leasing. Mr Akbar completed an LLB at Bond board of Sport Hawke’s Bay. Mr Rowling Hannah Musgrave is a senior associate University in Australia in 1994 and began was admitted as a barrister and solicitor in Auckland. Admitted in 2011, she is an legal practice in Fiji. After seven years of in February 1985 and is director of the experienced commercial and criminal trial practice there he migrated to New Zealand boutique advisory firm Rowling Law and advocate and has experience in insurance, in 2002 and worked in employment law Strategy. Before establishing his firm, he judicial review, local government mat- until 2004 when he began work with the was a partner in two of New Zealand’s ters, trust disputes and regulatory and Employers and Manufacturers Association leading law firms and general counsel to white-collar crime. as a senior solicitor. Auckland City Council. Nicola Peak is a senior associate in the In 2011 he joined Westpac New Zealand Wellington commercial property team. She Ltd as Head of Employment Law and US honour for was admitted in 2009 and specialises in Employment Relations, before moving Anita Killeen property development, leasing and con- to New Zealand Post in 2013 as Head of struction. Nicola acts for a number of the Employment Relations and Safety and Auckland barrister firm’s public and private sector clients. Wellbeing. He left to establish NZER Anita Killeen has been Morgan Powell is a senior associate in Consulting Ltd in January 2016 before appointed the University the Auckland office. Morgan was admitted taking up his new role in Fiji. of Kansas School of in 2011 and is an experienced commercial Law’s Visiting Diplomat litigator with particular expertise in com- Two senior promotions for 2018. The Diplomat’s mercial, insurance and leasing disputes. at Cavell Leitch Forum is the Kansas Hayden Roberts is a senior associate School of Law’s most in the Auckland office. He is a specialist Cavell Leitch has announced two senior prestigious annual international and com- income tax lawyer with experience in tax promotions. parative law event. Its aim is to provide a disputes and litigation. Admitted in 2010, Ashley-Jayne (AJ) Lodge has been platform for an open sharing of thoughts

12 LAWTALK 915 · March 2018 PEOPLE IN THE LAW

PEOPLE IN THE LAW

on international law and relations and the United States through the perspective of a professional with notable diplomatic A young experience in the service of a foreign government. Ms Killeen will be presenting on “Animal lawyer Law: The Connection Between Domestic Violence and Animal Cruelty – A New Zealand Perspective” later this month. balancing Greg Jones commences practice as barrister the law and Greg Jones has begun practice as a bar- rister in Shortland Street, Auckland. He parenthood has extensive experience in insurance and commercial litigation and mediation. Mr Jones was admitted as a barrister and BY ANGHARAD solicitor in February 1978 and practised O’FLYNN as a barrister sole from February 1979 to February 1980. He then moved into practice as the founding partner of three Auckland After graduating in 2015, Waiata Bell is now a solicitor in law firms: Heaney Jones, Jones Fee and Simpson Grierson’s Local Government and Environment team Jones & Co. in their Auckland office. Between completing her LLB and her Junior barrister Caroline Redelinghuys admission as a barrister and solicitor in November 2017, she (formerly of Jones & Co) has taken up a became a mother. role assisting Mr Jones in a number of his Rotorua-born, Ms Bell had a passion for hockey while growing cases. She was admitted in August 2017. up and studied physical education and health at high school. After finishing school, she moved to Hamilton to attend Waikato Joining the legal University, starting a Bachelor of Social Sciences majoring in profession political science and philosophy. Not long after beginning her studies, Ms Bell swapped the course The newly reopened Dunedin court- for a law degree. house was quickly pressed into service “My parents actually met in law school. They were both studying for the admission of four new barristers at Waikato University, which perhaps meant that the prospect and solicitors of the High Court. Justice of me becoming a lawyer had been somewhat implanted in my Mander presided. From left: David Lewis mind since the early years of my life. Morgan, Alofa Dawn Larafale Auva’a, “I always wondered if I could do what they did, the thought of Justice Mander, Adrian Mark Cheyne, solving people’s issues using words and ideas with great tact as Kara Rumble. your tools had always fascinated me.” Ms Bell’s completion of an LLB at Waikato University in 2015 was followed by the birth of her son, Zane. Life as a young mum and lawyer “I had Zane shortly after completing my degree in 2015 – I don’t remember graduation day all too well, given that I had a one- month-old baby and hadn’t slept in what felt like a lifetime.” While juggling work and parenting isn’t unheard of, it isn’t every day a law graduate enters the profession while adjusting to both work and parenthood. “Being young in the law is, obviously, challenging because of the inexperience and constant need to learn more – and fast. But, being young as a mother, has only meant I have a lot of energy for my little boy. Each day I try to take one finely balanced step at a time [and] some days the steps are not so balanced. It’s more like running a marathon through gale force winds blindfolded.

13 PEOPLE IN THE LAW March 2018 · LAWTALK 915

both share our duties looking after Zane”. Māngere Inlet/Onehunga area. On 23 “And if you’re wondering if that means I January this year the proposal was granted get free personal training, the answer is no. resource consents. Having my partner yell at me to run faster, “My role included attending many weeks after a long workday, is not my cup of tea.” of the three-month-long hearing – yes three months – managing expert witnesses, Passion for her area of law reviewing reports, and even site visits, “In everything we do, our lives are con- which are always a luxury having half a stantly dependent on the ever-changing day out of the office on an adventure.” state of our environment.” Ms Bell is currently working on the Ms Bell has a passion for local govern- America’s Cup base infrastructure pro- ment and environmental law. posal: “Much like the East-West Link, the “I took one environmental/resource America’s Cup base has gained a lot of management paper at university and the media attention. It is very exciting to be rest was history. I knew that I wanted to working on a project and to see it being be involved in this type of law. However, I reported on later that night on TV. will also add that the environment is not “My involvement on this has been something you need to have studied in extremely interesting, providing me with order to have a simple understanding of almost enough knowledge on yacht races what it is and how it affects us. to perhaps take it up myself.” “Our drinking water, the oceans we spend all summer swimming in, the land Disengaging from work “It is true that junior lawyers ‘hit the we cover with houses, roads and shopping “I probably sound a bit boring come to ground running’. We come out of university malls, and even the air we breathe, are all think about it, but the truth really is if I with our head full of dreams and degree affected by our decisions and the way we am not at work, I am more than happy to in hand, thrust into jobs more unfamiliar manage and develop our environment in spend my time with my family. than we could have prepared for. However, the most sustainable way. “Don’t get me wrong, I am definitely a when you become a mother, you hit the “I have always been highly interested in bit of a social butterfly. I love to socialise ground sprinting. And, while it is a juggling the issues that we face in terms of this area with friends, which often includes good act, it’s an enjoyable one. It’s a necessary of the law and I enjoy doing work that I am music, wine and too much food. one. And so far, it sure has been a worth- passionate about, but more importantly I “I wish I could tell you that I had a secret while one.” think, doing work that I feel is purposeful. hobby of being a deep-sea diver or a world- Despite the long days, Ms Bell and her “Last year I was lucky enough to work class acrobat, but in reality my favourite partner Daniel Groot work together like alongside one of the partners in my team, days are actually those spent with my a well-oiled machine when it comes to Gerald Lanning, representing the Auckland family in Rotorua and Tauranga. balancing their work days and parenting. Council on the highly-publicised East-West “I don’t find it too hard to disengage from Mr Groot is a personal trainer and Link project.” work, because the minute I get to day-care Crossfit coach but Ms Bell says “we have The East-West Link Proposal involves I am always greeted by a bubbly and very managed to sync our schedules so that we the construction of a highway along the full-on little boy.” ▪

CPD DECLARATIONS DUE

The CPD year ends on 31 March 2018. It is important that you have now completed your CPD requirements and your learning plan and record (CPDPR) is up to date. To refresh your memory on CPD see the resources on the NZLS website – www.lawsociety.org.nz/cpd

Not yet completed your CPD requirements? You ought to have received an email outlining how to complete this process. Contact [email protected] if this is not the case.

14 LAWTALK 915 · March 2018 NEW ZEALAND LAW SOCIETY

NEW ZEALAND LAW SOCIETY The Future of Law

This issue of LawTalk includes a and delivery systems. Balancing the requirements of Snapshot of the Profession at 1 the Lawyers and Conveyancers Act 2006 with new February 2018. With over 13,000 law- expectations driven by a variety of inspiring ideas and yers working in New Zealand and a innovations is now part of our daily work in supporting further 750 offshore it’s important the profession. Thought will be given as to whether some for the Law Society to understand as of the legislative restrictions such as multi disciplinary much as possible about the makeup practices are valid in today’s market. of our profession, even more so as It is an important function of the Law Society to ensure we look towards future methods of the legal profession is aware of developments which delivery of legal services. could affect their business, their clients or the way they One major change in this year’s operate. To this end we will be increasing our focus on Snapshot is that there are now (just) communicating, researching and developing objectives more women lawyers than men on what we are calling “The Future of Law”. A huge practising in New Zealand. The move topic, of course, but one which our profession (and every to gender parity has accelerated in other industry and profession) needs to keep exploring. recent years: in 2011 women were 44% of lawyers. Equality It also needs to participate in the resulting discussion. of numbers does not mean equality of opportunity and a Some call it NewLaw, a term coined to describe any major focus of the Law Society has been to assist and push new model of provision of legal services other than the for practical measures to address the gender imbalance in traditional model. leadership roles and ensure safe working environments Our direction will be guided by concentrating on for all. Next month we launch the Gender Equality Charter. “clearing the clutter”. As we know there is already an More information on this and an exploration of some of avalanche of information on developments and changes the issues can be found in the discussion between Law in the delivery of legal services worldwide and a steady Society President Kathryn Beck and Women’s Advisory stream of new and repeat information. New Zealand Panel Chair Chris Moore on pages 35 to 40. already has many innovators who are changing the game The Snapshot is just that: a point-in-time collection of every day. We will aim to provide practical guidance statistics and observations about New Zealand lawyers. on what’s happening and how. How New Zealand It can be used to spot some emerging trends – there are lawyers are affected will always be the consideration. now 576 incorporated law firms making up 29% of all We’re starting our journey in this issue of LawTalk with firms. Incorporation has only been possible since 2008. three thought provoking and interesting articles. Danielle Since 2016 the number of incorporated firms has grown Falconer looks forward at the options facing firms today: by 28% while all firms have increased by just 2%. do you implement significant change, follow others … or Developments such as these are interesting and pose do nothing? Or, is there a manageable middle ground? a range of questions. What impact will this have on And, if you’ve got a bright idea for transforming legal legal practice? Will it change the way consumers of legal practice, what do you have to do to make it work? Anton services – our clients – expect lawyers to operate? And, Smith reveals what he had to do to turn his big legal more directly, will I get left behind if I don’t consider idea into reality. In the third article, Damian Funnell changing the way my firm operates? looks at driverless vehicles and the impact they could Alongside the demographic changes are a host of other have on the legal services industry. factors which are everyday influencers on all individuals The Law Society is also looking at the logistics of and the enterprises in which they work. The rise and carrying out research into the New Zealand environ- rise of technology, social change, economic change, ment of legal practice in 2018 as a baseline for looking regulatory change (think of the acronyms which we ahead. What do clients expect? What do lawyers expect? were blissfully unaware of just a few years ago – AML/ Some major Law Society research projects in the 1980s CFT, FATCA, AEOI/CRS, OIO …). All of these have changed provided valuable insights into the practice of law. What and will continue to change expectations and ways of has changed? We’ll keep you informed of developments. working everywhere. The practice of law is no exception. As regulator of the legal profession, the New Zealand Nga mihi nui, Law Society must assess the changes in the delivery of legal services. We must ensure the regulatory regime Mary Ollivier, is able to accommodate the inevitable new business Acting Executive Director, New Zealand Law Society.

15 NEW ZEALAND LAW SOCIETY March 2018 · LAWTALK 915

Returning Offenders Review of law could contravene sole practice NZBORA attorney arrangements The Returning Offenders (Management and Information) Act 2015 may contravene the prohibition against retroactive pen- recommended alties and double jeopardy in section 26 of the New Zealand Bill of Rights Act 1990, the Law Society has said in a submission to the Justice select committee. It notes that the Act is predicated on The New Zealand Law Society is rec- the assumption that an overseas conviction is valid and properly ommending to sole practitioners that the obtained, and provides no mechanism for a person to challenge start of 2018 is a good time to review their that. This is out of step with New Zealand’s approach to extradition. power of attorney arrangements. There are also significant concerns about how the Act is operating Section 44 of the Lawyers and in practice, with special conditions appearing to be imposed in Conveyancers Act 2006 requires sole all cases. practitioners to appoint an attorney and an As well as pointing to major concerns with the regime imposed alternate under a power of attorney which by the Act, the Law Society says the committee’s review of the authorises them to conduct the sole practice Act should be open to the public. The Act was introduced and if the sole practitioner is unable to do so. passed under urgency in one day on 17 November 2015, coming “It is an opportune time to make con- into force the next day. It was not referred to select committee. tact with your attorney and alternate and A provision requires a select committee to review its operation update them on all aspects of your prac- and report on the review after 18 months. The Law Society has tice,” says Law Society Registry Manager urged the committee to seek public submissions as part of the Christine Schofield. review and to make the Ministry of Justice’s 4 July 2017 statutory “If you have changed your password review report public. during 2017, upgraded your software, changed PI insurance providers or made any other significant changes, your attor- ney needs to be advised of this. “Materially different” “If you are the attorney for a sole practitioner you should be proactive and arrangements make contact directly. Such updates may make all the difference in an unexpected situation where an attorney is required to The Law Society has taken issue with the views of Inland step in to run a practice at short notice.” Revenue in its draft Question We’ve Been Asked PUB00319: When Ms Schofield says acting now can is an arrangement considered to be ‘materially different’ from the provide peace of mind for both attorney arrangement identified in a private or product ruling? Commenting and donor by allowing them to discuss on the draft, the Law Society says it considers Inland Revenue’s an action plan in the event of a power of view to be “unnecessarily expansive, and inconsistent with the attorney being invoked. current wording of the legislation”. The circumstances when the “This may include how files will be ruling does not apply are found in seftion 91EB(2)(a) and 91FB(2) referred on and who else might be able (a) of the Tax Administration Act 1994. to provide some support to the donor - for “If an arrangement is materially different from the arrangement example, does the attorney have a list of identified in a ruling, Inland Revenue proposes to declare that the lawyer friends or colleagues who would ruling does not apply in relation to the tax type for the arrange- be able to help if needed?” ment from the point in time that the arrangement is materially different,” it says. This interpretation, and the reasoning behind it, overlooks and does not give full effect to the words “to the extent to which” in the sections. These should be interpreted to only declare a ruling invalid in part (and not in full) for a tax type only to the extent of any difference between the subsequent arrangement and the arrangement identified in a ruling, the Law Society says. It says if Inland Revenue wants the sections to be interpreted in accordance with its draft as it currently stands, this should be achieved through a legislative change.

16 LAWTALK 915 · March 2018 NEW ZEALAND LAW SOCIETY

Risks of using another Mental law firm’s trust account Health Roster opened a large number of client ledgers, Where a law firm (“Firm A”) uses the in the name of VX, to receive and retain consultation trust account of another law firm (“Firm B”), funds belonging to clients of VX”. both firms run a risk of breaching the rules A sale and purchase transaction almost governing trust accounts. The Law Society’s invariably involves each party’s law firm The Law Society supports Legal Aid inspectorate has provided some guidance. taking control or directing the flow of Services (LAS) administering mental The situation can arise where a law firm purchase monies at some stage of the health rosters, subject to the rosters does not have a trust account but never- transaction and accordingly if the law firm recognising and providing for regional theless deals with or directs the flow of for one of the parties does not have a trust differences where appropriate. In com- a client’s money. Examples include the account that firm faces a difficulty. ments on the Ministry of Justice consul- following: tation paper Mental Health Rosters, the • Payment of fees in advance (section Minimising risk Law Society says this should ideally lead 112(2)(b)(iv) Lawyers and Conveyancers One way to minimise the risk of a breach to consistent services for mental health Act 2006) (“LCA”). is for the client of Firm A also to become a legal aid clients and providers. At the same • Acting for a vendor or a purchaser in a client of Firm B. However both firms need time it should retain sufficient flexibility property or business transaction. to consider if this arrangement is in the for operation of the rosters to be tailored While an easy solution may be for Firm A best interests of the client, particularly if it to recognise differences beween regions to arrange for Firm B to hold funds, this results in the client paying additional fees. in volumes of cases and the number of arrangement can readily lead to a breach of It may be desired that the role of the firm available providers. the LCA and its associated rules. A key risk with the trust account be confined to mon- “It is particularly important that the area relates to the “control” of the money. etary aspects of the retainer. However, the reform of the rosters, including the intro- Section 110(1) LCA requires lawyers who requirements of the standard Agreement duction of national administration, recog- receive money “for, or on behalf of any for Sale and Purchase in relation to set- nises the welfare and rights of patients and person” to pay the money into a trust tlement, including the requisite lawyers’ the complex nature of the work mental account or that of a related person or entity. undertakings, may present difficulties and health lawyers undertake,” it says. Another law firm is not a “related person necessitate extending the role of Firm B. The proposal is for LAS to prepare a or entity”. It may be concluded that a law firm that weekly roster for each Family Court and, Section 110(3)(b) LCA states that a lawyer is engaged in property or transactional if a patient does not indicate a preference who “takes control of money” is deemed work needs to have a trust account. for a lawyer, to refer the patients to his/ to have received money. If Firm A wishes to use Firm B to hold her previous lawyer or to the lawyer on Accordingly, if Firm B follows instruc- payment of fees in advance, an escrow the roster for the relevant hearing week. tions from Firm A concerning money held arrangement may be set up. The Law by Firm B, Firm A would be taking control Society has prepared a prescribed form of the money and would be in breach of of escrow agreement for use by barristers Section 110 LCA, as the monies are not held and escrow agents which may be adapted in a trust account of Firm A. Further, Firm to suit the circumstances. This can be B could be held to be a party to the breach. found on the Law Society website under The Legal Complaints Review Officer in Regulatory requirements ▸ Intervention a decision (LCRO 12/2012) held “that VX rule changes ▸ Escrow accounts for bar- has taken control of money belonging to risters' fees. another person by directing the flow of If you have any questions about the money through the trust account of another above, or any other trust account matters, firm, WAA. Neither VX nor her firm, VXZ, contact your local Law Society Inspector. operated a trust account. Instead, WAA The Inspectors are here to assist you.

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.

17 NEW ZEALAND LAW SOCIETY March 2018 · LAWTALK 915

Marching in the streets Property Law Reform Members of the Otago legal profession marched through the streets of Dunedin on Friday, 26 January to celebrate the Panel seeking ceremonial first sitting of the refurbished Dunedin courthouse. Processions of the profession are not particularly common, property although there was one in Dunedin in 2003 when the same courthouse re-opened after renovation. lawyers Prime Minister Jacinda Adern officially reopened the Stuart Street building on the morning of 26 January. Much of the court was closed in December 2011 and it has reopened after a $20 million Property law is the second-most prac- earthquake strengthening and improvement project. tised field of law in New Zealand. Changes Starting at 1pm in the afternoon with the City of Dunedin Pipe and proposals for change in the law relating Band in front, the procession was led through the centre of Dunedin to residential and commercial property will by Chief Justice Sian Elias, Justice William Young and the Mayor have a major impact on both lawyers and of Dunedin, followed by over 70 other members of the judiciary, their clients. The new Land Transfer Act Queen’s Counsel and members of the profession and law faculty 2017, the “bright line” test and the proposed staff. After the special sitting presided over by Dame Sian, an changes to the Overseas Investment Act afternoon tea was held in the historic Law Society library (now are all making significant changes to the the Judges’ common room). way property lawyers operate. A steady The day ended with a ball organised by the Otago branch of the stream of other developments is one of Law Society at the Dunedin Town Hall. This was attended by over the contributors to the establishment of 200 and a wonderful end to a day of celebrations by the profession. a Property Law Reform Panel by the Law Court services returned to the courthouse on 5 February, with a Society’s Property Law Section. special combined Family and District Court sitting chaired by Judge Applications are now open for the Michael Crosbie. A few days later, on 8 February, the first High panel. The section wants to hear from law- Court admission ceremony in the reopened court was held before yers with experience in various areas of Justice Mander who acknowledged the impressive surroundings. property law who are willing to volunteer “A court of law is a place like no other … a place where that thing their time and expertise for the benefit of we call justice is administered and delivered. It’s where, if you the profession and the wider community. like, the rubber meets the road,” he told Police Sergeant Adrian As well as providing direct input into the Cheyne, Alofa Latafale Auva’a, David Morgan and Kara Rumble. law reform process, appointment to the panel is an excellent basis for professional ▾ The procession  Alan Dove Photography development, collegiality and networking. The panel will have between 10 and 14 members, one of whom will be appointed convenor. Appointments are for a two-year term and applicants must be either mem- bers or associate members of the Property Law Section. Applications close on 16 March, with the application form and further information available on the Law Society Services/Law Society Sections/Property Law Section part of the Law Society website. Appointments will be made in April.

New Zealand Law Society submissions Copies of submissions and comments made by the Law Society in its law reform role may be found on the website at www.lawsociety.org.nz/news-and-communications/ law-reform-submissions

18 LAWTALK 915 · March 2018 NEW ZEALAND LAW SOCIETY

New era for legal Working executive diploma Remotely

BY DICK Practice EDWARDS Briefing

After over 40 years involvement as the syllabus setter and examiner of the formal Legal Executive qualification, the New Continuing developments in technol- Zealand Law Society has relinquished that role. This was mandated ogy and ongoing social change are driving by the New Zealand Qualifications Authority mandatory review increasing demands for more flexibility of qualifications at levels 4, 5 or 6. Secondary level qualifications in how and where lawyers work. The are level 1 to 3 and university ones are level 7. traditional model of the office as the only The current qualification is the New Zealand Law Society Legal workplace has been challenged for many Executive Diploma and the Law Society set its last exams at the years. MBIE estimates that around 50% of end of 2017. The replacement qualification is the New Zealand New Zealand workers have some flexibility Diploma of Legal Executive Studies. The diploma is conferred by in their work arrangements. the institution that teaches the diploma course and its programme Lawyers with flexible out-of-the office and assessment is determined by that institution. The two insti- working arrangements can encounter all tutions that will be offering the diploma in 2018 are the Open the issues which impact on any worker as Polytechnic Kuratini Tuwherea based in Lower Hutt and the Toi well as some which are specific to the legal Ohomai Institute of Technology based in Tauranga. Toi Ohomai profession. Protection of the confidentiality commenced offering its qualification in 2017, so its eight-paper of client information, a suitable address for course is in its second year. service, client care, supervision of employ- The Open Polytechnic has involved the Law Society in its pro- ees, computer security and personal safety gramme development and the Law Society will be the external are some of the matters which can arise. To moderator of the assignments and exams for the six papers that assist lawyers who are working remotely make up its new diploma. Because of that, the Law Society will or contemplating doing so, the Law Society endorse the New Zealand Diploma of Legal Executive Studies has prepared a Practice Briefing,Working as conferred by the Open Polytechnic. NZLS believes that its Remotely. This provides guidance on the key close involvement with the Open Polytechnic will have a role areas which should be considered. in maintaining the standards attaching to the diploma that has The Practice Briefing can be found at previously been achieved through the Law Society being the www.lawsociety.org.nz/practice-resources/ examiner. practice-briefings. Because of the close alignment between the six papers of the Law Society and those of the Open Polytechnic and the quality assur- ance mechanisms, the Law Society is able to recognise the Open Polytechnic papers to enable candidates to complete the NZLS Diploma they have already started, so long as they do so before July 2020, the finish date mandated by NZQA. Thereafter the sole qualification will be the New Zealand Diploma of Legal Executive Studies. The Law Society understands that a third institution is currently working towards offering that diploma in the DOING DISCOVERY? www.lawflow.co.nz near future.

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19 NEW ZEALAND LAW SOCIETY March 2018 · LAWTALK 915

Opening a AML/CFT resource trust account collection expanding Practice With implementation of the Anti-Money Laundering and Countering Financing Briefing of Terrorism (AML/CFT) Act 2009 on 1 July just four months away, lawyers undertaking specified activities should now be preparing to ensure they have a programme in place to meet AML/CFT requirements. Another Law Society Practice Briefing The Law Society has been working closely with the Department of Internal Affairs, which provides information on the requirements is the supervisor of the legal profession for AML/CFT. The Law Society’s focus has been to for operating a trust account, accounting provide as much assistance as possible to lawyers and firms as they move towards the new requirements and procedures, making regime. Over the past year information on AML/CFT has been prepared or commissioned payments from trust accounts, deduction and provided to the profession through the Law Society website, LawTalk, LawPoints and of fees, reporting requirements and a range other communication channels. This information is being collected in a single place on of other matters which are relevant. the website: www.lawsociety.org.nz/practice-resources/practice-areas/aml-cft. A special email Checklist for practices considering opening a from the Law Society to all affected lawyers in early February provided a summary of the trust account is available at www.lawsociety. available information. org.nz/practice-resources/practice-briefings. Sample documents and templates The latest addition was a bundle of eight sample documents which can be adopted by law firms to assist in meeting their AML/CFT requirements. Intended as guides, they must be adapted to take a firm’s particular circumstances into account. Risk Assessment: This enables preparation and documentation of a risk assessment for a firm under the requirements of the Act. Compliance Programme: This allows establishment and documentation of a compliance programme. Money laundering policies: Documentation of the policies which the firm will follow. AML reporting procedure: A document for all staff which outlines the reporting procedure. Delayed CDD form: For delayed customer due diligence. Exemption form: The use of this form is not a requirement under the Act but its use could be beneficial to evidence that the firm has considered whether a matter is a Captured Activity. Matter risk assessment form: To be completed by the partner or director responsible for the matter. Full CDD form: For full verification in customer due diligence. Other resources on the website All AML/CFT-related articles which have appeared in LawTalk over the past year are available on the site, along with a number of special guides and resources prepared by the Law Society. These include: Guide to advise clients: This is a suggested one-page explanation of the AML/CFT regime which can be given to clients to explain why they will need to collect and verify information as part of customer due diligence. Preparing for AML/CFT: Privilege, confidentiality and reporting suspicious activities: This considers the AML/CFT requirements alongside the ethical and legal obligations which underpin the lawyer/client relationship. Preparing for AML/CFT: Suspicious transactions and activities: Lawyers are required to report suspicious transactions. This looks at the test and factors which can give rise to suspicion. Preparing for AML/CFT: Continuing to act after filing suspicious activity report: Lawyers who have made a suspicious activity report (SAR) will be faced with some difficult questions about whether they can or must continue acting for their client. This looks at the requirements and options. AML/CFT regulations: Four important regulations for implementation of phase 2 were released right at the end of 2017. This summarises their content and provides links to the regulations.

20 LAWTALK 915 · March 2018 UPDATE · INSOLVENCY

UPDATE INSOLVENCY Liquidation of corporate trustees

BY BRENT NORLING AND ANNA CHERKASHINA

can be limited or removed by a trust deed. It is well reported that New Zealanders Appointment of liquidator However, in our view, it is relatively argu- are keen establishers of trusts. Thanks to If a corporate trustee is placed into liq- able that it cannot. trusts, property owners are able to create uidation, and that trustee still holds its The trustee’s right of indemnity gives rise comfort that, if they ever fail, they will be office as a trustee, the liquidator essen- to an equitable charge over the trust assets. able to retain the benefit of their property. tially assumes duties to take control and Such charge entitles the trustee to keep the A trust is not a separate legal entity: as administer the trust assets until a new assets until it has indemnified itself. As a such the trustees are generally personally trustee is appointed. As a result, it is result, where a corporate trustee, which liable. That is unless they limit their liabil- important that the liquidator consenting has not been replaced yet, is placed into ity, however, this is usually reserved for to the appointment of a corporate trustee liquidation, the liquidator has a right to “independent” trustees. is familiar with the duties owed by trustees retain the trust assets and seek indemnity As a result, it has become popular to in equity and under the Trustee Act 1956. to repay the trust debts. appoint companies as trustees. This way Also, it is important that upon appointment In cases of corporate trustees which the individuals who are the governing mind the liquidator reviews the trust deed as it existed solely to administer the trust, most, of the trust are able to place another layer might impose additional duties that the if not all, debts would be the trust debts of protection to their personal liability. liquidator should be aware of. and could be repaid by the liquidator by Corporate trustees also provide certain pursuing the trust assets. practical efficiencies. For example, when Payment of debts Further, it is well established that the the individual behind the trustee changes, A commonly held belief is that the assets trustee’s equitable charge can survive the appointer can simply change the direc- of the trust are not assets of the company, replacement by a new trustee. As a result, if tor of the company; there is no need to and therefore they are not available to pay the retired corporate trustee is replaced as convey the property to a new trustee and creditors. However, this is not always the trustee and does not hold trust assets any as such, legal fees are lower. case. more, the liquidator has a right to request However, as with individuals, there By virtue of s 38 of the Trustee Act 1956, payment from the new trustee, and where could be significant consequences if the a corporate trustee, as any individual trus- there is no cooperation, commence pro- corporate trustee incurs debts and does not tee, is entitled to be indemnified from the ceedings seeking a sale order and payment pay them. Some believe that by replacing trust property for debts that are properly from the trust assets. an insolvent corporate trustee with another incurred in the course of administering the Similar orders have recently been sought entity, and transferring all trust assets to trust (the trust debts). It is questionable and obtained by the liquidators in Ranolf that entity, it ensures that the assets are and has not been determined in New Company Ltd (in liquidation) v Bhana safe from the creditors. Such belief is Zealand whether the right to indemnity [2017] NZHC 1183. Ranolf Company Ltd (in “usually” wrong, as the Companies Act 1993 applies to corporate trustees in the same way it applies to any other company, meaning that the corporate trustee can Trusted practice management be placed into liquidation and then the liquidator is able to investigate potential software for NZ lawyers methods of recovery. Easy to learn, easy to use. Save time and Liquidators who get involved with ! liquidations of corporate trustees get increase profits. That’s what users say themselves into an area that is governed New: Document management & Internet banking. Free installation and not only by the insolvency law, but also training. Visit our website for testimonials from firms just like yours. by the trust law. This imposes additional duties on the liquidators and creates issues www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd that are not straightforward.

21 INSOLVENCY · UPDATE March 2018 · LAWTALK 915

liquidation) (Ranolf) was a corporate assets or distributed all assets to Payment of trustee of a family trust and incurred the beneficiaries), the liquidator liquidators’ fees trust debts. When Ranolf was placed could pursue the replacing trustee In addition to the payment of trust into liquidation, certain members of for breach of constructive trust. debts, the trust assets can be used the family attempted to hinder the If the replacing trustee is a shell to pay for costs, expenses and trust assets by removing Ranolf from (which would usually be the case), remuneration of the liquidators. its position as trustee and failing to tracing of the assets could also be This can be ordered either pursuant indemnify Ranolf from the trust available. However, obviously, at to s 38(2) of the Trustee Act 1956, assets. Consequently, the court made this stage litigation and recovery which establishes the trustee’s right orders charging land owned by the of the assets would be costly. to remuneration out of trust assets, trust with payment of Ranolf ’s trust The court is very unlikely to or the inherent jurisdiction of the debts and a sales order. allow trust assets to be used to court. Further, the replacing trustee is satisfy claims by creditors of the However, the courts allow under an obligation not to treat corporate trustee in circumstances recovery of the costs and expenses the assets in any manner which where the debts were not incurred related to administration of the would compromise the original for the trust. trust only. Generally, the costs of trustee’s lien. As such, if the Where the trust property is insuf- liquidation which are not related to corporate trustee in liquidation ficient to meet a trustee’s right of the administration of the trust, will has been removed as a trustee indemnity, the liquidator could also not be recoverable. Although, where (either prior or post liquidation), pursue the beneficiaries of the trust. a corporate trustee operated for the and the replacing trustee has However, this would be possible sole purpose of being a trustee, the done something that would com- only in very limited circumstances general expenses of liquidation promise the original’s trustee’s where the trust structure satisfies will be usually recoverable on the lien (for example, disposed of the certain pre-requisites. basis that they are related to the

22 LAWTALK 915 · March 2018 UPDATE · INSOLVENCY

administration of the trust. obligations, a director of a corporate trustee needs to In Ranolf Company Ltd (in liquida- be aware of the availability and value of the right of tion) v Bhana [2017] NZHC 1183, the indemnity owned by the trustee. liquidators have also successfully Failure to know about the availability of indemnity obtained orders charging the trust’s and/or failure to pursue it, could potentially result in the land with the payment of their breach of duty to act in the best interests of the company reasonable fees and disbursements. and/or being negligent. Similarly, if the value of the trust Because of continuous attempts by assets is insufficient to meet the liabilities incurred by the certain family members to hinder corporate trustee, arguably the director may be liable for the assets and prejudice the pro- reckless trading under the Companies Act 1993. ceedings, the liquidators’ fees and Further, a director of a retiring trustee, which causes disbursements were substantial. the company to transfer the trust assets to the new This case serves as an example of trustee without satisfying the company’s indemnity where the attempts to hinder assets rights, could also be in breach of a number of duties from the creditors went wrong. Had under the Companies Act 1993. the trust cooperated with the liqui- On liquidation, a director who breached his duties, dators from the outset, the financial could be pursued by the liquidator and held personally burden borne by the trust would liable for all losses of the company (creditors and liqui- have been significantly lower. dator fees and disbursements). What does come as a surprise to many is that this Distributions to can still be the case for “independent” trustees as the beneficiaries Companies Act 1993 draws no distinction between The liquidator may also set aside all directors. One is either a director or one is not. There distributions to beneficiaries made was either a breach of duty, or there was not. However, by the corporate trustee within two the ‘independence’ may be relevant when it comes to the years of liquidation if, at the time of court’s discretion in quantifying any liability. Although, distributions, the corporate trustee there are currently no cases in New Zealand on this was unable to pay its debts. This is particular point. pursuant to the voidable transaction regime in the Companies Act 1993. Conclusion While beneficiaries could raise Some liquidators still find liquidations of corporate a statutory defence to voidable trustees challenging and the pursuit of claims often transactions under s 296(3) of the requires specialist legal assistance. Companies Act 1993, usually these Usually, only those liquidators who defences would be unsuccessful are either able to be self-funded or due to the fact that the beneficiar- have a funder in place can pursue ies usually provide no ‘value’ in such claims. return for the distributions. Further, As a result, those transferring the beneficiaries may have inside trust assets from the insolvent knowledge which means that they corporate trustee to the new entity have knowledge of the financial ‘sometimes’ succeed in removing position of the trust. trust assets from the creditors. If the trust made distributions to Some believe However, with the growing number beneficiaries with intent to preju- that by of corporate trustees going into dice creditors, or without receiving replacing liquidation, and the law becom- equivalent value in exchange, these an insolvent ing more settled in this area, it is distributions can also be set side corporate expected that liquidation of corpo- within six years of the distributions trustee with rate trustees will over time become being made under ss 334 – 450 of another entity, more straightforward. ▪ the Property Law Act 2007. and transferring all trust assets Brent Norling  brent@ Duties of directors of to that entity, norlinglaw.co.nz is director of corporate trustee it ensures that Norling Law Ltd which specialises Directors of corporate trustees owe the assets in restructuring and insolvency, the same duties that are owed by are safe from security enforcement and civil directors generally in common law the creditors. litigation. Anna Cherkashina and under the Companies Act 1993. Such belief is  [email protected] is an In order to comply with their “usually” wrong. associate at Norling Law.

23 ACCIDENT COMPENSATION · UPDATE March 2018 · LAWTALK 915

UPDATE ACCIDENT COMPENSATION  Jerald Jackson bnd ▸

While it was clearly intended that the Woodhouse prin- Fifty years since ciples were to form the framework of a new legal system, the proposed changes were so dramatic and revolution- ary that they gave rise to considerable debate before the Woodhouse a select committee. But it did pass and the National Government introduced the Accident Compensation Act 1972 which provided compensation for personal injury Report by accident. It was a “no fault” scheme but compen- sation was only available for earners and victims of motor vehicle accidents, leaving the remainder of the BY DON community to pursue common law remedies. RENNIE In 1972, National was replaced by the Labour Party and the new Government passed the Accident Compensation Amendment Act 1973 which provided a more compre- On 13 December 1967 the Royal Commission on hensive scheme covering non-earners and abolished the “Compensation for Personal Injury in New Zealand” right to sue in a New Zealand court to recover damages chaired by Sir Owen Woodhouse, reported its findings for personal injury. to the Governor-General Sir Arthur Porritt. The legislation was modelled on what had driven the The report, which became known as the Woodhouse previous workers’ compensation and similar legislation. Report, attracted worldwide attention because it exposed It was detailed and complex and some thought it was the shortcomings of the common law fault system not appropriate for implementing the Woodhouse prin- which relied on accident victims being able to prove ciples. For example, the Woodhouse Report in pursuit their injuries had been caused by negligence or a breach of the principle of community responsibility, recom- of a duty of care owed to the victim by another party. mended that the scheme not be funded by variable levy It analysed the standard of care imposed by the law, rates based on assumed risks to earners in different including the special vicarious liability of employers industries. Instead it suggested a for the negligence of their employees, and the impact flat levy of a fixed percentage of of the rules relating to contributory negligence. It also payroll in the case of employees or discussed the nature of damages and the difficulties tax assessable income in the case faced by litigants in proving actual economic losses, of the self-employed. Furthermore including future losses by reason of diminished earning it suggested that the levy should capacity, pain and suffering and loss of capacity for be collected not by the ACC, but enjoying life. It discussed what had been called the by IRD as part of normal annual “forensic lottery” of the common law action as a method tax payment. The original 1972 for compensating accident victims. legislation and every amendment The report’s recommendations changed the emphasis since has adopted a variable levy from finding fault to looking at the needs of the accident The report’s rate system for funding the scheme victim and the public interest in overcoming the costs recommendations which has contributed not only and uncertainties of both the common law tort system changed the to the ACC’s considerable cost of and the failure of the statutory workers’ compensation emphasis from administering the scheme, but also and other systems designed to provide adequate com- finding fault imposed unnecessary cost on levy pensation and rehabilitation to the injured. It looked to looking at payers. at the overall effect on the community of the impact the needs of of personal injury and the cost of maintaining the the accident A long and complex insurance-based system. victim and the statute public interest There have been several amend- Five guiding principles in overcoming ments to the Act over the years. The report set out five guiding principles which it said the costs and The latest is the 2001 Act which, should be the role of any modern system of compensa- uncertainties of although it has since had further tion for injured persons. Those five principles are: both the common amendments, provides the basis • Community responsibility, law tort system for the current law. It is a long and • Comprehensive entitlements, and the failure complex statute with 401 sections • Complete rehabilitation, of the statutory and several pages of schedules. In • Real compensation, workers’ addition a significant jurisprudence • Administrative efficiency. compensation. has developed over the last 43 years

24 LAWTALK 915 · March 2018 UPDATE · ACCIDENTUPDATE COMPENSATION · ANIMAL LAW

with the courts ruling on the proper meaning and appli- • Ensuring that people who suf- is significantly less costly that the cation of the legislation. fered personal injury before common law insurance-based legal It should be pointed out that s 3 of the 2001 Act states the commencement of the Act alternatives. ▪ that the purpose of the Act is to enhance the public continued to receive entitlements. good and reinforce the social contract represented by While the effectiveness of the leg- Don Rennie is convenor of the the first accident compensation scheme by: islation may be questioned, it may New Zealand Law Society’s • Reducing the incidence and severity of personal injury, be said that the Woodhouse Report Accident Compensation • Collecting, co-ordinating and analysing injury related provided the basic guide for the Committee. He joined the information, massive change in personal injury Accident Compensation • Emphasising rehabilitation, law in New Zealand. The scheme is a Corporation in 1974 after 14 • Ensuring that claimants receive fair compensation unique means of providing fair and years in private practice and is including lump sums, adequate treatment, rehabilitation widely published in the areas • Ensuring the effective operation of the Code of ACC and compensation for accident vic- of accident compensation and Claimants’ Rights, tims and remains a system which personal injury.

25 SEARCH AND SURVEILLANCE · UPDATE March 2018 · LAWTALK 915

UPDATE SEARCH AND SURVEILLANCE Search and Surveillance review aims for greater clarity and transparency in statute

BY YASMIN MOINFAR-YONG

[2012] 2 NZLR 305 at [163] per Blanchard J, together with Lorigan The Law Commission and the Ministry of Justice have v R [2012] NZCA 264, (2012) 25 CRNZ 729 at [22]). published a joint report on the operation of the Search and In other areas, the Act is silent. For example, the Act requires Surveillance Act 2012. The report finds that the Act has largely enforcement officers to obtain a surveillance device warrant been working well and does not need a major overhaul. The 67 before conducting certain types of surveillance, but it does not recommendations in the report aim to provide greater clarity mention other types of surveillance. Again, enforcement officers and transparency in the Act around when and how enforcement who wish to undertake surveillance activity not covered by the officers exercise can search and surveillance powers, and update Act must determine, case-by-case, whether the activity is likely the Act to keep pace with developments in technology. to constitute a search. The report,Review of the Search and Surveillance Act 2012 (NZLC The report observes that the concept of “reasonable expecta- R141, 2017), was tabled in Parliament by the Minister of Justice on tions of privacy” can be difficult to apply and creates uncertainty 30 January. It is available on the Law Commission’s website (www. for enforcement officers as to when they must obtain warrants lawcom.govt.nz). The report covers areas such as the principles and orders. The lack of guidance in the Act also does not assure underlying the Act, surveillance technology, searches of electronic the public that their privacy interests are being adequately and devices and internet sites, and undercover operations. The joint proactively protected. review was mandated by the Act and, as required by the statute, was completed within one year. A principles provision The Act sets out the search and surveillance powers available to The report recommends addressing these issues in a number of police. It also governs how a wide range of enforcement officers ways. First, it recommends a principles provision be inserted into with search, surveillance, examination and inspection powers the Act. This would require enforcement officers and issuing officers under other legislation exercise those powers (for example, fish- to consider principles such as the need to follow the procedures eries inspectors, immigration officers, and Inland Revenue and set out in the Act before intruding on the privacy of any person; Department of Internal Affairs investigators). to minimise intrusions on privacy; to obtain a warrant or order in preference to exercising a warrantless Greater guidance recommended power; to take account of any relevant The report finds that the Act should provide greater guidance cultural considerations or impacts on vul- on when and how enforcement officers can exercise search and nerable people; and to exercise powers in surveillance powers. Much of this is instead supplied by case law a manner that protects privilege. relating to section 21 of the New Zealand Bill of Rights Act 1990 The proposed principles are based pri- (NZBORA) which guarantees the right to be free from unreasonable marily on existing case law. Their inclusion search or seizure, and section 30 of the Evidence Act 2006, which in the Act would help to ensure they are determines the admissibility of improperly obtained evidence in addressed before a search or surveillance criminal proceedings. occurs, rather than only being considered The Act empowers enforcement officers to apply for search in hindsight during an admissibility inquiry warrants and production orders where certain statutory criteria under section 30 of the Evidence Act. are met, but does not specify when they must obtain a warrant or order. Enforcement officers must determine, case-by-case, whether Policy statements the proposed activity is likely to amount to a search in terms of The report recommends that chief execu- section 21 of NZBORA: if so, they are likely to seek a warrant/order; tives of enforcement agencies issue pub- if not, they are likely to proceed without one. Section 21 case law licly available policy statements in relation establishes that a search is activity that amounts to state intrusion to certain types of investigatory activity not on reasonable expectations of privacy (Hamed v R [2011] NZSC 101, explicitly addressed by the Act. Examples

26 LAWTALK 915 · March 2018 UPDATE · SEAUPDATERCH AND· COMME SURVEILLANCERCIAL LAW

 Ashley bnd ▸ include public visual surveillance (such as using CCTV cameras), social media moni- toring and covert or undercover operations. These policy statements would provide guidance on grey areas where it may be unclear whether a particular type of activ- ity is lawful or reasonable in the absence of a warrant. They should address some of the difficulty in drawing a bright line between conduct that intrudes on a reason- able expectation of privacy and conduct that does not. The report also recommends that agencies should issue policy statements in relation to production orders, which require third parties such as telecommu- nications or electricity service providers to produce information. These policy statements would provide guidance on when enforcement officers should apply for production orders and what applications should contain. Declaratory orders The report recommends clarifying the purpose and effect of declaratory orders, to encourage their greater use. These orders allow enforcement officers to seek authorisation for activity where no specific warrant, order or power appears to be available. The report concludes that declaratory orders provide a useful mech- anism for enforcement officers to seek judicial guidance on whether proposed activity that may constitute an intrusion into reasonable expectations of privacy is lawful and reasonable.

Covert operations operation), and and other electronic data surveillance, to The report proposes amendments to the • Mechanisms to identify and address investigate crime more effectively. Act to regulate covert operations, such as any inappropriate practices (through an The report also recognises the continued police undercover operations. It finds that external auditing process and by requir- need to protect individuals’ privacy, in light the absence of statutory rules is undesir- ing policy statements to be publically of the significant amount of personal infor- able, given that some covert operations available). mation many people now create or store may involve significant intrusions on pri- The report also recommends the introduc- electronically. It recommends enforcement vacy. Its proposals would provide greater tion of more comprehensive immunity and officers should be required to obtain a war- transparency and safeguards around this assumed identity regimes, to clarify the rant to search electronic devices, such as investigative technique, while also recog- legal boundaries of covert operations. smartphones, except in urgent situations. nising its legitimacy in appropriate cases. It also proposes amendments to clarify the The statutory regime proposed in the Updating the Act to keep rules around searching information on the report contains two features: pace with technology internet. • Constraints on the circumstances in Another area the report focuses on is The report is awaiting a Government which enforcement officers can use developments in technology. It proposes response. ▪ covert operations (through a combina- changes to the surveillance regime to allow tion of warrants and policy statements, some enforcement agencies to use new Yasmin Moinfar-Yong is a Legal and depending on the seriousness of the technologies, such as keystroke logging Policy Advisor with the Law Commission.

27 FUTURE OF LAW March 2018 · LAWTALK 915

FUTURE OF LAW Rise of the Machines: Driverless Vehicles

BY DAMIAN Will we make driving illegal? FUNNELL Let’s look at some of the fascinating and tantalising questions that the emergence This may sound preposterous given how of this technology raises: much we love to drive, but let’s face it, we’re Over the next couple of columns I’m not very good at it. Humans cause immeas- going to look at the incredible impact How quickly will our regulatory urable death and destruction behind the that artificial intelligence (the ‘rise of the framework catch up with the new wheel – almost all of it completely avoida- machines’) is going to have on the legal reality of driverless vehicles? ble. At some point will we decide that this industry and on our day-to-day lives. I for one am discouraged by the lack of is intolerable and move to ban driving just In this article we look at a subject that any meaningful progress by our legislators like we’ve banned smoking in public places? is very close to my heart – autonomous over the past five years, even now that If so, will we peacefully relinquish the right (self-driving) vehicles. To me, these repre- semi-autonomous vehicles are already on to drive to robots, or will there be riots? sent the pinnacle of human development our roads. Who decides on the ethics of and innovation. They combine inventions how autonomous vehicles react to acci- Will roads (as well as intersections, that are ancient – the wheel – with those dents? Or more to the point, who decides bridges, etc) need to grow or shrink? that are almost futuristic, including neural who dies in an accident? Should the vehicle It’s likely that the number of private networks and artificial intelligence. always protect the occupants, or attempt vehicle trips will increase significantly Google has just begun operating the to minimise overall injury/loss of life, even as the cost of those trips (and barriers to world’s first driverless ride-hailing service if it sacrifices the occupants in the process? access) tumbles. Autonomous vehicles are in Phoenix, Arizona. Google and other Unless our regulators take the lead these significantly more efficient than humans, companies have been testing autonomous decisions will rest with product manufac- however, particularly as traffic lights (and vehicles on public roads for years (includ- turers – is this what we want? stopping at intersections) will eventually ing millions of kilometres travelled on become a thing of the past. Everyone seems public roads and billions of kilometres in Who’s liable for accidents? to agree that parking buildings will go the simulation), but until now they’ve always Is it the person in the vehicle (even if they way of the buggy whip, but no one really had a human behind the wheel in case weren’t driving), the vehicle manufacturer knows what will happen to our roads. things go pear-shaped. The significance of or someone else? Under what circumstances this development cannot be overstated. might insurers refuse to pay out on claims? What will happen to We don’t yet have those infamous flying public transport? cars, but humans have finally created What will happen to Will bus and train services survive as the vehicles that can safely drive themselves. vehicle manufacturers? cost of ride-hailing plummets? This technology will have a truly profound It’s entirely possible that you and I might impact on humanity and we’re watching currently own the last vehicles we’ll ever Will our emergency services it develop before our very eyes. own as a variety of companies are likely survive when we stop smashing These vehicles are already safer than those to enter the self-driving taxi market (Ford, into each other on the roads? piloted by humans, but they’re not yet safe Tesla and Google to name a few). Why How will we continue to justify the high enough to become mainstream. We’re much bother buying a car when it’s cheaper and cost of these services in marginal areas less willing to accept the idea of machines easier to simply summon one (of any size) when one of the primary reasons for their killing people on the roads than we are of on demand? If rates of vehicle ownership existence disappears? people doing it in much larger numbers. As plummet will the auto industry survive? The arrival of driverless vehicles is simul- a result, no one knows how long it will be taneously thrilling and terrifying. What a before this technology is available to the Will the massive amounts of data time to be alive. ▪ general public, but some manufacturers (I’m generated about our travelling looking at you, Tesla) are already shipping habits remain confidential? Damian Funnell  damian.funnell@ vehicles with all of the hardware needed for Remember that Google, the 1,000-pound choicetechnology.co.nz is a technologist level 5 (fully autonomous) self-driving capa- gorilla of targeted advertising, is one of the and founder of Choice Technology, an IT bility. These cars are only a software upgrade major players in the autonomous driving services company, and  panaceahq. away from being able to drive themselves. sector. com, a cloud software company.

28 LAWTALK 915 · March 2018 FUTURE OF LAW

FUTURE OF LAW Client-centric innovation strategy – five steps for planning for the future

BY DANIELLE FALCONER

“There is a tide in the affairs of men. Which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries.” (Julius Caesar, Act 4, Scene 3).

• Describing five steps firms can use to start to implement an Brutus is talking about war; urging innovation process based on this middle strategy. Cassius to act to head off the enemy. Shakespeare’s words are an elegant Strategic innovation expression of the idea that power and Deloitte’s 2016 global research study, Future Trends for Legal Services, advantage ebbs and flows and one must asserts that the commercial legal services market is growing, but act; otherwise if opportunity is missed one that conventional law firms are no longer meeting today’s business will become stranded. needs. The legal profession is not at war but Whether or not the recent experiences of our New Zealand there are increasing signals that the tide law firms and the opinions of their clients align with the above is turning. Faced with increasing market findings, it cannot be disputed that lawyers are facing intensified and technological pressures, the issues for pressures and that today’s legal services environment is becoming firms are whether or not they should react increasingly complex. At the very least these factors are initiating by changing the services they provide, and discussions about the need for change. if so, how should they do this, considering Anecdotally, the traditional response of their own relevant realities – their histories, law firms, from a change perspective, is to structures, resourcing, capabilities, clients source technological solutions that gain and strategic objectives? efficiency in how firms operate internally. It can be difficult to filter the apposite The issues Today, however, there is a groundswell of information from the growing, and some- for firms are legal-thought leaders advocating the need what fragmented and untested, amount whether or not for ‘innovation’ within legal services. And of material that exists in the marketplace. they should react for some lawyers innovation does mean This article provides a pragmatic starting by changing the initiatives that are radical and disruptive point for lawyers who are grappling with services they of how legal services are provided. But for these issues by: provide, and if others it can be difficult to envisage exactly • Explaining how strategic innovation is so, how should what this radical change could comprise, not merely about adopting new tech- they do this, as it is so far removed from their everyday nology to gain efficiencies in internal considering their practice. So, typically still, ‘innovation’ is processes, own relevant considered by many in practice as imple- • Offering a snapshot of the two most realities – their menting a new piece of technology that extreme approaches to whether or not histories, makes law firms operate more efficiently. innovation is relevant to legal services, structures, The Oxford Dictionary states that ‘inno- • Outlining a feasible middle strategy, resourcing, vation’ is the “action or process of inno- being the incremental adaptation of capabilities, vating”. The verb ‘to innovate’ is defined as products and services to meet the unmet clients and making “changes in something established, needs of clients, their businesses and strategic especially by introducing new methods, industries, and objectives? ideas, or products”. Economists include a

29 FFUTURANCREH ISINGOF LAW · UPDATE March 2018 · LAWTALK 915

requirement that the market must adopt spectrum, the immediate options appear delivery based on better understanding the initiative for it to be an innovation. to fall into the following categories: clients’ needs and motivations (‘the middle Traditional management theory about • Implement significant change based on ground’). innovation is based around two central radically changing the nature of what In this way, innovation within legal concepts, being innovation through quan- lawyers do and how their services are services describes also the process of tum leaps in breakthrough technologies, provided, adapting legal services and products, or and better analysis of users’ needs. • Follow others who are making changes legal service delivery, to meet the unmet It is true that there is a rapidly growing to how they operate, or and future needs of clients by better number of lawyers (and non-lawyers) who • Maintain the status quo and do nothing. understanding them and their businesses. are doing radical (and great) things with These options have different benefits and Change as a result of this type of process technology. However, the pure definition drawbacks. Significant change requires a may or may not include coming up with of innovation is not merely technocentric significant overhaul of all aspects of firm new technology or using new technology and radical or disruptive. operations and raises many thorny issues. as an enabling tool. Following the leader may result in a firm The extreme views on change being unable to influence the parameters The middle ground – the innovation dilemma of what clients expect from services or The process of adapting products and There exist two ends of the innovation service delivery to meet individual firm services – and creating new ones – by spectrum. There are those people who strategy or capability. Also, it is unlikely to better understanding clients’ needs and advocate significant change, who may or generate sustainable competitive advan- motivations has been used by businesses may not be doomsayers, attempting to tage. Doing nothing will be ineffectual in other industries for decades, in order persuade lawyers about their future demise when the desired outcomes are to grow, to generate and maintain competitive if they do not make a radical overhaul of to be profitable long-term and better serve advantage. their existing practises, usually through clients. The reality for many law firms is that technological advancement. Conversely, In a professional environment where implementing change is hard. Lawyers there are those people who block inno- conservatism reigns but competitive are busy people; often there is simply not vation by stubbornly refusing to see the advantage is desired, there is another enough time to give innovation strategy need for change. option that lies somewhere in the middle. any in-depth analysis. Law firms are unique Depending on where firms sit on that It involves adapting services and service enterprises, they pull together a number

30 LAWTALK 915 · March 2018 FUTURE OF LAW

Five practical initial steps market insights. The following are five initial steps firms 5 Talk to those that matter in the right By focusing can take to start addressing change using way. Get out and talk to clients and on clients, the middle ground strategy: industry experts in their own environ- a firm will 1 Be honest. Honestly assess whether ments to identify possible ’spaces’ for have a better or not your firm is open to ‘exploring’ innovation. Communicate well that your understanding and ‘learning’ about what changes purpose is to hear more about client of whether or may be developed, as a result of client needs, their businesses and to under- not new legal and industry engagement, without a stand what they believe their future technology concrete outcome (as opposed to per- challenges will be. It is not an exercise solutions will haps merely following the most recent in gaining law firm feedback using client provide actual ‘legaltech’ trend, or paying lip service feedback surveys. benefits, and to innovation and change). Whether or At the conclusion of these first five steps, what features not everyone agrees to allocate resources a firm will have identified some innovation those solutions (money and the appropriate people) to spaces, being areas where it may be pos- should include. such an undertaking without a known sible to match firm expertise with clients’ outcome is a good indicator. unmet or future needs in a way that will 2 Set yourself up to succeed. Recognise meet the firm’s strategic objectives. By that dogmatically applying traditional focusing on clients, a firm will have a better decision-making tools, such as ROI, may understanding of whether or not new legal be inappropriate. Recruit a small number technology solutions will provide actual of the right people from within the firm benefits, and what features those solutions based on interest and capabilities (not should include. job titles) to form the basis of an inno- The firm will have started to clear a path vation team. Engage specialists with for any innovative ideas to be shepherded applicable expertise and knowledge to through its internal decision-making plug any capability gaps. processes and structures. A good innova- 3 Look within. Identify, evaluate and tion process will then continue in a clear of intelligent, successful and assertive address internal firm constraints that direction, implementing guidelines and people who have the firm’s best interests are likely to be showstoppers that best practice checklists to capitalise on the in mind. But equally, there can be those stymie progress, for example: individ- information gleaned from these first steps who are driven by parochial self-interest. ual attitudes and behaviours based on and minimise the likelihood of stagnation. ▪ Often there are legacy considerations, such legacy issues; group culture, emotion as the history of the partnership and the and processes; and, organisational Danielle Falconer  danielle@ partnership model. Also, there are the structure, strategies and resources. viewconsulting.co.nz has 12 years’ issues of the billable hour and value billing. There is little point spending precious experience practising commercial This reality, combined with a bour- time and resources on innovation efforts and employment law at a prominent geoning marketplace for legal technology if, because of internal challenges, there Wellington law firm. She is now the solution suppliers and commentators all is a high likelihood of firm self-sabotage. director of View Legal Innovation Ltd, advocating ‘innovation’ and legal tech- 4 Align your strategy. Identify one or two which specialises in helping lawyers nology, create uncertainty about future broad areas for growth based on cur- grow revenue and become better direction. And, uncertainty can lead to rent operations and capabilities, future business people by understanding and inertia. strategic objectives, internal data and harnessing the power of innovation. The middle ground is a strategic way forward that drives change in a manage- able way without necessarily taking a sledgehammer to the foundations of the firm from the outset (foundations which Grant Allan llb can be an insurmountable barrier to radical MEDIATOR (LEADR Advanced Panel) change). The focus on innovation driven by · Over 500 lawyer referred mediations matching firm expertise and client need · No charge for travel costs or time to makes the middle ground less daunting mediations anywhere in NZ than the leap for radical change and is a soft entry point for those hesitant to WWW.GRANTALLAN.CO.NZ change the status quo.  0800 400 411  [email protected]

31 FUTURE OF LAW March 2018 · LAWTALK 915

FUTURE OF LAW Turning your big legal idea into a reality

BY ANTON SMITH

Big change is coming to all of us, legally speaking. Xero recently listed solely on the Australian stock exchange, with the company now worth over NZ$5 billion. In only 12 years, Xero has fundamentally changed the face of accounting in New Zealand and abroad. This kind of disruption to the accounting profession will have made many established accountants go grey (or even greyer) with stress, but it’s healthy for the industry. And it is exactly what was needed to flatten it, to make it more responsive and more accessible to customers and to level the playing field. Uber has done the same for personal transport; Airbnb for their specific areas of expertise, and clients accommodation; Amazon for online shopping. As a lawyer I’ve receive proposals specific to their needs. marvelled at all this revolutionary change and wondered, when Consensus will change how we provide is this going to happen to us? legal services. Clients want choice, and The legal industry is arguably just as archaic as most Kiwis they should be able to consider fixed-fee perceive it to be. We’ve largely resisted change by staking out pricing, timeliness and expertise when our own little corners of the market, and we’ve adapted in they engage a lawyer. And lawyers come to incremental ways when technology forces our hand. And the Consensus to solve their online marketing professional journey still essentially remains the same – join a dilemma and to connect with clients all firm, help out with discovery and proofreading, get your own over the country. Consensus offers all of first client, become an associate, then partnership, and finally this through a simple, easy-to-use online enjoy the ‘high life’. This is all pretty irrelevant to most Kiwis. platform. In short, it is about legal services There are so many individuals and businesses out there who for the digital age. could be our clients and who probably recognise that they need Consensus is also different to other our help, yet somehow, without fully understanding why, they online legal practice offerings. We make know they’ll have to pay through the nose for our time. a big deal out of being independent, and But revolutionary changes are happening right now for us too. for good reason. Consensus is not a tool The hype about what digital technology means for our industry we’ve invented to lock down a share of the is real. Our profession must flatten, be more flexible and be more legal marketplace for any particular firm. agile. Consensus aims to be a major part of that, and I know we’re We fundamentally believe in connecting not alone. So, and because I think Aotearoa should be at the tip of great lawyers and clients online for the the surfboard riding the wave of legal disruption, I’m opening up sake of it, and we don’t stand to benefit about how we got to where we are and how you could do the same. from pitching for those clients ourselves. However, there are plenty of other ways First, what is Consensus? our industry can evolve. Consensus is New Zealand’s independent online marketplace for legal services. Clients post jobs, and lawyers submit proposals for The journey to launching those jobs. This gives lawyers access to clients, and clients access something new to lawyers, nationwide. Lawyers only see jobs which fall within Have you got an idea for how the profession

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pullquote

can do things differently? Maybe you’ve you have to demonstrate you have talked to your potential cus- been theorising about other industries? tomers and you understand what they need; surveys are great for It’s easier to make your idea happen than this – just make sure you have the recipients’ consent beforehand. you might think. Consensus began at a For us, we could show clients wanted fixed pricing and top quality flat party, where many of the great ideas expertise, and lawyers wanted new ways to engage with clients do, yet we managed to raise funding to beyond their immediate locations – and heaps of them. We could launch Consensus on our first attempt and also demonstrate that more than half of those potential clients we we think others can too. contacted were comfortable engaging a lawyer online. We tossed around the idea of an online legal marketplace for a while, with reviews, Real tips for raising capital swift transacting, everyone getting what So, based on my experience, my top tips for you to raise the money they want and more. Of course, it seemed you need for your ‘next big thing’ are: like a bit of a pipedream for a while. But Talk about it, a lot: If you have an idea, share it and test it the more time we spent on it, the more we with others. There’s usually a way to evolve your idea and to thought we had something. We just lacked build something investment-worthy, but you cannot expect to the resources ourselves to start it, so we come up with the whole thing on your own. Building a business crystallised our idea and went off to find people who could help. Some suggested using friends or family, QUEENSLAND AGENCY WORK or expanding our already bursting mort- gages. Luckily, organisations like Return Situated on Queensland’s Gold Coast, we have over 40 years’ experience advising clients throughout on Sciences exist throughout the country Queensland. Two of our solicitors have practised in New to help accelerate new ideas. Through Zealand and we have many New Zealand clients. that initiative, which is run by Auckland All types of agency work accepted: www.gsslaw.com email: [email protected] UniServices (the commercial arm of the • Estate Administration (including resealing of Probate) phone: +61 7 5532 5944 University of Auckland) we secured the • Conveyancing, settlements, property searches seed capital we needed to launch. Australian Member of • Family Law International Lawyers Group We had done our homework and our • Commercial law, commercial litigation, debt recovery (www.ilgonline.org) research backed us up. Through the process

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how you and your team will share in the ownership of the business gives investors confidence. I recommend you negotiate your equity arrangements on a ‘scientific’ basis. Identify all of the things you and If you have an your co-founders will contribute to the idea, share it business, then add a percentage weight- and test it with ing to each one based on how critical others. There’s those things will be to your success. If usually a way it’s a digital business focused on the legal to evolve your industry, for example, legal expertise and idea and to web development experience should get build something higher weightings. This approach removes investment- the emotion from it and streamlines how worthy, but you you’ll slice up your equity ‘pie’. cannot expect Analyse the challenges: Draw up a list to come up with of all the issues or pitfalls you think an the whole thing investor could challenge you on. Then, draft on your own. up your counter-arguments and the steps you’ll take in mitigation. It’ll be harder for an investor to tear down your game plan ▴ Anton Smith when you have already torn it down and rebuilt it yourself. You’re basically doing out of nothing takes an entire community. the investor’s work for them. Fortunately, as lawyers we already have a Demonstrate vision: You have to have a community to draw on. long-term vision. Maybe you are focused Build the right team: We already know on technological improvements or international scale. Tell your how to connect with others, which gives us investor how you achieve this and what it means for them. They a head start. You need to find people who expect a return, and they need to see you have a roadmap, bearing have different skills, experience and per- in mind that that roadmap can change as your business grows spectives. Investors, more than anything or pivots. else, invest in teams. UniServices invests in And if you get an offer, make sure that you get legal advice about start-ups that involve students, and there the basis for the investment. Are you giving away equity now or are plenty of students out there with web in the future? If it’s a convertible loan, when will it mature? There development and other skills vital to your are some incredible New Zealand lawyers already on Consensus new venture. who can help you out with this. Research: Research will be time-con- suming if done properly, but it pays What’s next dividends. You need to find out who your Reach out to those you trust for advice. There are plenty of people competitors are, what others are doing out there who will be excited to engage with you about your overseas and the size of your market game-changing idea. And get to work on scoping your new venture. (Statistics New Zealand is a good starting If your big idea is a legal one, then now is the time to go for point). You also need to show what your it. What our industry needs is a big kick up the backside. We’ve competitive advantage is. Try ranking your been complacent for too long, which will only hurt us and our venture against your competitors based on clients in the long run. criteria you think are relevant (for example, As for Consensus, we’re growing. We’re young and keenly product attributes, service offering, user focused on presenting legal services in an innovative way. And experience or price) and test what you we’re open for business, working with lawyers and clients to would need to do in order to be able to facilitate new connections and build your profile so you can ‘work rate yours number one. your way’. Connect with us and find out how we can take your Demonstrate commitment: We incor- practice to a whole new level in this digital age. ▪ porated a company and negotiated a basic term sheet that would form the basis of our Anton Smith  [email protected] and 021 351 665 is a shareholders’ agreement before we pitched co-founder and the CEO of Consensus  www.consensus. for funding. Proving an understanding of nz, an independent online marketplace for legal services.

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PRACTICE Law Society releases Gender Equality Charter to legal profession

But as an employee I did get good left, to work at another firm, where Next month (April) the New Zealand Law Society quality work. One of them really I ultimately became a partner, that I will release the Gender Equality Charter to the legal mentored me. He had me involved would have had a future, at that first profession. in work that was far more senior law firm, so I wasn’t held back but It’s the Law Society’s response to concern about a lack than that which some of the men some of the behaviour was not okay.” of progression of women lawyers into senior positions who had been hired a year or more such as partnership and Queen's Counsel. The Law ahead of me were doing. There Chris Moore: Society will also provide guidance on how to ensure was one other woman lawyer who “In the first firm that I joined, there legal workplaces are safe environments for all employees. worked there. We were both quite was absolutely no difference in Ahead of the launch, LawTalk put 10 questions to Law strong minded women and they the way male and female lawyers Society President Kathryn Beck, who was admitted in seemed to quite like that. She got were treated. This is because all the 1991, and immediate past President Chris Moore, who good work too. But that didn’t stop partners were male as were all the was admitted in 1978, about their respective career them asking inappropriate ques- solicitors. There was not one female progression. tions and making inappropriate lawyer in the firm. Admittedly there Their answers are a candid and frank observation on comments. Unfortunately, it was the were considerably fewer female the state of the legal sector and how the Gender Equality type of old fashioned behaviour that graduates at that time but the fact Charter can offer solutions to many of the challenges was not uncommon at that time that there were no female partners facing the profession. and which was often brushed off or solicitors tends to answer the as ‘that’s just so and so’ [one of the question.” Take yourself back to the early days of male partners]. when you started out as a junior lawyer in On one occasion, one of the part- More than half of practising a law firm. Did you get the sense that both ners, who has passed on now, had too lawyers in New Zealand are men and women of equal experience as much to drink on a Friday night and now women. Do you think graduates were treated equally in respect made a sexually explicit suggestion. this will have an impact of opportunities being afforded to both? I quite aggressively refused him. on the opportunities for None of the other partners said or women to progress to senior Kathryn Beck: did anything yet at least some of positions in law firms? “My experience was a little unusual for the time. I was them must have heard what was hired to work in the litigation department of a medi- said. He – the partner – was oddly Kathryn Beck: um-sized law firm. I was interviewed by two very senior polite, for example, still addressing “It will have to. When numbers male partners who were at the latter end of their careers. me as “Miss Beck”, even when he get in behind a momentum like They knew they shouldn’t ask some questions but did was being grossly disrespectful. He we are seeing now, people have to anyway including whether I intended to have children. seemed to have more respect for me start responding to it out of sheer They said words to the effect of “We probably shouldn’t when I stuck up for myself than if I practicality whether they want to ask you this but we assume you will have children?” hadn’t. Not all women would have or not. This is why I was so pleased I’d only just got my law degree and said I don’t know reacted as I did or got away with that when we hit the over 50% mark. what my plans are and no, you can’t ask me those ques- reaction. No one should be put in This is not because I think the lack tions. In a way I sort of made a joke of it. I got the job that position. He was drunk and he of a majority has held us back, but but was told that they nearly didn’t hire me because my was a bully. If you didn’t stand up because I think it will increase the hair was very short and I’d imagine they would never to him, you would be treated like push behind the change. have said that to a man. The implication was that, I was something that was on the bottom It probably won’t happen quickly, a woman and shouldn’t have short hair. of his shoe. I was even told when I but combined with a lot of other

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things, such as the introduction of the Gender Equality commitments to bringing equity to Charter, I’m confident this will result in women lawyers your workplace. It’s about ensuring reaching senior positions more rapidly.” that there is no discrimination, that both men and women are given Chris Moore: equal opportunities in work, equal “With more than half of the practising lawyers now opportunities for flexible work being women, this must have a positive impact on the practises. The charter makes this opportunities for women to progress to senior positions really clear. in law firms. Even if there were no attitudinal change, Equal opportunities in relation to one might be tempted to think that the sheer weight of remuneration and for improvement, numbers would increase the pressure for advancement. development and progression. I But we’ve been saying this for years and it hasn’t think men in a lot of organisations happened. Without significant change – particularly have had an advantage, and prob- attitudinal and cultural change – progression is likely ably still do, not in everything but to continue to be frustratingly slow.” enough for us to be looking at our statistics and seeing the imbalance. What impact do you think the Gender The charter is asking that you look Equality Charter will have on men and at the current state of your work- women practising law? Some critics suggest place, commit to making a change the charter discriminates against men. and then do something about it by putting a plan into action and Kathryn Beck: monitoring it to ensure the changes “How can equality be discriminatory? The charter doesn’t are working and then report on it weigh more towards women than men. It’s about making to the Law Society.

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Similarly, gender pay audits are simply a good check to address imbalances and implement steps to ensure those imbalances don’t reoccur. There may, of course, be very good reasons for differences in pay based on individual performances and this is not about making sure everybody is paid the same amount but rather to examine our own evaluation processes and make sure that we are acting fairly. Similarly, mainstreaming flexible working hours is not just promoted as a benefit for women or the principal carer, it is something which should be available to all practitioners so that they have an opportunity to work remotely or access flexible working arrangements in such a way that they are on an equal footing and are not disadvantaged in their careers. Historically, law firms have been rigid and inflexible in their approach to how we work. Pre-conceived notions on time spent sitting in the office need to change. The charter is about trying to take measurable steps towards becoming a legal profession which focuses on equal opportunities and transparency.”

Are you a parent? If yes, has this had an impact in your career progression?

Kathryn Beck: “Yes, I have two children, but my experience is probably not the normal as such. It was effective for me and I had the privilege of being able to do it the way I did but I’m There are 10% more women than men graduating conscious that a lot of people won’t from law schools and they’re achieving grades as good have those same choices. or better. Great marks doesn’t necessarily mean you’ll be I didn’t have my first child until a great lawyer but women shouldn’t be lagging behind I was 37 which meant that I had men the way they currently are in senior positions. For achieved a lot in my career before the first couple of years, women in law are getting paid having a family. I was a law firm the same as men and then things change mostly to the The charter partner at 28. I had just left that advantage of men. There isn’t a valid reason for that, and doesn’t weigh firm to set up a boutique firm with that is what is discriminatory and it needs to change.” more towards Penny Swarbrick, so the timing women than was a bit Jacinda-ish. Doing it that Chris Moore: men. It’s way meant that my career was “Rather obviously I expect that the Gender Equality about making pretty well established. I only took Charter will, instead, have a positive impact on both commitments 11 weeks off work and remained men and women practising law by creating a substan- to bringing available during some of this tive and recognised benchmark. The charter is about equity to your period. When I returned to work, being fair in creating a level playing field for all genders, workplace. It’s I was able to afford a nanny and I and addressing an existing identified issue within the about ensuring know that not many can do that. profession. that there is no My nanny would bring my daughter For example, take three key principles from the discrimination, in to work. I’d feed her, even during charter. that both men court adjournments or meetings in Unconscious bias training is all about educating, and women barristers chambers. I still remem- recognising where biases may exist and ensuring to the are given equal ber a chief judge playing ‘peekaboo’ fullest extent possible that recognition of these biases opportunities in with her. I was fortunate as I had may help us to make better and more informed decisions. work. a lot of autonomy and flexibility

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because I was a business owner, but not everyone does. I was able to do the same with my second child. Regardless of whether a woman is a law firm partner or not, deciding to have children should not harm their careers.”

Chris Moore: “Yes, I have three adult children. My wife’s role as a parent was critical to my own career progression. If I were starting my career again now, it would be possible for both of us to have progressed our careers through the use of IT and flexible working ▴ Law Society President Kathryn Beck arrangements without it being detrimental to one of us. Neither of those options really existed when I started, or to be honest, were accepted, at the key times arrangements. in my career.” In our firm we have taken advantage of the Law Society’s free unconscious bias seminar and on a Unconscious bias is prominent in many personal level it is just something on which I need to workplaces. Can you describe any personal improve continually and keep front of mind. It is really experiences with unconscious bias? just about trying to recognise my own biases and making What have you done in your practice to good objective decisions in advance.” identify and address unconscious bias? One of the commitments in the Gender Equality Kathryn Beck: Charter is to conduct annual gender pay audits “Unconscious bias is everywhere. I’ve seen it occur even and to close any gender pay gap. How do you in recent times with choosing which counsel to instruct. see this working in practice? What effect do It’s about keeping on doing what you know and what you think this will have on charter signatories? you’re comfortable with. I don’t believe people even consciously think, ‘I need a man’. I think it is often more Kathryn Beck: a case of, ‘we know him and he’s just like us. Let’s brief “This is about having a look and seeing if there is a someone who looks and feels just like us’. problem. I’m in a small firm so it’s not a difficult thing You have to retrain your brain, in almost every area, to do, but there are plenty of tools available for any size for example using words such as legal fraternity and practice or organisation to do this task. The reality is, brethren. They’re phrases you’ve heard for years. They there is a 10% pay gap in the legal community between are part of our culture but it should be ‘legal community’ a lot of men and women who have the same experience. nowadays as that’s the term that sounds like equality Some firms will have a bigger problem than others. to me. I’ve become more and more conscious of uncon- The question to ask is how will you address the pay scious bias and I react to it. But I also know I have it gap? myself and it is important that I not forget that.” This is something that isn’t unique to law and is being looked at internationally across many professions. We Chris Moore: can draw from that experience. There has been recent “Unfortunately, as aware as I am of my own failings publicity about people who are opting to take pay cuts around unconscious bias, I still make mistakes. An so that salaries are more in line with their female col- early example of unconscious bias on my behalf was leagues but what I’d like to see is salaries for women arranging a function with a key client after work, on increasing where there is an identifiable and unjustified short notice when it simply was not possible for senior gap. Importantly, the Gender Equality Charter addresses female members in my team to attend as there was many issues. It’s not just about the pay. That’s just one insufficient time for them to make or extend childcare part of the solution when it comes to answering the

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If I had a choice I’d go somewhere that is inclusive and welcoming, in that if you are a woman you will get the same opportunities; a place where if you’re a part of the LGBTI community you’ll get the same opportunities; where it doesn’t matter what ethnicity you are. I’d be going somewhere that truly reflects that sort of inclusive culture and, importantly, as a woman, is safe. If I had a choice between that style of organisation and an old fashioned organisation that is doing everything as they have done for the ▴ Immediate past President Chris Moore past 20 years, I’d choose the new style. Why wouldn’t I? Perhaps, on the surface, a traditional firm might look good when I walk in the door equality question.” because it’s well-known but that isn’t enough. I suspect younger Chris Moore: lawyers, even if they start in a place “In practice, I don’t see this as being difficult. like that, if it’s stuck in the past they Comparisons of pay levels against similarly experi- won’t want to stay. This applies to enced staff are very simple comparisons to make and, young men as well as women. of course, firms and partners need to take a pro-active Remember we have 10% more role in addition to the charter. women than men coming out of There will, naturally, be examples where there are law schools into the job market. genuine performance-based reasons for one person being Women are some of our top grad- paid more than another and some female staff will be uates and you don’t want to lose paid more than their male equivalent, just as it is the the opportunity to attract them other way round. to your workplace. If firms don’t However, checking where there is a disparity to ensure catch up they will lose talent to an that there is a genuine reason to accompany it should, organisation that is committed to and needs to be, undertaken to ensure accountability gender equality.” processes are in place. Charter signatories identifying these discrepancies will, we hope, correct unwarranted It is important Chris Moore: discrepancies.” for graduates “If I were a graduate I certainly to understand would be drawn to a firm or organi- What impact could the Gender Equality the values of sation which had a commitment to Charter have on the job search process? the firms they diversity and inclusion, including Do you think fourth year law students, and are considering gender equality. recent law graduates will look favourably as future I think it is important for gradu- on, for example, firms and in-house teams employers and ates to understand the values of the that have signed up to the Gender Equality I anticipate firms they are considering as future Charter? Do you believe this type of initiative that the charter employers and I anticipate that the is important to law students and graduates? will be one of charter will be one of a number a number of of initiatives that will be of great Kathryn Beck: initiatives that interest to students and graduates. “If I was a young talented graduate with a choice, I’d go will be of great I expect that question will be somewhere that presents as a current, modern, fresh interest to asked during recruitment processes. thinking and diverse workplace because that is what students and I appreciate that simply signing up the next generation of lawyers want. graduates. to the charter, in itself, proves very

39 PRACTICE March 2018 · LAWTALK 915

little. It is, of course, the behaviour which makes the be one of the reasons. A lot of them leave because of difference. the lack of flexibility in the work environment – not The ideal will be a time when we don’t even look to just from a family perspective but also a professional see whether one is a signatory; its objectives are satisfied perspective. Some of them felt that they could use naturally.” their skills and energy better elsewhere. It gets sapped out of them. The statistics show that over 60% of law The legal community has been running things a certain graduates are women, but this is not way for a really long time and they’re no longer best reflected in senior leadership positions in the practice. We need to change not just because women profession. Do you think the Gender Equality will leave, it’s because we are going to lose really good Charter can improve these figures? How? talent across the board – that includes men too.”

Kathryn Beck: Chris Moore: “The figures won’t change straight away, but what we “Unfortunately, I have witnessed women leaving the need to ensure is that we are not losing talented women profession for a number of reasons including lack of from the profession. So getting them into these senior appropriate advancement and lack of mainstreaming positions requires all of this change in culture I’ve been of flexible work practices. Unless we can change the talking about for a while. profession’s attitude and culture towards advancing A lot of women leave law after about five years. If women appropriately, we run the risk of losing talented we can retain more women past the five-year mark, women to other disciplines. it will begin to flow through to the senior positions, Put simply, why would you join a profession which partnerships and the Independent Bar. Visible pathways will not necessarily recognise your talents and ambitions and role models for women in law are essential to this. nor respond to them appropriately? I know that the progression I’ve been able to make was So, it is critical, for the quality and longevity of the only because there were women ahead of me who had it profession, that this issue is addressed now and in the much harder than I ever did. But it can’t just be women future. making the difference for women, men in senior posi- As a profession, matters of fairness and equity should tions in law also need to be stepping up too. be intuitive to lawyers and at the forefront of equal and All of these changes we’ve been talking about take efficient businesses that recognise and encourage their time to happen, but it’s been taking far too long and ‘people’ rather than distinguishing between men and that’s what the Gender Equality Charter seeks to speed women. These values should be fiercely guarded but up.” the lack of advancement of women in the profession indicates that our defence of these principles is not as Chris Moore: robust as it could be.” “As mentioned earlier, simply signing up to the Gender Equality Charter, on its own, does very little. However, Will your firms be signing up to those with a genuine commitment to the charter the Gender Equality Charter? should have a focus on meeting their commitments and deciding how best to implement them. This focus, Kathryn Beck: which is really a progress check, should assist. However, “Yes, and while most of our lawyers the biggest improvement will come from the actions at our firm, including the partners, evolving from the check where firms discover issues are women, we still have to consider and implement correcting actions reflecting aspirational all of the effects the Gender Equality and achievable benchmarks.” Charter will have on our business going forward.” During your career have you witnessed the The figures exit of promising female lawyers who quit won’t change Chris Moore: the profession largely because they felt the straight “Why wouldn’t you? This is about law sector portrayed itself as a man’s world? away, but testing your own behaviour and Statistics show that we have the pipeline of what we making sure you are taking steps talented female lawyers, but that the pipeline need to to ensure you are being fair. But is leaking. Why do you think women lawyers ensure is merely signing up to the charter in leave the law at a higher rate than men? that we are the absence of genuine, aspirational not losing behaviour will achieve little. So, Kathryn Beck: talented for those signing up, it is not about “We need to look at what we value and how we value women simply signing and congratulating it. Women that I know haven’t necessarily left just from the yourself for that but about what you because they couldn’t progress, but that would often profession. do from here.” ▪

40 LAWTALK 915 · March 2018 PRACTICE

PRACTICE Gender and Equality: an alternative view of the new policy on equitable engagement

BY JOANNA TREZISE

those who may not otherwise receive it, why the focus On 5 December 2017, the Gender Equitable on women? Is it truly equitable to rank disadvantage Engagement and Instruction Policy (Policy), promoted and find one category more deserving of assistance and managed by the New Zealand Bar Association and than another? the New Zealand Law Society, was launched. Its key Some may say it is because there are so many of objective is that Policy adopters “will use reasonable us that women are, and should be, this first focus. endeavours to have women lawyers with relevant Figures from the Law Society state that on 1 February, expertise take a lead on at least 30% of court pro- of the 13,087 lawyers currently practising in New ceedings, arbitral proceedings, and major regulatory Zealand, 6,546 are women, and 6,541 men. That’s just investigations” by 1 December 2018. Policy adopters over 50% of practitioners potentially being unfairly will be required to submit a report on steps taken and disadvantaged because of gender. However, my view is results achieved to the Law Society biennially. The Policy that, eventually, and without interference, the gender follows the implementation of comparable policies in percentages in the senior ranks will equalise just as other countries. those of the profession overall have equalised. Is it The February issue of LawTalk included an article necessary (or equitable) to attempt to artificially which canvassed some of the arguments in favour of accelerate this progression? the Policy: “Policy will result in more women taking the I appreciate that – in my opinion – the inevitable lead”, by Nick Butcher (page 61), and other coverage has gender equalisation in the senior ranks will take time, celebrated the development as an unequivocal success and that people don’t want to have to wait. Individual for our profession. My own feelings are mixed. This article women now may be disadvantaged, and may continue addresses some of my misgivings. to be disadvantaged for the entirety of their careers. It is true, of course, that women have historically That isn’t fair. But nor is it fair for the other groups who been disadvantaged in our profession because of gender. are also being disadvantaged and Whether directly by conscious bias, involuntarily by for whom no such action is being unconscious bias, or indirectly, as the result of choices taken. And nor, for that matter, is that women may be more likely to make. For example, it fair for the male practitioners women may be more likely to request flexible working Those from lower who may now be passed over for arrangements to accommodate family commitments, socio-economic opportunities purely for being a and many firms have been slow to accept that such an groups, Māori man. arrangement need not reduce an employee’s value to and other racial If, in the future, I am given the business. or cultural responsibility for a key task, a cen- minorities... those tral role on a high profile case or Other groups from the LGBTIQ investigation, neither I nor anyone However, many other groups are also disadvantaged community, else will ever know whether the by factors unconnected with merit. Those from lower and those with opportunity was given to me socio-economic groups, Māori and other racial or cultural disabilities. because I was regarded as the minorities, those who didn’t attend the “right” schools, Each of these most capable person for the job, or those from the LGBTIQ community, and those with dis- are also under- because it was necessary to meet a abilities. Each of these are also under-represented in the represented in quota. I acknowledge that, to some senior ranks of our profession. If quota systems are to be the senior ranks extent, this has been the case for employed as a means of ensuring fair consideration of of our profession. some time. But requiring firms to

41 PRACTICE March 2018 · LAWTALK 915

make a public commitment to a specific target feels different (which is, of course, the point). Does it matter? Some will ask, does it matter? If the opportunity I am given is one for which I am qualified and of which I am capable, does it matter if it was ultimately only given to me because I am a woman? It matters to me. Perhaps the adoption of initiatives such as the Policy mean that something important has been gained in our profession, but perhaps something important has been lost as well. Many of the obligations under the Policy are modest. Women in a lead role in 30% of court and arbitral proceedings and regulatory investi- gations by 1 December 2018 is hardly an outrageous goal, and Policy adopters need only show that they have used “reasonable endeavours” to reach it. Many of the details are phrased as encouraging nudges in the profession “shows barriers” to that the gender of the person being a certain direction rather than pre- the advancement of women in the advantaged is female). cise requirements: Policy adopters law, “risks sending the message” The above are my opinions only, should “use reasonable endeavours that women have less opportunity and may be atypical. However, as to identify women lawyers in the for advancement, and that those lawyers we are trained to recognise practice area relevant to the matter possibilities “may result” in a loss of and acknowledge complexity. It at issue” and “genuinely consider talent. These are imprecise rational- is rare for a decision to result in engaging or instructing (or, where isations for an initiative which may nothing but upside. I suggest that relevant, recommending) women result in the unfair treatment and this is just as true for the decision lawyers…” alienation of specific members of to implement the Policy as it is for However, the justification for our profession, and risks sending the any other. ▪ the Policy is similarly muted. It message that it is acceptable to make states that the under-representa- a promotional or work allocation Joanna Trezise is a solicitor based tion of women at the top end of decision based on gender (provided in Auckland.

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42 Snapshot of the Profession

AT 1 FEBRUARY 2018

After publishing statistics and information on the New Zealand legal profession in LawTalk throughout 2017, we have decided to revert to bringing them all together into an annual snapshot. Our snapshots - from 2011 to 2016, and now for 2018 - bring together information obtained from a number of sources, including practising certifi cates issued by the New Zealand Law Society. The objective is to present a picture of New Zealand’s practising lawyers at a point in time. While there are over 750 lawyers with New Zealand practising certifi cates based overseas, the Snapshot focuses on New Zealand only. Care has been taken to avoid publishing any identifying particulars of individual practitioners.

This year’s Snapshot shows information at 1 February 2018. For the fi rst time ever, the number of female lawyers exceeds the number of male lawyers. The legal profession also continues to grow: there has been a 16% increase in lawyer numbers since our fi rst Snapshot in 2011, when just 44.2% of lawyers were female. Purely by coincidence, the total number of female lawyers holding New Zealand Law Society-issued practising certifi cates was one ahead of the total number of male lawyers at 1 February 2018.

Compiled by Geoff Adlam Designed by Sophie Melligan SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

How many lawyers?

The number of New Zealand-based lawyers Lawyers in practice 13,087 continues to grow and has moved past 13,000. People per lawyer Another 756 are based overseas but hold a (Population of NZ) 10,552 practising certifi cate issued by the Law Society.

5517

2083

1214 1192 1112 595 408 371 511 785 1886 1906 1958 1988 2009 2018

Lawyers in In-house Sole Centre Barristers Unspecifi ed Total Female Male fi rms lawyers Practitioners

Auckland 3,410 1,146 715 416 57 5,744 2,775 2,969 Wellington 939 1,163 203 102 21 2,428 1,304 1,124 Christchurch 872 169 116 70 16 1,243 660 583 hamilton 329 86 61 36 8 520 281 239 Tauranga 214 40 33 21 6 314 160 154 Dunedin 186 33 44 25 4 292 153 139 Lower hutt 107 68 2 22 5 204 96 108 Nelson 124 7 13 26 3 173 81 92 Rotorua 93 15 15 15 0 138 70 68 Whangarei 92 9 16 15 1 133 64 69 Invercargill 110 6 5 7 0 128 60 68 Napier 80 20 14 10 1 125 51 74 New Plymouth 86 15 10 5 1 117 60 57 Palmerston North 70 15 7 23 0 115 46 69 Queenstown 74 4 4 6 0 88 51 37 hastings 57 8 6 5 0 76 36 40 Whanganui 45 4 3 10 1 63 26 37 Blenheim 46 3 8 2 0 59 28 31 Timaru 51 1 1 5 0 58 31 58 Gisborne 42 2 5 8 0 57 24 33 Porirua 28 7 5 11 1 52 29 23 Taupo 34 4 3 9 0 50 24 26 Whakatane 34 2 1 2 0 39 26 13 Ashburton 34 0 1 2 1 38 22 16 Rangiora 30 0 5 2 0 37 20 17

Other Centres 503 57 84 141 11 910 372 424

New Zealand-based 7,690 2,884 1,380 996 137 13,087 6,546 6,541

Overseas 445 237 23 26 25 756 376 380

Total 8,135 3,121 1,403 1,022 162 13,843 6,922 6,921

44 LAWTALK 915 · March 2018 SNAPSHOT OF THE PROFESSION

How many lawyers? Tauranga 314 F 51% M 49% The number of New Zealand-based lawyers Lawyers in practice 13,087 continues to grow and has moved past 13,000. People per lawyer Whangarei 133 F 48% M 52% Rotorua 138 Another 756 are based overseas but hold a (Population of NZ) 10,552 F 51% M 49% practising certifi cate issued by the Law Society. Auckland 5744 F 48% M 52% Gisborne 57 F 42% M 58% 5517 hamilton 520 F 54% M 46% 2083

1214 1192 1112 595 408 371 511 785 1886 1906 1958 1988 2009 2018 New Plymouth 117 F 51% M 49%

Lawyers in In-house Sole Whanganui 63 Centre Barristers Unspecifi ed Total Female Male F 41% M 59% fi rms lawyers Practitioners Napier 125 Auckland 3,410 1,146 715 416 57 5,744 2,775 2,969 Palmerston North 115 F 41% M 59% Wellington 939 1,163 203 102 21 2,428 1,304 1,124 F 40% M 60% Christchurch 872 169 116 70 16 1,243 660 583 hastings 76 hamilton 329 86 61 36 8 520 281 239 Nelson 173 F 48% M 53% F 47% M 53% Tauranga 214 40 33 21 6 314 160 154 Dunedin 186 33 44 25 4 292 153 139 Blenheim 59 Lower hutt 107 68 2 22 5 204 96 108 F 47% M 53% Nelson 124 7 13 26 3 173 81 92 Lower hutt 204 Rotorua 93 15 15 15 0 138 70 68 F 47% M 53% Whangarei 92 9 16 15 1 133 64 69 Invercargill 110 6 5 7 0 128 60 68 Wellington 2428 F 54% M 46% Napier 80 20 14 10 1 125 51 74 New Plymouth 86 15 10 5 1 117 60 57 Palmerston North 70 15 7 23 0 115 46 69 Queenstown 74 4 4 6 0 88 51 37 hastings 57 8 6 5 0 76 36 40 Christchurch 1243 Whanganui 45 4 3 10 1 63 26 37 F 53% M 47% Blenheim 46 3 8 2 0 59 28 31 Timaru 51 1 1 5 0 58 31 58 Timaru 58 F 53% M 47% Gisborne 42 2 5 8 0 57 24 33 Porirua 28 7 5 11 1 52 29 23 Queenstown 88 Taupo 34 4 3 9 0 50 24 26 F 58% M 42% Whakatane 34 2 1 2 0 39 26 13 Ashburton 34 0 1 2 1 38 22 16 Dunedin 292 Rangiora 30 0 5 2 0 37 20 17 F 52% M 48%

Other Centres 503 57 84 141 11 910 372 424 Invercargill 128 New Zealand-based 7,690 2,884 1,380 996 137 13,087 6,546 6,541 F 47% M 53%

Overseas 445 237 23 26 25 756 376 380

Total 8,135 3,121 1,403 1,022 162 13,843 6,922 6,921

45 SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

Entering the Legal Profession

The fi rst step in becoming a barrister and solicitor of the high Court is to complete a law degree. Statistics from the Ministry of Education show that 10,450 students were studying for law bachelors degrees in 2015 (the latest available statistics). More female students (58.6% of total law enrolments) were studying law than male students. The “typical” law student is aged between 20 to 24 (58.3% of all law enrolments).

STUDENTS STUDYING LAW, Students studying law, Students completing a 2015: BAChELORS DEGREES 2015: Bachelors degree bachelors degree in law, 2015

The 10,450 students enrolled for law Total: 10,450 Total: 1,470 in 2015 made up 8.2% of all 127,500 AGE students enrolled for bachelors degrees. A slightly higher proportion 2395 <20 0 F 61% M 39% F 0% M 0% of male students were enrolled in law (7.8% of 78,330 female students and 6090 20–24 1125 F 57% M 43% F 58% M 42% 8.8% of 49,170 male students were enrolled in law) and students of Asian 1425 25–39 280 F 58% M 42% F 58% M 41% ethnicity were more likely to choose law than students of other ethnicity 540 40+ 65 F 65% M 36% F 62% M 38% (10.6% of all Asian students were enrolled in law).

STUDENTS COMPLETING A BAChELORS DEGREE IN LAW, 2015

Most students complete their LLB when aged between 20 and 24 (76.5% of completions in 2015), and the majority (57.8%) are female.

The 1470 students who completed a bachelors degree in law in 2015 were 5.8% of all 25,205 students who completed bachelors degrees (5.3% of 16,080 female students and 6.8% of 9,130 male students).

A further 240 students (59% of whom were female and 69% aged 20 to 24) completed honours degrees and postgraduate certifi cates and diplomas in law in 2015. Most of these will have completed an LLB(hons) degree.

Ethnicity of students enrolled for LLB, 2015 Ethnicity of students completing LLB, 2015

= 1% = 1% 435 50 Other Other 875 100 Pacific Pacific 1210 160 Māori Māori 2355 340 Asian Asian

7005 1030 European European

46 LAWTALK 915 · March 2018 SNAPSHOT OF THE PROFESSION

COMPLETION OF LAW SChOOLS Entering the Legal Profession PROFESSIONAL LEGAL STUDIES New Zealand has six university law schools. All of them appeared in the 2017 QS World University Rankings. The rankings have been Admission as a barrister and solicitor of published annually since 2004 and use a three-component system The fi rst step in becoming a barrister and solicitor of the high Court is to complete a law degree. Statistics from the the high Court requires completion of to rank performance in specifi c academic disciplines, including law. Ministry of Education show that 10,450 students were studying for law bachelors degrees in 2015 (the latest available the professional legal studies (“profs”) Individual rankings are given for the top 50. The 2018 rankings are statistics). More female students (58.6% of total law enrolments) were studying law than male students. The “typical” course. This is the responsibility of likely to be published later this month. law student is aged between 20 to 24 (58.3% of all law enrolments). the New Zealand Council of Legal Education. The Council only publishes statistics for students who participate QS World Rankings for Law 2017: STUDENTS STUDYING LAW, Students studying law, Students completing a in its Institute of Professional Legal New Zealand Law Schools 2015: BAChELORS DEGREES 2015: Bachelors degree bachelors degree in law, 2015 Studies (IPLS) course (another course is provided by the Australian organisation 2016 2017 The 10,450 students enrolled for law Total: 10,450 Total: 1,470 College of Law). This means the  in 2015 made up 8.2% of all 127,500 AGE number of students participating in and students enrolled for bachelors completing profs each year is unknown.  degrees. A slightly higher proportion 2395 <20 0 The College of Law’s New Zealand F 61% M 39% F 0% M 0%  of male students were enrolled in law website (at 19 February 2018) states that 32 (7.8% of 78,330 female students and 6090 20–24 1125 it is "New Zealand's leading provider Auckland University 36 F 57% M 43% F 58% M 42%  Auckland University 8.8% of 49,170 male students were of Professionals Training", which would 46 enrolled in law) and students of Asian 1425 25–39 280 appear to indicate that more students  Victoria University F 58% M 42% F 58% M 41% ethnicity were more likely to choose participate in this course. law than students of other ethnicity 540 40+ 65 F 65% M 36% F 62% M 38% (10.6% of all Asian students were The latest annual report available from Law School Ranking 2016 Ranking 2017 enrolled in law). the Council of Legal Education, for University of Auckland 32 36 the 2016 calendar year, says 61% of Victoria University of Wellington 51-100 46 trainees enrolled in the IPLS course University of Otago 51-100 51-100 in 2016 were female, while 82% of University of Canterbury 51-100 101-150 STUDENTS COMPLETING A BAChELORS DEGREE IN LAW, 2015 those completing the course were University of Waikato 151-200 201-250 aged in their twenties, and 66% were Auckland University of Technology Not Ranked 251-300 Most students complete their LLB when aged between 20 and 24 (76.5% of completions in 2015), and the majority of European ethnicity, 14% Asian, 8% (57.8%) are female. Māori, 8% Pacifi c and 4% Other.

The 1470 students who completed a bachelors degree in law in 2015 were 5.8% of all 25,205 students who completed bachelors degrees (5.3% of 16,080 female students and 6.8% of 9,130 male students). Average years since admission, New RETENTION Zealand-based lawyers (years) A further 240 students (59% of whom were female and 69% aged 20 to 24) completed honours degrees and postgraduate certifi cates and diplomas in law in 2015. Most of these will have completed an LLB(hons) degree. New Zealand-based lawyers who Female Male Total were practising at 1 February 2018 had 21.7 been in practice for an average of 17.7 Barristers 26.0 years. There was a big difference 29.1 Ethnicity of students enrolled for LLB, 2015 Ethnicity of students completing LLB, 2015 between female and male lawyers, In-house 14.5 with female lawyers in practice for 15.2 lawyers 16.2 an average of and male = 1% = 1% 13.3 years lawyers for an average of 21.8 years. Law fi rm 21.5 435 50 26.1 Other Other partners 27.0 875 100 Pacific Pacific Law fi rm 17.3 22.2 1210 160 directors 25.1 Māori Māori

2355 340 Law fi rm 8.2 Asian Asian 9.9 employees 12.2

Sole 24.0 30.9 practitioners 34.1 7005 1030 European European 13.3 All lawyers 17.7 21.8

47 SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

ADMISSION AS BARRISTERS Female vs Male admissions as barristers AND SOLICITOR and solicitors 1980 – 2017 622 615 Admission of those who qualify to 610 Female 583 become barristers and solicitors of 576 the high Court occurs throughout Male 485 the year. The number of female law graduates admitted has exceeded the 361 392 number of male graduates since 1993. 349 360 377 370 With around 1710 people completing 344 338 234 an LLB or LLB(hons) degree each 286 225 year, it appears that about 60% 234 of law graduates are admitted as 170 barristers and solicitors. 102

1980 1985 1990 1995 2000 2005 2010 2015 2016 2017 M 80.0% 78.9% F 77.8% F 61% 63% 61% 61% 62% 57% 51% 46% 42% 26%

F

Ethnicity

MAIN EThNICITY SELECTIONS, 1 FEBRUARY 2018

All lawyers are now required to provide information on ethnicity (with the option of refusing to state). The proportion of New Zealand-based lawyers who identify with an ethnicity option presented by the Law Society is shown for the most-selected options. Note that lawyers may identify with more than one ethnicity: F 7.3% 6.1% F 5.9% F 5.7% M 5.5% M 5.0% F 3.8% F 3.3% M 2.7% F 2.5% F 2.2% F 2.1% F M 2.0% 1.8% F 1.7% F M 1.4% 1.3% M 1.0%

European Māori Other Chinese Indian Samoan Other European Asian

48 LAWTALK 915 · March 2018 SNAPSHOT OF THE PROFESSION

ADMISSION AS BARRISTERS Female vs Male admissions as barristers AND SOLICITOR and solicitors 1980 – 2017 Gender Age 622 615 Admission of those who qualify to 610 Female 583 become barristers and solicitors of 576 Information on the gender of New Zealand’s Lawyers have the option of providing the Law the high Court occurs throughout Male lawyers is included in most of the sections in this Society with their age. Of the 80% who have 485 the year. The number of female law Snapshot. As there are now more women practising provided their birth date: graduates admitted has exceeded the law than men, it’s worth recording the change. New 361 392 number of male graduates since 1993. 349 Zealand’s fi rst male lawyer, Richard hanson, landed 360 377 370 With around 1710 people completing 344 338 at Petone on 3 January 1840. Our fi rst female lawyer, AVERAGE AGE OF ALL LAWYERS 234 an LLB or LLB(hons) degree each 286 225 Ethel Benjamin, was admitted on 10 May 1897 after year, it appears that about 60% 234 passage of the Female Law Practitioners Act 1896. of law graduates are admitted as 170 The New Zealand Law Society’s annual report 42.0 YEArS barristers and solicitors. recorded the gender of practitioners for the fi rst 102 time in 1977, noting that 168 practising certifi cates out of 3680 were held by female lawyers. AVERAGE AGE OF AVERAGE AGE OF FEMALE LAWYERS MALE LAWYERS In our fi rst Snapshot, published in 2011, we 1980 1985 1990 1995 2000 2005 2010 2015 2016 2017 38.0 YEArS 45.9 YEArS predicted that the “typical” New Zealand lawyer - a

M 80.0% male - would change gender in 2018. That has 78.9%

F 77.8% F happened. Given the continued dominance of 61% 63% 61% 61% 62% 57% AVERAGE AGE OF AVERAGE AGE OF 51% female lawyers entering the profession and the fact 46% 42% that male lawyers make up over 94% of the 998 BARRISTERS IN-hOUSE LAWYERS 26% lawyers who have practised for 40 years or more 53.1 YEArS 40.5 YEArS (and who are therefore nearing retirement age), it F is quite possible that the proportion of lawyers who are female could rise by at least one percent a year into the future. We make no predictions, however. AVERAGE AGE OF AVERAGE AGE OF PARTNERS DIRECTORS

Proportion of practising 49.0 YEArS 49.4 YEArS Ethnicity lawyers who are female

1977 4.6% AVERAGE AGE OF AVERAGE AGE OF MAIN EThNICITY SELECTIONS, 1 FEBRUARY 2018 SOLE PRACTITIONERS MĀORI LAWYERS 1980 6.9% 57.6 YEArS 39.3 YEArS All lawyers are now required to provide information on ethnicity (with 1985 12.3% the option of refusing to state). The proportion of New Zealand-based lawyers who identify with an ethnicity option presented by the Law 1990 20.8% Society is shown for the most-selected options. Note that lawyers AVERAGE AGE OF AVERAGE AGE OF may identify with more than one ethnicity: 1995 27.0% ChINESE LAWYERS INDIAN LAWYERS

2000 34.0% 39.1 YEArS 41.0 YEArS

2005 39.0% AVERAGE AGE OF AVERAGE AGE OF NZ 2010 43.9% SAMOAN LAWYERS EUROPEAN LAWYERS 2015 46.9% 41.2 YEArS 42.9 YEArS

2018 50.01% F 7.3% 6.1% F 5.9% F 5.7% M 5.5% M 5.0% F 3.8% F 3.3% M 2.7% F 2.5% F 2.2% F 2.1% F M 2.0% 1.8% F 1.7% F M 1.4% 1.3% M 1.0%

European Māori Other Chinese Indian Samoan Other European Asian

49 SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

Types of Practice

GENERATIONAL GROUPING New Zealand’s lawyers can be grouped into three areas of practice: barristers and solicitors, barristers While the boundaries aren’t strictly defi ned, there sole (and Queen’s Counsel) and in-house lawyers. are four widely-used tags which defi ne people by This analysis subdivides barristers and solicitors into their generation. Using the rough consensus that two different groups: those who are the only lawyer Baby boomers were born between 1946 and 1964, practising in a fi rm (sole practitioners) and those who Generation X from 1965 to the end of the 1970s and practise in a law fi rm with two or more other lawyers Millennials in the 1980s and 1990s, New Zealand- (multi-lawyer fi rms). The information excludes based lawyers can be defi ned as follows: lawyers who are not practising in New Zealand.

Generational Grouping, Pre-Baby Boomer Barristers New Zealand-based Baby Boomer lawyers at 1 Feb 2018 Generation X Millennial The number of people practising as barristers has fallen by 12% since 2011, when they made up 13.9% of New Zealand lawyers. A much higher proportion All 20.2% 33.8% 44.6% Lawyers than for all lawyers - 61.3% - of barristers are male. 1.4% 10.5% of New Zealand lawyers. Barristers 47.5% 33.8% 10.8% 26 average years in practice all barristers

3.3% 21 years 8 months average female barristers 28 years 10 months average male barristers In-house 11.6% 44.8% 43.3% lawyers 0.3% Barristers as % of New Zealand Lawyers 7.5% 20.8% 70.9% practising certificates issued in Firms

0.8% 13.6% 12.6% Partners & 11.3% 32.9% 50.9% 14.5% 11.0% 10.5% Directors 8.4% 1.7%

Sole 4.5% 62.4% 28.7% Practice 5.4% 3.5%

1990 1995 2000 2005 2010 2015 2018 Female 12.0% 35.5% 52.3%

0.2% New Zealand-based barristers by

Male 29.9% 31.7% 35.5% year practising, 1 February 2018 Total 2.9%

0–9 10–19 20–29 30–39 40–49 50+ 7.7% 27.0% 29.6% 21.6% 11.7% 2.3%

Female

0–9 10–19 20–29 30–39 40–49 50+ 9.4% 38.0% 32.8% 17.4% 2.2% 0.2%

Male

0–9 10–19 20–29 30–39 40–49 50+ 6.6% 20.1% 27.7% 24.2% 17.7% 3.7%

50 LAWTALK 915 · March 2018 SNAPSHOT OF THE PROFESSION

Types of Practice Queen's Counsel

GENERATIONAL GROUPING New Zealand’s lawyers can be grouped into three Location of barristers, 1 February 2018 Among the 1380 barristers practising areas of practice: barristers and solicitors, barristers in New Zealand at 1 February were While the boundaries aren’t strictly defi ned, there sole (and Queen’s Counsel) and in-house lawyers. 123 Queen’s Counsel. Since 1907 hamilton are four widely-used tags which defi ne people by This analysis subdivides barristers and solicitors into 4.4% when the fi rst (King’s) Counsel were their generation. Using the rough consensus that two different groups: those who are the only lawyer Christchurch appointed in New Zealand, there Baby boomers were born between 1946 and 1964, practising in a fi rm (sole practitioners) and those who 8.4% have been just 307 appointments to Generation X from 1965 to the end of the 1970s and practise in a law fi rm with two or more other lawyers the role - meaning that 40% are still Millennials in the 1980s and 1990s, New Zealand- (multi-lawyer fi rms). The information excludes practising law, with a further 29 (9%) based lawyers can be defi ned as follows: lawyers who are not practising in New Zealand. Wellington Auckland sitting as members of the judiciary. 14.7% 51.8% Of QC appointments since 1907, 273 Pre-Baby Boomer Generational Grouping, Barristers (88.9%) have been male (with 100 Baby Boomer New Zealand-based still in practice) and 34 female (23 of lawyers at 1 Feb 2018 Generation X Millennial The number of people practising as barristers has whom are still in practice). fallen by 12% since 2011, when they made up 13.9% of New Zealand lawyers. A much higher proportion Since the fi rst women - Elias CJ and All All New Zealand 20.2% 33.8% 44.6% than for all lawyers - 61.3% - of barristers are male. Goddard J - were appointed QC Lawyers 20.7% 1.4% on 4 March 1988, the average time 10.5% of New Zealand lawyers. in practice before appointment for Barristers 47.5% 33.8% 10.8% 26 average years in practice all barristers female QCs has been 24 years and

3.3% 21 years 8 months average female barristers 2 months. Since the 1984 round 28 years 10 months average male barristers of appointments, the average time In-house 11.6% 44.8% 43.3% Most-practised areas of law by barristers lawyers in practice before appointment for 0.3% male QCs has been 27 years and Barristers as % of New Zealand Barristers who provide information on their areas of 4 months. At 1 February 2018, 223 Lawyers 7.5% 20.8% 70.9% practising certificates issued in Firms practice are most likely to specialise in criminal law female barristers (42% of all female and civil litigation (no surprises here). barristers) had been admitted before 0.8% 13.6% 12.6% the average time in practice before Partners & 11.3% 32.9% 50.9% 14.5% 11.0% 10.5% Directors appointment, and 459 (54%) male 8.4% Spends more than 50% of the time Spends some time 1.7% barristers.

Sole 4.5% 62.4% 28.7% Practice Civil Litigation Data on appointments supplied by 5.4% 3.5% 21.5% 57.8% the Crown Law Offi ce shows that 1075 applications for silk have 1990 1995 2000 2005 2010 2015 2018 Female 12.0% 35.5% 52.3% Criminal Law been made since 2002, with 110

0.2% 27.7% 48.8% appointments in that time - a New Zealand-based barristers by “success rate” of around 10% (this Male 29.9% 31.7% 35.5% year practising, 1 February 2018 Family Law includes some multiple applicants). Total 2.9% 17.2% 37.0% Appointments 1075 Employment Law Applicants 918 0–9 10–19 20–29 30–39 40–49 50+ 4.3% 25.8% 7.7% 27.0% 29.6% 21.6% 11.7% 2.3% Mediation Female 3.5% 25.5%

0–9 10–19 20–29 30–39 40–49 50+ 9.4% 38.0% 32.8% 17.4% 2.2% 0.2%

Male 157 84 110 26 0–9 10–19 20–29 30–39 40–49 50+ 6.6% 20.1% 27.7% 24.2% 17.7% 3.7% Female Male Total

51 SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

In-house Lawyers

The number of in-house lawyers practising in Location of in-house lawyers, New Zealand continues to grow. Female lawyers 1 February 2018 dominate the in-house side of the profession, making up 61.4% of in-house lawyers. With many in-house lawyers working in government, the result is a very high proportion 21.6% of New Zealand-based lawyers (2884 (40.3%) of all in-house lawyers being located in in-house lawyers) Wellington. Almost half of the lawyers who work in 15 years 2 months average in practice all Wellington are in-house lawyers. in-house lawyers 14 years 5 months average female in-house lawyers Proportion of lawyers working in-house 16 years 2 months average male in-house lawyers Napier 16.0% Wellington In-house lawyers as % of New Zealand 47.9% practising certificates issued hamilton 16.5% 21.2% 21.6% 18.7% 19.3% 17.0%

Auckland 12.2% 20.0%

All New Zealand Lower hutt 21.6% 33.3% 1995 2000 2005 2010 2015 2018

With some notable exceptions, New Zealand In-house lawyers by business of in-house lawyers tend to work in small teams and employer, 1 February 2018 can be found in 906 separate offi ces across the country, giving an average of 3.2 in-house In-house lawyers work in several distinct areas of lawyers per location. business. The government sector employs just over half. The number of in-house lawyers working in local government has shown an increase over the New Zealand-based in-house lawyers last few years. by year practising, 1 February 2018

Academic 1.7% Total

Commercial Enterprise

34.8% 0–9 10–19 20–29 30–39 40–49 50+ 33.8% 36.9% 22.2% 5.8% 1.0% 0.1% Community Law Female 3.3%

Government 51.4% 0–9 10–19 20–29 30–39 40–49 50+ 34.0% 39.3% 22.0% 4.4% 0.3% 0.0%

Local Government Male 4.7%

Other 0–9 10–19 20–29 30–39 40–49 50+ 4.1% 33.7% 33.1% 22.6% 8.1% 2.2% 0.4%

52 LAWTALK 915 · March 2018 SNAPSHOT OF THE PROFESSION

In-house Lawyers Lawyers in multi-lawyer firms Structure of law firms, 1 february 2018

The number of in-house lawyers practising in Location of in-house lawyers, Over half of New Zealand’s lawyers work in law Since the Lawyers and Conveyancers Act came into New Zealand continues to grow. Female lawyers 1 February 2018 fi rms. The data collected by the Law Society effect, lawyers have had the option of incorporating dominate the in-house side of the profession, categorises lawyers as either “employed” or those their fi rms. There has been a steady rise in the making up 61.4% of in-house lawyers. With many in-house lawyers working in who are partners or directors of law fi rms. There proportion of incorporated fi rms, although government, the result is a very high proportion are a number of lawyers who have been partners or incorporation is still very much an action taken by 21.6% of New Zealand-based lawyers (2884 (40.3%) of all in-house lawyers being located in directors but who have retired from the partnership smaller fi rms. The largest incorporated law fi rm in-house lawyers) Wellington. Almost half of the lawyers who work in but continue to practise at the fi rm - usually as a currently has nine directors. At 1 February 2016, 15 years 2 months average in practice all Wellington are in-house lawyers. “consultant”. Such lawyers may be employed by the 23% of New Zealand’s law fi rms were incorporated. in-house lawyers fi rm. Branches of law fi rms have been consolidated There has since been a rise of 28% in the number of 14 years 5 months average female in-house in this analysis. incorporated fi rms, which now make up29% of all lawyers Proportion of lawyers working in-house New Zealand law fi rms (including sole practices). 16 years 2 months average male in-house At 1 February 2018 there were almost exactly the lawyers Napier same number of men and women in multi-lawyer Incorporated Partnership 0 # of firms 16.0% fi rms:3846 men and 3844 women. Wellington Multi-lawyer firms (# of Partners/Directors) In-house lawyers as % of New Zealand 47.9% 58.8% of New Zealand-based lawyers 20+ 0.0% 14 100% practising certificates issued hamilton The average lawyer in a law fi rm has spent15 16.5% years 6 months in practice. 10–19 0.0% 18 100% 21.2% 21.6% 18.7% 19.3% 4–9 33 22% 119 78% 17.0% Lawyers in multi-lawyer firms, 1 February 1–3 303 39% 479 61% Auckland 12.2% 20.0% Sole 240 24% 756 76% Practice Employers 63.0% of total Female Male Total 576 29% 1386 71% All New Zealand Lower hutt 21.6% 33.3% 1995 2000 2005 2010 2015 2018 Most-practised areas of law by lawyers With some notable exceptions, New Zealand F M working in multi-lawyer firms In-house lawyers by business of in-house lawyers tend to work in small teams and 61.2% 38.8% employer, 1 February 2018 can be found in 906 separate offi ces across Spends more than 50% of the time the country, giving an average of 3.2 in-house In-house lawyers work in several distinct areas of lawyers per location. Spends some time business. The government sector employs just over half. The number of in-house lawyers working in Company/Commercial New Zealand-based in-house lawyers local government has shown an increase over the 16.5% 56.6% last few years. by year practising, 1 February 2018 Directors 11.9% of total Property Academic 19.6% 52.2% 1.7% Total F M Trusts/Estates Commercial Enterprise 38.0% 62.0% 6.4% 44.9% 34.8% 0–9 10–19 20–29 30–39 40–49 50+ 33.8% 36.9% 22.2% 5.8% 1.0% 0.1% Civil Litigation Community Law Female 11.5% 34.7% 3.3% Partners 25.1% of total Family Government 9.2% 31.4% 51.4% 0–9 10–19 20–29 30–39 40–49 50+ 34.0% 39.3% 22.0% 4.4% 0.3% 0.0%

Local Government Male F M 27.5% 72.5% 4.7%

Other 0–9 10–19 20–29 30–39 40–49 50+ 4.1% 33.7% 33.1% 22.6% 8.1% 2.2% 0.4%

53 SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

Multi-Lawyer firm roles by years When viewed from the perspective of partner/ of practice, 1 February 2018 directors and employed lawyers, New Zealand’s multi-lawyer fi rms fall into several distinct sizes: EMPLOYEES Total Proportion of partners/directors

Partners/Directors per firm

0–9 10–19 20–29 30–39 40–49 50+ Total practising certificates per firm 66.7% 20.6% 5.2% 3.5% 3.2% 0.8% Female Multi-lawyer firms (# of Partners/Directors) 488 3.1 14 20+ Prac. Certs. per Number 1516 Partner /Director of Firms

0–9 10–19 20–29 30–39 40–49 50+ 234 1.7 18 68.1% 23.1% 5.8% 2.6% 0.4% 0.0% 10–19 Prac. Certs. per Number Male 391 Partner /Director of Firms

798 1.5 152 4–9 Prac. Certs. per Number 1182 Partner /Director of Firms

0–9 10–19 20–29 30–39 40–49 50+ 1324 64.4% 16.5% 4.3% 5.1% 7.6% 2.2% 1.3 782 1–3 Prac. Certs. per Number 1757 Partner /Director of Firms PARTNERS AND DIRECTORS Total 2844 1.7 966 Total Prac. Certs. per Number 4846 Partner /Director of Firms

0–9 10–19 20–29 30–39 40–49 50+ 7.6% 30.8% 29.6% 20.6%10.3%1.0% Female Proportion of female in multi-lawyer firms

Female Partners/Directors Female Employees

0–9 10–19 20–29 30–39 40–49 50+ Multi-lawyer firms (# of Partners/Directors) 11.5% 43.9% 31.3% 11.5% 1.8% 0.0% 136 Male 27.9% 20+ 925 61.0%

71 30.3% 10–19 252 0–9 10–19 20–29 30–39 40–49 50+ 64.5% 5.9% 25.0% 28.8% 24.7% 14.1% 1.4% 222 27.8% 4–9 723 61.2% The number of law fi rms in New Zealand continues 450 to grow. In 2013 there were 905 fi rms with more 34.0% 1–3 than one lawyer. This has risen by 6.7% over fi ve 1065 60.6% years to 966.

879 30.9% Total 4846 61.2%

54 LAWTALK 915 · March 2018 SNAPSHOT OF THE PROFESSION

Multi-Lawyer firm roles by years Sole Practice When viewed from the perspective of partner/ Location of practice, 1 February 2018 directors and employed lawyers, New Zealand’s multi-lawyer fi rms fall into several distinct sizes: half of New Zealand’s law fi rms have just one EMPLOYEES practising lawyer. Of the 996 sole practitioners, Total 68.3% are male. Lawyers work in over 150 locations around the Proportion of partners/directors country. Wellington, with a large number of in-house 7.6% of New Zealand-based lawyers lawyers, has the most lawyers per head of population Partners/Directors per firm 30 years 11 months average time in practice all at one for every 84 inhabitants, compared to one sole practitioners for every 371 nationwide. Auckland dominates, with 0–9 10–19 20–29 30–39 40–49 50+ Total practising certificates per firm 66.7% 20.6% 5.2% 3.5% 3.2% 0.8% 24 years 0 months average for female sole nearly 44% of all New Zealand-based lawyers in the Female practitioners Auckland Council area. Multi-lawyer firms (# of Partners/Directors) 34 years 1 month average for male sole 488 3.1 14 20+ Prac. Certs. per Number practitioners. Since 2011, New Zealand-based lawyer numbers 1516 Partner /Director of Firms have risen by 16.4%, with an extra 1843 lawyers now practising. Much of this growth has been 0–9 10–19 20–29 30–39 40–49 50+ 234 1.7 18 Sole practitioners by years 68.1% 23.1% 5.8% 2.6% 0.4% 0.0% driven by Auckland, where an additional 1236 10–19 Prac. Certs. per Number practising, 1 February 2018 Male 391 Partner /Director of Firms lawyers have moved into practice since 2011. There are major divergences between centres, Total 798 1.5 152 with 18 centres showing growth in lawyer numbers 4–9 Prac. Certs. per Number 1182 Partner /Director of Firms above the national average. Ashburton continues to show the biggest increase in lawyer numbers, with 0–9 10–19 20–29 30–39 40–49 50+ 1324 0–9 10–19 20–29 30–39 40–49 50+ 64.4% 16.5% 4.3% 5.1% 7.6% 2.2% 1.3 782 Kaikohe, Queenstown and Tauranga also showing big 1–3 Prac. Certs. per Number 4.3% 17.7% 22.8% 29.8% 20.8% 4.6% 1757 Partner /Director of Firms increases. On the other hand, eight centres - led by PARTNERS AND DIRECTORS Female Alexandra and Upper hutt - have shown a decline in Total lawyer numbers. 2844 1.7 966 Total Prac. Certs. per Number 4846 Partner /Director of Firms 0–9 10–19 20–29 30–39 40–49 50+ Biggest increases in lawyer numbers, 7.3% 29.4% 34.8% 25.3% 3.2% 0% 2011–2018 (10 lawyer minimum in 2018) Male 0–9 10–19 20–29 30–39 40–49 50+ Centre 2011 2018 Increase 7.6% 30.8% 29.6% 20.6%10.3%1.0% Ashburton 23 38 65.2% Female Proportion of female in multi-lawyer firms Kaikohe 11 17 54.5% 0–9 10–19 20–29 30–39 40–49 50+ havelock North 8 12 50.0% Female Partners/Directors Female Employees 2.9% 12.2% 17.2% 31.8% 29.0% 6.8% Queenstown 61 88 44.3% Tauranga 222 314 41.4% 0–9 10–19 20–29 30–39 40–49 50+ Multi-lawyer firms (# of Partners/Directors) 11.5% 43.9% 31.3% 11.5% 1.8% 0.0% Gore 8 11 37.5% 136 Most-practised areas of law Male 27.9% Rangiora 27 37 37.0% 20+ 925 by sole practitioners Paraparaumu 25 34 36.0% 61.0% Kaitaia 9 12 33.3% 71 Spends more than 50% of the time 30.3% hamilton 401 520 29.7% 10–19 252 Spends some time 0–9 10–19 20–29 30–39 40–49 50+ 64.5% Auckland 4508 5744 27.4% 5.9% 25.0% 28.8% 24.7% 14.1% 1.4% 222 27.8% Property 4–9 723 Biggest decreases in lawyer numbers, 61.2% 21.7% 67.3% The number of law fi rms in New Zealand continues 2011–2018 (10 lawyer minimum in 2018) 450 to grow. In 2013 there were 905 fi rms with more 34.0% Company/Commercial 1–3 Centre 2011 2018 Decrease than one lawyer. This has risen by 6.7% over fi ve 1065 60.6% 11.1% 63.1% years to 966. Alexandra 17 13 -23.5% Upper hutt 31 24 -22.6% 879 Trusts/Estates 30.9% Orewa 18 15 -16.7% Total 3.0% 60.2% 4846 Porirua 60 52 -13.3% 61.2% Family Kerikeri 27 25 -7.4% Waikanae 18 17 -5.6% 13.8% 56.5% hastings 80 76 -5.0% Civil Litigation Levin 21 20 -4.8% 5.6% 42.9% Cambridge 22 22 0.0% Feilding 11 11 0.0%

55 SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

Lawyers per head of population Areas of practice The population is calculated on that of the urban area, and it’s important to note that some centres may be adequately serviced from other centres All lawyers are invited to provide information on close by. the areas in which they practise by estimating the proportion of time spent in each of 23 areas of practice. This information is used to assist consumers in their selection of the lawyer in the Law Society’s Find a Lawyer service. Just over 75% of lawyers have provided information on their areas of practice and the analysis below is therefore hIGhEST LOWEST indicative only. A very high proportion of the PROPORTION OF PROPORTION OF lawyers who do not provide information are lawyers LAWYERS LAWYERS who have been in practice for less than 10 years. Wellington 84:1 Kawerau 3351:1 Queenstown 119:1 Opotiki 2135:1 Most practised area by ethnicity Kerikeri 226:1 huntly 2025:1 Kaikohe 260:1 Motueka 1871:1 Warkworth 272:1 Tokoroa 1785:1 Company/Commercial Chinese 54.6% Auckland 273:1 Upper hutt 1777:1 Indian 44.3% Māori 31.5% Nelson 289:1 Feilding 1445:1 NZ European 45.2% hamilton 294:1 Dannevirke 1313:1 Samoan 22.0%

Gore 1101:1 Property Porirua 1079:1 Chinese 49.1% Indian 40.4% Māori 29.7% NZ European 38.7% Samoan 22.0% Experience by location Trusts/Estates Another measure for lawyers in centres is by the Chinese 40.2% Indian 35.3% proportion of lawyers who have been in practice Māori 27.4% NZ European 33.2% for a certain time. The information below excludes Samoan 22.0% centres with fewer than 10 lawyers. Civil Litigation Chinese 24.4% Indian 34.9% Māori 29.2% NZ European 32.9% Samoan 19.3%

Family Chinese 29.0% Indian 36.6% MOST EXPERIENCED NEWEST LAWYERS Māori 28.0% NZ European 26.6% Highest proportion of Highest proportion of Samoan 42.7% lawyers who have been lawyers who have been Employment in practice for 40 years in practice for 9 years Chinese 22.0% Indian 27.2% or more. or less. Māori 24.5% NZ European 24.4% Feilding 45.5% Whakatane 51.3% Samoan 25.3% Warkworth 36.8% Te Awamutu 45.2% havelock North 33.3% Queenstown 43.2% Criminal Chinese 15.9% Thames 31.3% Morrinsville 42.9% Indian 28.5% Māori 29.1% Mount Ashburton 42.1% NZ European 18.9% Samoan 38.7% Maunganui 29.6% Orewa 40.0% Wanaka 26.1% hamilton 38.3% Immigration Matamata 25.0% Auckland 37.4% Chinese 27.4% Indian 25.1% Levin 25.0% Wellington 37.1% Māori 4.9% NZ European 3.7% Waikanae 23.5% Rotorua 37.0% Samoan 16.7% Practises some Morrinsville 21.4% All New Zealand 35.5% of the time All New Zealand 7.7%

56 LAWTALK 915 · March 2018 SNAPSHOT OF THE PROFESSION

Lawyers per head of population Areas of practice The population is calculated on that of the urban area, and it’s important to note that some centres may be adequately serviced from other centres All lawyers are invited to provide information on Most practised area by gender close by. the areas in which they practise by estimating the proportion of time spent in each of 23 areas Company/Commercial of practice. This information is used to assist consumers in their selection of the lawyer in the All 49.0% 14.5% Law Society’s Find a Lawyer service. Just over 75% Female 38.2% 13.7% Male 58.3% 15.3% of lawyers have provided information on their areas of practice and the analysis below is therefore Property hIGhEST LOWEST indicative only. A very high proportion of the All 42.1% 14.4% PROPORTION OF PROPORTION OF lawyers who do not provide information are lawyers Female 34.5% 14.2% LAWYERS LAWYERS who have been in practice for less than 10 years. Male 48.7% 14.6% Wellington 84:1 Kawerau 3351:1 Trusts/Estates Queenstown 119:1 Opotiki 2135:1 Most practised area by ethnicity 36.2% 4.6% Kerikeri 226:1 huntly 2025:1 All Female 38.2% 5.7% Kaikohe 260:1 Motueka 1871:1 Male 48.7% 3.7% Warkworth 272:1 Tokoroa 1785:1 Company/Commercial Chinese 54.6% Auckland 273:1 Upper hutt 1777:1 Indian 44.3% Civil Litigation Māori 31.5% Nelson 289:1 Feilding 1445:1 NZ European 45.2% All 36.0% 10.9% Samoan 22.0% hamilton 294:1 Dannevirke 1313:1 Female 28.6% 9.5% Male 42.6% 12.1% Gore 1101:1 Property Porirua 1079:1 Chinese 49.1% Indian 40.4% Family Māori 29.7% NZ European 38.7% All 30.2% 9.4% Samoan 22.0% Female 31.4% 15.0% Experience by location Male 29.1% 4.6% Trusts/Estates Another measure for lawyers in centres is by the Chinese 40.2% Indian 35.3% Employment proportion of lawyers who have been in practice Māori 27.4% NZ European 33.2% All 27.3% 4.8% for a certain time. The information below excludes Samoan 22.0% Female 23.4% 5.8% centres with fewer than 10 lawyers. Male 30.5% 4.0% Civil Litigation Chinese 24.4% Indian 34.9% Criminal Māori 29.2% NZ European 32.9% All 22.2% 9.1% Samoan 19.3% Female 19.4% 8.6% Male 24.6% 9.6% Family Chinese 29.0% Indian 36.6% Administrative/Public MOST EXPERIENCED NEWEST LAWYERS Māori 28.0% NZ European 26.6% All 16.9% 3.2% Practises some of the time Samoan 42.7% Highest proportion of Highest proportion of Female 14.4% 3.7% Male 19.1% 2.6% Practises over 50% of the time lawyers who have been lawyers who have been Employment in practice for 40 years in practice for 9 years Chinese 22.0% Indian 27.2% Intellectual Property or more. or less. Māori 24.5% NZ European 24.4% All 14.6% 2.5% Feilding 45.5% Whakatane 51.3% Samoan 25.3% Female 10.4% 2.7% Warkworth 36.8% Te Awamutu 45.2% Male 18.1% 2.3% havelock North 33.3% Queenstown 43.2% Criminal Chinese 15.9% Thames 31.3% Morrinsville 42.9% Indian 28.5% resource Management Māori 29.1% Mount Ashburton 42.1% NZ European 18.9% All 14.1% 3.3% Samoan 38.7% Maunganui 29.6% Orewa 40.0% Female 11.4% 4.2% Male 16.5% 2.6% Wanaka 26.1% hamilton 38.3% Immigration Matamata 25.0% Auckland 37.4% Chinese 27.4% Indian 25.1% Levin 25.0% Wellington 37.1% Māori 4.9% NZ European 3.7% Waikanae 23.5% Rotorua 37.0% Samoan 16.7% Practises some Morrinsville 21.4% All New Zealand 35.5% of the time All New Zealand 7.7%

57 SNAPSHOT OF THE PROFESSION March 2018 · LAWTALK 915

Legal Services industry

Total income from the sale of legal Annual Enterprise Survey, Legal Services, services in New Zealand rose strongly year to 30 September ($ million) by 8.2% in the year to 30 September 2016, Statistics New Zealand Item 2016* 2015* 2014 2010 provisional data shows. Total Income $3,309 $3,059 $2,991 $2,747

Legal services income is now well Interest and donations $36 $35 $30 $39 over $3 billion annually, at $3.3 Indirect taxes $8 $7 $7 $6 billion. Estimated expenditure in the Depreciation $46 $45 $45 $48 latest available year was $2.2 billion, producing a before-tax surplus of $1.1 Salaries & wages paid $1,184 $1,042 $1,002 $805 billion. The before-tax bottom line Purchases & other operating expenses $895 $827 $789 $805 has, however, shown a lower rate of Non-operating expenses $23 $48 $38 $26 growth than income. Total expenditure $2,192 $2,002 $1,910 $1,672

The biggest component, salaries and Operating stocks $47 $53 $31 $26 wages paid, increased by 13.7% Closing stocks $49 $39 $37 $22 between 2015 and 2016. It is also becoming a bigger destination for Surplus before income tax $1,119 $1,044 $1,087 $1,071 expenditure - in 2010 salaries and wages paid comprised 48% of costs, *Provisional. but these had risen to 54% of total expenditure in 2016. Statistics New Zealand also produces fi nancial ratios which draw upon its statistics on the number of people employed in an industry. The legal services The information is generated in the industry workforce includes lawyers and barristers in private practice (not Annual Enterprise Survey, which in-house lawyers) and non-lawyers who work at law fi rms. generates data on the fi nancial While there is some doubt as to whether Statistics New Zealand’s employee performance of enterprises in New information actually captures the full legal services employment picture, the Zealand. It is the most comprehensive following ratios have been created: source of information on the fi nancial of industry groups and sectors and is prepared by sampling. It is an Measure 2016* 2015* 2014 2010 important input into calculation of Total Income per employee $214,500 $203,500 $195,200 $198,200 GDP. Surplus per employee $70,900 $69,400 $70,900 $77,300

The information to the right has been *Provisional. prepared on request by Statistics New Zealand. It includes 2010, which is the earliest date for which NZLS purchased Prices for legal data. services Statistics New Zealand’s Producers +4.5% +4.1% Price Index measures +3.6% +3.6% changes in the price +3.3% paid for legal services. +2.4% +1.8%

2011 2012 2013 2014 2015 2016 2017

58 LAWTALK 915 · March 2018 MEDIATION

Legal Services industry MEDIATION

Total income from the sale of legal Annual Enterprise Survey, Legal Services, Embracing Diversity services in New Zealand rose strongly year to 30 September ($ million) by 8.2% in the year to 30 September 2016, Statistics New Zealand Item 2016* 2015* 2014 2010 Part 1 – Introduction provisional data shows. Total Income $3,309 $3,059 $2,991 $2,747

Legal services income is now well BY PAUL Interest and donations $36 $35 $30 $39 over $3 billion annually, at $3.3 SILLS Indirect taxes $8 $7 $7 $6 billion. Estimated expenditure in the Depreciation $46 $45 $45 $48 latest available year was $2.2 billion, Salaries & wages paid $1,184 $1,042 $1,002 $805 producing a before-tax surplus of $1.1 • The quality or state of having many requires movement toward each other. billion. The before-tax bottom line Purchases & other operating expenses $895 $827 $789 $805 The issue of diversity is both a huge different forms, types, ideas, etc, We must strive for a true understanding has, however, shown a lower rate of Non-operating expenses $23 $48 $38 $26 challenge and a great opportunity. • The state of having people who are differ- of the people we interact with, which has growth than income. Total expenditure $2,192 $2,002 $1,910 $1,672 Cultural diversity in particular is essen- ent races or who have different cultures become increasingly diverse as technolog- tial to our growth, our ability to solve in a group or organisation. ical advances enable communication and The biggest component, salaries and Operating stocks $47 $53 $31 $26 problems and to innovate. But so often Culture is another key term in discussions transactions beyond what was previously wages paid, increased by 13.7% Closing stocks $49 $39 $37 $22 when faced with diversity our unconscious about diversity. I use the word ‘culture’ in practical. Globalisation is not going to go between 2015 and 2016. It is also judgement of others who appear different its broadest sense, and in an all-encom- away. Diversity within relationships (per- becoming a bigger destination for Surplus before income tax $1,119 $1,044 $1,087 $1,071 to us makes it all but impossible for us to passing way – we each have an individual sonal and business) is inevitable. expenditure - in 2010 salaries and collaborate and solve problems. The more culture, businesses and organisations have True acceptance of diversity means wages paid comprised 48% of costs, *Provisional. judgemental we are the more fundamen- a culture, as do gangs, cities, regions and understanding that each individual is but these had risen to 54% of total talist we are. nations. These cultures mould us, create unique, recognising our individual dif- expenditure in 2016. Statistics New Zealand also produces fi nancial ratios which draw upon its Through the avoidance of challenging our identity, our ego and give us our sense ferences, and the advantages of those statistics on the number of people employed in an industry. The legal services topics (political correctness) we have cre- of belonging. But they also cause us to see differences. These differences can emanate The information is generated in the industry workforce includes lawyers and barristers in private practice (not ated an environment that hinders our ability others as different, as not fitting within our from race, ethnicity, gender, sexual orienta- Annual Enterprise Survey, which in-house lawyers) and non-lawyers who work at law fi rms. to be comfortable living and working with culture, our tribe, our group, and to judge tion, socio-economic status, age, physical generates data on the fi nancial While there is some doubt as to whether Statistics New Zealand’s employee those who are different from us. Political that difference – often negatively. This may abilities, religious beliefs, political beliefs performance of enterprises in New information actually captures the full legal services employment picture, the correctness has arguably become a bigger cause us to fight to protect our tribe, our or other ideology. It is the explanation of Zealand. It is the most comprehensive following ratios have been created: problem than the problem it was intended identity and the values we think define us. these differences in a safe, positive and source of information on the fi nancial to address. While the original intent may That is because we see our values, identity nurturing environment that is at the of industry groups and sectors and have been good – to encourage tact and or morality being challenged. heart of resolving differences through is prepared by sampling. It is an Measure 2016* 2015* 2014 2010 sensivity to the feelings of others around I am talking about diversity in its understanding, acceptance and respect. important input into calculation of Total Income per employee $214,500 $203,500 $195,200 $198,200 issues of gender, race, religion, sexual ori- broadest sense whether the differences are It is about understanding each other GDP. Surplus per employee $70,900 $69,400 $70,900 $77,300 entation, physical abilities, etc, – the effect cultural, economic, social, ideological, or and moving beyond simple tolerance to of political correctness has been to make other. The same considerations apply to embracing and celebrating the rich dimen- The information to the right has been *Provisional. everyone avoid these topics altogether. most, if not all, forms of diversity because sions of diversity contained within each prepared on request by Statistics New By eliminating discussion and acknowl- it is the perceived differences between individual. Zealand. It includes 2010, which is the edgement of diversity issues, we have the parties that result in the challenge to In order to understand our differences earliest date for which NZLS purchased Prices for legal created a bigger problem. Rather than identities, values and moralities. we also need to look at why we think we data. services being politically correct and censoring We live in a society where we tolerate are different and what it is within us that Statistics New our language to avoid sensitive words diversity far more often than we embrace drives us to judge those that we perceive Zealand’s Producers +4.5% and topics, we need to be mindful of how it. Tolerance can be defined as “the ability as being different. +4.1% Price Index measures +3.6% +3.6% our attitudes and actions are influenced by or willingness to tolerate the existence of The next question for dispute resolution changes in the price +3.3% prejudices, privileges, and stereotypes, and opinions or behaviour that one dislikes or practitioners is whether traditional media- paid for legal services. +2.4% also how our words actively influence the disagrees with.” tion techniques can be employed success- +1.8% reinforcement and embodiment of those Mere tolerance of diversity – in any form fully when dealing with issues of diversity. If prejudices, privileges and stereotypes. – cannot be the benchmark for interaction not, then what might work? Alternatively, is So. how can we celebrate diversity and between people in today’s global village. it that disputes involving issues of diversity use it to collaboratively benefit human- The ability to successfully resolve dis- cannot be mediated at all? ▪ kind in the resolution of problems and putes that involve diverse cultures must 2011 2012 2013 2014 2015 2016 2017 disputes? That seems an impossible task encompass understanding and respect. It is Paul Sills  [email protected] in today’s climate. not enough to simply tolerate people who is an Auckland barrister specialising in Let’s start with a couple of definitions. are different from you because that main- commercial and civil litigation. He is also Diversity can be said to be: tains distance, whereas conflict resolution an experienced mediator.

59 COURTS March 2018 · LAWTALK 915

COURTS Study to assess sexual violence court pilot

BY LYNDA HAGEN

before and after the alleged offence, and A new Law Foundation-backed study will assess whether closing arguments and judges’ direction special court processes used in pilot sexual violence courts are to juries. making it less traumatising for complainants to give evidence. “I have been working in this area for a Elisabeth McDonald of the University of Canterbury, assisted by long time and I’m convinced we have to Paulette Benton-Greig of the University of Waikato, will compare do better,” she says. procedures used in adult acquaintance rape cases in the pilot “The kind of detail that complainants courts with a group of similar cases in non-specialist courts. are being expected to remember in court Professor McDonald says the aim is to ensure that current rules is incredibly challenging, especially after for gathering evidence sensitively from sexual violence victims long delays. are being used effectively, as well as whether additional change “It is far from uncommon for those is needed. working in the criminal justice system, “It’s not the outcomes, it’s the process we are looking at. Are including lawyers, police officers and the rules working in practice?” she says. “Cross-examination is judges, to say they would never encour- the most reform-resistant area of sexual violence court process, age a family member to complain of yet judges can have more control over the process without a more rape. That’s a terrible indictment on the wholesale move to an inquisitorial model.” system.” The study will review at least 10 cases from the pilot sexual The cases to be assessed from the pilot violence courts in Auckland and Whangarei. The research is sup- courts will be compared with acquaintance ported by Chief District Court Judge Jan-Marie Doogue who, in rape case details from non-specialist courts a recent radio interview, said case processing times in the pilot that were gathered by Professor McDonald courts had halved from 18-24 months to around nine months. through a separate study between 2010 Judge Doogue added that, anecdotally, lawyers were treating and 2015. complainants more respectfully in the pilot courts while also She says the research is timely and robustly defending their clients. important. “Proponents of procedural law Professor McDonald’s long-standing work in trial process for reform in rape cases have been strongly sexual offences includes the definitive 2011 bookFrom “Real Rape” advocating for specialist courts and per- to Real Justice: Prosecuting Rape in New Zealand, co-authored with sonnel, so an analysis of the ways that Emeritus Professor Jeremy Finn from Canterbury University and intensively-managed sexual violence trials Victoria University Associate Professor Yvette Tinsley. It called for differ to general trials is urgently needed. alternative ways of dealing with sexual offending, given stub- “This research will have significant bornly unchanged prosecution rates and high levels of victim impact on the New Zealand criminal justice dissatisfaction with the system. system and contribute to the international In 2015 the Law Commission recommended that specialist sexual discussion about improving law and jus- violence courts be established, drawing on the recommendations tice responses to sexual offending,” says from “Real Rape”, but to date no government action has been taken. Professor McDonald. ▪ The two-year pilot in Auckland and Whangarei, now entering its second year, uses trained specialist judges and is being run by Lynda Hagen  lynda@lawfoundation. the courts themselves within the existing law. org.nz is Executive Director of the Professor McDonald says the year-long study would review New Zealand Law Foundation. Further factors such as the proper application of evidence rules, the fre- information about the Foundation and quency of judges’ intervention in questioning, the use of “rape its grants can be found at  www. mythology” such as particular forms of complainant behaviour lawfoundation.org.nz

60 LAWTALK 915 · March 2018 PRACTICE

PRACTICE Social media and networking in the workplace

BY ANGHARAD O’FLYNN

A lot of law firms use Twitter and The term ‘social network’ may Facebook with great success. Each seem like a modern concept – but platform has its own audience range it has been around since the 19th and this is a good thing. You can century. reach out to more potential clientele The English-American temper- while exposing your law firm to a ance reformer and lecturer John B more diverse audience. Gough used the term in his auto- biography, released in 1845/46, to Aesthetic describe a downward spiral in his Your account pages needn’t be a youth following the death of his cluttered with text and a mash-up ▴ Kirsten Hodgson mother: of colours and graphics. Most sites “I again became involved in a don’t offer much in the way of and personal plans. I don’t think dissipated social network.’’ customisation anyway other than you need a separate strategy for Gough was referring to the network changing profile photos and banner/ what are, essentially, a set of tools.” of people he surrounded himself cover photos; clean, simple but with at the time; a ‘social network’. striking is the best way to go. And Interaction While the term’s meaning hasn’t make sure it’s obvious that this is Social media can also be useful as changed since Gough used it, its the account for your firm. a great set of free researching tools. use nowadays usually goes hand- If you’re going to have social For many businesses, social in-hand with the term ‘social media’; media accounts, on multiple plat- media is about connecting: “Twitter the digital networks of communica- forms, visual continuity is recom- is really good for getting on the tion and networking. mended. If you can, use the same radars of hard to reach people,” says While social media might seem photos and banners for all of them. Ms Hodgson. like something used by young Include website and page links to Social networks can also be used people, platforms like Twitter, your other sites where possible, as for client/prospect research and Facebook and LinkedIn are used by well as your contact details so you’re building relationships with clients, many individuals and companies to easily accessible. prospects and intermediaries. promote themselves, engage with That said, aesthetic is only one The chances are a lot of a law others and tap into potential client part of the recipe. firm’s clients will have both per- markets. sonal and professional social media Social media is a set of tools that Strategy accounts and will be active users. lawyers can use to position them- Kirsten Hodgson’s company Most people on social media selves on to the radar of people they Kaleidoscope Marketing works with want to be heard on some level, want seeing their content. With clients looking to integrate social so engagement is important when existing clients, it’s another way to media to achieve their objectives. building a relationship and sup- stay on top of things work related. Ms Hodgson encourages clients porting your clients is always a So, what steps can lawyers take to broaden their horizons when good idea because this helps with to help establish, or improve their it comes to social media, and she rapport. social media presence? advocates an holistic approach to Sharing content via social net- social media. works can help amplify and extend Pick your sites “Ask ‘how can it support what its reach and keep you top of mind Firstly, do your research. While we’re looking to achieve?’ And with existing clients. popular and beneficial, LinkedIn build it into your business devel- Liking your clients’ content or isn’t the only option. opment, marketing, client, sector answering posted questions adds a

61 PRACTICE March 2018 · LAWTALK 915

◂  Kris Krüg bnd

take action.” Showcase pages So far these are exclusive to LinkedIn and their purpose is to make it easier for LinkedIn users to follow those parts of your business most important to them. “Showcase pages mean you can segment your business so prospec- tive employees can follow your job posts whereas a developer client can follow your real estate related posts. “If you have capacity to manage showcase pages they can make it much easier for people to follow those parts of your firm relevant to them. This means they’ll likely take more notice of your posts,” Ms Hodgson says. human element and a personality to would on your own website.” the account. Should you decide to Understanding each of the different personas or Opportunities – or interact with people, it’s a good idea groups that you’re looking to target is also important. otherwise to establish what tone you want “Tailor your content type to each persona. There might “People need to be able to make your account to have: friendly yet be certain groups that are visual and who like to watch an informed call. So, that means formal? Or strictly business? videos and then you might have other clients who work they owe it to themselves to at in open plan offices where they can’t play videos because least understand social media … Hashtags and it’s too loud, or it makes it look like they’re not working.” and what it can do and then make other features a call. You can’t just dismiss it out The dreaded hashtag, or #. Organic vs Paid social media of hand,” she says. Sometimes businesses find the Yes, this is a thing which exercises the mind of those “The other thing is thinking about use of a hashtag tacky or useless. working with social media. how it can support you. If you’re rec- However, when used properly, hash- “Organic” is a term used to describe how your post ommended to people and they look tags are an effective way of filtering performs on its own without any promotion from the you up online, LinkedIn profiles are your content into the social media site. returned very high up in the search feeds of those you want to interact “Paid” is exactly that: you pay to have the site boost results; so if you’ve got one you’ve with. your post’s visibility within certain categories for a got an opportunity to differentiate “On Twitter if you use a hashtag, period of time. yourself. those following that hashtag will In the analytics for Twitter, Facebook or LinkedIn (or “If you haven’t got one, you’ve got be able to see your content and any other social media platform) you will find terms like to think ‘how does that make you LinkedIn has more recently adopted “Organic Reach” and “Paid Reach”. These terms will display look?’ You could look like you’re not the use of these too,” says Kirsten the numbers of times your post was interacted with both up with the play. Hodgson. through the organic way (no help from the website) and “It’s thinking holistically, under- “If you publish content on through the paid way (if you paid the social media site to standing and then making the call.” LinkedIn’s publishing platform and promote or boost your post/advertisement). Many companies have benefited use hashtags, people searching those Using paid post boosting, you can specifically target from taking advantage of social terms within LinkedIn will be more groups on social media so certain people will see the media and using it properly; both likely to find your content. An added content, which in turn can increase its reach. financially and when advertising. It bonus of publishing to LinkedIn is “There’s an opportunity for firms to pay to target is a good idea to give it a go, espe- that content gets indexed by Google. content to specific demographics so that it appears in cially if you’re struggling to get your Because LinkedIn is an authoritative their news feed,” says Ms Hodgson. name out there. You don’t want to site, content tends to appear much “For example, that could just be for branding purposes be the dusty old firm that’s only higher up search rankings than it but it’s likely to work better when you want people to listed in the phone book. ▪

62 LAWTALK 915 · March 2018 PRACTICE

PRACTICE FOCUS ON Focus on … Porirua

BY CRAIG STEPHEN

Porirua might be a mere 20 minutes away from the capital, but the local legal profession is keen to stress it has its own ways and means of doing things.

A city in its own right, Porirua is, however, often considered to be an extension of Wellington. The profession is composed mainly of sole practitioners and small practices, most of whom are based in the side streets of the small CBD, centred around the popular North City Shopping Centre. Tania Davis of Tania Davis Law has been a lawyer for 30 years. She moved from Hawke’s Bay to the Wellington region in 1997 and established her practice in Porirua in 2010. She says there’s enough work for all the current lawyers and any others who wish to work in the area. “There’s a lot of work around, and it’s a really heavy workload, particularly if you are a softie and a bleeding heart like myself; ▴ Tania Davis with an artwork in her ▴ Andy Soper, a partner at commercial it’s hard to say no. I think we need more office that includes the names of law specialists Maude and Miller. lawyers because everyone is conflicted and many children killed by domestic there’s only a few firms in Porirua doing violence including Nia Glassie and to know.” legal aid. The legal profession here is a small the Kahui twins. “Everyone has problems, but the lack community.” of money exacerbates those problems; if New Zealand Law Society figures back Whitby and Plimmerton. you have money you can pay to go to a this up. From 2011-18, Porirua had the “There’s domestic violence in all eco- counsellor, you can pay for therapeutic fourth biggest drop in the number of law- nomic and racial groups, it does not have intervention. So when there’s no money yers, 13.3%, or 60 lawyers down to 52. It has barriers. Well-off Pākehā don’t necessarily the work is harder, it is way more upsetting 1,079 people for every lawyer, compared to tend to go to the police or to lawyers to sort because you know what the solution could just 84 people per lawyer for Wellington. out those problems; lower socio-economic be but who the hell is going to pay for it?” Ms Davis says with the Family Court groups are more in-your-face so people catchment area stretching from Tawa up think that’s what a large bit of our work A provincial town next to Waikanae on the Kāpiti Coast, and over is, and it is generally, but that is not to to the capital to Pauatahanui, the small number of firms say those problems are not prevalent in And Ms Davis says there’s a community cover a large district. the higher income groups,” says Ms Davis. vibe to the city which is lacking in the big Porirua has a diverse community with She says those higher income groups brother nearby. a large population of people from Māori tend to get friends to help sort out any “I find the community really friendly and Pacific Island communities. Nestling issues or just keep quiet. “There’s the same here compared to Wellington. I know the close to low income suburbs such as those kind of issues but I think that they’re not as coffee shop woman, and the hairdresser in East Porirua are wealthier suburbs like obvious, because they don’t want people next door, and I don’t think that would

63 PRACTICE NEW LAWYERS March 2018 · LAWTALK 915

▴ Titahi Bay, Porirua. involved on it,” he says.  Gurtej Singh bnd “The accessibility of Porirua should be enhanced through the new road, and happen in central Wellington. Here, we’ll combine that with the fact that there is have lunch with the neighbouring busi- land here and the commercial rents are nesses and wipe the chalk marks off each more attractive than those in Wellington, other’s car tyres. If I sit out the front door so there’s a lot of potential for growth.” people come and chat to me. Furthermore, as house prices continue “It’s more provincial, more rural in to rise in Wellington that makes Porirua a Porirua. It’s also a vibrant, diverse com- more enticing place to settle down. munity. I couldn’t work in Wellington, I “I have builder clients who are struggling would feel smothered, overwhelmed.” to build houses fast enough and they usu- Andy Soper is a partner at commercial ally struggle to get enough workers. There law specialists Maude and Miller and says are various pressure points and, of course, a new motorway being built to provide a that means supply is not increasing as fast better link to Kāpiti, and the movement of as it should and prices go up.” agencies and firms into the city is making Mr Soper also says the increase in work a massive difference. has affected the profession. “It has aspects of a small town but “It’s not always easy to find experienced ▴ Rohan Cochrane, a director at there has been an uptake in commercial lawyers. There have been times when we FamilyLaw Specialists Ltd law because there have been government have needed to grow and it has taken us departments and national companies time to get the people we needed. I suspect the work they deal in is an interesting mix. moving into Porirua. It’s a place that has that is not an issue for Porirua alone, but He says that’s partly due to the various a lot of land, if you look behind you there’s this is a great place to work, and maybe communities and the socio-economic land on the hill that is being developed. that is a too well-kept secret.” diversity. “The place is growing, there’s another “There are areas which have some sig- major subdivision happening on the Cultural and economic nificant financial challenges and economic old Porirua hospital site, and there is diversity hardship and issues, through to areas Transmission Gully which will make a big Rohan Cochrane, a director at FamilyLaw which are often very geographically close difference here, and indeed has increased Specialists Ltd, which has four lawyers by that are very affluent. the population just through the workforce (and will soon be looking for another), says “The diversity throws up some advantages

64 LAWTALK 915 · March 2018 PRACTICE

from the point of view of the availability Indian and other Asian people now, the of different kinds of support from people population is growing.” who are going through a tough time. Porirua She says there is a great level of collegi- is well resourced in terms of community ality in the city. agencies, who will work with people and “The judges who work out here find we some of them have a focus on Māori and are a very collegial Bar and they enjoy that Pacific communities, so there are some a lot. Lawyers work together and tend to real strengths to that, in terms of looking help each other out. There’s quite a few for community assistance for people who sole practitioners out here who can’t rely might be in a very difficult space.” on the resources of the big firms.” His fellow director, Judith McMillan, says the way some communities approach Everything is here mediation can be advantageous. Rohan Cochrane says, although he regards “If we’re working with children himself as a Wellingtonian, he loves Porirua and there’s a family group conference and what it has to offer. sometimes there might be 40 people in “I started working out here in 1999 and attendance, whereas with other ethnicities, we shifted out here a few years later to including Pākehā, sometimes there are only Titahi Bay after Judith persuaded me to three or four. There is a lot of strength in move after we visited her home. ▴ Judith McMillan, a director at the Māori and Pacific family connection. “There’s mountain bike trails up on FamilyLaw Specialists Ltd “In those sort of situations, to someone Colonial Knob, there’s walking tracks, who might be relatively new to this area there’s beaches, it’s a fantastic area. Court library. Porirua, in some ways, is very of practice, it can look a little daunting but Professionally, practising in a court much like a small town but Wellington is you can get some really good quality deci- which is probably a bit smaller than the always there and there’s the resources it sions out of all the people depending on Wellington court, there’s an element of the provides. It’s the best of both of worlds.” how the dynamic of the meeting goes, so small town about it, where you get to know As an aside Judith tells the tale of one that certainly presents more opportunities the lawyers quite well, you get to know a divorce case in which a home and cars were than difficulties.” lot of people in the community, you get to involved in the separation of property. After Sole practitioner Christina Leech has know families quite well, which can have some negotiation she says she was taken been working in Porirua for 25 years, and its advantages and disadvantages.” aback by an email from the lawyer repre- says there is a big advantage to living in But Judith McMillan does say that having senting the other client, saying that his client Wellington while working out of town. Wellington a short drive or train ride away “was absolutely adamant that he was to get “It’s a lovely place to work, it’s very is extremely helpful. the purple broom, not the grey broom”. diverse with a very broad spectrum of “There are a number of seminars and She says the other client “got the broom, society and a broad range of cultures, conferences held there, and there’s but he didn’t get a lot of other things he and that’s changing too. There’s a lot more resources available to us, such as the High wanted.” ▪

LAWYERS PRACTISING IN PORIRUA BY Facts and figures on Porirua GENDER AND YEARS IN PRACTICE Figures from the 2013 Census show that 51,717 people live in Porirua, an 11 increase of 3,171 people since the 10 Women 2006 Census. Men That’s broken down as: European 63.9%, Pacific peoples26.2% , Māori 6 20.8% and Asian 6.4% (with some people classifying themselves as more than one ethnicity). 2 The median income is $31,400 0 29 compared to the national median of 1-9 10-19 20-29 30-39 40+ Total $28,500. 23 The unemployment rate is 9.3% 2 compared to 7.1% nationally. 3 The average household size in 4 Porirua is 3.0 people, compared 6 with an average of 2.7 people for all of New Zealand. 8

65 PRACTICE March 2018 · LAWTALK 915

PRACTICE Verify emailed instructions. And watch those property purchase inquiries

BY GEOFF ADLAM

Be very careful out there. Email fraud attempts continue to To assist in identifying some of the tricks target the legal profession. The criminals used, here is a selection of recent email behind many of the frauds have become fraud attempts made against New Zealand more sophisticated and often use internal law firms. All names and identifying par- email they have hacked in their attempts ticulars have been changed unless they are Subject: Re: International to steal money. for the actual fraudster. A spate of reported attempted frauds I need a transfer payment to be processed at the start of 2018 prompted the Law The casual internal today. Can you handle that now? Society to repeat the advice it has given a money transfer number of times: lawyers and law firm staff First email Fraud detected should ensure that they check and verify From: Sarah Youngblood [a partner in the At this stage it became clear to Rory that the all payment instructions received by email. firm] two emails which appeared to have come Such verification can be by phone or To: Rory Older [a member of the accounts from Sarah did not. The email address was personal contact. team] wrong – but there are instances where this The names used and the wording of the Subject: International has been overlooked and money transferred attempted frauds varies. However, the (and lost) through staff acting purely on the modus is similar, and one of the biggest Are you in office? emailed “instructions”. The next step in the giveaways, which the fraudsters don’t fraud is usually an instruction to immedi- yet seem to have overcome, is the email Sarah Youngblood ately transfer a sum of money to a specified address used at some stage. Bad English Partner bank account (always outside New Zealand and grammar is another identifying point – we don’t seem to have our own internet – although this, of course, is not confined Second email email fraudsters who specialise in lawyers). to fraudsters. From: Rory Older Many of the latest attempted frauds begin To: Sarah Youngblood Another example, several with an inquiry for assistance with purchase Subject: RE: International attempts using an iPhone of property. The introductory emails vary, From: Jill Highill [email protected] but lawyers who receive an email from Of course To: Doug Luge [Luge Lawyers] an unknown person – who doesn’t state Subject: Urgent where they are based or where the property Rory Older, Accountant is located (“in your jurisdiction”) – should Have a pending payment to be paid to the UK be very wary. Most of the frauds will end Third email now, are you available to handle right away? in an attempt to infiltrate the lawyer’s IT From: Sarah Youngblood [mailto:wor.k@ What is our current balance as of today? system through inducing them to click on a aol.com] link or to provide their email and password. To: Rory Older Regards

66 LAWTALK 915 · March 2018 PRACTICE PRACTICE

Jill Highill Another variation on the to the beneficiary. Sent from my iPhone internal transfer request First email Regards, From: Jill Highll [email protected] Hello Moana Basil To: Doug Luge [Luge Lawyers] Subject: Urgent How are you today? I will need you to Phone contact was then made between process a bank wire transfer, which needs Moana and the real Basil and the fraud Are you available to handle an international to go out of the country today as a same was discovered. A few hours later, the final payment this morning? Have one pending, value day payment. Let me know if you fraud attempt was made: let me know when to send bank details. are available now, so I can forward the beneficiary’s account details. Third email Regards What is the update on the transfer? Jill Highill Thanks, Sent from my iPhone Basil Don’t ever click on an unknown attachment Third attempt, this time changing The recipient responded, noting that IT systems are infiltrated by inducing users to an interesting email address they were available to help but there would to click on malware. If you get an email – From: Jill Highill be a delay in processing the transfer. and that may be an email from someone you To: Doug Luge [Luge Lawyers] think you know (but who has been hacked) Subject: Urgent Second email – with an attachment, be extremely wary Thanks for your email, process sum of before clicking on the attachment. Doug $12,276.80 USD now as same value payment From: John Kelly Are you available to send a transfer? Let me to the payee account sated [sic] below: Subject: E-Docs know so i can send payee’s details BANK NAME: Bank of American [sic] BANK ADDRESS: [address in Texas given] We have just sent you an important Regards Account Name: [Provided] Document of a remittance invoice Via Jill Account Number: [Provided] Drop-Box, Browse Here to View it. Routing Number: [Provided] As soon as the transfer is done, email me Thanks the confirmation slip. So, i can forward it JK.

67 PRACTICE March 2018 · LAWTALK 915

The property purchase frauds One more recent example There are many variations on the prelim- Second email From: michael fowler [mailto:michael- inary emails, but they involve someone The law firm responded, saying it may be [email protected]] unknown to the lawyer or law firm emailing able to help, and asking for the location of Subject: inquiry the firm (our example below used the firm’s the property and whether an agent was online inquiry form) and saying they need involved. Good day, a lawyer to help them purchase a property. For some time now i have been in search The fraudster’s objective is to infiltrate the Third email of a property to acquire and luckily i have email of a member of the firm. This could From: [email protected] found the right property i wish to buy. As occur through sending a document with a a new investor in the property business i link to click on, or a link which is protected Hi need a competent conveyancing represent- and personalised for a specific firm member Thanks for getting back with me on short ative who can guide and assist me through with the requirement of entering their email notice . Been a little busy working out the unfamiliar conveyancing process. address and password. If this happens the details with my bank to make sure there I came across your organization profile fraudsters will then be able to monitor the won’t be any issues with the transfer as a professional in conveyancing and firm member’s email account and look for of funds . I am also flexible on the time other legal matters and as a business information about property settlements and frame, even though I mentioned 4 weeks. man I understand how important it is to required payments. I just need this done as soon as it can be provide the best possible service to my When the payment deadline arrives, the done. I have acquired a couple of prop- customers, having the right product and fraudsters email the client pretending to erties in the past, but my previous legal providing a first class service is the key to be from the law firm and reminding them adviser is battling cancer at the moment, ensuring that customers return for repeat that a payment is due. Bank account details so I am taking a different direction . In business. are provided – but not, of course, the firm’s the pdf attachment below contains the I will appreciate if i can get a quotation bank account. “contract certificate” between me and the and a more knowledge about your convey- The following emails are typical of the seller and also location and address of ancing process and as well as terms and usual approach. the said property. Please kindly review condition so we can commence as soon this and get back to me at your earliest as possible. First email (using a law firm’s convenience . online inquiry form) I hope to hear from you soon. From: [email protected] Sincerely, Kind Regards James Brandon Michael Fowler Hi I need your services to purchase a property Outcome The genuine ones and I will like you to act as my solicitor. I Poor James got his last name wrong. The The worry is always that there may be a am hoping to seal the deal in 4 weeks time. firm involved also tried to verify his iden- genuine (if slightly illiterate) client trying to Please let me know if your availability, so I tity from the interesting phone number engage a lawyer. The Law Society has had can proceed with seller and also send you he provided (which didn’t work). His pdf a number of inquiries about emails which the contract details. attachment was described by the firm as emanate from an Australian organisation being “not even close to being a normal called Worthington Clark Pty Ltd and its Thanks commercial document”. The firm also very Rightful Claims division. Through direct James wisely did not click on the links in the PDF contact, we are sure this is a genuine Phone: 0203456657 sent to them by James. organisation. Rightful Claims describes itself as “asset recovery specialists” and identifies assets such as shares, bank accounts, insurance policies and inheritances which are unclaimed. After identifying the owner or presumed rightful owner, the company makes contact and offers to help claim and secure the asset. In return for a proportion of Providing Professional Indemnity and specialist insurance the asset value, the company acts through products to the Legal Profession the whole claim process if the owner agrees. Visit www.justitia.co.nz for further information and application forms A New Zealand business called Sanclaro also carries out a similar activity. It directs Or Contact: Mr Ross Meijer, Aon New Zealand people who are suspicious about its activi- 04-819-4000 ties to contact two New Zealand law firms [email protected] for verification of authenticity.▪

68 LAWTALK 915 · March 2018 LAWYERS COMPLAINTS SERVICE

LAWYERS COMPLAINTS SERVICE

Complaint resolution summaries

As well as the censure, fine and order with the committee’s finding of unsatis- Barrister to refund the client $600, the committee factory conduct by the lawyer, Glansdale, ordered Caithness to pay $2,000 costs. and that the finding must stand. acted without On review the fine was reduced to $2,500 Glansdale met the clients, Mr and Mrs by the Legal Complaints Review Officer Seacoal, for one hour in June 2012. instructions (LCRO). This was because new evidence not Mr and Mrs Seacoal both had previous presented to the committee was produced marriages and had – before they married – corroborating that Caithness had arranged established trusts with a view to ensuring [Names used in this article are ficticious] for an agent to appear on his behalf. their assets would be protected for the Although no irrevocable harm was done children of those marriages. A barrister who sought a sentence by obtaining a sentencing indication, the During their relationship, Mr and Mrs indication without instructions on behalf committee said that it was “work undertaken Seacoal acquired further assets. They of a client who wished to defend an assault that was not requested and not desired”. instructed a solicitor to form a third trust charge has been censured by a lawyers Caithness’ conduct therefore breached as a vehicle for managing their jointly standards committee. rule 13.3 of the Lawyers and Conveyancers acquired assets. It was anticipated that the The client did not instruct the barrister, Act (Lawyers: Conduct and Client Care) couple’s five children would share equally Caithness, to obtain a sentence indication, Rules 2008. Rule 13.3 obliges counsel to in the assets of this third trust when it was the committee found. obtain and follow client instructions on wound up. As well as the censure, the committee significant decisions in respect of the The couple’s instructions to form this fined Caithness $3,000 and ordered him to conduct of litigation. third trust were not carried out by their reduce his fee and refund the client $600. The barrister’s conduct called for a cen- former lawyer. At the June 2012 meeting, The client’s complaint to the Law Society sure, the committee said. Glansdale and Mr and Mrs Seacoal dis- included that, “Conducting a case otherwise than in cussed ways to resolve the problem. • Caithness had not kept him informed accordance with a client’s instructions as the case progressed; [is] … viewed seriously by the committee. Documentation forwarded • Caithness advised him to plead guilty “Equally as serious are the receipt of The following month, Glansdale forwarded when he had no wish to do so, by elect- funds in contravention of the rules relat- a substantial amount of documentation to ing to seek a sentence indication when ing to a barrister’s practice – the receipt of Mr and Mrs Seacoal. He said he understood he had not been instructed to do so; and fees in advance as opposed to receipt of his instructions to be a complete overhaul • He had paid Caithness $1,580 and did a payment to be held in a solicitor’s trust of the couple’s financial arrangements, not feel he had received value for money. account on account of subsequent fees, with a view to transferring the assets of the In explaining the nature of his fee arrange- and the failure to render a final invoice or existing trusts into a newly-created trust. ment to the Lawyers Complaints Service, any invoice,” the committee said. More correspondence followed, and Caithness said he and the client agreed no concern was raised until Mr and Mrs to a weekly charge of $50. “There was no Seacoal wrote to Glansdale in November hourly rate, no set fee, and whilst it was Censured for 2012, saying they were unhappy with the a most uncommon fee it certainly suited proposed arrangements. Mrs Seacoal said the circumstances and was an informed failing to confirm they considered their financial positions agreement between the two of us.” could be properly protected by preserva- The committee made four unsatisfac- instructions tion of the existing trusts and the creation tory conduct findings on the basis that of a viable third trust. Caithness had: Glansdale replied, addressing the points • Obtained a sentence indication when [Names used in this article are ficticious] raised, and raising the issue of fees. he was not instructed to do so; Glansdale said his normal fee for the work • Failed to appear at a callover; A lawyer who failed to ensure that to date would be $15,000 plus GST, but an • Arranged for the client to pay funds he was doing what his clients had in mind invoice did not accompany the letter. directly to his account and received fees has been censured by a lawyers standards Further correspondence followed, in advance; and committee. including a letter in March 2013, attach- • Failed to provide the client with a final The Legal Complaints Review Officer ing an account for $17,489 plus GST and a account. (LCRO), in LCRO 234/2014, said he agreed disbursement of $20 – a total of $20,132.

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In April 2013, in a letter headed [Glansdale]’s retainer. firm was engaged that Gurney would not “Complaint”, Mr and Mrs Seacoal identified “[Glansdale]’s work was undoubtedly be able to meet the Legal Service Agency’s two issues: competent, thorough and comprehensive. requirements to handle the matter. • Fees “which [are] significantly in excess He was efficient and prompt. However, by “At that stage, there ought to have been of our expectation”, and his enthusiasm and diligence [Glansdale] a clear decision as to the future of the firm • That “we do not have anything that we omitted the key step of ensuring that he with regard to the file,” the committee said. instructed, wanted, or in a form we are was doing what Mr and Mrs [Seacoal] had “Proper management might have required likely to use”. in mind, and that they understood what the firm to write to [the client] advising The complaint arose because Mr and Mrs he was doing. him either that the firm was terminating [Seacoal] asserted that [Glansdale] did not “It was optimistic for [Glansdale] to the retainer because no fee arrangements carry out their instructions, the LCRO said. expect that he could embark upon this has been made or the firm would continue “That issue is more properly framed as sophisticated restructuring exercise on on a pro bono basis or the firm would assist whether [Glansdale] took steps to confirm the back of a single one-hour meeting. [the client] to find another lawyer.” his instructions and Mr and Mrs [Seacoal]’s “The committee’s basis for reducing the fee Instead, Gurney tried to struggle understanding of those instructions.” to the amount that it did is principled and through. He did this without proper fee I can find no fault with it,” the LCRO said. arrangements having been made. The work Breach of rule 7.1 involved him preparing and filing submis- Glansdale had not done this, breaching rule sions, then instructing another lawyer, and 7.1 of the Lawyers and Conveyancers Act Failure to properly then seeking alternative counsel. (Lawyers: Conduct and Client Care) Rules Gurney’s efforts on behalf of the client 2008 (RCCC) the LCRO said. administer were “extensive” and the client had never Rule 7.1 reads: “A lawyer must take been billed for the time, the committee reasonable steps to ensure that a client practice noted. understands the nature of the retainer “Non costing of such time is, in itself, an and must keep the client informed about indication of lack of proper management progress on the retainer. A lawyer must [Names used in this article are fictitious] unless there was a clear decision to proceed also consult the client ... about the steps on a pro bono basis.” to be taken to implement the client’s A partner of a law firm, Boult, has Overall, it was apparent that Gurney did instructions.” been fined $500 for failing to ensure that not properly manage the file, although that Rule 3.4 of the RCCC requires lawyers to the duties to a client were adhered to. deficit had largely been balanced out by “in advance, provide a client with infor- A client instructed Boult’s firm to act Gurney’s efforts and the fact that Gurney’s mation in writing on the principal aspects for him because he did not accept orders time was not charged. of client service ...” made by the Māori Land Court about Boult ought to have played a “greater role “I conclude that [Glansdale] breached interpretation of a will. in supervising the file”, the committee said. both rule 3.4 and 7.1 by his failure to provide The client complained that the firm took The committee found that Boult did sufficiently detailed information about over five years and had produced no results. not administer his practice in a manner the nature of his retainer, ensuring that A lawyer employed by Boult’s firm took that ensured his duty to the client was Mr and Mrs [Seacoal] understood what he the matter up. The standards committee adhered to. was proposing to do on their behalf,” the said it appeared the lawyer had pursued That constituted unsatisfactory conduct. LCRO said. the matter “with diligence” until he left As well as the fine, Boult was ordered to The issue of whether Glansdale’s fees the firm the following year. pay $500 costs. were fair and reasonable was “directly Boult wrote to the client saying the firm linked to the issue of his instructions”. would be happy to continue to act, but He did not provide an estimate, despite was not in a position to accept legal aid Judicial review being asked for one on 28 June 2012. instructions. Boult asked how the client Glansdale’s failure to properly explain would like to proceed. of standards the steps he was taking also affected the The committee noted that Boult was issue of whether his fees were fair and entitled to terminate the retainer at that committee reasonable. This was a breach ofr 9.4 of point. However, he did not do so and the the RCCC. matter drifted. decision Another lawyer, Gurney, later joined Fair and reasonable fee the firm and took over the file. By that The High Court has upheld a censure The standards committee determined that time the Māori Land Court investigation imposed on lawyer Jeremy James McGuire. a fair and reasonable fee was $646 plus had been completed. “At that stage it was The Court, however, remitted an aspect GST and disbursements (of $20). clear that work was needed on the file,” of the decision relating to the penalty “I have come to the same conclusion the committee noted. imposed back to the lawyers standards as the committee about the scope of It became apparent four years after the committee for further consideration.

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In doing so, the Court commented on the course of carrying out the instructions as to the likelihood of [the client] choosing the statutory purpose of the Lawyers for his client. to proceed in any event.” Complaints Service. “The likely amount of compensation, However, Courtney J found that the A standards committee had found that the likelihood of reinstatement and the committee had been correct to order Mr Mr McGuire failed to provide a compe- probable cost of the litigation are matters McGuire to cancel his fees of $6,441 for time tent appraisal and advice of the potential that a competent lawyer would regard as in relation to the proposed appeal/interim rewards and risks of proceedings in a reasonably arising in the course of carrying reinstatement application. personal grievance claim. The committee out his or her instructions,” she said. She noted that the draft affidavits that also found that the fees charged were In terms of s 12(a) of the Lawyers and Mr McGuire prepared were “not prepared unreasonable given the results achieved. Conveyancers Act 2006, these were on the instructions of his client and could In addition to an unsatisfactory conduct “matters that a member of the public is not have been charged for in any event.” finding and censure, Mr McGuire was entitled to expect of a reasonably com- ordered to reduce his fees for the personal petent lawyer. The complaints process grievance claim to $10,000 plus GST. He “Moreover, the committee’s conclusion “The purposes of the [Lawyers and was also ordered to remit fees in relation is consistent with one of the core require- Conveyancers Act 2006] (LCA) include to an interim reinstatement application. ments of a lawyer as articulated in the the maintenance of public confidence Mr McGuire applied for judicial review preface of the [Lawyers and Conveyancers in the provision of legal services and the of the committee’s decision. Act (Lawyers:] Conduct and Client Care protection of consumers of legal services,” In [2017] NZHC 2484, Justice Patricia Rules [2008]. Courtney J said. Courtney upheld the committee’s finding “As recorded earlier, ‘whatever services’ “To that end, the LCA imposes ‘funda- of unsatisfactory conduct and the censure. a lawyer is providing, he or she must dis- mental obligations’ on lawyers, which cuss the client’s objectives and how they include the obligation ‘to act in accordance Background should best be achieved. In an employment with all fiduciary duties and duties of care Mr McGuire represented a client in a per- context where the client has lost his or her by lawyers to their clients’. sonal grievance claim in the Employment employment, cost assumes particular sig- “The LCA provides for the establishment Relations Authority (ERA). nificance and should have formed part of of a complaints service to determine com- The ERA made an order for lost wages, Mr McGuire’s discussion with [the client] as plaints made against lawyers. which it reduced by 30% taking into to how best achieve the latter’s objectives. “This includes the establishment of account the client’s conduct. The net award “It follows that even if [the client] did not standards committees, whose functions was $15,575. It also awarded compensation ask for an estimate of cost, the likely cost include inquiring into and investigating for humiliation, hurt feelings and loss of of proceeding was a matter on which Mr complaints about the conduct and stand- dignity of $7,000. The client also received McGuire should have advised,” Courtney ard of service provided by legal practition- a $5,250 contribution to his costs. The total J said. ers. Standards committees are required to recovered was $27,825. However, the Court set aside the com- perform their duties and functions and Mr McGuire rendered invoices totalling mittee’s order that Mr McGuire reduce his exercise their powers consistently with $26,170 for the ERA proceeding. He advised fee to $10,000 and remitted that aspect to the rules of natural justice. the client to appeal and, in the meantime, the committee for “further consideration of “A standards committee has the power, to apply for urgent interim reinstatement. Mr McGuire’s assertion that [the client’s] after both inquiring into a complaint and He prepared draft affidavits for that pur- primary concern was reinstatement and, conducting a hearing with regard to the pose. The client and his wife were unhappy if that was or was likely to have been the complaint, to make various determina- with the draft affidavits which included, case, the effect of it on the decision as to tions, including a determination that there among other things, confirmation that Mr McGuire’s fee”. has been unsatisfactory conduct. the couple was prepared to liquidate their The Court gave two main reasons for “‘Unsatisfactory conduct’ is relevantly assets if required to pay for any damages this decision. “First, even assuming that defined as including: ‘… conduct that falls sustained by the employer as a result of the the reduction in the fee was intended to short of the standard of competence and interim reinstatement application. reflect the committee’s concern over pro- diligence that a member of the public is After obtaining a second opinion the portionality, there is no explanation as to entitled to expect of a reasonably compe- client terminated Mr McGuire’s retainer. how the figure of $10,000 was reached. tent lawyer’. Mr McGuire rendered a further fee of “Secondly, even if [the client] had been “As Clifford J noted in Lagolago v $6,441 for time in relation to the pro- properly advised of the risks and likely cost Wellington Standards Committee 2 [2016] posed appeal and interim reinstatement of proceeding he may still have elected to NZHC 2867, the unsatisfactory conduct application. pursue his claim with the ERA. Indeed, on under s 12(a), which refers to the reasonable Mr McGuire’s account, this seems quite expectations of the public, is a consumer Outcome likely because of the importance of rein- driven standard. Courtney J found that the standards com- statement to [the client]. Any reduction “This is reflected in the provisions for lay mittee was correct to treat a cost/benefit in the fee would need to reflect that pos- persons to be members of the disciplinary analysis as a matter reasonably arising in sibility and would require an assessment tribunal, the prohibition on legal complaints

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review officers being lawyers or convey- February to discuss the next steps towards No disciplinary ancing practitioners, and the jurisdiction of purchasing another property. The clients the standards committees and the tribunal did not tell the lawyer whether they had response needed to award, subject to the prescribed limit, lined up another property to buy. compensation to clients of practitioners On 3 February 2016 the clients ter- for EQC claim, against whom complaints are established. minated Bertram’s instructions, and “The authors of Ethics, Professional instructed a new lawyer, Jourdain. but faults noted Responsibility and the Lawyer observe On 22 February Bertram sent an email to that: ‘It is of note that the Act looks to the Jourdain’s office, attaching invoices for her standards expected by a member of the fees. Bertram also attached a statement set- [Names used in this article are ficticious] public and what they are entitled to expect ting out the fees she had deducted from the from a reasonably competent lawyer. This clients’ money held in her trust account, A lawyers standards committee has is an articulation of the well-established before she had forwarded the balance to decided to take no further action on a “reasonable consumer test”, which focuses Jourdain’s office on 17 February. complaint that a lawyer failed her clients not on the view of professional people In its decision LCRO189/2016, the LCRO regarding EQC and private insurance (that is, a peer-based standard) as to noted that a lawyers standards commit- claims. However, the committee said that proper standards but on the reasonable tee had found unsatisfactory conduct in conveyancing involving EQC claims expectations of ordinary people. While in on Bertram’s part, because it had been “template letters … can assist in expand- practice the two will frequently converge, unreasonable for her to charge a fee for ing the ambit of relevant information, and the shift in focus is an important signal. …’ work done after the clients had terminated provide best evidence of advice given. “And, as Duncan Webb commented in a the retainer. The committee suggests that [the lawyer] 2007 article: ‘[T]his may mean that what is Bertram had charged “in circumstances may consider implementing this practice professionally required of lawyers is more where her terms of engagement expressly in future.” than that required under the ordinary law stated that she would charge fees for The clients, a husband and wife, bought of contract and tort’,” Courtney J said. work done prior to the termination of the a property in which they had been tenants Mr McGuire has appealed the High retainer,” the LCRO said. for 18 months before the purchase. Court’s decision. “In the circumstances, although The husband complained that the lawyer, [Bertram] had to undo the work she had Simpcox, failed to obtain a completed Deed done, setting up the e-dealing and giving of Assignment of EQC insurance claim Lawyer billed undertakings to the bank, presumably on before settlement in July 2016. He also 4 February, she was contractually bound complained that Simpcox failed to advise clients for work only to charge fees for work she did prior on private insurance claims, including to the termination of the retainer. damage to a drive and paths estimated to done after “Her terms of engagement did not allow cost $40,000 to repair. her to charge fees for anything after the Simpcox told the committee that the termination retainer was terminated.” Deed of Assignment of EQC insurance The standards committee had calculated claim had been successfully completed, a reduction of $622 was appropriate, and with quite some effort by her staff, by [Names used in this article are fictitious] certified a fair and reasonable fee for the mid-August 2016. services was $500. Simpcox also said she asked about both A lawyer who charged and deducted “There is no good reason to depart from EQC and private insurance claims twice fees for work she did after her retainer was that view. The fee of $500 is confirmed as before settlement, and that a claim had terminated engaged in unsatisfactory con- fair and reasonable for the services pro- been successfully lodged with an insurance duct, the Legal Complaints Review Officer vided during the course of the retainer company covering the driveway and paths. (LCRO) has found. under that account. Bertram’s fees are The committee noted that the Deed of In May 2015 the clients instructed the otherwise confirmed as fair and reason- Assignment of EQC Claim was incomplete lawyer, Bertram, to act for them in the sale able,” the LCRO said. on settlement day. That presented a risk and purchase of properties. The LCRO also ordered Bertram to pay to the clients of which they should have By December 2015 the clients were com- $1,200 costs. been aware. mitted to an unconditional agreement to Simpcox did not advise her clients of her sell their property, with settlement sched- decision to trust the vendor’s solicitor to uled for 26 February 2016, but had not yet attend to the Deed of Assignment post set- committed to a purchase. tlement. “As it turned out a fully executed The clients paid a deposit, via the real Deed was achieved within six weeks of estate agent, into Bertram’s trust account. settlement, but it could have been longer On 29 January the clients phoned or not achieved at all,” the committee said. Bertram, and they arranged to meet on 4 When Simpcox was advised of the

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possible need to lodge a claim for the and serious fraud were made. There was The committee determined unsatisfac- driveway and paths with an insurance a real risk of the bankruptcy of Mr Acorn. tory conduct by Snodgrass. The commit- company, she referred the clients to the The lawyer who Mr Acorn initially engaged tee found he contravened rule 11.2 of the company. (A claim was successfully lodged ceased to act and Snodgrass (a family Lawyers and Conveyancers Act (Lawyers: with the insurance company by the vendor friend) then offered to assist. Conduct and Client Care) Rules 2008 of the property). (RCCC) and failed to ensure Mr Acorn’s The committee said it did not accept Change of retainer parents received independent advice that Simpcox failed to properly advise After Snodgrass had become involved, it before accepting liability for Mr Acorn’s the clients regarding the private insurance became apparent that Mr Acorn’s personal legal fees. claim. Nor did the committee consider liabilities could be substantial. This could The committee fined Snodgrass $1,500, Simpcox took inadequate steps to protect present a significant practical problem in ordered him to pay $2,000 costs and the clients’ interests in providing effective terms of Snodgrass being paid, as he would directed publication of the facts. assignment of EQC claims. become one of many unsecured creditors Both parties applied to the Legal It therefore considered that Simpcox’s without any special priority. Snodgrass Complaints Review Officer (LCRO) for a conduct did not warrant further discipli- and Mr Acorn discussed the situation and review of this decision. nary attention. agreed the problem could be resolved by The LCRO overturned the unsatisfactory The committee, however, noted “with Mr Acorn’s parents paying Snodgrass’ fees. conduct finding and referred the whole some consternation” that Simpcox became Snodgrass arranged for a second letter complaint, including the fees complaint, “somewhat less than helpful and rather of engagement to be prepared, addressed back to the committee with a suggestion blunt in her approach” upon receiving to Mr Acorn’s parents. Mr Acorn collected that the committee might be assisted by notification of the clients’ concerns. the letter of engagement from Snodgrass, an investigator. Directions were given “The committee considers that this saying he had explained the circumstances to commence a fresh investigation and aspect of conduct does not reflect well in to his parents and they understood and appoint a costs assessor. circumstances where [Simpcox] would accepted the position. have been well served to be as helpful Snodgrass stated that he suggested he Reconsideration and considerate as possible to her clients, should meet with the parents to explain The committee appointed an investigator who found themselves in a difficult and the situation to them, but that he acqui- and a costs assessor. upsetting position.” esced to Mr Acorn’s view that that was The committee determined that there The committee recommended that unnecessary. had been unsatisfactory conduct on Simpcox apologise to her clients. A copy of the second letter of engage- Snodgrass’ part. It considered his conduct ment was then returned to Snodgrass’ was high-end unsatisfactory conduct, and offices, apparently having been signed made six separate findings. No independent by Mr Acorn’s parents. Snodgrass then The areas of concern identified by the continued acting for Mr Acorn. committee included inadequacies in the advice and Over a six-month period, Snodgrass letter of engagement particularly as to the issued invoices for his fees, which ulti- description of the services Snodgrass would excessive fees mately totalled $303,394 ($266,445 plus provide, and who he would provide the ser- GST and disbursements). Those invoices vices to. The committee noted that this was were addressed to Mr Acorn’s parents “a situation of a lawyer acting for elderly [Names used in this article are fictitious] but emailed to Mr Acorn, and apart from parents who were agreeing to advance one visit Snodgrass made to their home, significant funds to pay their son’s legal A lawyer has been censured and fined Snodgrass had no direct contact with the fees”. The committee found it difficult to $15,000 for unsatisfactory conduct that parents. see how it had not been “glaringly obvious” arose while acting for a client in relation to Snodgrass that “advice as to the provi- to a company liquidation. Complaint and first decision sion of such financial assistance would be The lawyer, Snodgrass, acted for Mr Mr Acorn’s brother complained to the required”. The committee concluded that Acorn and companies of which he was a Law Society on behalf of his parents and Snodgrass’ failings in that regard and his director. Mr Acorn about Snodgrass’ conduct and failure to understand the differing inter- fees. In the course of the first complaints ests between Mr Acorn and his parents Background process, the parties attended mediation amounted to unsatisfactory conduct. When Mr Acorn became aware the com- and reached an agreement that Snodgrass The committee considered Snodgrass panies were facing some fairly serious would cancel his unpaid invoices and should have advised Mr Acorn’s parents problems, he appointed a liquidator. release a lien he had imposed over the files. to seek independent legal advice, and con- In the course of the liquidator’s inquiries, A lawyers standards committee then sider whether he should properly continue Mr Acorn faced questions arising from began an own motion inquiry into to act if they declined to do so, before he his obligations as a director. Allegations Snodgrass’ conduct, but not the fees agreed to act. It concluded his failure to do of possible breaches of director’s duties complaints. so amounted to unsatisfactory conduct.

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NEW LAWYER The committee also considered there had been a “very serious breach” of the rules relating to conflicting duties, amounting to unsatisfactory conduct. The committee also considered Watch out for Snodgrass’ failures in communication with Mr Acorn’s parents amounted to unsatis- factory conduct. The committee’s view lawyer creep was that Snodgrass should at least have had instructions directly from Mr Acorn’s parents confirming he was to direct all communications with them to Mr Acorn. BY KATIE The committee also agreed with the COWAN costs assessor’s view that the fees should be reduced by $107,000, from $266,445 to $159,445 plus GST and disbursements. The committee censured Snodgrass, One of the best ways to maintain mental health in your fined him $15,000, required him to write work is to have friends who are not lawyers and to see them a off the balance of his fees up to $107,000, lot. That is because many of the skills it takes to be a good lawyer and pay $10,000 costs. are not necessarily the skills it takes to be a good, healthy, happy person. The more time you spend with people who do not spend LCRO review their days practising law, the more likely you are to avoid what Snodgrass applied to the Legal Complaints I am calling lawyer creep. Review Officer for a review of the commit- Lawyer creep is the problem of your lawyer skills, and especially tee’s decision. your lawyer ways of thinking, increasingly creeping beyond the The LCRO said the “three key areas of bounds of legal work to set up camp in friendships, relationships, concern on review” were “[Snodgrass]’s and especially how you relate to yourself. professional responsibility regarding There is a reason lawyers tend to be anxious perfectionists. arrangements to secure his fees; his pro- And this is also why a lot of practitioners are depressed or need fessional obligations around termination wine come five o’clock. of the retainer; and whether his fees were No matter what area of law you practise, you likely need to have fair and reasonable”. an eye for detail, a need to be right, and an ability to see risk. If The LCRO found there had been unsat- you practise in any areas of dispute, you also need to be able to isfactory conduct on Snodgrass’ part in argue against yourself in order to test your arguments. These are that he: great skills, important skills, and strengthening them makes you • Contravened RCCC rules 3.4 and 3.5 by better at your work. failing to provide client care information, • Agreed to Mr Acorn’s parents paying their Skills spread beyond the office son’s legal fees without communicating But when these skills, lucrative though they are, spread beyond directly with them or recommending the office, they can do a lot of damage. An eye for detail becomes they seek independent advice, and not being able to let anything go; a need to be right becomes • Charged a fee that was not fair and refusing to accept human flaws, mistakes and imperfections in reasonable. others; an ability to see risk becomes losing the ability to take The LCRO said it was not necessary in the chances or see the good possibilities in life; and the ability to circumstances to “attempt the difficult argue against yourself becomes full-blown, anxious self-doubt. task of quantification” of the fees. Rather In the excellent TV series, The Good Place, everyone agrees that the LCRO asked the question, “Was it fair moral philosophers are the worst. But moral philosophers are for [Snodgrass] to have charged fees of not so far from lawyers, and there is a good reason why a lot of $266,445 when he should not have allowed non-lawyers privately agree that lawyers are the worst (it is painful, [Mr Acorn’s parents] pay [sic] until they had but true). My diagnosis is lawyer creep: the skills required to be a received independent legal advice and had good lawyer leaching into places where they hurt instead of help. not complied with rules 3.4 and 3.5?” The Legal practice can be a rabbit hole. Our brains think that what LCRO concluded it was not fair. they see is all there is, so if your whole life becomes about work- The LCRO found no good reason to inter- ing, spending time with colleagues and lawyer friends, maybe fere with the orders the committee made, even marrying a lawyer, or even if you just see no reason to including the order that fees be written off. differentiate between how you approach work and how you The LCRO also ordered Snodgrass to pay approach everything else, there is a risk that these ways of $1,600 costs. thinking, so useful at work, become your default way of being.

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NEW LAWYER Watch out for lawyer creep

This sounds very doomsday and extreme. These may sound like luxuries, but they are actually part of It can get that way (if left unchecked your work, and vital to a good life. Anxiety and depression make lawyer creep will, well, creep), but there it harder to work and, more importantly, harder to live. They do are ways to head it off at the pass. not serve anyone. Keeping your lawyer brain hat on at all times? So much so that you absorb it into yourself? And it is no longer a A hat you put on at work hat, but instead just your brain? That way leads a dark life. One is to think of your lawyer brain as a The alternative, where you get to let stuff go and talk about fun hat you put on at work. When you put things and relax and speak kindly to yourself, that road is much it on your eyes focus, maybe you squint more enjoyable – and it will make you a better lawyer. a little, and you critique the hell out of those draft contracts and those opposing * I know I say that like it’s so easy to change how you think submissions. You kick ass, you take names, on a dime; believe me I know it is not. My intention is to give you do little finger shooters as you walk permission to turn down the volume of lawyer brain when you past everyone’s offices. But then, at the end are not working, not to scold you if you can’t always do that. ▪ of the day, you take off your lawyer brain hat, feel your shoulders fall a little, and a Katie Cowan  [email protected] is a former lawyer. gentle smile comes over your face as you She is now director of Symphony Law, a consulting practice think about all the fun things outside of for lawyers. Katie hosts The New Lawyer podcast, which can work, and you let the hyper-critical, risk- be found at  thenewlawyer.co.nz. averse, belligerently argumentative bits of you melt away.* Of course, lawyer brain hat, my new invention, only works if you have fun non-lawyerly things to go to outside of work. That’s where non-lawyer friends come in, and improv classes, and sports teams, and weekend hikes, and noodling on Recognised industry experts the French horn, and cooking a big dinner Serving legal documents for over 30 years for your teacher/nurse/artist/construction friends, and going on dates, and putting Fast, professional, nationwide process serving for solicitors & government agencies. your phone on airplane mode so you can P: (09) 302-2476 E: [email protected] W:www.docuserve.co.nz read your really good book about dragons.

75 PRACTISING WELL March 2018 · LAWTALK 915

PRACTISING WELL Trauma at work

BY KATE GEENTY

judges conducted by psychologist Vicarious, or secondary, trauma Peter Jaffe found that 63% of the is an occupational hazard for judges reported one or more symp- legal professionals, who are often toms of work-related vicarious exposed to other people’s trauma trauma. These symptoms included a through their jobs. lack of concentration, fatigue, loss of When work involves dealing with appetite, flashbacks, losing faith in distressing evidence and trauma God or humanity, a loss of empathy situations, it’s crucial to monitor and a sense of isolation from others. your mental health, says clinical “Clearly judges’ exposure to the psychologist Karen Nimmo, who graphic evidence of human potential runs the Wellington-based consul- for cruelty extracts a high personal tancy On the Couch. “Symptoms cost,” the study reported. can build up gradually or come in a rush, so knowing your baseline What are the helps you know if, and when, you potential triggers? are struggling.” Sometimes the tipping point can Unlike normal work stress, come when stresses at home which everyone will experience at coincide with a stressful period at some point, trauma is ongoing and work, says Ms Nimmo. “People often overwhelming. “Feeling rattled by a handle work stress and trauma well, difficult case or situation is normal but the tipping point can come – only robots feel nothing. However, when something also goes wrong with good self-care strategies any at home – particularly if they were pornography cases led to night- symptoms should begin to lift after already emotionally vulnerable.” mares back in 2005. “I would wake a few days. Where they linger, don’t Other potential stressors are prob- up in the witching hour screaming, be afraid to seek professional help. ably familiar to many who work in sweating and panicked. I thought it It’s more common than you think,” the legal profession: would pass, but it did not.” she says. • Young lawyers trying to prove He was referred to a trauma psy- themselves, chologist and was granted permission What are the signs? • Having an out of control workload from the Chief Magistrate to avoid Ms Nimmo says the early signs of or working long hours, similar cases for a while. He thought trauma include sleep difficulties, • Having concurrent personal he was “cured”. However, a decade excessive ruminating over the stressors, later he went through what he called distressing event, an emotional • Have had mental health difficul- “a bad six months” on the circuit. It response when reminded of it, ties previously, included dealing with a gruesome nightmares for several days, feeling • Feeling isolated at work/home, child sexual assault case, a rape case disconnected, increased negativity, • Unsupportive management. and a child pornography case, as well excess fatigue, loss of motivation as violent incidents in court. and signs of anxiety, such as feeling Waking screaming After suffering for several sleep- jittery or dreading work. “Take par- in the night less months, he eventually took ticular note if these things spill into In a speech at the Federal Court his doctor’s advice and took two your personal life, eg, they affect in New South Wales last year weeks off. He wrote a letter to the your relationship or family life, or Australian magistrate David Deputy Chief Magistrate (who was cause you to stop doing activities Heilpern spoke of the personal responsible for leave applications) you would normally enjoy.” fallout of presiding over horrendous and described his state of mind. He In 2003, a Canadian study of 105 criminal trials. Dealing with child describes it as “the hardest letter I

76 LAWTALK 915 · March 2018 PRACTISING WELL

have written in my life”. officers are humans not automatons. identity) outside work. In a paper he wrote to accompany I have learnt that suppressing emo- New Zealand’s Chief High Court his speech, he said he now has steps tion every day is a recipe for mental Judge, Justice Geoffrey Venning, in place to deal with work-induced health fragility.” says there are strategies in place trauma, including treating his mind to support judges who deal with as a “big sponge” when dealing with Protective strategies disturbing cases. These include traumatic cases. It sucks up some There are a number of ways you can judges having individual mentors, of that trauma vicariously, and I am try to protect yourself, says Karen with whom they can discuss all watchful to ensure that the sponge Nimmo. issues, both professional and does not get too full. I would not • Limit exposure to particularly private, general collegial support, hesitate to seek help should the traumatic situations, annual medical checks as well as sponge feel close to full, and I am • Anticipate cases which may tap confidential counselling which is certainly better placed to watch for a vulnerability in you and plan available on request, and Institute the signs, given my experience.” accordingly, of Judicial Studies (IJS) courses. He said that a judicial officer’s • Take regular breaks during the The New Zealand Law Society also quest for objectivity can lead to day, runs the Practising Well initiative, the suppression of emotions. “It is • ALWAYS debrief difficult cases which includes an online health perhaps time to recognise that the with a colleague or supervisor, assessment to help lawyers get expression of emotion is not the • Regular supervision a clearer picture of their physical opposite of administering justice. appointments, and mental health. Discounted I have laughed on the bench, and • Exercise regularly and do enjoy- counselling rates for members of I have teared up on the bench. This able activities, the Law Society and their families is neither good nor bad. It just is, • Take holidays, is also available through Lifeline, and part of recognising that judicial • Ensure you have a life (and lifeline.org.nz ▪

77 PRO BONO March 2018 · LAWTALK 915

PRO BONO The Good Lawyer Project

BY ANGHARAD O’FLYNN

In a perfect world, a client charged with a criminal offence should be judged by evidence and that alone. However, it is widely accepted that “first impressions” can play a role in the courtroom when it comes to how clients are perceived. In January, a judge in Otago sent seven defendants home to get changed before their hearings because of ▴ Emma Priest their attire. “You’re in a courtroom, not a beach,” the group, who were wearing jandals, shorts and singlets, were told. A change of clothes can be a beneficial part of recti- fying any misperception, especially if a client’s case is covered by the media and they are exposed to the public. However, not everyone has the means to buy a new suit for a court appearance. To address this problem, criminal lawyers Emma Priest and Susan Gray founded The Good Lawyer in 2016 after going into private practice. The project aims to encourage lawyers to donate clothing and books that will help clients, both in court and if they go to prison. With 15 years of experience in the criminal law sector, Ms Priest is a specialist criminal barris- ▴ Susan Gray ter and appears on all criminal matters. She has worked in the The Good Book Project – we have donated over 2,000 Public Defence Service, and has books and 250 shirts to date”, says Ms Gray. represented clients on both sides “Many The Good Book Project was Emma’s first endeavour. of the courtroom as a Crown pros- prisoners Donated books were given to prisoners giving them ecutor and a defence lawyer and remark that it exposure to new ideas and to think about human stories, also provides legal aid. is the first time both similar and different to their own, and helps them Susan Gray has 25 years of experi- they have worn pass the time in a more constructive way. ence in the criminal law sector, also a shirt and And the clothing initiative has its own particular appearing on all criminal matters. would love to benefits. Like Ms Priest, she has also worked be able to keep “We recognised the effect that wearing a shirt had on as both a Crown Prosecutor and as them – there is prisoners in two ways,” says Susan of Shirt on Your Back. a defence lawyer and provides legal a confidence “Firstly, in terms of perception by jurors in jury aid. that comes trials and the potential for adverse judgment whether Both currently practise and with people consciously or unconsciously which could impact on wanted to establish long-term pro- dressed a fair trial. In terms of matters where the media were jects that they could run alongside appropriately present, this extends to the general public and their their busy work days. “Our first two for the court perception of offenders. projects are Shirt on Your Back and environment,” “Secondly, there is a psychological impact on a

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defendant in terms of their presentation in court. The While The Good Lawyer is not yet nationwide – it’s lack of a proper shirt brings feelings of inadequacy and currently only servicing Auckland where both women difference in an already stressful environment.” are based – it has received a lot of interest from lawyers The appeal for the two women was that they could all over New Zealand. help remedy some of these problems directly. “We are Due to the positive feedback, the next step is consid- simply two barristers who contribute in a simple way ering how to work collaboratively with contributors on a regular and sustainable basis,” says Ms Gray. around New Zealand over the next year. “We do have The response to both the Good Book Project and nationwide ambitions, but hope to address corrections Shirt On Your Back has been overwhelmingly positive. reform on a much more fundamental level”, says Ms “People have been amazingly generous. We have had Gray. brand new shirts donated, others have donated entire As the programme aims to provide long-term, edu- book collections. Donators have included lawyers, real cational and beneficial projects, Emma and Susan have estate agents, students, judges, summer clerks and also been working collaboratively with a professor from administrative staff.” Auckland University. “Discussions are underway to The feedback from prisoners and clients has been offer a series of interactive lectures on a single topic at rewarding. “Many prisoners remark that it is the first Auckland Prison. Subjects will range from science to time they have worn a shirt and would love to be able drama, drawing to psychology with a focus on prob- to keep them – there is a confidence that comes with lem-solving and prisoner participation.” ▪ people dressed appropriately for the court environment,” she says. If you would like to donate to either The Good Book One client says: “Having a nice shirt to wear in court or Shirt On Your Back initiatives, both clothing and makes us feel more civilised. Not the odd one out in books can be donated at Blackstone Chambers, 14 the courtroom.” Wyndham Street, Auckland CBD. Drop-off points And another inmate who received some books says: are also available in Bayswater and Mt Eden by “If I have a good book to dive into it makes the time arrangement. For more information go to the Good go faster. Stops me looking at the clock. We have some Lawyer website at  http://emmapriest.co.nz/ long lock-ups.” the-good-lawyer/

79 PRO BONO March 2018 · LAWTALK 915

PRO BONO McCaw Lewis’ active community involvement

BY CRAIG STEPHEN ▴ From left to right: Stacey Fifield, Aidan Warren and Kim Hill, Co-Chair of Te Hūmeka. A Hamilton firm is reaching out to the growing Pacific communities and Māori entrepreneurs in the Waikato region. McCaw Lewis is a long-standing firm in the city with Te Hūmeka Waikato Māori 51 staff. Business Network Recently, it established the Pasifika Law Initiative to The firm sponsors time for Stacey Fifield, the firm’s further develop its relationship with the Pacific com- Branding and Event Coordinator, to provide adminis- munity in Waikato. trative support to the Te Hūmeka Waikato Māori Business Aidan Warren, the firm’s Managing Director, says Network. McCaw Lewis recognised the growing Pacific population The Network was founded in 2010 as a non-profit in the region which translated to growing Pasifika-owned organisation whose main function was to support businesses and professionals in the workforce. Māori businesses and help them to network. Mr “We acknowledged that we could add value to the Warren is the Co-Chair and other staff members development of these Pasifika businesses through the provide support and advice when required. provision of specialised legal services with the right “Te Hūmeka organises educational and informative cultural pitch, and in addition create opportunities to evenings where we can bring our members together to network with other like-minded professionals in other network so they can share their experiences in owning areas of expertise and disciplines.” their own businesses in the Māori community,” says The initiative has its roots in Mr Ms Fifield. Warren’s involvement with the “We aim to do four events per year: we provide a Pacific communities in Hamilton Facebook page to promote and advertise our members and in Samoa where his wife is and we also have a website with a directory. McCaw Lewis Supreme Court Justice. It was holds events at their offices and, when needed, helps with developed into a project by one of legal requirements such as establishing a constitution. the firm’s lawyers, Jerome Burgess, “The events are pretty informal; we have two or three who is of Samoan descent. McCaw Lewis has main speakers who share information about what could The initiative has led to McCaw also had a long- help our members. McCaw Lewis has an experienced Lewis becoming the official term involvement Māori legal team so we cover Māori legal cases or devel- law firm for the Waikato Pacific in Māori legal opments in that area of law. Business Network and Mr Warren work where “We also promote local businesses that are doing well is a member of its Executive understanding or are relatively newly established. One of the last events Committee. and embracing of 2017 was at Nourish Pod, a one-year-old café owned McCaw Lewis has also had a culture and by a woman of Māori descent who recently returned long-term involvement in Māori different world from Australia. It was a great opportunity to learn about legal work where understanding views is as her journey and what she wanting to achieve.” and embracing culture and different important as world views is as important as the the legal advice Cricket connection legal advice provided. provided. McCaw Lewis is one of the sponsors of the Northern

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PRO BONO Unlocking potential through Districts cricket team, which mainly plays at Seddon Park in Hamilton, but represents associations from the Litigants in Poverty Bay to Northland, excluding Auckland. It is the home for several Black Caps regulars including Kane Person Service Williamson, Trent Boult, Ish Sodhi and BJ Watling. BY DARRYN “We have been sponsoring them AITCHISON for four years and are the official sponsor of the District’s Māori cricket team,” Ms Fifield says. is essential to our justice system The firm began in 1919 as McCaw People without legal rep- and to the legitimacy of the courts. Smith and Arcus and, over the resentation in bankruptcy disputes However, the tradition is of an decades, has morphed into McCaw in the Auckland High Court will now adversarial system which depends Lewis with 37 lawyers working at be able to access free legal assistance on skilled advocates to navigate. its London Street, Hamilton office. through the new Litigants in Person “Successful litigation involves Its core focus is in six areas: Service. The pilot service will extend mustering a complex set of infor- commercial, Maori legal, property, to lay litigants in the Employment mation and skills, and using those dispute resolution, workplace law Court (in Auckland) from April 2018. things strategically. Lay litigants and asset planning legal services. The service is part of an initia- typically find it too difficult. The Among other community and tive by Auckland Community Law service will reduce the impact of pro bono projects, they assist Angel Centre (ACLC). The initiative has two these issues,” says Kathryn Beck, Casts which creates detailed hand aims: firstly, to alleviate some of the President of the New Zealand Law and feet replicas from a baby or challenges created by the increas- Society. child for parents who have suffered ing number of people choosing to The presence of litigants in person a loss. The 3D stone casts provide represent themselves; secondly, to within a system designed for law- bereaved families with a tangible further unlock the potential of pro yers also brings challenges for other memory of their child. The firm was bono to improve access to justice. stakeholders. Practical difficulties involved in establishing the Angel Compared to other jurisdictions, largely relate to inefficiencies, such Casts Charitable Trust. pro bono in New Zealand is under- as delays, lack of clarity in pleadings, It also has a close relationship developed. All major common law extraneous evidence, which cause with the University of Waikato jurisdictions have a more coordi- frustration and additional costs to Faculty of Law (Te Piringa) which nated and structured approach to includes sponsoring Faculty com- pro bono than New Zealand. In petitions, employing law students Australia, for example, structured as clerks to gain work experience, programmes have seen pro bono Pro bono is an providing lawyers to assist with hours more than double in the past important tool Faculty competitions (such as mock 10 years. At the same time, pro bono for addressing trials) and writing articles for the has become increasingly targeted access to justice Waikato Law Review. at unmet legal needs. Simply put, a issues. It is not The firm has a long association structured approach leads to more a panacea, nor with supporting New Zealand pro bono, and more effective pro is it a substitute Charities including The Breast bono. for well-funded Cancer Foundation. The McCaw The initial focus on litigants in public services. Lewis Foundation has recently person is a response to a range of However, it is a been launched to enable staff and conversations, opinion pieces and flexible resource the wider McCaw Lewis whānau academic publications over the past that can quickly to give back to the community in few years. The right to conduct your move to address a collective and meaningful way. ▪ own proceedings in a court of law emerging issues.

81 PRO BONO March 2018 · LAWTALK 915

the system. Jurisprudential difficulties also more meetings and more advice at subsequent stages of their arise, as judges, registrars, and other coun- matter, and the amount of service provided will be matched sel are forced to help lay litigants navigate to the amount of need the lay litigant has. the system. This puts at risk the ethical The service is based on successful models overseas, several of integrity of the system as the courts (judges whom have shared resources with ACLC. Many of these other and registrars) risk falling foul of duties of services now sit within broader pro bono structures, such as independence, and opposing counsel risk clearing houses, and operate alongside other pro bono services, falling foul of duties to their own clients. such as public interest or homeless services. ACLC hopes the pilot To deal with these tensions, judges, will encourage and support the growth of pro bono along similar registrars, other counsel, and community lines in New Zealand. law centres routinely recommend that This service will contribute important impetus, knowledge and litigants in person obtain a lawyer. This infrastructure to the development of pro bono services in New ignores the fact there are barriers to doing Zealand. Pro bono is an important tool for addressing access to so, and so they remain unrepresented and justice issues. It is not a panacea, nor is it a substitute for well- their access needs remain unmet. funded public services. However, it is a flexible resource that can The service will try to address some quickly move to address emerging issues. of the information and skill gaps that The Litigant in Person Service is funded by New Zealand Law lay litigants typically have. Through a Foundation. It is supported by a wide range of stakeholders, includ- structured referral and briefing process, ing the New Zealand Law Society, New Zealand Bar Association, lay litigants will have short one-on-one several large firms, the Legal Issues Centre, and Community Law meetings with senior members of the Centres Aotearoa. profession. They will receive advice on The service can be contacted on 09 302 5343 between 9.30am and the main issues they face at whatever 5pm, Monday to Friday, or at [email protected]. The service accepts stage of proceedings they find them- requests from individuals for assistance as well as referrals from selves. That advice may cover merits of other legal services and caseworkers. ▪ their case, the pleadings, evidence, settle- ment strategy, hearing preparation, and Darryn Aitchison  [email protected] is the Administration conduct of the hearing. There is scope for Practice Leader at Auckland Community Law Centre.

82 LAWTALK 915 · March 2018 LEGAL INFORMATION

LEGAL INFORMATION

Family Law in New legal New Zealand, 18th edition BY MARK books received HENAGHAN, BILL ATKIN, JUDGE DALE CLARKSON, BY GEOFF JOHN CALDWELL, ADLAM KIRSTY SWADLING, RUTH BALLANTYNE AND SHONAGH BURNHILL The 18th edition of this well-established text for students and practitioners consolidates selected commentary from the Family Law Service as at 1 July 2017. The vastly experienced author team brings together Burrows, Finn and Todd on members of the judiciary, academics and the Law of Contract in New practitioners. It provides coverage of all Zealand, 6th edition aspects of New Zealand family law, focusing BY JEREMY FINN, STEPHEN TODD AND on major legislative provisions and the key MATTHEW BARBER case law. The authors say their objective First published in 1997 to replace the New is to set out the law as it is, “rather than Zealand edition of the English Cheshire discuss the social policies underlying the and Fifoot, the longstanding author team law, propose reforms, or criticise specific of Burrows, Finn and Todd has now rules, decisions, and practices”. become Finn, Todd and Barber – but retaining its University of LexisNexis NZ Ltd, 978-0-947514-38-9, Canterbury focus. The fifth edition of this definitive New Zealand December 2017, 1527 pages, paperback, $150 work appeared just two years ago and the authors say the early (GST included, postage not included). appearance of this latest edition has been driven by the omnibus Contract and Commercial Law Act 2017. This has required much Guide to rewriting and updating, although “whether it has succeeded in Competition making the law more accessible is at least debatable.” As usual, Law, 2nd all aspects of contract law in New Zealand are covered in a text edition which is for both practitioners and students. BY TONY DELLOW LexisNexis NZ Ltd, 978-0-947514-20-4, January 2018, 1100 pages, AND ANNA paperback and e-book, $170 (GST included, postage not included). PARKER This has been Environmental and Resource extracted from the Management Law, 6th edition competition law EDITED BY DEREK NOLAN QC chapters of the online Commercial Law in This has been extracted from the online New Zealand and retains the paragraph publication Environmental and Resource numbering of that text. The law is stated Management Law Online and retains the as at August 2017 and includes the changes paragraph numbering used in that text. made by the Commerce (Cartels and Other As defined by the title, the text gives com- Matters) Amendment Act 2017, although prehensive coverage to New Zealand law the authors note that key changes remain relating to the environment and resource untested and the Commerce Commission’s management. Its focus is legal and other practitioners. The 20 final Competitor Collaboration Guidelines chapters have been authored by 19 authors including the editor. had not been released at the time of The fifth edition was published in 2015. The law is stated as at writing. September 2017. LexisNexis NZ Ltd, 978-1-927313-93-0, LexisNexis NZ Ltd, 978-0-947514-47-1, December 2017, 1490 pages, March 2018, 301 pages, paperback, $150 paperback, $200 (GST included, postage not included). (GST included, postage not included).

83 WILL NOTICES · CLASSIFIEDS March 2018 · LAWTALK 915

Intellectual Property and Will the Regulation of the Internet EDITED BY SUSY notices FRANKEL AND DANIEL GERVAIS PAGE 84 The eight essays in this collection orig- Akolotu, Saia Fifita inate from papers Blackwell, June Marie presented at a workshop, Intellectual Chand, Jai Property and Regulation of the Internet: Couchman, David Olaf The Nexus with Human and Economic PAGE 85 Development. The essays explore the Hiriwant, Thomas Walter ways in which, in the context of IP law and Holmes, Ren Marie policy, human and economic development Murphy, Jacqueline Helen goals and related regulatory processes can Rowe, Pourite Toni - aka be enhanced or inhibited by the internet. Rowe, Toni Pourite The authors are academics from New Singh, Mukhtiar Zealand, Australia, Canada, England, Tucker, Frank Germany and the United States. Waters, Alistair Paul Victoria University Press, 978-1-776560- 99-8, December 2017, 219 pages, paperback, $40 (GST included, postage not included).

Planning Practice in New Zealand Akolotu, Saia Fifita EDITED Would any lawyer holding a will for the above-named, late of Pukekohe, Auckland, Cool Store Manager, born CAROLINE on 15 May 1969, who died on 19 December 2017, please MILLER AND LEE contact Blackwood Hawkins Law: BEATTIE  [email protected] This is described as  09 238 3532  a practical guide to DX EP77017, Pukekohe planning practice Blackwell, June Marie and the application of planning law in New Would any lawyer particularly in the Wellington Zealand. The 19 chapters are written by area holding a will for the above-named, formerly 21 planning academics and practitioners. of 46 Blackbeach Street, Birchville, Upper Hutt, but recently of Flat 8, 805 Fergusson Drive Upper Hutt, The editors are former practitioners turned please contact Ruchelle Liut, Public Trust: academics. Caroline Miller is an Associate  [email protected] Professor at Massey University and Lee  04 978 4847 Beattie Deputy Head of the University of  PO Box 31543, Lower Hutt, Wellington Auckland’s School of Architecture and Chand, Jai Planning. They have aimed to provide a Would any lawyer particularly in the Auckland book which addresses how planning is region, holding a will for the above-named, late of practised in New Zealand on a day-to-day 18 Moville Drive, Flatbush, Auckland, who died on 27 basis. Their objective is a resource from a December 2017, please contact Ilsaad Razak, West planner’s perspective which can be used City Law Limited:  [email protected] anywhere.  09 838 6353 LexisNexis NZ Ltd, 978-0-947514-06-8,  PO Box 21176, Henderson, Auckland 0650 November 2017, 327 pages, paperback and Couchman, David Olaf e-book, $120 (GST included, postage not Would any lawyer holding a will for the above-named, included). late of 43 Palmyra Way, Half Moon Bay, Businessman, who died on 13 August 2017, please contact Bruce This information is compiled from Dell, Bruce Dell Law: books which publishers have sent  [email protected] to LawTalk.  09 570 5036  PO Box 14224, Panmure, Auckland 1741 - DX EP80508

84 LAWTALK 915 · March 2018 CLASSIFIEDS · LEGAL JOBS

DIGITAL Hiriwani, Thomas Walter Would any lawyer holding a will for the above-named, SECRETARY late of 70A Kelvin Road, Papakura, Storeman, who died on 14 December 2017, please contact Bruce Dell, Bruce Dell Law: I am an experienced legal secretary offering a  [email protected] professional and prompt transcription service  09 570 5036 using digital dictation. This service is ideal for sole  PO Box 14224, Panmure, Auckland 1741 practitioners and small practices. Confidentiality - DX EP80508 guaranteed. Holmes, Ren Marie  [email protected] Would any lawyer holding a will for the above-named, Pauline Southwick late of Thames, Breast Screening Administrator, born  027 289 8175  09 427 0465 on 13 November 1960, who died on 19 November 2017, please contact Blackwood Hawkins Law:  [email protected]  09 238 3532 PRACTICE FOR SALE  DX EP77017, Pukekohe NZ AND WWW Murphy, Jacqueline Helen A third generation legal practice office, based in Would any lawyer, particularly in the Wairarapa, Wellington and Timaru areas, holding a will for the Wellington with a client base all over New Zealand above-named, who died in Armidale, Australia on and overseas, is for sale. The opportunity is offered to 4 June 2014, please contact Bruce Logan, Gibson purchase a broad based practice and to further develop Sheat, Masterton: various areas within the strong on IT systems practice.  [email protected] If wanted, the vendor could be retained for a period as  06 370 6474 consultant and mentor.  PO Box 562, Masterton 5840 Interested practitioners please contact the address Rowe, Pourite Toni - aka below for further information: Rowe, Toni Pourite [email protected] Would any lawyer holding a Will for the above- named, late of 3 Saphire Place, Hamilton, beneficiary, born on 3 September 1967, who died on 17 August 2016, please contact Jenny Pain, Evans Henderson Woodbridge  [email protected]  06 327 7159  PO Box 326, Marton 4741 - DX PA84502 CHAMBERS VACANCIES – WELLINGTON Singh, Mukhtiar Lambton Chambers currently has an office available Would any lawyer holding a will for the above- for a full member of Chambers. Lambton Chambers named, late of 6 Hailes Road, Whenuapai, Auckland, is centrally located in Legal House at 101 Lambton previously of 103 Reynella Drive, Massey, Auckland, turck driver, born on 9 April 1981 in Mahilpur Punjab, Quay, close to all the Capital’s Courts, Parliament India, who died on 10 December 2017, please contact and the Government precinct. John Lamborn, Inder Lamborn & Co: If you are interested in knowing more, please  [email protected]  09 283 8481 email or phone Paul Michalik at  PO Box 1015, Pukekohe 2340 - DX EP77012, [email protected] or on 04-499 9298. Pukekohe Tucker, Frank Would any lawyer holding a Will for the above-named who has early stage dementia, of Carter House, 69 SOLICITOR – Moehau Street, Te Puke, who has lived all over New NEW PLYMOUTH Zealand, retired, born on 19 June 1922, please contact Glenn Tucker We are seeking a solicitor to join the team at Nicholsons in  [email protected] New Plymouth. The successful applicant will preferably have a  03 420 0607 minimum 5 years’ PQE but lesser experience will be considered.  325B Greers Road, Christchurch 8053 Applicants must have the ability to work well under pressure and provide a high level of client service with a friendly and Waters, Alistair Paul engaging personality. With excellent opportunities for career Would any lawyer holding a will for the above-named, progression this is a role worthy of serious consideration for late of Katikati, Horticulturist, born on 13 July 1970, those who see their future in New Plymouth. who died on 7 December 2017 aged 47 years, please contact Sue Adams, c/- Kaimai Law Katikati: Please email your CV and cover letter to  [email protected] [email protected]. For any queries please  07 549 4890 call Richie Flitcroft on (06) 757 5609.  PO Box 56, Katikati 3166

85 LEGAL JOBS · CLASSIFIEDS March 2018 · LAWTALK 915

YOU’VE DECIDED TO SPECIALISE IN RESOURCE MANAGEMENT LAW We completely understand.

COMMUNITY MAGISTRATES Christchurch, Auckland, Hamilton and Tauranga Successful people find what they love and then be the best they can be. That’s why we created Christchurch’s first firm to specialise in resource management and environmental law. We enjoy it, we’re good at it, and The Minister of Justice is seeking expressions of interest we are committed to helping our clients achieve successful outcomes. from suitably qualified persons for appointment as part- time Community Magistrates to be based in one of the Now, we want you to come and join us. We imagine you to be a solicitor above locations. with two to four years’ experience, ideally in resource management and environmental law. You are well-organised, a good communicator, and Community Magistrates were established to relieve the confident with clients, professionally and socially. As well, you are a team workload of District Court Judges and to improve access player interested in developing your own business. to and to increase community involvement in the justice system. What we offer is – we think – something special. We aim to set the standard in the practice of resource management and environmental The ideal applicants will have a background and/or law. We work on the most interesting cases. We collaborate. And we are qualifications in law, however practising lawyers are not committed to helping everyone on our team develop their full potential. eligible for appointment. To learn more about us, go to our website, www.adderleyhead.co.nz. Additional information and an application pack for the Then, contact Paul Rogers on 03 353 1341 or position may be obtained from the Ministry of Justice [email protected]. website: http://justice.govt.nz/about/statutory-vacancies.

Applications close at 5.00pm, Friday 23 March 2018.

REFEREES, DISPUTES TRIBUNAL REFEREES, DISPUTES TRIBUNAL

There will shortly be a process for the appointment There will shortly be a process for the appointment of Referees in the Christchurch Region. Members of of Referees in the Gisborne Region. Members of the the public are invited to submit the names of persons public are invited to submit the names of persons who are considered suitable for appointment as who are considered suitable for appointment as Referee. Referee. Nominations must be sent in writing or by email. Nominations must be sent in writing or by email. They must contain the name, address, telephone They must contain the name, address, telephone number and email address of both the nominator number and email address of both the nominator and the person being nominated. and the person being nominated. Once a nomination has been received, the person Once a nomination has been received, the person who is nominated will be sent an application pack who is nominated will be sent an application pack with details relating to the position and how to apply with details relating to the position and how to apply for it. for it. Nominations are to be made to the Principal Disputes Nominations are to be made to the Principal Disputes Referee, Private Bag 32 001, Featherston Street, Referee, Private Bag 32 001, Featherston Street, Wellington 6146, Ph: (04) 462 6695, or email: Wellington 6146, Ph: (04) 462 6695, or email: [email protected] [email protected] Nominations must be received by this office no later Nominations must be received by this office no later than 12 noon on Wednesday 21 March 2018. than 12 noon on Wednesday 14 March 2018.

86 CLASSIFIEDS · LEGAL JOBS

021 611 416 | jlrnz.com

Senior Lawyer with partnership aspirations Social Workers Complaints and Nelson Tasman Disciplinary Tribunal Member Fletcher Vautier Moore is a leading firm with offices in Nelson, Richmond and Motueka. An opportunity exists to take over an established practice in the firm’s Motueka office. The role has come about due to the The Social Workers Registration Board invites retirement of a partner and senior solicitor and would suit someone with appropriately qualified applicants to submit partnership aspirations. The opportunity will see you manage a team of legal professionals and expressions of interest for appointment to the grow your personal brand and practice. You will be able to call on the Social Workers Complaints and Disciplinary support of the wider firm to provide more specialist advice when required. Tribunal as per the Social Workers Registration The work is general practice with a focus on commercial to include sales and purchases of commercial businesses, commercial leasing arrangements, Act 2003. rural transactions, residential conveyancing work, trust and estate work; and The functions of the Social Workers Complaints rural and residential subdivisions and boundary adjustments. Clients are principally orchardists, commercial building owners and and Disciplinary Tribunal include administering farmers. In addition, the firm carries out significant work for local the complaints process concerning registered authorities as well as iwi at the top of the South Island and various private companies. Given the continued growth in the region, there is plenty of social workers and exercising the disciplinary scope to further grow the Motueka practice. powers established by the Act. Motueka is a 30 minute drive from Richmond and 15 minutes to Kaiteriteri. The surrounding location offers lifestyle blocks, golden sand beaches, fresh The Board wishes to appoint a lawyer to the produce and well known wineries. A beautiful lifestyle is guaranteed! The Tribunal to replace a recent retiree. firm promises quality work and a quality team. The culture is commercial in approach and forward thinking. The Act requires that Tribunal members be Please contact Jennifer Little for a confidential discussion at: drawn from individuals having knowledge and [email protected] experience of matters likely to come before the Tribunal and from registered social workers and individuals who are not registered social workers. At least one member of the tribunal must be a barrister or solicitor of the High Court of not less than seven years’ practice. Wilkinson Smith Lawyers The Board is required to have regard to the CROWN SOLICITOR’S OFFICE need to ensure the Tribunal has people who WHANGANUI represent Maori and other ethnic and cultural groups in New Zealand. The Crown Solicitor for Whanganui has two positions available: Individuals appointed as Tribunal members Junior lawyer need to be available to sit on Tribunal This role involves research, submission writing hearings depending on their availability and and appearances on sentencing matters. There the nature of the complaint being considered. are opportunities to develop into jury trials and appeal work. Suitable for a graduate or recently For further details and a copy of the Position admitted practitioner. description contact the Registrar, Social Workers Registration Board on 04 931 2650 Jury Trial lawyer This role involves regular jury trial work. The or email [email protected]. successful applicant should have jury trial Expressions of Interest should be marked experience, but the role is flexible depending upon “Confidential” and sent, together with the experience level of the successful candidate. Civil litigation experience is also an advantage. a current CV, to The Registrar, Social Workers Registration Board, PO Box 3452, Flexible start date. Wellington Central, Wellington 6140. Apply with covering letter and CV to: Closing date for Expressions of Interest is Michele Wilkinson-Smith 5pm on 14 March, 2018. Email: [email protected] LEGAL JOBS · CLASSIFIEDS March 2018 · LAWTALK 915

Regulation Roles

Senior/Legal Counsel, Senior Telecommunications Lawyer, Regulation Regulation • 12 month fixed-term position • Permanent position • Wellington-based • Auckland or Wellington We have a fantasti c opportunity for a lawyer to join We are seeking a talented Telecommunicati ons our talented team to cover an internal secondment Lawyer to join our Legal Team. This role will contribute for 12 months. signifi cantly to our high profi le projects, such as a market study of mobile telecommunicati ons and the This role will contribute signifi cantly to our creati on of a new regulatory regime for regulati ng organisati onal reputati on, and will be visible, fi bre services, as well as providing advice to existi ng proacti ve and trusted in all situati ons. projects across the full range of telecommunicati ons To be successful in this role, your core strengths will regulati on undertaken by the Commission. include: To ensure your success in this role you will:  being a sophisti cated adviser  have relevant experience in the  having excellent judgement in handling complex telecommunicati ons sector, whether in legal issues New Zealand or an overseas jurisdicti on  being a good communicator  be a sophisti cated adviser  taking a balanced approach to legal risk.  have excellent judgement in handling complex legal issues Your ability to form strong working relati onships with internal and external stakeholders will be vital to your  be an excellent communicator success in this role. You will have in-depth knowledge  take a balanced approach to legal risk. and experti se in economic regulati on, competi ti on law or public law, and have a good understanding of Your ability to form strong working relati onships with economic principles and statutory interpretati on. internal and external stakeholders is vital. You will have in-depth knowledge and experti se in economic Experience in one of the regulated industries - regulati on, competi ti on law or public law, and have electricity, gas, airports, telecommunicati ons or dairy a good understanding of economic principles, and - would be an advantage. statutory interpretati on. The Commission promotes work/life The Commission promotes work/life integrati on and is integrati on and is open to fl exible working open to fl exible working arrangements. We also have arrangements. We also have a focus on professional a focus on professional development. development. Applicati ons close at 5pm on Applicati ons close at 5pm on Tuesday, 27 February 2018. Monday, 26 February 2018.

To apply for either of these opportuniti es, please send your CV and a covering lett er to [email protected] Alternati vely, contact Nicola Gee, Senior Human Resources Adviser on (04) 924 3795, for further informati on.

www.comcom.govt.nz/careers

88 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION

INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Auckland 21-22 May LITIGATION SKILLS Sandra Grant 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 Programme Partner: 13.5 CPD hours on how to brief, examine and cross-examine experts. For all litigators from civil, criminal, family and other specialist jurisdictions with at least fi ve years’ experience. COMPANY, COMMERCIAL AND TAX

INTRODUCTION Local Presenters A practical two-day transaction-based workshop that will Christchurch 7-8 Mar TO COMPANY LAW equip you with the knowledge and understanding to deal with Wellington 15-16 Mar PRACTICE the purchase, establishment, operation and sale of a business. A popular, regular in the CLE calendar. Auckland 19-20 Mar 13 CPD hours

UPDATE ON CONTRACT Paul David QC Sound up-to-date knowledge of contract law is essential for Dunedin 13 Mar all commercial lawyers. This important update seminar will Wellington 15 Mar 2.5 CPD hours cover recent court decisions and legislative changes, focus on specifi c areas of contract law, and consider decisions from Christchurch 16 Mar other common law jurisdictions relevant to contract law in Hamilton 20 Mar 1.5 CPD hours New Zealand. Auckland 21 Mar Webinar 15 Mar

CRIMINAL

DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Mar-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 Wellington 22-23 Mar CRIMINAL LAW PRACTICE being an e– ective criminal lawyer. This workshop will benefi t Auckland 20-21 Jun 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. 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

LAWYER FOR CHILD Hana Ellis This workshop has been designed to ensure participants have Wellington 21-23 Mar Wendy Kelly the opportunity to develop the full range of skills, knowledge 18.5 CPD hours and attitudes required to carry out the role of Lawyer for April Trenberth Child e– ectively. Jason Wren

ADVANCED LAWYER Chair: As lawyers representing children we hold a privileged Wellington 28 May FOR CHILD INTENSIVE Usha Patel position, advocating for some of the most vulnerable members of our community. With further changes on the 7.5 CPD hours horizon join us to be updated, consider modes of practice and receive insights to challenge yourself at the Advanced Lawyer for Child Intensive.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN GENERAL

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.

WEBINAR SERIES

AML/CFT ACT TOOL KIT Henry Brandts-Giesen Webinar 2 - A full understanding of your clients and the Webinar 28 Mar SERIES: WEBINAR 2 – Neil Russ nature of their activities and associated transactions is at DUE DILLIGENCE the cornerstone of the AML/CFT legislation. This webinar will have a strong focus on client due diligence processes, 1.5 CPD hours particularly enhanced customer due diligence, provide advice in respect of assessing client activity and preparing and fi ling Suspicious Activity Reports, and outline the applicable penalties for non-compliance. IN-HOUSE COUNSEL

SHARED SERVICES Rupert Ablett- Negotiating interagency agreements and balancing Crown Webinar 27 Mar AGREEMENTS – Hampson and agency interests can both be very challenging. The GOVERNMENT John Bassett presenters will discuss the development of agreements between the Ministry of Social Development and Oranga 1.5 CPD hours Tamariki, highlighting challenges and lessons learnt that will be relevant and valuable for other government lawyers. PRACTICE & PROFESSIONAL SKILLS

DEALING WITH Simon D’Arcy Some people in the legal arena can be hard to work with – Auckland 5 Mar DIFFICULT PEOPLE solicitors on the other side of a matter, clients, witnesses, Christchuch 7 Mar opposing parties, senior partners, judges or your own 5.5 CPD hours sta . People working in the law get challenged by di• cult behaviours daily. The workshop will enable you to improve communications with everyone you deal with and reduce your stress in di• cult communications.

TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Various Mar-Sep ADMINISTRATORS training is for new trust accounting sta , legal executives, legal secretaries and o• ce managers. 4 CPD hours

SPEAKING YOUR Brenda Ratcliff This webinar will help you learn how to communicate more Webinar 6 Mar CLIENTS’ LANGUAGE e ectively. When you match your language to what motivates others, you can achieve a powerful combination. Learn 1.5 CPD hours e ective new communication techniques to put into action immediately.

GETTING ON TOP OF Jonathan Robinson This practical and enjoyable one-day workshop will provide Wellington 19 Mar IT ALL – WORKING you with skills and techniques to help you to be more Auckland 22 Mar SMARTER e ective, stay focused and handle the pressure and heavy workloads of the modern work environment. Jonathan 6.5 CPD hours Robinson is a stimulating, inspiring presenter – you’ll be glad you chose this course!

COMMUNICATION Jonathan Robinson This very popular one-day practical workshop will provide you Wellington 20 Mar MIRACLES AT WORK with skills and techniques you can start using straightaway to Auckland 23 Mar improve your communication with others in all areas of your 6.5 CPD hours working life. A day with Jonathan Robinson is an investment in yourself, your skills and your future.

TRUST ACCOUNT Philip Strang To qualify as a trust account supervisor, you must complete Auckland 1 19 Apr SUPERVISOR TRAINING 40-55 hours’ preparation, attend the assessment day and pass Hamilton 19 Jul PROGRAMME all assessments. The training programme consists of self-study learning modules to help you prepare for assessment. Wellington 13 Sep Auckland 2 13 Nov 7.5 CPD hours Christchurch 22 Nov

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111. HISTORY CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN PRACTICE & PROFESSIONAL SKILLS

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.

PROPERTY

REGULATORY Setareh Masoud-Ansari This webinar will outline the way your primary industry clients Webinar 8 Mar ROADBLOCKS – DEALING may be impacted by public sector agencies in provincial, WITH THE PUBLIC regional and rural New Zealand and will have a practical focus SECTOR to assist you in providing robust advice to your clients to help them navigate their way through the red tape. 1 CPD hour

LAND TRANSFER ACT – Thomas Gibbons The Land Transfer Act 2017 (LTA) will replace the outdated Webinar 22 Mar PRACTICAL TIPS Robert Metcalf 1952 Act. Virtually all private land transactions rest on the framework of the LTA, and the new legislation modernises 1.5 CPD hours and updates this framework. This webinar will help you understand the practical issues, and provide guidance on how to e’ ectively advise your clients.

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 two days of stimulating engagement on topics of essential 13 CPD hours importance and interest in the property law fi eld.

TRUSTS AND ESTATES

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

RETIREMENT VILLAGE Michelle Burke It is extremely important that clients interested in buying into Auckland 27 Mar OPTION Elizabeth Rowe a retirement village are kept fully informed of the contracts that they are contemplating entering into. This seminar will Chair: Troy Churton 2 CPD hours focus practically on providing the resources and knowledge to help ensure that you are able to ask your clients the right questions and provide them with robust advice.

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 eœ ciently with local government to give e’ ect to consents.

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz LIFESTYLE

1 2 3 4 5 6 7 8

9

10 11

12 13 A New 14 15 16 17 Zealand 18 19 Legal Crossword 20 21 22 23 24 25

SET BY MĀYĀ 26 27

J C E U S Y G A Across Down C U L L O D E N C O W B E L L S S A I I H C R A 1 Heads deal with small man 1 Yes, in Hamburg to meet boy T A R O T T H O M A S M O R E charged with violating 19's 15 (4,6) hero (5) I I E O P C S C O O P E R S L O B E L I A S 6 Radio signal I'd put in the middle 2 Drunk apprehended - I say, he E N R T E A N T R U M P E T E R S W A N (4) won't end up here? (4,5) R O A E R T M L 10 Soldiers returned mother's letter 3 Minor punishment not sanctioned K A T Z E N J A M M E R S D O D N E A A (5) by Sue Bradford? (4,2,3,5) N A R C O S I S D U E L L I S T 11 A kids' game with puncture, from 4 No charge for this address (5) R E T I C T H E A R T T H R O B A S H E R a cursory examination (2,1,6) 5 Lorde, say, hurt in battle... (2,7) C I O E B I E O 12 Clue for "un" perhaps? An 7 ...which was won by The Full W H A T A R O A L A N G M U I R O E I K E T Y D expression of approval sometimes Python? (5) directed at Cyril (4,3) 8 Rapid movement up and down 13 Streams supposedly piratical outside the solar system (4,5) Solution to February exclamation to dolts scratching 9 A.D.C. Lawrence Orr baffled 2018 crossword head (7) defender of 1 across (8,6) Across 14 Cockney chap gave up on 14 Reformation first explained in 9. Culloden, 10. Cowbells, 11. Tarot, murder victim, say? That's fair (9) 1859 (9) 12. Thomas More, 13. Scoopers, 16 An almost average woman (5) 15 Albert cut out to deny 14 down? 15. Lobelias, 17. Trumpeter Swan, 18 Give away secret about stranger (6,3) 21. Katzenjammers, 24. Narcosis, (5) 17 Baudelaire sent fulsome praise 25. Duellist, 26. Heartthrob, 19 "X-S-E", say (or should that be to the somewhat bitter (9) 28. Asher, 29. Whataroa, "state") (9) 21 Paid attention to features of the 30. Langmuir. 20 Rattle and numb? (7) score? (5) 22 Rubble left in Stone (7) 22 Prosecutor of 1 across ran by in Down 24 During trial one gets custody distress (5) 1. Justice, 2. Clarion, 3. Edit, case, having no will of one's own (9) 23 Measures reassembled guts of 4. Unites, 5. Schoolterm, 25 Searcher left out - that's 22, and dissects skin (5) 6. YWCA, 7. Germ Plasm, 8. Alar becoming more common (5) Canal, 14. Errands, 16. Beetree, 26 No German lump or junction (4) 18. Mean Streak, 19. Radar Echo, 27 Stalls don't make a prison, 20. Ozocerite, 22. Alchemy, according to Richard Lovelace (10) 23. Astroid, 25. Dibble, 27. Tori, 28. Aint.

92 LAWTALK 915 · March 2018

LIFESTYLE Cycling in Amsterdam: beware of the killer bikes hitting other cyclists, or colliding with pedestrians are common. BY JOHN I was in Amsterdam in July last year, the first time BISHOP for many years, and our tour group were struck – literally – by the silent aggression of the bikers. After spaces despite the city council’s a couple of close calls and one very near miss that Amsterdam. The very name con- multi-million dollar investment in could easily have resulted in injury, one of our number jures up images of tulips, canals, building thousands more spaces. referred to “the attack of the killer bikes”. trams, windmills, artists such as The bike lanes are said to be Back in 2012 the Dutch Cyclists Union was well Rembrandt and Van Gogh, and too small for the volume of cycle aware of the problem. yes, cyclists. traffic. Providing wider lanes and “Problems all-too familiar to car drivers the world The Dutch are bike mad and more parking spaces has led to over, from traffic jams to road-rage and lack of proud of it. Seemingly, everyone even more cyclists, but not to parking, are now also threatening to turn the Dutch has a bike, and they are ridden by more manageable cycle traffic. dream of bicycling bliss into a daily hell. In a small all ages, all the time, and often in There is now an issue with over- country where bicycles outnumber people by 1.2 a very aggressive “we own the size bikes, which have fatter tyres, million, the Dutch have simply run out of space to path” manner. large baskets front or back and accommodate the five million cyclists who take to Amsterdam is often held up don’t fit into existing cycle stands. the road every day, turning commuting in major cities by public transport advocates And then there’s the abandoned into a nightmare,” it noted. as a modern, progressive city bikes. About 15% of bikes in bike After that Amsterdam (and other cities) spent mul- that accommodates cars, trams, parks are either abandoned or ti-million dollar sums widening bike lanes, providing canal boats, cyclists and pedes- ownerless according to the city more bike parks, and adding safety features to the trians with ease, but the image is council. Thousands of bikes are most dangerous bike lanes. Some of the bike parks increasingly at odds with reality. dredged out of the canals each are colossal and resemble graveyards more than In fact, the cyclists are becom- year. parking spaces. ing a major drawback for tourists, And finally, there is bike rage, and the civic authorities are wor- aggression and rudeness, which is Bike rage ried that visitors are being put off frequently experienced by pedes- According to the Dutch newspaper Trouw, “bicycle by the behaviour of many cyclists. trians who complain about the rage was flying across the handlebars.” The problems are numerous. cyclists’ “we own the road” atti- By 2016 an official report was saying that the There are more bikes than parking tude. Incidents involving cyclists Netherlands’ cycle lanes were still overcrowded,

93 March 2018 · LAWTALK 915

ironically because, at least in part, the improvements in cycling infrastructure had encouraged even more people to “take the bike”. SWOV, the Institute for Road Safety Research, said like it, don’t want it, and would the Dutch lane system might be a model to other sooner it didn’t exist. countries, but as bike paths filled to capacity during Incidentally, Amsterdam’s rush hour, crashes were becoming more frequent “For famous red-light district is con- and bikers’ poor road habits were partly to blame. Amsterdammers siderably smaller than it was, but SWOV set up cameras at four major bike lane inter- it’s frustrating,” British stag and hen parties are sections in The Hague, and recorded a catalogue of she said. “Some still numerous. bad behaviour. parts of the city It’s fashionable in some circles “Footage showed 20% of cyclists using their are just too busy before a wedding for a bridal phones while riding – though most of these were – there are too group or a grooms’ group to listening to music rather that texting. A large majority many bikes, too spend several days in a European of riders (80%) pulled out of lane to overtake without many scooters, city drinking themselves stupid looking behind them, while 5% of riders went as far too many and calling it a good time. as cycling in the wrong direction entirely.” cars, too many Amsterdam is a top choice, along pedestrians. with Hamburg and Prague. The Bike Mayor There’s no Anna Luten told the UK’s In 2016 Amsterdam created the position of “Bike space. It is a Guardian newspaper that with Mayor”, a voluntary position with support from the big source of so many bikes (one million bikes city council to liaise among the various cycling conflict.” for a population of 1.1 million) rush groups, other road users and the various civic and hour bike jams frequently forced national authorities to sort problems. cyclists to stop at every junction Anna Luten, a 28-year-old brand manager with an on major routes into the centre. international cycling company, and a keen cyclist “For Amsterdammers it’s frus- herself, got the job. trating,” she said. “Some parts of The position copies that of “night mayor” who the city are just too busy – there liaises between the purveyors of the city’s expanding are too many bikes, too many night economy, and residents and officials who don’t scooters, too many cars, too many

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pedestrians. There’s no space. It is a big source of conflict.” Later she told CityLab, an international magazine devoted to urban issues, her fellow cyclists had to clean up their behaviour. “In Amsterdam we get on our bikes and we cycle everywhere. We go with the flow of traffic, we cross from left and right; that’s how we always commute. Cycling is almost too successful. “Sometimes we have problems in the way we behave. Some even wheelbarrow-sized boxes Amsterdam citizens, they think for assorted bags, deliveries or they’re kings of streets when infants. they’re on their bikes.” “Almost 40% of Dutch bikes According to Ms Luten, the key have outgrown the standard was getting the infrastructure size – and many are too big for right. standard cycling racks.” And there is a cultural backlash Many bikes but cars within the Netherlands about still dominant this because the bigger cycles There is an imbalance of space. are taking up too much space. While bikes account for an esti- Women who load up their cycles mated 68% of journeys made in with children are called “self-cen- the city centre, they are allocated tred”; fathers who do the same just 11% of infrastructure space, are “not real men”. with cars getting 44%. Cycle park- Another problem is the arrival ing is a problem that just keeps of the electric bike, easily capable on keeping on. of speeds up to 30km/h in cycle One idea currently being looked lanes, as fast as scooters and as at is for a massive underwater bike quiet as pedal power. park right next to the city centre. There’s also a security aspect. I personally witnessed an acci- There simply isn’t enough space dent involving a cyclist who tried outside most inner-city apartment to race across a tram track while buildings for electric bikes to be the tram was approaching. The secured properly. The footpaths Solutions? tram hit the bike and sent the are too narrow, and lamp posts Are there solutions? Spending more on infrastructure rider sprawling. Fortunately, nei- too few. would clearly help. Overall, Anna Luten is optimistic. ther suffered any serious damage, Also, migrants have a different “People are coming to me with problems and I but within minutes three sets of approach to cycling. Dutch chil- have the ears of those in power. I don’t have an emergency services including an dren are brought up riding, but opinion or a solution for everything, but it is about ambulance were on the scene. the children of recent migrants communication and city hall has been very receptive. Passengers were told to get off and refugees are not. We need to keep innovating or we’ll fall behind.” the tram: it would not be going Maud de Vries, co-founder of the One innovation may be covered bike lanes so anywhere for at least an hour CycleSpace group, says migrant business people can cycle to work in the rain with- while authorities investigated. parents drive their children to out ruining their suits, or new signs to show tourists school. where to find safe cycling streets. Other challenges “Many of these parents think “Cycling has the power to transform. I dream and The Dutch bike culture is facing cycling is dangerous, and when hope that in 20 or 50 years from now there could at least three other challenges, those kids hit 16 they get scooters, be more cities like Amsterdam, where cycling is so particularly evident in Amsterdam. not bicycles.” normal and accepted that we’re not really aware of The Dutch bike is getting Although the scooters aren’t it,” she says. ▪ bigger, which the Daily Telegraph supposed to be used in cycle reported as, “bicycles with crates lanes, some are, creating an John Bishop visited Amsterdam in July 2017 and his in front of the handlebars, child extra hazard for other cyclists and travel writing can be seen at  www.eatdrinktravel. seats behind the saddle – and pedestrians. co.nz

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LIFESTYLE

A lawyers’ cricketing XIII

BY CRAIG STEPHEN

in a defensive role in the drawn second Following our popular features on rugby, Test to give New Zealand a first-ever netball and football playing lawyers in series win in the Caribbean. He also editions of LawTalk during 2017, we now toured Sri Lanka and India in 2003. He present a team of legal professionals retired in August 2004 having played 11 who excelled in cricket. Now, if anyone tests (260 runs at an average of 16.25 knows of lawyers who have done well at with a highest score of 57 not out; 29 golf, croquet or elephant polo … catches and 1 stumping). Hart is a Director with Ellice Tanner in any New Zealand A/Development Martin Snedden in Hamilton. He was admitted in 1997. programmes before then. She bats in Martin Snedden was a Black Cap for a the top order for Northern Spirit in the decade, playing 25 tests (58 wickets Sir Joseph Ongley national league. at an average of 37.91) and 93 one-day Sir Joseph Augustine Ongley made a cen- She has played 20 one-day interna- internationals (114 wickets at an average tury in his first-class debut in 1938–39 for tionals for New Zealand and averages of 28.39). He was a participant in the Wellington in the Plunket Shield, against 23.06 with the bat, with a highest score notorious “underarm” one-dayer at the Otago. He was selected for New Zealand of 55 not out. MCG in 1981. What has been largely for- later that season against Sir Julien Cahn’s Curtis is a senior solicitor in the Private gotten about that match is that Snedden XI. Client and Trust Team at Cooney Lees made what commentator Richie Benaud Sir Joseph (the reason for our respect Morgan. described as “one of the best catches will be apparent shortly) captained I ever seen in my life” off a ball by the Wellington from 1947 to 1950 and was Andrew Penn underarm baddie Greg Chappell – but also the captain of Manawatu and Central Andrew Penn was an aggressive out- the Australian umpires thought other- Districts. In all he played 30 first-class swing bowler who won titles with wise. And so Snedden, then 22, missed matches for 1234 runs at an average Wellington and Central Districts. He out on the chance of a new car for the of 22.43 with his debut century (110) made five one-day appearances for New best catch of the series. remaining his only ton. Zealand (1-50 his best performance) but Snedden became a familiar figure He became the first chairman of was unable to break into the test side. in his role as chief executive of New Central Districts Cricket Association, In 1998-99 he was the leading wicket Zealand cricket and managed the 2011 from 1954 to 1969, and managed the taker in New Zealand first-class cricket Rugby World Cup. But before then he New Zealand cricket team in Australia with 40 wickets at 19.07 including two practised as a lawyer, including 11 years in 1967–68. five-wicket hauls. as a partner of an Auckland law firm. In Sir Joseph (1918-2000) was a judge Penn is now executive legal counsel January 2012, he was made a Companion of the High Court from 1975 to 1987 and for AMP Capital with overall responsi- of the New Zealand Order of Merit. was knighted in 1987 for services to the bility for the legal, risk and compliance law. He practised in Palmerston North function of AMP Capital Investors (New Robbie Hart from 1945 until his appointment to the Zealand) Ltd. Robbie Hart was a wicketkeeper for the judiciary, spending 15 years as Crown Blacks Caps and for Northern Districts. Prosecutor. Iain Gallaway Hart was a late call up by New Zealand, Iain Gallaway played three first-class only gaining selection in the position fol- Samantha Curtis cricket matches for Otago between 1946 lowing the retirement of Adam Parore at Samantha Curtis was a latecomer to the and 1948 as a right-handed lower-order the end of the England series in 2001-02. White Ferns, making her debut for the batsman and wicketkeeper. In his first He provided some outstanding support- national side against the West Indies in match against Wellington he took six ing batting during New Zealand’s first February 2014 at the age of 28 without catches. His highest score was 22. Test victory on West Indian soil, and then having the advantage of being involved But he is more familiar as a

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average of 31.11 with 4 centures and a wickets. He played six first-class matches bowling average of 37.81 (115 wickets). averaging 17.37 with the bat and took 20 Wells graduated from the University wickets for an average of 22.9. of Otago in 2007 before pursuing his He qualified as a lawyer in Hawera and professional cricketing career. He was in 1903 founded the law firm that is now admitted to the bar in 2014. known as Welsh McCarthy. He became president of the St. Anthony Wilding Patrick’s College Old Boys’ Association. Anthony Wilding was the ultimate all- For his work for the Old Boys and for rounder, captaining his school’s football organising the school’s golden jubilee team, playing for Canterbury at cricket celebrations in 1935 he was awarded and winning Wimbledon titles in tennis. the papal knighthood of St Gregory He played two first class matches for the Great. Canterbury as a teenager, as a lower middle-order batsman (an average John Wiltshire of 20 with a highest score of 28) and John Wiltshire played for Auckland and change bowler (3 wickets at an average Central Districts between 1974 and 1984, of 17.33). captaining both sides. In 1978 Wiltshire But it was tennis where Wilding was part of the Auckland side that faced excelled, winning the English covered an England XI side at Eden Park. court title in 1907, the Wimbledon dou- He played 54 first-class matches and commentator, the voice of hundreds bles title in 1907 and 1908 and helping averaged 31.05 with the bat with a high- of cricket and rugby tests and matches the Australasian team win the Davis Cup est score of 105. from the early 1950s to the early 1990s, from 1907 to 1909. Wiltshire is a partner at Beattie including most of those played at the old He graduated with a BA in 1905 and Rickman Legal in Hamilton. Carisbrook Stadium in Dunedin. Gallaway joined his father’s law practice. After was also the official patron of the Otago winning the New Zealand national tennis Chris Lee Cricket Association. title in December 1906 he moved to Chris Lee played for Auckland and He was appointed a Member of the England and was called to the bar at Wellington between 1991 and 1997 as a Order of the British Empire for services the Inner Temple. right-handed batsman and fast-medium to rugby and cricket in 1978 and in 1986 Wilding was killed in action at Ypres in bowler. He played 9 first-class matches was made a Companion of the Queen’s Belgium on 9 May 1915. He was aged 31. and averaged 24.85 with the bat (with a Service Order for community service. highest score of 111 not out) and took 18 Gallaway worked as a lawyer in the Cran Bull wickets at an average of 43.66. Dunedin firm that is now Gallaway Cook Cran Bull represented Canterbury at first- Lee is a partner in the Corporate and Allan. class level for 19 seasons, including four Commercial team at Hesketh Henry. His son Garth, who is a partner with years as captain. Between 1965 and 1984 Chapman Tripp in Christchurch, has also he played 60 matches. A right-handed Allex Evans forged a successful career as a radio batsman, he scored 1,841 runs at an Allex Evans plays for the women’s side cricket commentator. average of 19.58, with a high score of Wellington Blaze in the national league. 115 not out. A specialist in the shorter T20 and one- Sam Wells He has served as a member of the day matches, she is a right-arm medium There must be something about New Zealand Cricket Council and is pacer. Gallaway Cook Allan and cricket as Wells a former chairman of the Canterbury She studied law and criminology at is a member of the litigation team at the Cricket Association. university and was working in informa- Dunedin-based firm. Bull spent his entire law career at tion/privacy law until June 2016. Evans Wells was a surprise call-up to the Saunders & Co, joining as a law clerk is currently back at Victoria doing New Zealand test squad in 2012. An in 1970, and becoming the firm’s fourth post-graduate studies in Public Policy. allrounder who cemented his place in partner in 1972. He retired in December the Otago side in the 2009-10 season, 2016 but continues to work as a consult- Meanwhile, two New Zealand lawyers, he averaged almost 60 with the bat in ant for the firm. Scott Donaldson from Invercargill and that breakthrough season and collected John Dean from Wellington, took part 21 wickets. He described his role in the Bernard McCarthy in the 2016 Lawyers Cricket World Cup team as someone who “bats around Bernard McCarthy (1874-1948) played as part of the Commonwealth A side. seven or eight and bowls 12-15 overs for Taranaki at the turn of the 20th And New Zealand lawyers took on a day”. Century and was selected to play for Australian lawyers in a series of two cricket While he has not represented New New Zealand in two matches against matches in Queenstown and Cromwell in Zealand, he has a first-class batting Lord Hawke’s XI in 1902-03, taking three January 2017 for the Holroyd Cup. ▪

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Some interesting recent legal academic research

Stress hardiness and lawyers Scoville has come out fighting what he calls “a certain type of In what they say is the first study to examine stress hardiness puffery” in the process of submitting articles to university law in the legal profession, a team of University of Alabama School reviews. He says some academics have developed a clever of Law researchers has found three sets of behaviours which gambit which relies on the inexperience of the student editors. show a significant correlation to stress hardiness in lawyers. They insert “exaggerated claims of novelty and significance Writing in 42 Journal of Legal Profession 1 (2018) the authors into the abstract, introduction, and perhaps other sections of outline their research with a survey of 530 law students and the draft” that they will submit to law reviews. After securing a lawyers plus 106 in-depth interviews with practising attor- satisfactory placement, the writers will moderate those claims neys and judges. They found that the type of stress lawyers in drafts made available to colleagues and the public. experience varies by area of practice. Lawyers who had a “In short, X decides to bait and switch – puff to an audience greater sense of control, sense of purpose, and cognitive that will have a hard time detecting it, and then walk back flexibility were more stress hardy. the hyperbole before disseminating to an audience that could “Our data showed that the most frequently reported daily have easily detected it,” writes Professor Scoville in volume habits lawyers use to cope with stress are exercise, social 101 of the Marquette Law Review. connectedness, habits of thought, faith, and alcohol or drugs. After deciding that such a practice is unethical, he proposes Reliance on exercise and social connectedness to help manage a number of solutions – including a model code of ethics, stress fell as our survey respondents aged, while reported better controls on law school publishing requirements, or reliance on alcohol or drugs increased as our survey respond- replacement of student editors with a system of peer review. ents aged.” Negotiation via text messaging The ethics of baiting and switching “Many professionals I speak with regarding negotiation via in law review submissions text message are surprised, saying they would never commit Marquette University Law School Associate Professor Ryan negotiation processes to this medium. I don’t press the point.

❝ You’re in a courtroom, not a beach.❞ Notable Quotes — Judge Michael Turner tells seven defendants to improve their attire after they appeared in Alexandra District Court wearing jandals, shorts and singlets. ❝ I will be referring to this end of the building as the Christchurch Courthouse in the future and not as the ❝ I didn’t come down in the last shower.❞ precinct.❞ — Judge Peter Hobbs in the Wellington District Court advises — Law Society Canterbury-Westland branch President David Apolinario that he doesn’t accept his excuse that Craig Ruane tells the special sitting at Christchurch’s new he was driving at 176 kph up Ngauranga Gorge in order to High Court that the two ends of the massive Justice and catch another speeding driver so he could report him. Emergency Precinct are sufficiently separate to separate the courts and the police and emergency services parts. ❝ An anonymous jury – especially one that would be permitted to function only under armed guard – would ❝ No longer will counsel and court users have to trudge poison the atmosphere of the case and serve to bolster up that hill to the cramped confines … away from their the government’s proof by creating the impression that favourite coffee places. No longer will judges have to look Mr Guzman is guilty and dangerous.❞ out over The Warehouse car park.❞ — Eduardo Balazero, attorney for Mexican drug cartel boss — Judge Michael Crosbie at a special sitting in Courtroom Joaquin “El Chapo” Guzman, opposing a motion for an One of the now back-in-business Dunedin courthouse on anonymous and partially sequestered jury for Guzman’s 5 February. trial on a 17-count indictment in New York in September.

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 Matthew Kenwrick bd ▸

But if I did, I’d recall hearing the same responses ten years ago, with regards to negotiating via email, and that they petered out quickly as use of this medium spread.” So begins Professor Noam Ebner of Creighton University’s Negotiation and Conflict Resolution progamme in his chapter in The Negotiator’s Desk Reference Honeyman, C & Schneider, AK (eds), St Paul, DRI Press). Professor Ebner finds some research which indicates that text messages tend to be linguistically simpler, more personal and more effective than phone calls. He notes that texting has increasingly been a primary mode of communication for younger people for more than a decade. His conclusion: whatever your views on its appropriateness, you are likely to find yourself negotiating via text messaging, in one form or another, soon – and increasingly often. Legal academics and Twitter Law professors who participate on Twitter should do so primar- ily to help promote reasoned debate, says University of North Carolina Law Professor Carissa Byrne Hessick. In an article in volume 101 of the Marquette Law Review, “Towards a series of academic norms for #Lawprof Twitter”, Professor Hessick suggests that law professors should assume that, each time they tweet about a legal issue, they are making an implicit claim to expertise about that issue. Deciding that Twitter can be a useful platform for law pro- fessors, Professor Hessick notes that it also poses a number of challenges. She says Twitter may be a passing fad, but right now it is a major platform by which the general public is exposed to law professors. “The law professors who are the most active on Twitter are, in a very real sense, the public face of the legal academy. That is why the rest of the legal academy should take an interest in setting norms for the platform.”

❝ A court is not simply a building. The building represents ❝ I’ve dealt with many lawyers and am always greeted with the idea of justice.❞ at least a first name and who they work for, and they’ve — Chief Justice Dame Sian Elias speaks at the ceremonial never made house calls.❞ reopening of the Dunedin courthouse. — Trentham resident Ash Nickless tells Stuff about her encounter with two women claiming to be lawyers who ❝ I have formed the view that in a number of matters the judge she found on her property. has not demonstrated the courtesy, tolerance, patience and sensitivity which should necessarily characterise the ❝ We view this partnership as not only an important discharge of the judicial function.❞ demonstration that we embrace diversity and inclusion — Part of a statement by Darwin, Australia, Local Court at Russell McVeagh, but also to show we are creating and Chief Judge John Lowndes who investigated a number of embedding a welcoming working environment into our complaints that Northern Territory judge Greg Borchers own firm’s culture.❞ had brought the judiciary into disrepute. Dr Lowndes found — Russell McVeagh HR director Lesley Elvidge announces that Judge Borchers had made gratuitous and unnecessary the firm’s sponsorship of gay and inclusive rugby club NZ comments and remarks. Falcons RFC.

99 Asking for help is a sign of strength

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

Healthy Mind • Healthy Body • Healthy Practice