ISSUE 930 · July 2019

Legal Tech

What does the Climate crisis: Using brain Public new union for the cold hard fingerprinting in insurance for legal workers facts court legal aid want?

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New Zealand Law Society 29 · Reforms take family justice 6 · From the Law Society backwards, Law Foundation 7 · New Zealand Law Society research finds▹ BY LYNDA HAGEN

People in the Law Alternative Dispute 10 · On the move Resolution 16 · Lagi Tuimavave, 31 · Cognitive biases: challenging 6846 Wellington Family Law the way we think ▹ BY PAUL SILLS ▹ BY ANGHARAD O'FLYNN 34 · When is arbitration the best 19 · Warrick McLean, CEO, Coleman way of resolving a dispute? Greig Lawyers ▹ BY ANDREW KING ▹ BY ROBERT FISHER QC 20 · NZAL Lawyers successfully 35 · New Zealand lawyer behind launched ▹ BY MAI CHEN new Singapore mediation chambers ▹ BY NICK BUTCHER Update 24 · Imprisonment imposed Practising Well for violent attack on dog 37 · Are you being defined by ▹ BY ANITA KILLEEN your job? ▹ BY RAEWYN NG 26 · Directors’ duties and the 39 · Mental health in the workplace case for vulnerable trading? ▹ BY HUGH NORRISS ▹ BY RICHARD GORDON 5088

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4 Contents

Practice 66 · The hawks helping lawyers Classifieds 42 · The new union for legal automate legal documents 84 · Will notices workers ▹ BY CRAIG STEPHEN ▹ BY TRACEY CORMACK 86 · Legal Jobs 46 · Catherine O’Connell - Setting 68 · Is software eating the 88 · CPD Calendar up sole practice in Japan law? ▹ BY JAMIE DOBSON ▹ BY TRACEY CORMACK 72 · Using brain fingerprinting in Lifestyle 50 · Oh the places you’ll go court ▹ BY EMMA PAIRMAN 90 · A New Zealand Legal ▹ BY MARK WILTON 74 · 5G: Big deal or not really? Crossword ▹ SET BY MĀYĀ 52 · Climate crisis: the cold hard ▹ BY DAMIAN FUNNELL 91 · The Devil’s Own – far facts about all that “hot 76 · How lawyers can successfully more than a fusty male air”▹ BY JENNY COOPER QC embrace social media preserve ▹ BY ALICE NUNN 57 · Sustainable Practice ▹ BY ANDREW KING 94 · Tail end Technology 78 · Lawyers Complaints 60 · Legal tech in New Zealand Service ▹ BY GEOFF ADLAM 64 · LegalTechNZ aims to promote Access To Justice benefits of technology 81 · Access to Justice: An insurance- ▹ BY NICK BUTCHER based proposal ▹ BY JOSS OPIE 65 · Nuix releases a SaaS eDiscovery solution to support the ‘New Law’ frontier ▹ BY CRAIG STEPHEN

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5 NEW ZEALAND LAW SOCIETY July 2019 · LAWTALK 930

NEW ZEALAND LAW SOCIETY

From the Law Society

anticipated work arising from that We all agree that justice jurisdictional expansion. delayed is justice denied. The District Court is entering The right of all New Zealanders to a stage of renewal over the next access a timely resolution of matters three years: 46 existing judges will before our courts is fundamental to be retiring by 2022. As the people’s the effective and functional oper- court, this renewal provides a ation of the justice system. Delay unique opportunity for the court to is not conducive to the wellbeing address gender and ethnic diversity of court users. Timely resolution is to reflect all in our society. required for everyone in the court At the beginning of the year system whether they are facing the Chief District Court Judge and criminal charges, are the victims Principal Family Court Judge invited of crime, witnesses, or are seeking practitioners around the country to a civil remedy or resolution of a seminars facilitated by NZLS CLE family matter. Time spent in the Ltd. These seminars provided a system should be reduced to the window into becoming a District minimum as appropriate to properly Court and/or Family Court Judge. determine a matter. These seminars not only gave those Last month saw the country’s first who attended an insight into the ever wellbeing Budget. challenges and rewards for such As part of that Budget the Gov- contribution to the justice system ernment announced a decision to but also encouraged experienced fund an additional 10 District Court members of the profession to con- judges and two further Youth Court sider expressing their interest to judges this year through an increase serve on the bench. to the statutory cap, raising judge And help too is also on the way numbers from 160 to 182. The decision to increase the for coronial cases. In the week cap to 182 provides for a further 10 unfunded positions before the Budget, the Government to enable further judges to be funded in future budgets announced eight relief coroners will without the need for legislative change. be appointed to address the backlog These decisions have been welcomed by the proof cases and delays in this jurisdic- fession, the judiciary and members of the public as a tion, with funding to come from significant step to address the well-publicised workload existing Ministry of Justice baselines. pressures and delays in the District Court. The number of deaths reported to the Currently there is a backlog of cases and the long The decision coroners is increasing year on year delay times for cases to be heard is considerable. The to increase and the additional appointments will District Court deals with over 200,000 cases each year. the cap to provide more support and resources There are more complex and serious offences coming 182 provides to reduce the waiting times for fam- before criminal courts which require more time and for a further ilies in the coronial system at such a resources. There is an increasing rise in the number 10 unfunded stressful time. of both defended Care of Children Act applications positions to The Law Society welcomes these and without-notice applications, causing additional enable further judicial resourcing decisions and is pressures in the Family Court. And then there is still a judges to be encouraged these steps have been backload of adjourned cases from the industrial disputes funded in taken to address the delay of justice in the court in 2018. future Budgets in the District Court. ▪ Legislative changes in July this year will see the without the expansion of the Youth Court jurisdiction to include need for Mark Wilton is the Convenor of 17-year-olds, with the aim of reducing re-offending. The legislative the New Zealand Law Society’s additional two Youth Court judges will assist with the change Courthouse Committee.

6 LAWTALK 930 · July 2019 NEW ZEALAND LAW SOCIETY

Racing Reform Bill penalties raise serious concerns

is irregular and should be strongly of the penalty should be made by Penalty provisions in the Racing discouraged. The regulator, enforcer, a court, and not the enforcement Reform Bill ignore strong objections and adjudicator should be distinct agency. from the Ministry of Justice and from one another,” Mr McHerron The Law Society recommended appear to lack justification, the New said. that the committee seek an expla- Zealand Law Society says. “The Law Society shares the min- nation from officials on why the The Law Society presented a sub- istry’s concerns. There has been no pecuniary penalty provisions have mission on the bill to the Transport response to the ministry’s objec- been included against the ministry’s and Infrastructure select committee tions and it is highly unsatisfactory concerns. on 5 June. The bill received its third that there has been no attempt at The Law Society also said it was reading on 20 June. The penalty justification. hard to see justification for the fast- provision clauses were unchanged. “The ministry notes that regimes track nature of the bill. Only four Law Society spokesperson Jason where the regulator determines pen- working days had been allowed for McHerron said the bill contains alties can also create a perception interested parties to comment. provisions for collection of off- that the regulator uses penalties to “Unrealistic deadlines imposed on shore betting charges. These allow gather revenue. The bill does make the select committee process seri- the Department of Internal Affairs some provision for court review of ously hinder the public’s input into to impose pecuniary penalties on the decision. However, it is also not legislation and the proper scrutiny offshore betting operators in certain clear how the review process will of bills,” Mr McHerron said. circumstances. operate in practice.” “The Law Society appreciates the “The Ministry of Justice has Mr McHerron said the Legislation need for a swift legislative response recorded strong objections to these Design and Advisory Committee’s in relation to some bills, but in the penalty provisions. It says that Legislation Guidelines state clearly present case it is not clear what the allowing determinations of liability that decisions about liability for justification is for the very truncated to be made by non-judicial bodies pecuniary penalties and the amount consultation period.” ▪

Charities Act review has limitations

largely considers the Charities Act the review,” it says. A narrow terms of reference in isolation, rather than as part of “The Law Society has recently means the Department of Internal the wider scheme of New Zealand written to the Law Commission, rec- Affairs’ review of the Charities Act charity law. Ideally, that would be ommending that the Commission’s 2005 does not cover or adequately the subject of a comprehensive and future work programme should take into account a number of mat- cohesive review. include a wider, first principles ters, the Law Society has said. The Law Society says it believes review of the Charities Act and the In a submission on the review the Law Commission would be best Charitable Trusts Act.” discussion document Modernising placed to conduct such a review. In spite of a short extension of the Charities Act 2005, the Law Society “It is not clear that it is appropriate the timeframe for submissions, the says these include the “charitable for the Department of Internal Affairs Law Society says the three to four- purposes” definition, interplay with to lead a review of the Charities Act month period for submissions is tax concessions linked to registration, regime that is principally admin- still relatively short and will most interplay with other aspects of charity istered by Charities Services, and likely have been very challenging law, and interplay with other regimes. given that Charities Services’ role for many sector participants and The submission says the review as regulator is an important part of stakeholders. ▪

7 NEW ZEALAND LAW SOCIETY July 2019 · LAWTALK 930

He Waka Roimata Jo Hambleton report an important elected Otago branch step, says Law Society President

able to get better outcomes.” Dunedin lawyer Jo Hambleton The report, He Waka Roimata, Ms Epati says the legal profession has been elected President of the from Te Uepū Hāpai i te Ora – the is a key participant in the criminal Otago branch of the New Zealand Safe and Effective Justice Advisory justice system and has a long history Law Society. Mrs Hambleton is an Group is an important first step for- of advocacy for reform. associate with Dunedin firm O’Neill ward in the assessment of how our “There have been many changes Devereux. After graduating LLB at criminal justice system is viewed made to criminal justice legisla- Otago University she was admitted and impacts on communities, the tion over the years. Right back as a barrister and solicitor in May New Zealand Law Society says. to attempts in the early 1990s to 1999. She completed a Graduate “This report contains some very replace the Crimes Act 1961, the Diploma in Child Advocacy in 2007 stark messages and conclusions. Law Society has called for whole- and specialises in family law. Group Chair Chester Borrows says sale reform rather than the piece- the overwhelming impression from meal, knee-jerk reaction approach The following Council was elected people who have experienced the which has occurred. The report has at the branch AGM on 12 June: criminal justice system is one of provided us with a broad-ranging grief. That is a call to action, and set of principles which come from President: Jo Hambleton. the need for involvement by all many parts of our communities. Vice-President: Taryn Gudmanz. stakeholders,” Law Society President A principled approach must be Immediate Past President: John Tiana Epati says. the driving force for change,” Ms Farrow. “There is also a strong message of Epati says. Central Otago Representative: hope for change. Mr Borrows says the “It is also important to ensure Dale Lloyd. group believes solutions already exist that the reforms are accompanied North Otago Representative: and there is a national will to build by recognition of the need to ensure Louise Laming. a criminal justice system to meet New Zealand has a human rights- New Practitioners Representative: the needs of our country in 2019 based criminal trial process. The Derek McLachlan. and beyond. The next report from rights of all defendants to a fair trial OWLS Representative: Karen the group will give its response and must remain a foundation stone of Billinghurst. that will be an important moment. criminal justice. Law Faculty Representative: Ben “This report highlights the need “The New Zealand Law Society France-Hudson. for access to justice to be a funda- fully supports the work Te Uepū Council Members: Will Martin, mental priority. We look forward Hāpai i te Ora – the Safe and Effec- Lisa Brown, Sharon Knowles, Craig to the group’s suggestions on how tive Justice Advisory Group is doing Power, Lucia Vincent. everyone who becomes involved in and we look forward to continuing the criminal justice process will be involvement in the reform process.” ▪

Shirley Smith Address on 29 August

The Law Society’s Wellington branch Women in Law Committee is holding the 11th annual Shirley Smith Address in Wellington on 29 August. The 2019 address will be presented by Professor Vanessa Munro, Professor of Law at the University of Warwick, England. The title is "Judging Juries: The 'common sense' comundrums of prosecuting violence against women".▪

8 LAWTALK 930 · July 2019 NEW ZEALAND LAW SOCIETY

Overseas Investment David Campbell Act not operating re-elected Auckland effectively branch President The Overseas Investment Act 2005 does not appear to be operating efficiently or effectively, and its perceived complexity may be discouraging overseas investment, the Law Society has said in comments on the discussion Auckland lawyer David paper Reform of the Overseas Investment Act 2005, April 2019. Campbell has been re-elected It says its experience reflects the discussion paper concerns about the President of the New Zealand Law inordinate delay in processing applications and the high cost involved in Society’s Auckland branch. Mr making an application. There are also difficulties with using the conterfactual Campbell is a partner at Kensington test to determine if a proposed investment is likely to benefit New Zealand, Swan, where he specialises in com- following the High Court decision in Tiroa E and Te Hape B Trusts v Chief mercial and civil disputes, with Executive of Land Information New Zealand [2012] NZHC 147. ▪ a special focus on competition law, product liability and liability insurance. He was re-elected unopposed. There were three branch Measured approach best for council vacancies. Sue Styants was re-elected unopposed and she is financial institution legislation joined by Misha Henaghan and Sarah Jerebine who were elected unopposed as new members. ▪ The preferred package of options in the options paper Conduct of Financial Institutions, April 2019 appears sound, but a measured approach needs to be taken to regulating organisations that provide financial services to New Zealand consumers, the Law Society says. In comments on the options paper, the Law Society says lack of focus on New Zealand Law the consumer has long been an anomaly in financial services regulation. Society submissions It supports a principles-based approach to regulation and notes that the Copies of all submissions options set out are being pursued to a tight timetable “with the ambitious made by the Law Society aim of legislation being introduced to Parliament before the end of 2019”. can be found on our website “The Law Society understands that regulators, banks and insurers are at www.lawsociety.org.nz/ currently engaged in an ongoing review of Conduct and Culture. A measured news-and-communications/ approach needs to be taken to developing this regime, to allow sufficient law-reform-submissions. consideration and input from regulators and market participants.” ▪

9 ON THE MOVE · PEOPLE IN THE LAW July 2019 · LAWTALK 930

PEOPLE IN THE LAW ON THE MOVE

Gabrielle Wagner domestic and inter- promoted to the partnership in 2017. She appointed to District national corporate specialises exclusively in insurance and Court bench transactions, with par- commercial litigation. ticular expertise in Auckland barrister private equity and ven- Tanya Kennedy joins Gabrielle Wagner ture capital. He also has Lambton Chambers has been appointed extensive international a District Court Judge experience in commer- Tanya Kennedy has with Family Court cial matters, with deep sectoral focus in joined Wellington’s jurisdiction. She will technology, intangible assets and blockchain. Lambton Chambers as a be based in Manukau. Megan Pearce has barrister sole. Admitted Admitted as a barrister joined the firm as a in June 1996, Tanya has and solicitor in June 1988, Ms Wagner senior associate. She has extensive experience in started her career with Cairns Slane before experience in advising employment law. She moving to Morrison Morpeth in 1990. She on corporate and com- advises and represents worked at McCabe McMahon from 1993 mercial matters, and has clients in the full range of employment to 1999, becoming a partner in 1996. Ms specialist expertise in law issues and institutions, including Wagner has been a barrister sole since 1999, commercial contracting mediation, litigation, and conducting or practising in all areas of family law. She has with an ICT focus, fund raising for early stage representing clients in relation to employ- conducted several Family Court Appeals in companies as well as advising on technology ment investigation processes. the HIgh Court and has also held a number and telecommunication transactions. of positions on the New Zealand Law Tanya Wood appointed Society and ADLS Inc. Judge Wagner will Shaun Cousins joins Special Counsel by be sworn in on 12 July 2019 in Auckland. Rainey Collins Duncan Cotterill

Swearing-in of David Shaun Cousins has Duncan Cotterill has Goddard QC on 26 July joined the Dispute appointed Tanya Wood Resolution and as special counsel. An error in the June issue of LawTalk meant Litigation team at Tanya specialises in a wrong date was given for the swearing-in Rainey Collins as an construction litigation of David Goddard QC as a Justice of the associate specialising in and insurance law, with High Court and Court of Appeal. He will family law. His particu- particular emphasis be sworn in on 26 July and not 19 July as lar areas of expertise in the resolution of stated. We apologise for any confusion. are contracting out, care of children and complex building disputes. She has over relationship property agreements. Shaun 17 years’ experience assisting a range of Acting District Court graduated from the University of Waikato owners, developers, contractors and con- Judge appointed in 2011 and has practised over the last eight sultants in project and contract disputes. years in the Waikato. Janette Helen Walker, retired District Joe Donald joins Braun Court Judge, has been appointed to be Katie Shanks joins Bond and Lomas an Acting District Court Judge for a term Wotton + Kearney commencing on 3 August 2019 and expiring Auckland office Joe Donald has joined Hamilton litigation on 27 August 2020. and dispute resolution firm Braun Bond Wotton + Kearney part- and Lomas as a senior solicitor. Joe was Anderson Lloyd makes ner Katie Shanks has admitted as a barrister and solicitor in two appointments returned to Auckland July 2013. He has experience in civil liti- after spending six years gation, family and employment law and Anderson Lloyd has announced two in Sydney and will run has also dealt with a range of immigration appointments in its corporate and com- the first trans-Tasman and criminal matters. Joe has appeared mercial team. insurance practice. as an advocate in various levels of New Derek Roth-Biester has been appointed Katie began her career Zealand’s courts and tribunals and is a corporate and commercial partner. Derek in Auckland before joining Wotton + familiar with all forms of alternative has significant experience advising on Kearney in Sydney in 2013 and being dispute resolution.

10 LAWTALK 930 · July 2019 PEOPLE IN THE LAW · ON THE MOVE

Jennifer Yang joins range of transactions, also represents clients in connection with Buddle Findlay as including private merg- regulatory investigations and proceedings Senior Associate ers and acquisitions, by the Commerce Commission, Securities takeovers, joint ven- Commission, Financial Markets Authority Jennifer Yang has tures, reorganisations and Serious Fraud Office. joined Buddle Findlay’s and capital raisings, on Jacob Kerkin in Auckland office as a Overseas Investment the Auckland litiga- senior associate in the Act matters. tion team has been corporate and com- Tom Cleary in promoted to senior mercial team. Jennifer the Auckland litiga- associate. Jacob is an advises on commercial tion team has been experienced com- contracts, with a focus promoted to senior mercial litigator with on strategic procurement and technology associate. Tom is an expertise in a broad based business process outsourcing mat- experienced commer- range of disputes, including those relat- ters. Before joining Buddle Findlay, Jennifer cial litigator who is ing to property and construction, class worked as senior legal advisor to global skilled in advising and actions, banking and finance, contract professional services and management representing clients in complex disputes. and tort. consultancy firms in London. He has particular expertise in intellectual Amelia Markram in property, media, trusts, contract and con- the Auckland property Chapman Tripp sumer protection law. team has been pro- promotes nine lawyers Robert Grignon in moted to senior legal the Auckland tax team advisor. Amelia special- Chapman Tripp has announced the pro- has been promoted to ises in construction and motion of seven new senior associates and senior legal advisor. major projects, advising the recognition of two senior legal advisors, Robert is a tax specialist clients on the front and from 1 June. advising on all aspects back ends. She has extensive experience Joseph Lill in the of New Zealand tax in large scale construction contracts and Christchurch litiga- law, with a particular consultancy arrangements on a wide range tion team has been focus on M&A transactions, cross-border of projects. promoted to senior investment, property transactions and Kylie Mutch in the associate. Joseph spe- post-settlement iwi corporate structuring. Auckland property cialises in health and Sam Holden in the team has been pro- safety as well as gen- Auckland litigation moted to senior asso- eral civil litigation and tream has been pro- ciate. Kylie works with insurance law. He regularly advises clients moted to senior asso- developer and contrac- during investigations and has appeared in ciate. Sam specialises tor clients on domestic District Court and High Court proceedings. in commercial litigation and international con- Philip Ascroft in the with a particular focus struction projects across a wide variety of Auckland corporate on banking and finance, sectors, including residential, commercial, team has been pro- insolvency and construction disputes. He mining, energy and infrastructure. moted to senior associate. Philip specialises in corporate and securities law. He has a particular focus on equity capital markets and mergers and acquisitions, and regularly provides listed company compliance and corporate governance advice. Luke Bowers in the Auckland corporate team has been promoted to senior associate. Luke’s expertise lies in corporate and securities law, focusing on mergers and acquisitions. He advises clients on a broad

11 ON THE MOVE · PEOPLE IN THE LAW July 2019 · LAWTALK 930

Alden Ho joins Development at Columbia University. Kelly Johnson Norling Law Pele Walker, the Commission’s chief becomes Greenwood mediator, has served as Acting Chief Roche principal Alden Ho has joined Executive since former Chief Executive Auckland firm Norling Cynthia Brophy left in December 2018. Greenwood Roche Law as an associate. has appointed Kelly Alden was admitted as Jordan Curtis Johnson as a principal, a barrister and solicitor promoted to Junior from 1 June. Kelly was of the High Court of Barrister Associate admitted as a barrister New Zealand in 2011 and solicitor in August and of the Supreme Jordan Curtis has been 2007. She specialises in Court of Victoria in 2016. He is an experi- promoted to Junior commercial property enced commercial advocate with a focus on Barrister Associate at with particular experience in commercial insolvency, debt recovery and construction Auckland’s Old South leasing, acquisition and disposals and ligitation. Before joining Norling Law Alden British Chambers. developments. Kelly has acted on a number worked at Martelli McKegg in Auckland He joins the Tax of high profile and strategic projects for and Mills Oakley in Melbourne. Controversy team corporate and government clients. working for Geoff Appointments to Pitcairn Clews. Jordan joined the Chambers in Harkness Henry Islands Court of Appeal July 2018. He is a graduate from the announces appointments University of Auckland with BSc and Two Auckland-based barristers have been LLB degrees and he also has completed Waikato law firm Harkness Henry has appointed to the Court of Appeal of Pitcairn a Masters in Taxation Studies with first announced three appointments. Islands. Former High Court Judge Paul class honours. Laura Fischer joins Heath QC and Miriam Dean QC have been the Litigation Team appointed Justices of Appeal. This follows Georgetti Scholarship as a solicitor. Laura the retirement from the Pitcairn Court of for Harriet Farquhar was admitted in March Appeal of Sir Bruce Robertson and Rodney 2014 after graduating Hansen QC. The Assistant Attorney-General Crown Law Office from the University of of Pitcairn Islands, Danielle Kelly, says this lawyer Harriet Waikato. Before joining continues a long tradition of members of Farquhar has been Harkness Henry she the New Zealand bench and bar serving awarded a William practised family law in Rotorua and general in the Pitcairn Islands legal system. She Georgetti Scholarship. litigation in Te Awamutu. Laura has particu- says at the swearing-in ceremony in May, Ms Farquhar is an lar expertise in relationship property matters, the Pitcairn community welcomed the Assistant Crown Counsel both contentious and non-contentious. new judges and expressed its gratitude in the Constitutional Jessica Mathieson has been appointed a for the quality of legal services that has and Human Rights team. She studied law solicitor in the Resource been provided from New Zealand. at Victoria University of Wellington and Management and was admitted as a barrister and solicitor Employment Team. New Chief Executive in December 2016. She is also Associate Jessica was admitted in for Human Rights Editor of the New Zealand Women’s Law March 2019 after com- Commission Journal – Te Aho Kawe Kaupapa Ture a ngā pleting a law degree Wāhine. with first class honours The Human Rights Commission board Ms Farquhar has received funding from the University of has appointed Rebecca Elvy as its new towards a Master of Laws at New York Waikato. Chief Executive. Ms Elvy, who will take up University, focusing on human rights, Katelyn Silvester her role in August 2019, is currently Chief constitutional and international law. There is employed as a law Executive of Ngā Taonga Sound and Vision were three other scholarship recipients, in clerk in the private (New Zealand’s audio-visual archive). other fields than law. The scholarships were client team. Katelyn She has postgraduate qualifications in established by the late William Georgetti, has law and social sci- Business Administration and Strategic a Hawke’s Bay farmer, who wanted to ence degrees from the Studies (Massey University and Victoria create opportunities for the “best brains” University of Waikato University) and has studied Organisational to benefit from his bequest. and is completing her professionals.

12 LAWTALK 930 · July 2019 PEOPLE IN THE LAW · ON THE MOVE

DMK Law Ltd formed Since her retirement from full-time Connell. Before this she clerked for Justice duties, Judge Henwood as served as an Glazebrook in the Supreme Court. Stacey Daily and Acting District Court Judge. Outside the Harriet Farquhar Amanda Munting- courtroom, she helped implement Te will study for her Kilworth have formed Hurihanga, a youth justice programme, LLM at NYU, focusing DMK Law Ltd, a and served as chair of the Confidential on human rights, specialist family and Listening and Assistance Service, which constitutional and employment law firm supported people who suffered abuse or international law, in based in Nelson. Stacey neglect while in the care of the state before particular on issues commenced her career 1992. She also established, and currently of climate change-re- in Invercargill before chairs, the Henwood Trust, which provides lated displacement and migration in the returning to Nelson independent policy advice on working with Pacific region. Harriet is an Assistant in 2011. Amanda young offenders. The Trust has worked Crown Counsel in the Constitutional and has practised law extensively with iwi on a number of key Human Rights Team at Crown Law. She is in Christchurch and initiatives. a graduate of the Law Faculty at Victoria London and has been University of Wellington and clerked for practising law in Nelson Three young lawyers Justice Arnold in the Supreme Court. since 2011. Stacey and receive Ethel Benjamin Rosalind Kós will Amanda have extensive family law and Scholarships undertake study for her employment law experience. LLM at the University Three lawyers have been awarded 2019 New of Chicago exploring Madeleine Cochrane Zealand Law Foundation Ethel Benjamin a comparative and Wright joins Berry Simons Scholarships. The award was established pragmatic approach in 1997 and honours New Zealand’s first to the prosecution of Madeleine Cochrane woman barrister and solicitor, Ethel family violence cases. Wright has joined spe- Benjamin, who was admitted in 1897. Its Rosalind aims to identify possible reforms cialist environmental value is up to $50,000 annually. to New Zealand’s criminal procedure in law firm Berry Simons Nicola Hodge will family violence cases. Rosalind is currently as a senior associate. study for her LLM at a Senior Solicitor at Crown Solicitors Luke She joins the firm from Cambridge University Cunningham Clere, Wellington. She is a the Department of focusing on issues of graduate of the University of Canterbury Conservation where constitutional and Law School and former clerk to Justice she was legal lead in the pre-consulta- human rights law, French at the Court of Appeal. tion stage of developing the National particularly litigation Policy Statement. Before that she spent aspects, in order to Blair Shepherd gains almost four years as senior solicitor at the broaden her understanding of contem- scholarship to Duke Environmental Defence Society. Madeleine porary issues of social justice. Nichola is Law School has been involved in plan change or a graduate of the University of Canterbury resource consent processes throughout Law School and is working as a solicitor Tauranga lawyer Blair Shepherd has New Zealand, from hearings before at the Wellington branch of Meredith accepted a scholarship to study for a Master councils and the Environment Court, to the Court of Appeal. Judge Carolyn Henwood VUW

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13 ON THE MOVE · PEOPLE IN THE LAW July 2019 · LAWTALK 930

of Laws in International he imbued in me was the client comes first, and helped iwi obtain some control of the Legal Studies at Duke that you have to do the best for the client, Whanganui River. Law School, Duke and that it doesn’t matter who they are. It “Michael is right up there in terms of his University in the United has stuck with me and I still try and live massive contribution to the community States. Blair was admit- up to that.” and has really set the bar very high for the ted in November 2017 Arthur still works full time and has no younger partners of Cooney Lees Morgan and works at Holland firm plans to retire. He says jokingly, “I am to step up to.” Beckett Law in the in the second half of my career. Owen says a love of the law, strong work litigation and disputes resolution team. “I keep working partly for the intellectual ethic and a commitment to helping others His primary academic focuses at Duke stimulation, partly the sense of wanting seem to be traits that run in the Cooney will be international arbitration, interna- to do the best thing for the clients, but a family. “The old Irish blood is in there, that tional trade and climate change. The LLM major thing is the people I work with. We determination and pioneering spirit. But programme ends in May 2020 and Blair have a wonderful team.” Michael has certainly taken that to the intends to sit the New York Bar Exam in Chief Executive Partner Nick Wells adds, next level.” July 2020. “His intellectual rigour, unfailing enthu- After graduating from Auckland siasm, wide experience and dedication University and being admitted to the Bar Arthur Young celebrates to service has helped shaped Chapman in January 1966, Michael moved home to 60 years as Chapman Tripp into the firm it is today. His private Tauranga to join the family firm in 1970 Tripp partner clients trust and rely on his judgement, alongside his father, uncle and brother. gentlemanly approach and personal touch.” He became a partner two years later. Chapman Tripp lawyer Arthur Young is Property and contract law became his celebrating 60 years Michael Cooney areas of expertise. Current CLM partner as partner of the retires after nearly Sally Powdrell says Michael is known as firm. Chapman Tripp 50 years at CLM an astute and tough negotiator who fights says he is the longest hard to advance his clients’ best interests. serving partner who Michael Cooney retired on 1 June after “He has been a real devotee of the law,” is still working in the a career of nearly 50 Sally says. “He has always been respected New Zealand legal years at Tauranga by the legal community both locally and profession. law firm Cooney Lees nationally as a lawyer of high standing." Mr Young continues to practise as head Morgan. During his of the firm’s Private Client team. Aged 84, time in practice he has Lexvoco joins LOD he was admitted to the Bar on 22 March served as Tauranga’s 1957. On 1 April 1959, he became a junior Coroner, overseen Australian and New Zealand “new law” partner at Sheffield and Young, one of the the establishment of firm lexvoco has joined LOD (Lawyers founding firms of Chapman Tripp. Aquinas College, and chaired Tauranga on Demand) from 1 May. The firm is now “It is incredible to reflect on the past Energy Consumer Trust (TECT). known as LOD, but says it is business as 60 years and how the legal landscape has “Whatever Michael decides to turn his usual. LOD has 10 offices globally, 650 changed. Early on, it was the days of stamp mind to, he gives it 100%, excelling at lawyers and consultants and over 500 duty and death duty, and trying to trim whatever it is, whether it be work, com- corporate and law firm clients. those down, going to the Land Transfer munity or family matters,” says his cousin Office in person to have the memorials and Cooney Lees Morgan partner Owen written up in the great heavy ledgers, Cooney. Contributing information turning up to have the registrations, and In recognition of Michael’s service to the to On the Move you had to get there at 8am to be ahead community, he was made a Member of the Brief summaries of information about of the queue,” he says. New Zealand Order of Merit in 2013 and promotions, changes in law firms, “Lots of law has changed enormously, was awarded a Paul Harris Fellowship by recruitment and retirement are pub- but actually much is the same. Our work Rotary International. lished without charge in On the Move involves dealing with people, and human “The partners of Cooney Lees Morgan (which is also available online on the nature, if it changes at all, is only gradual have always made strong contributions Law Society website). Please send in its change.” to our community,” Owen says. “Michael’s information as an email or MS Word A former President of the Auckland grandfather, HO Cooney, had a hand in document (no PDFs please) to editor@ University Students Association in 1958-59, establishing the Port of Tauranga, and lawsociety.org.nz. Submissions should he received the University’s Distinguished Lionel Lees was involved in the power be three or four sentences without Alumni Award in 2002. Arthur is a long generation scheme which was the forerun- superlatives and may be edited to standing member of the Society of Trust ner of Trustpower. Our firm’s other name conform to the format used. A jpeg and Estate Practitioners. partner, Ed Morgan, earned an MBE for photo may be included, but please Arthur worked with his first principal, championing Māori interests. He helped set ensure you have permission for us to Joe Sheffield, for 25 years, and he had a up the Tauranga Moana Māori Trust Board, use it. huge influence on Arthur’s career. “What was involved in the return of Mt Taranaki

14 LAWTALK 930 · July 2019 LAW REFORM

Opportunity to get involved in law reform

Calling all practitioners keen to make a contribution to law reform in New Zealand, now is your time to get involved.

The New Zealand Law Society plays an active and important role in the reform of law in New Zealand. The Law Society has a reputation for producing high quality, impartial and considered submissions on a wide range of legal issues, on behalf of the legal profession and in the public interest. This is possible thanks to the dedication and hard work of members of the profession who volunteer their time and expertise to serve on the Law Society’s law reform committees.

The Law Society is now calling for applications from members and associate members interested in serving on the Law Society’s Law Reform Committee or one of the specialist committees listed below:

Accident Compensation Committee Civil Litigation and Tribunals Committee Commercial and Business Law Committee Criminal Law Committee Criminal Law Committee Employment Law Committee Environmental Law Committee Health Law Committee Human Rights and Privacy Committee Immigration and Refugee Law Committee Legal Services Committee Public and Administrative Law Committee Rule of Law Committee Tax Law Committee Youth Justice Committee

If you are: • enthusiastic about, and have skills and expertise in a relevant area of law, • keen to share your knowledge and to work collaboratively with other practitioners, • willing to volunteer your time and expertise for the benefit of the profession and the community, and • available to respond to consultation on law reform when required … then we need you.

New Zealand Law Society committee membership is a great way to get involved and have your say on law reform issues. It is also an excellent basis for professional development and collegiality.

Go to www.lawsociety.org.nz/law-society-services/law-reform/get-involved for information on the committees and role descriptions, and to apply. Application forms and information packs are also available via email from [email protected].

Applications close at 5pm Friday 26 July 2019.

Committee convenors will be appointed by the Law Society Board at its meeting on 23 August 2019 and committee members will be appointed by the President in late August.

15 PROFILE · PEOPLE IN THE LAW July 2019 · LAWTALK 930

16 LAWTALK 930 · July 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE Lagi Tuimavave, Wellington Family Law New in the Law

BY ANGHARAD O’FLYNN

Born in Samoa, Lagi Tuimavave is the oldest of What do you enjoy most five children and spent her formative high school years about being a lawyer? growing up in Wellington, attending Wellington Girls’ “I enjoy working in a firm with very College. experienced partners who have Bilingual in English and Samoan, Ms Tuimavave says been so hands-on with my devel- that while she was an English studies buff, her favourite opment. I think it is so important subject was legal studies, as the subject supported the for new lawyers to be surrounded needs of students who spoke English as their second by willing and experienced teachers. language. She is a solicitor with Wellington Family Law. This is an experience I can never take for granted. When did you realise that you “I am so reluctant to say that I wanted to be a lawyer? enjoy being a lawyer for the mere “My father helped me to decide and I eventually learnt fact that I get to file evidence for my the value of having a law degree. clients, attend court and bill them. “Since college, I realised that I had no other options No, for me, joy in being a lawyer but to become a lawyer, hence my perseverance with comes from the mere fact that a English. client thanks me for helping them “Once at law school I knew I had made the right alleviate stress and pain. It’s in the decision, despite the many challenges I had to endure. way I give them legal advice and I feel so honoured to have a practising certificate because practical advice. It’s about being I feel a deep sense of responsibility for the elderly, young upfront and not sugar coating the people, Pacific islanders and any vulnerable member legal system. I guess you can say or members of our community.” As a lawyer, that I enjoy being a lawyer because understanding I care about people.” You have a BA majoring in Samoan differences studies and cultural anthropology. is crucial. I What made you lean Do these help you in your day- can never toward specialising to-day work as a lawyer? assume I know in family law? “I’m lucky I got to major in these papers. someone’s “Family law presents to me an “Cultural anthropology gave me perspective about culture simply opportunity to help people with different cultures and their rituals and the varied ways from listening their issues. Family law has the people live and organise themselves. I love that we are to their stories. human element; it is the core of all so different and that we can all learn a thing or two Being a lawyer the area of law. I like that there from each other. comes with are steps people could be advised “As a lawyer, understanding differences is crucial. I a great deal to take before engaging the legal can never assume I know someone’s culture simply of trust but system unless they are urgent from listening to their stories. Being a lawyer comes also the need matters. with a great deal of trust but also the need to respect to respect “[I think] Family law should my clients’ vulnerabilities in a system that should only my clients’ be less adversarial and more be turned on as an absolute last resort.” vulnerabilities conciliatory.”

17 July 2019 · LAWTALK 930

I’m going to be silent on the issue. “The profession needs to be free from entitled people who think it is ok to bully or sexually violate their staff. Such behaviour needs to be eliminated. Let’s respect each other and appreciate that upholding each other’s unique mana is conducive to better outcomes for all. “There is a great and urgent need for diversity in the legal profession. We need more Māori and Pasifika lawyers in litigation teams in all firms, let’s be a reflection of our country. “I think there is a growing shortage of legal aid lawyers. This saddens me because access to justice is being denied. I’m really hoping this decline is only temporary. “I feel honoured to be at Wellington Family Law where I feel supported and I can only hope the same for my junior colleagues.” Can you tell me about anyone who inspires you? “In general, my mother Piilua inspires me. She is the most hard-working woman that I know. I feel beyond blessed that she is my mother. In the legal profession, Tiana Epati inspires me. I met her early this year and I am so proud of her. I thank her for her bravery and for sharing some of the most painful moments of her career as a Pasifika woman in the legal profession.” Family law can be very stressful, what do you get up to your spare time to decompress? “I am a proud believer of God – so going to church gives me a great sense of peace and relief. After finishing study, did hope that they are all well supported “I spend most of my spare time with my nine-year-old you find the job matched and looked after by members of brother TJ. He is the greatest company ever. A nine- the expectations you their practice. year-old best friend will make you forget all about your had in school? “Sexual harassment and bullying work/life worries. “To be honest, I wasn’t quite pre- is real in the legal fraternity – to me “I have a solid group of close friends and mentors pared for the level of responsibility it is a long term disease that needs who I can always count on for a good time – quality at that comes with being a family serious treatment. Just because I this age and time is important.” ▪ lawyer. Going home and wondering personally haven’t experienced it whether a client will be okay over in my current firm doesn’t mean Angharad O’Flynn is a Wellington-based journalist. the weekend is a demonstration of the extent to which I have brought this obligation upon myself. This is something I am trying to get used to.” Are there any issues currently facing young lawyers and/or the legal system as a whole that you’d like to highlight? Recognised industry experts Serving legal documents for over 30 years “I think, in general, young and new lawyers are expected to work long Fast, professional, nationwide process serving for solicitors & government agencies. arduous hours to earn their place P: (09) 302-2476 E: [email protected] W:www.docuserve.co.nz and meet expectations. I can only

18 LAWTALK 930 · July 2019 PEOPLE IN THE LAW · PROFILE

PEOPLE IN THE LAW PROFILE The Innovators Warrick McLean, CEO, Coleman Greig Lawyers

LawFest organiser Andrew King continues a series of interviews with key legal professionals with their innovation and technology stories.

What does legal from traditional law firms. Having easier for firms compared to what it innovation mean to you? automation champions and drivers was five years back. There are plenty It means doing things better. It of change is the key. These staff may of AI platforms but for many firms means being able to step back and not be tech-savvy, but they seek this is an area left to the big boys. watch how you could join the dots opportunities for improvements. Delivering automation to much of differently. Interestingly, this is a The biggest opportunity lies in our daily routine is the key where skill not everyone has, and lawyers automating tasks and workflows. smaller firms can improve service often tend to be challenged by Many firms may use your existing delivery, turnaround and productiv- transformation. software rather than investing in ity. AI will happen and is happening Legal innovation is important for new technology. but only to a niche few at this stage. our clients, firm productivity and also for our current and prospective What pressures are What opportunities staff. Fifty-four percent of my firm’s organisations facing has legal innovation staff is millennial, so we get staff in the delivery of brought to you? to think about and find new ways legal services? The push to change the way we of doing things that are exciting, Firms are very competitive. Changes deliver our services is much less interesting and challenging. Firms are impacting on the profession of a push these days. Lawyers are need to challenge and engage their as it is being driven by pro-active actively highlighting the opportuni- younger staff to think differently firms and legal entrepreneurs. They ties and seek assistance from prac- and add value to the work. Engaging are keen to cash in on an industry tice service teams. It means legal millennial staff the right way can that has been historically slow to innovation is no longer an internal get the best from them and will change. Clients are pushing some sell and is now really gaining a life help to potentially retain them for of the changes but on the basis of of its own. longer. It costs a lot to train quality our experience we need to challenge If process improvement is your talent, so retaining them for as long our clients with different offerings thing then it is an exciting time to as possible is important. and ways of doing things. be in law and for me, I simply enjoy reflecting on how far our firm has What role does What developments do come over the last ten years. We technology play you see in how legal have not been bold but have just in innovation? services are delivered? been very consistent at improving Technology plays a crucial role in Many smaller and mid-tier firms are the way we do things. getting a firm excited about the now able to “get in on the action” as opportunities that innovation can the price of technology drops and What are some of your bring, as innovation is the key and the number of legal technology start- tips to start innovating technology is simply an enabler. ups increases. The challenge lies in or developing an Getting partners to join the execution. Many of the legal start-up innovative mindset? innovation bus. It is all about offerings make the execution of legal A few years back we picked a few bringing people along for the ride tech and innovation a whole lot innovation champions to assist

19 PROFILE · PEOPLE IN THE LAW July 2019 · LAWTALK 930

PEOPLE IN THE LAW

CONTINUED FROM PAGE 19 with developing a programme of hackathons. From these hackathons NZAL Lawyers we developed some key outcomes whilst actively promoting and celebrating each win we have had successfully internally. Lawyers are a competitive bunch, so there is nothing like a little bit of peer pressure to get launched things moving. Another key lesson we have learnt is to try and get things done BY MAI quickly – if you are going to fail … fail CHEN fast and get on to the next project. Lawyers want things perfect and educating lawyers about delivering number of Asian parties in the court a project requires it to be delivered NZAL (New Zealand Asian system. Data from the Ministry of in a way that is 70% complete and Leaders) Lawyers was launched in Justice shows that in the District then work on the next 30% during Auckland on 10 June. The launch Court, the languages most needing testing. Once we get teams past that was well-attended, with over 125 interpretation are Samoan and then hurdle, then the take-up has been members of the profession and Mandarin, whereas in the High really positive. distinguished guests, including Court it is Mandarin, Samoan, fol- the past President of the New lowed by Cantonese. For some Asian Why is it important for Zealand Law Society Kathryn clients, a limited ability to speak and legal professionals to Beck, and Raymond Huo MP, Chair write English well, and coming from continue to learn about of the Justice Select Committee a culture which is very distant from legal innovation and of Parliament. Pacific Lawyers’ the Kiwi culture and which has dif- leveraging technology? Association President Tania Sharkey, ferent attitudes towards the rule of The challenge has been finding representatives of Te Hunga Rōia law, can pose particular challenges the right platforms to assist us Māori o Aotearoa (the Māori Law to their access to justice. with our journey. Many practice Society) and the President of the Stereotyping and discrimination management software offerings in Auckland Law Students Association, against Asians can mean that Asian the 75 users-plus range, struggle to Lina Kim, were also in attendance. lawyers can lack confidence, and deliver an effective API [Application NZAL was established in 2013 to feel that they need to be better Programming Interface] let alone a connect, inspire and grow Asian than everyone else in order to suc- workflow that would be considered leaders across New Zealand, and ceed. Some Asian lawyers may also leading in 2019 terms. Software these values and vision will under- struggle with English as a second offerings need to be easily integrated pin NZAL Lawyers. language or have a pronounced and vendors need to be willing to NZAL Lawyers was founded fol- accent, and may find written English “play nicely with the others in the lowing a conversation earlier this difficult to master. Of course, some sandpit”. year with Law Society President Asian lawyers were born in New Working with our legal tech start- Tiana Epati, who asked why there Zealand and do not experience any ups on the other hand has been a was no association for Asian of these issues. real pleasure. The legal tech partners lawyers. that we deal with are keen to grow, There are an increasing number NZAL Lawyer objectives to adapt. Working with a service of Asian lawyers and clients in New The aim of NZAL Lawyers is to partner that is agile makes a real Zealand. One in three Aucklanders offer collegiality, guidance, and difference as they have touched all are Asian and Statistics New Zealand wisdom to the growing Asian parts of our business and in client is projecting that 51% of people legal community in New Zealand. areas. So, it would be difficult to will identify as either Asian (22%), Foundation members include senior change like family law. ▪ Māori (20%) or Polynesian (9%) in and younger lawyers from private New Zealand by 2038 (although 65% practice, government and academia. Andrew King  andrew@lawfest. would also identify as European, NZAL Lawyers is offering mentor- nz is organiser of LawFest, which due to people identifying as mixed ing – so far 55 Asian lawyers have will be held in Auckland on 18 March race). indicated that they would like to be 2020.  www.lawfest.nz/ In addition, there are a significant mentored, and more than 25 more

20 LAWTALK 930 · July 2019 PEOPLE IN THE LAW · PROFILE

senior Asian lawyers have agreed to act as mentors. succeed in legal practice. Mr Loo spoke to the value of The Law Society President has announced plans to diverse experiences in legal practice, noting that when allow those mentoring to claim CPD credits, which he commenced legal practice he was already experienced NZAL Lawyers mentors will be able to take advantage at dealing with people from all works of life, a skill he of. Non-Asian lawyers are also sought to mentor Asian had gained from working at his parents’ fruit shop as a lawyers. Some Asian lawyers feel ghettoised in Asian teenager. He said he felt this had given him an advantage firms servicing only Asian clients and would welcome over his European colleagues. a Kiwi lawyer mentor. In the mid-1990s, changes in the demographics of NZAL Lawyers will also be a repository of expertise Auckland meant that there was room for a firm which on Asians in the law to assist all lawyers to successfully serviced Chinese-speaking clients, and so Mr Loo set advise and deal in a culturally appropriate way with up Loo & Koo with Kenneth Koo. Arthur Loo spoke of Asian clients. NZAL Lawyers can also assist courts, the the importance of language to the successful practice Ministry of Justice, law schools and continuing legal of law – while staff at Loo & Koo would speak Chinese education providers to ensure equal access to justice to clients, staff spoke English among themselves in the for Asians in New Zealand. office to maintain a high standard of written and spoken Law Society President Tiana Epati officially launched English. Mr Loo spoke about the wide range of diversity NZAL Lawyers at the Auckland event. The attendees among his client base, noting that Loo & Koo devised a heard from her about the importance of collegiality and file coding system which enabled them to immediately looking after one another in the legal profession. Ms determine the native language of the particular client, Epati said Asian lawyers are the members of the profes- whether that be Mandarin, Cantonese or Korean, for sion most likely to suffer from bullying. She emphasised example. the importance of Asian lawyers standing together in the profession, which has been monocultural for a Succeeding in the state sector long time. Ms Epati shared that the superpower of Former Ombudsman and Special Counsel at Chen Asian lawyers, as well as Māori and Pacific lawyers, Palmer, Leo Donnelly, spoke on how Asian lawyers can was being able to navigate different worlds with ease. succeed in the state sector. Mr Donnelly emphasised the She ended her speech with a whakataukī: E tū ki te kei importance of having confidence in your own capabil- o te waka, kia pakia koe e ngā ngaru o te wā – stand at ities, and emphasised that your cultural background the stern of the canoe, and feel the spray of the future should never be a reason to lack confidence. He said biting at your face. there’s never been a better time to join the state sector, as the sector now realises that diversity brings strength. Succeeding within the judiciary Mr Donnelly said Asian lawyers’ natural balancing After Tiana Epati’s speech, the attendees heard from of different parts of their identities means that they Judge Sanjay Patel, who spoke on how Asian lawyers are well equipped to consider the balancing exercise could succeed within the judiciary. Judge Patel said that between individual rights and the rights of others which he hoped his appointment to the bench could be an is a crucial part of state sector legal practice, given the inspiration to other lawyers, saying “If I can do it, so requirement on the state sector to can you.” Judge Patel said that it was important to have make decisions in a manner that is someone that inspires you, and whose style you can fair, just and transparent. emulate in finding your own courtroom style. The aim of He shared with the attendees In the law your reputation is everything, and you must NZAL Lawyers that his mother, a survivor of the align your values with those of the legal profession. is to offer atomic bombings in Hiroshima who Sanjay Patel said that Asian lawyers’ cultural diversity collegiality, migrated to New Zealand, taught offers them unique perspectives and allows Asian guidance, and him and his siblings to adapt to their lawyers to see alternative paths and solutions. It can wisdom to new culture, but not to assimilate be easy to view being diverse as a disadvantage, but it the growing and lose their Japanese heritage. Mr is actually an advantage. Asian legal Donnelly ended his speech with a Judge Patel shared a message from the Chief District community in Japanese saying: “There are many Court Judge, Jan-Marie Doogue, that the reputation of the New Zealand. paths to the top of the mountain, law profession should reflect the changing demographics Foundation but at the top, there is only one of society, and in doing so, it will enhance the legitimacy members moon to behold.” of the judiciary. He encouraged suitably qualified Asian include senior lawyers with judicial aspirations to put forward an and younger Lawyers engaged expression of interest to join the bench. lawyers by Asian clients from private Stella Chan, co-founder and partner Succeeding in legal practice practice, at Forest Harrison Lawyers, spoke Arthur Loo, who is a co-founder and partner at Loo & government about the issues and challenges Koo Solicitors, spoke about how Asian lawyers could and academia faced by lawyers engaged by Asian

21 PROFILE · PEOPLE IN THE LAW July 2019 · LAWTALK 930

lawyers they respect. Sir Anand shared a recollection of one of his early cases, Police v Emirali [1976] 1 NZLR 286. His client had been accused of possession of cannabis, from tiny traces detected by police inside his vacuum cleaner. The client was unsuccessful in the Magistrate’s Court, but in the then-Supreme Court and again, on appeal, in the Court of Appeal, Sir Anand successfully argued that the court should adopt the “usability test” from a line of cases from the United States and South Africa, which stated that a person could only be in possession of a narcotic if the amount possessed was enough to be usable. Sir Anand said that this case, which had the most meagre of circumstances, showed that the ▴ Mai Chen at the NZAL Lawyers without any acknowledgement of New Zealand legal profession is a launch in Auckland the debt, or a loan agreement. Asian meritocracy. If you have enough clients can also have difficulties in skill, creativity and dedication you clients. family law, lacking familiarity with will be able to rise to the top as an Ms Chan emphasised that Asians concepts such as shared custody. Asian lawyer. come from countries with a different legal culture from New Zealand. Sir Anand Satyanand Just the beginning They do not understand the New The event ended with a speech This is only the beginning of NZAL Zealand legal framework, and do from the former Governor-General, Lawyers. A joint event is being not realise that the law is different Ombudsman and District Court planned with colleagues at the to that in their home country. But Judge, Sir Anand Satyanand, via Pacific Lawyers’ Association and Asian clients face an uphill battle in video link. Te Hunga Rōia Māori o Aotearoa, gaining this understanding, as there Sir Anand spoke of his enthusi- which will be a first. is little information about the New astic support for NZAL Lawyers. The next NZAL Lawyers Zealand legal system available in He said that having support is Symposium will be held on 4 their home languages. As a result, vital, peers are crucial, and echoed September at 5:30pm. The sym- Asian clients rely heavily on their Arthur Loo’s comments that success posium is eligible for CPD credits. lawyers to help them navigate the in the law depends upon building We are also looking for Advisory legal system. and maintaining your reputation. Board members, so please get in Ms Chan also said that the lan- Sir Anand said lawyers should touch if you want to help this new guage barrier is a big issue for Asian take every opportunity to watch organisation and have the quali- clients. Often, Chinese documents other lawyers in court, read books fications to do so. Please contact have to be translated, but as some on advocacy, and upgrade their [email protected] concepts do not exist in both abilities by public speaking. Sir for more information. languages, translations can suffer. Anand said the trick to getting on To find a list of the people who Moreover, some interpreters used in in court was to seek opportunities have joined NZAL Lawyers, visit the court have been unable to capture to assist other lawyers, and when website www.nzasianleaders.com/ accurately what the client is saying, given the opportunity to present a program-initiatives/nzal-lawyers. ▪ which has worrying implications for case of your own, to prepare it to achieving a just result. the point of complete familiarity. Mai Chen  mai.chen@ She said many Asian clients do Lawyers should try to make every chenpalmer.com is Chair of New business on a “handshake” basis, case argued the most interesting Zealand Asian Leaders and the and may not realise that agree- one that the judge has heard that Superdiversity Centre for Law, ments need to be put in writing, or day. Lawyers should remember that Policy and Business. She is manag- otherwise evidenced, in order to be they are members of an honoura- ing partner at Chen Palmer and an enforced in the case of a dispute. ble profession and should seek to Adjunct Professor at the University Often, Asian clients lend money develop associations with other of Auckland School of Law.

22 Graeme FACING THE Christie FUTURE Graeme has joined Bankside Chambers as a barrister after many years at Simpson Grierson. He is available to advise on a broad range of construction, property, and litigation matters, including Health & Safety incidents and prosecutions. In addition, he is available for appointment as an Adjudicator, Arbitrator, Expert or Mediator (including evaluative, if required).

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AUCKLAND auckland@nzlslibraryorgnz WELLINGTON wellington@nzlslibraryorgnz CANTERBURY canterbury@nzlslibraryorgnz ANIMAL LAW · UPDATE July 2019 · LAWTALK 930

UPDATE ANIMAL LAW Imprisonment imposed for violent attack on dog

BY ANITA KILLEEN

Please note that the following article contains explicit details of a violent attack on an animal and the suffering caused.

In a recent animal welfare prosecution, (Auckland Royal New Zealand Society for the Prevention of Cruelty to Animals v Serrin Rawiri Rickard MacPherson [2019] NZDC 4102) the court sentenced an animal welfare offender to 12 months’ imprisonment with leave to apply for home detention, disqualified him from owning animals for six years, and ordered him to pay $1,780 in reparations for a sustained and violent attack against a dog. The District Court decision inMacPherson ▴ Rocka, before he was euthanised. is significant both for its denunciation and deterrence of serious animal welfare The facts offending and also for its acknowledgment Mr MacPherson pleaded guilty to one charge of wilful ill-treatment that animals are sentient beings – that is, of an animal pursuant to s 28(1)(d) of the Animal Welfare Act 1999, they have the ability to feel, perceive, be which carries a maximum penalty of five years’ imprisonment conscious, or to experience subjectivity (the lead offence) and one charge of failing to ensure the animal – and that the resulting pain, distress, received treatment to alleviate any unreasonable and unnecessary and suffering experienced by animals is pain and distress it was suffering pursuant tos 11 of the Act. a relevant factor to be taken into account On 9 November 2017, the defendant let his dog Rocka outside his at sentencing. Importantly, the decision address in Papakura. Rocka, along with a second dog, travelled to a places a renewed emphasis on the totality neighbouring property and attacked livestock. When the defendant principle when sentencing animal cruelty caught Rocka he repeatedly punched, kicked and slammed the dog offending. Judges have a positive obligation to the ground. Mr MacPherson used such force that Rocka suffered to review the aggregate sentence and ensure considerable haemorrhaging and a broken leg. A witness saw the that it is proportionate to the overall level dog screaming the entire time. That witness tried to intervene of criminality. A judge should first consider by shouting at the defendant, however, Mr MacPherson did not the sentence for each individual offence and respond and continued his attack. then determine whether the circumstances The defendant was aware that Rocka’s leg was injured yet he call for a concurrent or cumulative sentence, failed to take any steps to get veterinary treatment, even after he and whether the sentence as an aggregate was told to do so by his father. is ultimately a fair one. The following day, the defendant went to his father’s house This article reviews the District Court again. His father told him again to get veterinary treatment for decision of MacPherson and its applica- the dog, but the defendant again failed to act on that advice. On tion of the Court of Appeal’s guidelines that same day the defendant was visited by animal management espoused in Erickson v Ministry for Primary officers. He claimed to have euthanised Rocka and disposed of Industries [2017] NZCA 271 for sentencing him. Rocka, however, was in the defendant’s custody and still animal welfare offenders. had not received treatment. The SPCA inspector also visited the

24 LAWTALK 930 · July 2019 UPDATE · ANIMAL LAW

defendant that day. The inspector could • To recognise that animals are sentient. not locate Rocka at that stage and left the • To require owners of animals and persons in charge to attend property to make enquiries. Later that properly to the welfare of those animals. evening the SPCA inspector went back to • To specify conduct that is not permissible in relation to any the defendant’s property with a second animal or class of animals. inspector. Mr MacPherson admitted that he • To provide for the development and issues of code of welfare had attacked the dog, and also, eventually, and approval of codes of ethical conduct. admitted that Rocka was in his vehicle, was The Court of Appeal in Erickson described the Act at [31] as being injured, and had not received treatment. “the single most important piece of legislation in New Zealand Upon inspecting Rocka, the inspectors relating to the protection of all kinds of animals under human immediately noticed his right hind leg was control”. The Court of Appeal then went on to set out a framework extremely swollen and that Rocka could not for dealing with these charges and said the Court must analyse the place weight on it. Rocka was surrendered offending by looking at three considerations, which it described into the care of the inspectors, and was as primary aggravating considerations, secondary aggravating seen by a veterinarian at about 7.30pm. The considerations and finally, mitigating considerations (at [52]). fracture to the dog’s femur was confirmed. The primary aggravating considerations include the following On 11 November, another veterinarian factors (at [53]): examined Rocka and concurred the femur • Whether the defendant caused significant pain or distress and had fractured into pieces and that Rocka how extensive and extended that pain or distress was. would have suffered severe pain at the time • Whether there was extreme violence assessed by the nature of the fracture and up until the point he of the actions taken, rather than their effect. was treated. • Whether there was any premeditation and planning to cause A decision was made to euthanise Rocka significant pain or distress, particularly of a sadistic nature as due to the extent of his injuries and tem- opposed to impulsive or reactive behaviour. perament. The post-mortem confirmed that • Whether there is any repetitive offending, including the number the femur was broken in several places. It of victim animals concerned. also revealed widespread haemorrhaging • Whether the defendant took a leading role in the offending as consistent with blunt trauma. In the vet- opposed to being a follower or acting under the directions of erinary pathologist’s opinion, the injuries another person. and lack of treatment would have caused Secondary aggravating considerations include: Rocka severe pain, distress and suffering. • The means of commission of the offending, such as the use of On 21 November, Mr MacPherson was weapons, attacking the head, or multiple offenders. interviewed by the SPCA inspectors • Whether there was abuse of a position of trust, such as a man- where he admitted attacking the dog agerial responsibility or something of that nature. as punishment. The defendant believed • The impact on third parties such as members of the public who he had caused Rocka’s leg to break and witnessed the offending or its consequences. he acknowledged that he ought to have Mitigating considerations include: provided veterinary treatment to the dog • Impulsive or reactive behaviour not involving sadistic intent. but failed to do so. • A mental disturbance, short of insanity. Applying the Court of Appeal’s guidelines to the MacPherson case, Sentencing Judge Cathcart noted at [17] regarding the primary aggravating In sentencing, Judge Cathcart referred factors, that Rocka suffered significant pain and distress: to the Court of Appeal decision Erickson “The femur was fractured into pieces and I accept that con- v Ministry for Primary Industries [2017] clusion the dog would have suffered severe pain at the time. NZCA 271. While not a tariff decision as Also, given you did not call for medical aid that pain would such, Erickson goes through the history of have continued up until the point the dog was looked at by the Animal Welfare Act 1999 and its prede- the veterinarian. And the dog suffered considerable haemor- cessor legislation and sets out guidelines to rhaging consistent with blunt trauma because of your attack.” assist courts with the approach to be taken While the defendant’s offending did not operate as the immediate at sentencing for these types of offences. cause of Rocka’s death (as Rocka had been euthanised) Judge The Animal Welfare Act itself states its Cathcart determined that the offending led to that outcome and primary purpose as being an Act to reform was still very serious, but not at the top of the spectrum. the law relating to the welfare of animals Furthermore, Judge Cathcart noted at [19] that the defendant and the prevention of their ill-treatment used sustained and extreme violence: and in particular: “Also I accept the level of violence inflicted on the dog was

25 COMPANY LAW · UPDATE July 2019 · LAWTALK 930

CONTINUED FROM PAGE 25 UPDATE sustained. You punched, kicked and slammed the COMPANY LAW dog to the ground repeatedly. I know from the dock you said there was not a witness present. But I am required to accept that there was on the undisputed summary of facts. The witness saw Rocka screaming Directors’ the entire time and I am told was shouting at you to stop but you did not respond. You did not desist despite the plea of that person. Your violence was at duties and a heightened level and sustained. And in my view, it fits within the concept of extreme violence as understood under the legislation … What you did the case for by way of punishment was wholly unacceptable.” Judge Cathcart adopted a starting point of 16 months’ imprisonment on the lead offence and uplifted that by vulnerable a further period of two months’ imprisonment, having adjusted it for totality, to arrive at an overall figure of 18 months’ imprisonment. The judge noted at [32] there trading? was little remorse shown, however, and found that the defendant’s character and previous offending history were more in his favour: Watch this space “There is nothing to suggest you had this general attitude towards animals. There is nothing in your offending history that gives any clue of a propensity BY RICHARD to violence or anything of that nature. So, I take GORDON those favourable factors into account also.” The judge discounted 25% from the starting point for the early guilty pleas and arrived at an end sentence of 12 months’ imprisonment with leave to apply for home Earlier this year, in the space of 10 days, the New detention. The defendant was disqualified from owning Zealand courts delivered two quite differing outcomes animals for six years and ordered to pay $1,780 in repara- on the question of reckless trading under s 135 of the tions for veterinary costs, SPCA costs, and pathology costs. Companies Act 1993. In the first judgment, delivered on 26 February 2019, Reaction Cooke J held the directors of Mainzeal Construction liable The SPCA’s CEO, Andrea Midgen said following the judg- for ongoing trading in a “vulnerable state”, attributing ment: “This type of offending is particularly horrific as to that complaint liability for the entirety of its trading the offender not only violently attacked his own animal, losses on liquidation – some $110 million. Of this amount, he failed to provide critical medical care after the fact, he then imposed on the directors personally a com- and lied about it to authorities, leading to a huge amount pensation award under s 301 of the Act of $36 million. of suffering for Rocka. In the second, delivered on 8 March 2019, the Court “We are pleased that the court has recognised the of Appeal (comprising Miller, Asher and Gilbert JJ) reaf- significant pain and distress and extreme violence in this firmed orthodox principles to find that ongoing trading case, and this is reflected in the imprisonment sentence by the director of a distressed residential property handed down. Let this be a warning: anyone who treats developer was not reckless, and raised doubts about their animals in such a way will be prosecuted by the whether any loss had arisen by the conduct complained SPCA to the full extent of the law.” of in any event. The decision in MacPherson is particularly significant Two starkly different results, albeit in response to in that it recognises that animals are sentient beings different fact scenarios. Perhaps the more interesting and that cases involving animal cruelty can warrant the point is to consider the reasoning from each and to keep imposition of penalties commensurate with comparable an eye on which approach will take hold going forward. crimes against humans. MacPherson reflects both society’s and Parliament’s denunciation of this type of offending. ▪ Sections 135 and 301 of the Act As a starting point, s 135 of the Act prohibits a director of Anita Killeen  [email protected] is a barrister a company from agreeing to and/or causing or allowing at Quay Chambers in Auckland. She is a Director of the the business to be “carried on in a manner likely to Auckland SPCA and established and chairs the Pro Bono create a substantial risk of serious loss to the company’s Panel of Prosecutors for the SPCA Auckland. She is also creditors”. an international associate member of the American Bar If directors are found to be in breach of s 135, the Association Animal Law Committee. usual protection afforded by the corporate veil can

26 LAWTALK 930 · July 2019

be overcome – and directors held personally liable for some or all of a liquidated company’s losses. On application by a liquidator, a creditor or a shareholder, the court can, under s 301, order the director to pay, by way of compensation, an amount that “the court thinks just”. An orthodox approach – Debut Homes Starting with the Court of Appeal’s judgment in Cooper v Debut Homes Ltd (in liq) [2019] NZCA 39, it involved an application by the liquidator of Debut Homes, a residential property developer, against its director (Mr Cooper). The action revolved around Mr Cooper’s decision, when the company was in financial difficulties, to complete and sell four houses that the company had been building. The company’s primary creditor on liquidation was the IRD, which was owed outstanding GST obligations. The court assessed Mr Cooper’s decision. It found that a potential GST liability existed before he made his decision. It arose out of the company’s initial purchases of its development opportunities the difficult commercial choices High Court’s approach of assessing years earlier. The GST liability facing the directors”. the loss as being the full amount only crystallised on the sale of the The court held that the decision owing on liquidation was “clearly properties, which occurred for fair to complete the houses and sell in error” (at [95]). The High Court market value. It was also apparent them for fair market value was a judge failed to consider that much that an ‘as is, where is’ alternative sensible business decision (at [61]). of the GST debt likely pre-existed sale would have likewise created The alternative – some sort of walk the November 2012 decision and a shortfall on the company’s GST away in November 2012 leaving what would have been relevant as liability. unfinished houses – was the less compensation was the increase to In terms of the principles (see sensible commercial option (at [65]). that pre-existing amount. [24] – [33]), the court held that Therefore, the court concluded that trading whilst insolvent does not Mr Cooper did not act in bad faith Mainzeal – a different automatically equate to director and was not reckless. approach? liability. The risk and loss to the The court also observed that Turning then to the High Court’s company as a whole is relevant, it was unclear whether the IRD, decision in Mainzeal Property and not on a transaction by transaction in fact, suffered any loss from Mr Construction Ltd (in liq) v Yan [2019] basis. The terms “likely” and “sub- Cooper’s actions. Although it did NZHC 255, released only 10 days stantial” must be given weight, so not need to determine the level prior. That decision relied upon too the section’s heading “reckless of compensation payable under some more novel concepts when trading”. Risk must be considered s 301, it was not clear to the court assessing a breach of s 135 and the alongside the potential advantage, that the IRD was in fact worse off loss compensable for same under and exercising hindsight judgement than if Mr Cooper had decided to s 301. is cautioned against, as this does not liquidate the company in November Established in 1968, Mainzeal “fully and realistically comprehend 2012. It did note, however, that the was a long-standing New Zealand

27 COMPANY LAW · UPDATE July 2019 · LAWTALK 930

construction company. In 1995, Mainzeal’s ownership “in effect, a tactic to put the company back into a proper shifted to a Chinese group of companies. From 2004, position” (at [293]). Had they done so, it would have put Mainzeal extended loans to the group and funds were sufficient pressure on the group to provide the necessary also withdrawn from Mainzeal by the group. But, support support to continue trading (at [423]). from the group flowed back into Mainzeal too (eg, group In terms of the resulting loss and compensation companies would support bonds on Mainzeal’s projects award payable under s 301, the directors argued for the and provide sporadic cash injections). However, cash orthodox approach of compensating increased losses flow issues came to a head in late 2012 (a dispute with sustained by creditors from a counterfactual insolvency Siemens and multiple leaking building claims contrib- point (see, for example, Mason v Lewis [2006] 3 NZLR uted) and the group declared it would not provide the 225 (CA)). Under this approach, there was arguably no necessary support to trade on. Mainzeal collapsed in loss because creditors were better off with a 2013 insol- February 2013. vency than one in 2011. However, Cooke J held that an The liquidators argued that Mainzeal had traded for alternative approach applied, one that recognised the many years while it was balance sheet insolvent. It loss caused by the directors’ breach. That loss was the was reliant upon group support from China that was full amount owing on insolvency – $110 million. From not, in fact, enforceable and it relied upon a cash flow that amount, the judge applied various discounts on advantage of using subcontractors’ money as working account of causation, liability and duration of trading, capital. It therefore engaged its business in such a way saying “Standing back, I ask myself what proportion as to expose creditors to a substantial risk of serious of the deficiency to creditors on liquidation it is fair loss under s 135. The liquidators alleged counterfactual for the directors to contribute in an overall way” (at insolvency dates of either January or July 2011. [445]). Ultimately that amount was one third of the total, The directors, on the other hand, argued that Mainzeal rounded to $36 million. was not balance sheet insolvent and could meet its debts In reaching this outcome, Cooke J recognised that as they fell due right up until its collapse. They said that “The circumstances of this case can fairly be described as Mainzeal must be considered as part of a wider (wealthy) exceptional” (at [285]). In particular, it was not inevitable group and they acted reasonably in reliance upon group that the company would otherwise have failed – the support (which had been extended over a lengthy period). key being his finding that, had the directors pushed They argued that s 135 should not impose liability unless the issue (even, if necessary, by threatening to resign), a company should cease trading but carries on regardless. group support would have eventuated in an enforceable Here, they argued that losses would have been greater if form so as to restore its financial position. insolvency occurred earlier in time. Despite the directors echoing the orthodox approach Where to next? followed in Debut Homes above, Cooke J held that the The outcomes in Debut Homes and Mainzeal stand in directors acted in breach of their duties under s 135 for rather stark contrast. The latter stands to possibly chart three key reasons (at [187]): a new path, whereby claims of vulnerable trading can “Mainzeal was trading while balance sheet insolvent be said to amount to recklessness; as well as an alter- because the intercompany debt was not in reality native approach to compensation, which assesses the recoverable”; starting point as the entire amount owing as at the “there was no assurance of group date of liquidation. The former is a more orthodox and support on which the directors traditional approach, focusing on pure reckless trading. could reasonably rely if adverse It adheres to a more rigid base for calculating losses, circumstances arose”; and assessing the losses that are increased by the reckless “Mainzeal’s financial trading per- trading and disregarding the full amount of debts owing formance was generally poor and The outcomes on liquidation. prone to significant one-off losses, in Debut The judgment inMainzeal has now been appealed by which meant it had to rely on a Homes and the directors (and cross-appealed by the liquidators). strong capital base or equivalent Mainzeal The interesting point to watch will be whether some of backing to avoid collapse”. stand in rather the more novel concepts embraced in the High Court’s The breach arose because the stark contrast. judgment will be carried forward by the Court of Appeal. directors “agreed or allowed The latter Whatever happens, it is very much a case of watch Mainzeal to engage in trade in a stands to this space. vulnerable state – being balance possibly chart Also, the Supreme Court has granted leave to appeal sheet insolvent, with a poor finan- a new path... in Debut Homes.▪ cial trading position, and depending The former on assurances of support in a way is a more Richard Gordon is a partner with MinterEllisonRuddWatts. I have found to be unreasonable” orthodox and He prepared this article in his role as a board member of (at [398]). Moreover, the directors traditional the Restructuring Insolvency & Turnaround Association should have raised their resignation approach New Zealand Inc (RITANZ).

28 UPDATE FAMILY LAW Reforms take family justice backwards, Law Foundation research finds

BY LYNDA HAGEN

on the family justice system and have independent research that Most family justice profession- services it provides. The report, provided an evidence base and als believe the system has been Parenting arrangements after separa- confirmed their own impressions,” made worse by the 2014 reforms, tion study: Evaluating the 2014 family she says. a major Law Foundation-funded law reforms, has helped inform Professionals were very con- study has found. the findings of the Government’s cerned about the massive increase The Otago University research Independent Panel reviewing the in without-notice applications to found that around three-quarters reforms. The Panel’s report to the the Family Court, following the of professionals, many of them Minister of Justice was released in 2014 changes which also removed lawyers, felt the system had become mid-June. lawyers from the early stages of all worse or much worse since 2014. Study co-author Nicki Taylor said but urgent cases. More than 80% had become dis- the panel had appreciated being “Professionals are also hugely satisfied or very dissatisfied with able to check what it was hearing in concerned about court delays – working in the Family Court since consultations and from submissions reducing delay was one of the key the reforms. with the preliminary results of the drivers of the 2014 reforms, but the The findings form part of a Law Foundation research. delays have actually worsened since detailed three-year research pro- “Our findings complement what the reforms took effect,” Associate ject involving professionals and the panel has found through its Professor Taylor says. separated parents or caregivers work. They were really pleased to There is also concern about

29 FAMILY LAW · UPDATE July 2019 · LAWTALK 930

the lower than expected uptake of Family Dispute Resolution, the mediation service that helps parents Parenting Through Separation agree on post-separation child care arrangements. shining light “Mediation works best when people are ready and Associate Professor Taylor says the free Parenting well-informed enough to reach agreement on their Through Separation information programme, which children’s arrangements themselves,” she says. helps parents understand the effects of separation on their children, was “one shining light” that came through Criticism of ending free the evaluation. Most professionals recommend it to their counselling sessions clients, because it encourages parents to put children’s The removal of six free counselling sessions was also needs first and helps them deal amicably with their heavily criticised – these had provided early support to ex-partners. separated parents, tailored to their individual needs. “Our research was able to help understand which The Family Law Advisory Service does provide initial aspects of the family justice system were working well legal advice and assistance with form completion for or not so well. People were critical of a ‘one size fits parents on low incomes, but most parents must now all’ approach prescribing too rigidly how separated use an 0800 number and the Ministry of Justice website, parents can seek assistance to resolve their parenting which provide only generic information. arrangements. They wanted greater flexibility on the Survey respondents were especially critical of the entry points and pathways available to them, rather 0800 service (0800 2Agree), with nearly two-thirds of than being directed through the pathway mandated professionals saying they would not recommend it to their by the 2014 reforms.” clients. Complaints included lengthy The study was co-authored by Associate Professor Taylor waiting times and lack of knowledge. and Dr Megan Gollop of the Children’s Issues Centre at the The website found more favour The free Otago Law Faculty, supported by Professor Mark Henaghan, among respondents, though there Parenting formerly of Otago University, now at the Faculty of Law, were criticisms of its navigation and Through University of Auckland. The research began in 2016 and design, along with the quality and Separation involved online surveys and detailed interviews with presentation of information. information hundreds of professionals and separated parents. “Many parents were unaware of the programme, The Law Foundation also backed a preliminary Otago new services partly because there was which helps study in 2014-15 on initial scoping and planning for the no publicity when the reforms took parents subsequent nationwide study. effect,” Nicki Taylor says. “Parents told understand The interim report on the family justice professionals’ us they often didn’t know where to the effects of perspectives is available on the Law Foundation website start in the system. Previously they separation on under Publications/Legal Research Reports. Two further could have accessed counselling, their children, study reports on the parents’ perspectives will be avail- but they can’t do that now. Instead was “one shining able on the website in August 2019 and February 2020. ▪ they are expected to go to the 0800 light” that came service or website, which people find through the Lynda Hagen  [email protected] is too impersonal and generic.” evaluation Executive Director of the New Zealand Law Foundation.

30 LAWTALK 930 · July 2019 ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION Cognitive biases: challenging the way we think Part 3

BY PAUL SILLS

❝ Envy is ignorance and we follow their path believing that it is the right one if imitation is suicide ❞ someone else has taken it first. — Ralph Waldo Emerson Our desires for success and social acceptance can be used to explain the presence of the bandwagon effect in our lives. In today’s world we are constantly striving The bandwagon effect, overcon- to be on the ‘winning side’, having strong aspirations fidence, optimism and negativity to be accepted and respected by our society. Therefore, biases are further “everyday” cog- making decisions which could potentially threaten our nitive biases that subconsciously self-image is a daunting task. It is safer to follow a influence our personal and profes- decision made by someone else which has appeared sional decision-making. to work for them. As a result of this, the bandwagon effect means that we rarely explore options outside The bandwagon effect of our comfort zone, we don’t explore the merits and This cognitive bias refers to the values of each case individually – rather, we follow tendency for people to adopt those before us. certain attitudes, behaviours or The bandwagon effect is a difficult bias to avoid. To decision-making processes purely work toward individualising our decision-making, it because everyone else is doing it. is important that we explore all the alternatives and Despite this not necessarily aligning options before making a choice purely because someone with their own beliefs, a person else did. What worked for someone in one circumstance will follow the actions of some- may not necessarily work for you – therefore it is impor- one else without seeking proper tant that we treat each decision individually, not placing guidance, believing that it must be too much reliance upon others. correct/legitimate solely due to its At the same time, the opinions and previous actions commonality. of others should not be disregarded totally. People’s past The bandwagon effect is particularly experiences can be used to warn us against potentially prevalent in today’s society through In today’s world dangerous situations. Therefore, the bandwagon effect the likes of Trip Advisor, Amazon and we are constantly can be likened to that of a survival tool. other customer reviewed websites. striving to be Social media is an obvious and significant issue for This bias can be used to help explain on the ‘winning the bandwagon effect: the likes of Facebook, Instagram, social trends such as the popularity of side’, having Twitter, etc all play a part in how we think and act. brands like Apple, as well as having strong aspirations Because we see so much of each other’s lives online, an influence on politics. Through to be accepted there is a flow on effect that what we see shapes the paying attention to the comments and respected decisions we make. Social media is a key driving force and experiences of others, we often by our society. behind the ‘sheep mentality’ that the bandwagon effect base our own decisions upon these; Therefore, making encompasses. therefore bias occurs. decisions which The implications of the band- could potentially Overconfidence bias wagon effect mean we are often too threaten our The overconfidence bias refers to our tendency to over- afraid to branch out on our own. self-image is a estimate our abilities and judgements when performing Our peers’ choices influence us so daunting task a task.

31 ALTERNATIVE DISPUTE RESOLUTION

❝ It ain’t what you know that gets you into trouble. It’s what you know for sure that just ain’t so. ❞ — Mark Twain

When making decisions, confidence is an admirable characteristic – a sign of strength, control and adequate leadership. At the same time, overconfidence can also result in ignorant decision-making, due to an unwillingness to branch out and inves- tigate beyond our own preconceptions. A consequence of the overconfidence bias includes a strong belief that our opinion is superior, displaying an inability to see the potential risks or negative aspects of our decisions. Optimisim bias This form of cognitive bias encompasses the idea that people overestimate the probability of positive events, ignoring any possibility of negative incidents occurring. Optimism bias can also be defined as the difference between our expectation and the outcome. Arguably, this cognitive bias is one of the most powerful due to it being so ubiquitous; there is evidence of its presence in all professions/areas of do well consider this a fluke. life. This bias therefore relates to our sense Anticipation is satisfying: The thrill of the wait matters. People of overconfidence and trust in our own prefer to have something to look forward to – thus – those who decision-making process – often display- display the optimism bias are excited about what is to come. ing an unwillingness to explore both the Optimism changes reality: If you expect to do well, you will possible positive and negative outcomes put in more effort. of our judgement. When making decisions, the optimism bias can be fulfilling as it Neuroscientist Tali Sharot has deter- encourages hope and promotes a successful mentality. However, mined that 80% of us experience optimism it is important to recognise the pitfalls of this bias in order to bias. In her own words, “we are more opti- ensure our decision-making process is realistic – taking on board mistic than realistic, and we’re oblivious both the pros and cons of the decision at hand. about it”. Tali Sharot has evaluated whether The optimism bias can cause individuals to underestimate the or not optimism bias is healthy and has realistic costs of decisions, leading to poor judgements. Failure to found that some believe it is better to have acknowledge the risks involved in making decisions can lead to low expectations and then be pleasantly disastrous outcomes. Everyday examples include not wearing a surprised if things work out. In response seatbelt and failing to apply sunscreen. Näive thinking could result to this, Ms Sharot has negated this idea in unethical decision making if we only base our decision-making based on three reasons: upon possible positive outcomes. Interpretation matters: People with high expectations always feel better. For Negativity bias example, an optimist who gets a poor result Here we see more weight given to negative outcomes when in an exam will blame the exam; they’ll do making decisions than positive ones. We find it difficult to let go well next time. Whereas pessimists who of negative experiences, allowing these to overshadow the good.

32 ALTERNATIVE DISPUTE RESOLUTION

us harm or loss. It is possible to change the brain’s negativity bias. This is done through training our brains to give more weight to positive thoughts. We must become more attuned to emotions such as happiness, pride and contentment. To do this, science has shown that we must hold our focus on a positive experience for at least 10-20 seconds – this should ensure that it can be stored in our long term memories. When making judgements, it is important that we find the medium between the negative and positive biases. Being opti- mistic while at the same time recognising the potential risks and negative aspects involved, would mean more balanced and accurate decisions. The bandwagon effect and the overconfidence, optimism and negativity biases all contribute to our daily decision-making. While they can be used to steer us in the right direction, it is important that we recognise the ways in which these cognitive biases limit the full potential of our judgements. Recognising this allows us to work toward making more informed and well rounded decisions. From an evolutionary standpoint, sur- In the concluding article in this series vival depended on our ancestor’s negativity we will look at practices we can put in bias. Being alert and responding quickly to place to counteract these biases in our potential threats, as well as being cautious decision-making. ▪ of the dangers of their environment, meant the negativity bias was key to survival. Paul Sills  [email protected] is an This is still applicable today where the Auckland barrister and mediator. He spe- negativity bias protects us from making cialises in commercial and civil litigation decisions which could potentially bring and is an AMINZ Mediation Panel member.

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33 ALTERNATIVE DISPUTE RESOLUTION July 2019 · LAWTALK 930

ALTERNATIVE DISPUTE RESOLUTION When is arbitration the best way of resolving a dispute?

BY ROBERT FISHER QC

feel that they know a thing or two arrangements: The disclosure Everyone knows that the best way of resolving about it after devoting many hours to powers of courts are time-consum- a dispute is for the parties to come to an agreement. In the study of televised court dramas. ing and cumbersome; the equivalent many cases this can be achieved through negotiation, Both may feel apprehensive about powers of an arbitrator are quick, with or without the help of a mediator. the unfamiliar terrain of arbitration. informal and effective. Unfortunately agreement is not always possible Establishing authoritative Tailoring of procedure to the without something more. Some parties refuse to supply precedents: Court judgments are particular dispute: The court’s the information or documents the other party would published; arbitration awards are procedures are largely prescribed need before he or she could agree. Some need a judge not. It follows that whenever a in preconceived rules of universal or arbitrator to tell them what to do next. Some would dispute is resolved by arbitration, application; arbitrators adopt what- rather have a determination imposed from above. the public is denied the guidance ever steps the particular dispute After allowing a decent interval for negotiation, the it might otherwise glean for future requires in a form that is propor- issue of proceedings normally helps, rather than hinders, cases. On the other hand, the tionate to the value of the dispute. a negotiated outcome. It provides a framework in which actual parties are the ones paying A result that cannot be to exchange information and documents, crystallise the for the exercise. They are normally appealed: Lower court judgments issues and evaluate likely outcomes. unmoved by pleas to contribute to are subject to at least one general Formal procedures usually take parties to a point where, the law for the edification of others. appeal and, with leave, further for the first time, they can see their respective strengths appeals on questions of law; there and weaknesses. That is the point at which they will Advantages of arbitration is no appeal from an arbitration usually settle. Without that insight many disputes would The advantages of arbitration are award unless the parties provided drag on for years. So the normal fruit of proceedings is these: for it in advance, and even then on not a judgment or award; it is an agreement. Speed and finality: Court can questions of law only. take years; arbitration months. In short, agreements are undoubt- Advantages of court Confidentiality:Court judgments edly the best way of resolving dis- Where proceedings are justified, the main choice lies are publicly available; arbitration putes, with or without the help of between court and arbitration. The advantages of court awards confidential. a mediator. Where negotiations are are these: Choice of decision-maker: The dragging on, it will usually be in the Other parties do not have to agree to go there: court chooses the judge; the parties interests of everyone to grasp the Some parties may be unwilling or unable to consent to choose the arbitrator. nettle and issue proceedings. In that arbitration. Consent may be withheld due to inertia, Access to decision-maker: situation court and arbitration each perverseness, impracticability or lack of consenting Courts normally require the filing has its advantages. It is a matter of capacity. Examples include company liquidations (where of formal documents through a horses for courses. But it would be potentially affected creditors may not be immediately registrar each time something is unfortunate if the reason a lawyer identifiable) and trust disputes (where minor or unborn required; counsel normally commu- opted for court amounted to nothing beneficiaries may be unrepresented). Court does not nicate with an arbitrator by email more than a lack of familiarity with require consent. copied to the other side. arbitration. ▪ Cost: The parties pay an arbitrator’s fee; the State Continuity of decision-maker: pays a judge’s salary. On the other hand court fees are Over the life of the proceedings a Robert Fisher QC  www. now substantial and the longer proceedings drag on the court file typically passes through robertfisher.co.nz is a member of greater the fees for lawyers and experts. The proponents the hands of many judges; arbitra- Bankside Chambers, former High of arbitration would argue that its speed and efficiency tion normally involves one arbitra- Court Judge and the author of more than outweigh any difference between court and tor, or in some cases continuous Fisher on Matrimonial Property. arbitrator fees. membership of one arbitral panel, Since leaving the bench he has Familiarity: Litigators have usually made a heavy throughout. been in full-time practice as an investment in learning how courts work. Their clients also Efficient disclosure arbitrator and mediator.

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ALTERNATIVE DISPUTE RESOLUTION ▴ Maxwell Mediators, from left to right, Geoff Sharp, Bill Wood QC and Lim Tat New Zealand lawyer behind new Singapore mediation chambers

BY NICK BUTCHER

brings three lawyers from three introduction of the Mediation Act 2017. A Wellington lawyer and two jurisdictions under the same roof. “We’re only interested in the mediation side but high-profile colleagues have opened It’s based at the Maxwell where arbitration goes, mediation is often there as a mediation chambers in Singapore. Chambers suites where interna- well because a lot of matters that are being arbitrated Geoff Sharp, British QC Bill Wood tional mediations take place in the will eventually cross over to mediation in the journey and Singaporean Lim Tat are medi- city-state. towards an outcome.” ators and have all featured in Who’s “It’s a state of the art facility. Who Legal. Any arbitration or mediation The Singapore Mediation Act Together, the trio have more than in Singapore is generally done Mr Sharp says Singapore’s Mediation Act has opened 50 years’ experience in mediation at Maxwell Chambers; it’s very the gates for foreign mediators to work there as long and have all spread their work from advanced in its use of technology,” as they’re certified. New Zealand to the United Kingdom Mr Sharp says. “We can work there without breaching the legal pro- and the Asia-Pacific region. As he explains, a lot has evolved fession’s rules in relation to the practice of law. Mediating The new chambers is called in mediation and arbitration is not considered practising law in Singapore so it is not Maxwell Mediators and essentially in Singapore, including the regulated to the same extent.”

35 ALTERNATIVE DISPUTE RESOLUTION July 2019 · LAWTALK 930

He says Singapore promotes itself in enforcement by local courts,” Mr Sharp says. as the Asia-Pacific dispute resolution For example, if an Australian party mediates with an centre for both commercial litiga- Iranian party, how does the Australian party obtain the tion, arbitration and mediation. money that the Iranians have agreed to pay? “It’s an easy place to access Mr Sharp says this is what the new Singapore overnight from New Zealand or Convention is designed to address when it is launched Australia, and work the next day in August. as there is only a four-hour time “So, mediated cross-border agreements can now be difference – so jet lag isn’t really an enforced in the same way that arbitration awards can be issue.” enforced by way of the New York Convention. Essentially, Mr Sharp says one of the reasons the Singapore Mediation Convention is very similar to they chose Singapore was because the New York Convention for arbitration. increasingly, Indian, Russian and “It will only increase the attraction of Singapore as Chinese parties want to resolve their an international hub for mediation. disputes in the East rather than the “It will be incredibly useful and effective for interna- West. He says China’s Belt and Road tional traders in that they get access to cost-effective Initiative – which promotes closer dispute resolution through the mediation process. For ties between countries through example, I was involved in a mediation a while back that development-led trade growth – also included a dispute between a New Zealand company and means there’ll be far more dispute a Chinese company. It simply wasn’t practical for the resolution in the region over the New Zealand company to launch proceedings in China. coming decade. It just didn’t make any sense economically to try and “Singapore is challenging the navigate a way through the problem that way. They also traditional centres for dispute res- wanted to keep the commercial relationship,” he says. olution. I had an Iranian mediation a while ago and the only place the Work before mediation begins matters Iranians could get visas to come These days modern mediation is a process rather than and mediate was either the United a single event, and a lot of the pre-mediation work Arab Emirates or Singapore. So before the parties meet is online with the parties either the Singapore visa process is com- individually or collectively. So there’ll be emails, video paratively easy. The dispute had conferencing using technology such as Zoom and phone nothing to do with Singapore but calls. the Iranians only had a choice of two “There can literally be hundreds of emails exchanged, places where the mediation could back and forth before we actually all meet face-to-face. take place.” The point of it is to get the parties to a stage in the Singapore also has geographical dispute so that when they do meet, we’ve got the best and political infrastructure that can likelihood of moving quickly into productive discussions accommodate mediations and is and getting an outcome. considered cost effective, he adds. “It’s about hitting the ground running when we get to Singapore because often people will fly in for two The Singapore or three days only and we’ve got to make progress,” Mediation Convention It’s about Mr Sharp says. Once a mediation is over and an hitting the Another potential challenge is being able to negotiate outcome has been reached, that ground through a common language. outcome has to be recognised as a running when But one of the unique benefits of using Maxwell legally binding outcome. we get to Mediators is that Lim Tat speaks Mandarin. You might wonder how that Singapore “The last mediation I was involved with in Singapore happens when the parties are from because was with Chinese speaking parties and so Lim Tat and I different jurisdictions? often people co-mediated. Tat spoke Mandarin and I spoke English. “When the parties get a successful will fly in for It’s a much better way of running a mediation than using outcome to a mediation, it will nor- two or three an interpreter. Tat can speak a number of languages,” mally be written up in a settlement days only he says. agreement or deed. It’s a contract and we’ve So with regulations now favouring foreign mediators that can then be enforced, but like got to make in Singapore, it’ll be interesting to see how many other any contract there can be difficulties progress chambers sprout up there in the future. ▪

36 LAWTALK 930 · July 2019 PRACTISING WELL

PRACTISING WELL Are you being defined by your job?

BY RAEWYN NG

When you’re asked, “who are you” or “what do you do”, how do you respond? Movement and health coach come straight to mind for me and I’m sure many of you also reach for your job title as a defining characteristic of who you are. It’s such a common conversation starter, and while we can answer in many different ways about the things we like to do (walking the dog, going to the beach, reading or holidays), we usually end up talking about what we do for a living. It’s not surprising really. We spend so much of our time at work, or in it, it’s easy to get caught up and be defined by it. Many of us have a passion for our work and it often gives us a sense of purpose, meaning and identity. It helps us to understand our place in the world and gives us a structure as to how to conduct ourselves. Society places such a high value on what we do for Creating a strong professional identity should not mean a living that many people judge us by the job we have, that you need let go of who you are, lose your core values and we judge other people in exactly the same way. We or the things that make you unique, or that you should make assumptions about a person’s intelligence, income assume the identity of someone else. and the value they provide to society based on what Here’s three reasons you shouldn’t let your work they do. Because of this, it’s no wonder that for some define you. of us our job is a status symbol and provides us with a sense of self-importance. Your job is not your only success Associated with our job is often a set of traits that When you’re in the thick of it all, it can be easy to be we’re implicitly asked to adopt, but to what extent can consumed by work and get caught up in the drama and we let our job, and the expected qualities and traits excitement of deadlines and deals, drawing your sense associated with it, define us? If we start to fully embody of self-worth from your work successes. Remember that our work persona in all areas of our life, can this be a your achievements in life are not just work related and problem? that success is not only about the job you have or the There’s no argument that a strong professional persona money you make. in the workplace is essential for advancing your career Everyone’s definition of success is (and should be) prospects. There’s lots of advice out there about how to different so consider what makes up your definition. be a better listener, communicator, leader, manager, and Think about the relationships you have, the qualities how to have authentic relationships in the workplace, you value and the challenges you’ve overcome. maintain professional boundaries and manage difficult situations. Jobs are temporary While much of this advice will almost certainly make If you were to suddenly find yourself without a job, you better at your job and help you to cultivate a strong would you still have a sense of who you are? If the professional identity, it’s also important to ensure that answer is no, you may have high ‘work-role centrality’ your work persona does not take over our whole being. or you’ve placed too much emphasis on work to help

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define you. When the link between and passions all help to define us, adopt them to suit your purpose. what you do and who you are is too and our work is only a small part But remember you don’t need to high, it can increase levels of depres- of this. become them. Keep in mind your sion, anxiety and a lack of sense of Be aware of your values, those own values, and the experiences purpose if you unexpectedly find principles that guide how you live, and challenges you’ve faced that yourself without your job. work and behave. The closer we have shaped who you are. Bear in mind that all jobs are live in alignment with our values, likely to be temporary – you develop the happier, more content and Set boundaries from them, outgrow them and move fulfilled we usually are. If your From a practical point of view, avoid on to better opportunities. top values are not immediately letting your job take over your life apparent to you, spend some time 24/7. Set a time when it’s appropriate A job is something you do, clarifying them. Ask yourself a few to switch off from messages, calls not something you are questions: and emails and leave them to the We spend around one-third of our • What’s most important to you? next working day so you can focus time (probably more) at work but • What do you need to do or be to on other things that are important remember it’s only one thing you feel fulfilled? in your life – family, friends, health, do and that in the other two-thirds • Are you acting in accordance with hobbies and interests. You’ll be more of your time you have a multitude the things that are important to rested, efficient and productive of other roles and interests – parent, you? when you are working and have grandparent, child, friend, chef, gar- Does your workplace hold the same more balance in your life. dener, dog-walker, gym-goer, rock- values as you? If so, you’re on to a We have to be something to earn climber, book reader, etc. All these winning formula. a living, but we don’t have to be things form part of your identity and Cultivate your interests and something to be important. Who your job is only a small part of that. passions, identify the people and we are is about our qualities, values relationships that are important to and potential more than it is about We need to value all you and make time for them. what we do for work. We need to of who we are, not learn to value ourselves and others just what we do Remember, you don’t have for who we are, not what we do. ▪ Some things to help you be less to be someone else defined by your job: You may have started off your career Raewyn Ng  [email protected] emulating the qualities of someone is a movement coach with an Recognise that your self- you admire in your field, and it’s interest in wellbeing and holistic identity is multi-faceted great to recognise the features that health, managing stress and living Our values, qualities, goals, interests have made them successful and to a balanced lifestyle.

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PRACTISING WELL TALKING ABOUT MENTAL HEALTH Mental health in the workplace Less a problem to be solved, more an experience to be understood

BY HUGH NORRISS

young adults, especially young women, in socially It has been good to see lawyers deprived groups, and people who feel isolated. The becoming more aware of their recent government review of mental health services mental health at work. This series outlines the overwhelming increase in demand on is a positive example of this, along mental health services. with the Law Society’s Practising • The trends in worsening psychological health are Well and a number of taskforces shared across post-industrial societies in Europe, internationally on lawyer mental North America and Australasia. Ironically, these are health. These initiatives reflect countries that are wealthier, physically safer, more increasing workplace and societal socially progressive and technologically advanced understanding of mental health. than ever before. Some trends to be aware of • The OECD now sees mental health in the workplace include: as a major priority to tackle in labour market and • Many industries and professions social policies. are becoming more concerned Lawyers, along with other professional groups and about mental health problems industries, are facing specific workplace mental health in their midst. In New Zealand, challenges including: not only lawyers, but farmers, • High numbers of people coming to work (estimated defence forces, retail chains, to be one in six) who would meet the threshold to government departments, the be diagnosed with depression, anxiety, or addiction construction industry and problems. professional rugby have set up • Increasing demands for workplaces to be more open programmes to respond to this in responding to harmful stress, and psychological issue. Many of these groups have, distress. in the past, believed themselves • Less acceptance of hard driving, macho, and ‘harden to be tough and self-reliant, and up’ work cultures. now see the downside of shun- • Much higher rates of mental illness in younger people ning human vulnerability and not entering the workforce. being more open about emotional Awareness- • Increased risks in harmful workplace stress due to setbacks and diversity of human raising and constant change, increasing complexity, competition experience. practical tips and uncertainty. • Harmful workplace stress is on can be a good • Increased societal stress and anxiety that people bring the increase. It is well researched start, but the to work with them. This is driven by societal trends that harmful stress often con- real work such as increasing loneliness, reduced sleep, social tributes to mental illnesses begins when media use, 24-hour negative news cycles and greater involving depression, anxiety, organisations social complexity. and addictions. start dealing • Health and Safety legislation which now requires • In the wider New Zealand adult systematically, workplaces to eliminate, reduce or manage psycho- population, rates of psychological thoughtfully, logical harms. distress are increasing as meas- and with This list could feel pessimistic and overwhelming. ured by the New Zealand Health long-term However, a recent analysis from Deloitte found that Survey. The highest rates are in commitment organisations that respond and invest wisely in mental

39 PRACTISING WELL July 2019 · LAWTALK 930

The three domains of activity: health can get a four-fold return on investment and build a reputation as a great place to work. The Positive investment requires best practice organisational training and systemic approaches culture to organisational and attitudinal change. Limiting our conversations to illness is a missed opportunity Often, we think of mental health as being just about mental health problems, illness or distress. Mental Competence Wellbeing is a health, however, is a positive quality, in managing skill that can our best resource for daily living, psychological be learned as enshrined in the World Health distress Organisation’s definition of mental health (“a state of wellbeing in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community”). Mental health just means the quality involving the whole range of A systemic, proactive ‘health of the mind’, and our minds human experiences, it is also hugely and preventative are our greatest asset in life. Unlike affected by our social and physical response is needed manual industries that dominated environments, just like our physical The systemic issues relating to the workplaces in the past, most organ- health. problems and opportunities of isations today utilise sharp brains/ mental health can be approached minds as the basis for creating Why ‘practical tips’ by taking steps to integrate the their products. Successful legal are not enough following three domains of activity organisations, especially, thrive on Awareness-raising and practical into the daily life of the business. clear thinking, mental stamina and tips can be a good start, but the Some examples from each emotional intelligence. Limiting our real work begins when organisa- domain include: understanding and conversations tions start dealing systematically, about mental health to just the thoughtfully, and with long-term Domain 1: Support those illness and problems of individu- commitment to the relevant with ongoing mental als is a missed opportunity. Seeing behaviour changes, psychological health problems mental health as a resource rather dynamics, policies and meas- Because mental illnesses are than a liability can increase organ- urements needed for a mentally common in any workplace, a hands- isational wellbeing and resilience healthy organisation. off approach is not an option. A pro- and productivity. If we continue to treat mental portion of people coming to work Even when people struggle with health problems reactively and will have been diagnosed with some periods of mental illness and dis- only one person at time, it will be form of mental illness. If they’re tress, they often come through the like trying to drain the ocean with getting support or treatment, there experience a stronger, more empa- a sieve. is likely to be minimal impact on thetic and wiser person when they Having said that, there is one their work. Some will have periods get the right support. person you can start with: and that of relapse where they need extra Our culture has taught us that is you. Reflection around your own support. Others will develop a ‘mental health’ is a pathology, a mental struggles and vulnerabilities mental illness after they have joined personal liability and related to an and questioning if you are fully an organisation and there could be individual’s faulty coping skills or satisfied with your current overall a period of disruption, similar to a faulty brain. Up-to-date research mental state brings you into a wider someone who develops a physical debunks these ideas, showing that conversation about how we can all health problem or injury. mental health is not only a dynamic get better in this area. Reasonable expectations that

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people can have of their organisation in terms of mental health competencies include: • An environment of trust, encour- agement and empathy where people can talk about mental health problems without fear of negative judgement. • Zero tolerance for stigma and discrimination related to mental illness or any psychological vulnerability. • Managers that can deal competently with sick leave, return to work and workplace adaptations and accommodations both for physical and mental illness. ▴ Hugh Norriss ▴ Sarah Taylor • Comprehensive and visible information on where to get help metrics about how the workplace on healthy living. As a starting point, including employee assistance is affecting people’s physical and support these people in your organ- programmes. mental health. isation and allow the idea of mental • Overall employee awareness fitness to become contagious. training on mental health and Domain 3: Learn and promote Jogging and cycling were once maintaining mental wellbeing. psychological wellbeing fringe practices. In the mental These areas should be included in From the wellbeing science we space, yoga, mindfulness and med- the organisational training calendar know that: itation are now becoming main- and managers’ personal develop- • Mental wellbeing is a skill that stream and are enthusiastically ment plans. can be learned. It can be thought endorsed by highly respected insti- of as mental fitness, developed tutions such as Harvard Medical Domain 2: Create and maintain through training, insight and School as being good for mental a mentally healthy culture habits. health. Practices like these can be Work is inherently mentally • Mental wellbeing is not just the encouraged in your workplace with healthy as it provides meaning, absence of mental illness, it has sponsored events at lunchtime or status, routine, social connection its own distinct qualities such before or after work. Organisations and social and material support. as meaning and purpose in life, are also increasingly turning to Poorly-managed workplaces can, vitality, optimism, feelings of training in cognitive reappraisal however, damage mental health accomplishment, healthy social techniques which help us to better through excessive job strain, engagement and contribution. manage the interplay of thoughts, uncertainty, poor procedural jus- • Mental wellbeing can act as a emotions and behaviours. tice and bullying. This is a different preventative to mental illness challenge to domain 1, because here and mental distress. The three domains the workplace potentially creates or • Mental wellbeing behaviours together contributes to mental illness, injury boost neurochemicals in the brain The three domains are not independ- or distress. that help us feel calm, pro-social, ent. Instead they overlap because Psychological injury is a devel- creative and satisfied. we cannot neatly divide up different oping area of health and safety as Corporate teams like lawyers who aspects of human experience. If you work is now largely based around rely on cognitive and emotional neglect one of these domains, it will mental processes rather than strength to be successful can gain impact negatively on the two. For manual ones. We can expect to value from investing in mental instance, if you have an unhealthy see a much stronger focus in this wellbeing skills to ensure their work culture (domain 2), you will be area from Worksafe New Zealand business success and reduce the undermining efforts to support indi- in the future. To avoid health and risks of psychological harms. viduals who are struggling (domain safety penalties, organisations can Most workplaces have their well- 1), and promoting wellbeing events take the proactive approach by being advocates. These are people (domain 3) will make people cynical systematically, deliberately and who will enthusiastically organise and angry as it will look like you transparently creating a healthy activities and social events around are papering over deeply harmful culture, and collecting appropriate wellbeing and promote information problems in the culture.

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PRACTICE CONTINUED FROM PAGE 41

Don’t just have an ad-hoc approach to mental health The new union Mental health in a legal organisation, like in any workplace, is a complex issue that spans from the for legal workers depths of your people’s vulnerabilities through to your business’s greatest asset, which is an optimally What does it want? healthy mind that thinks effectively on behalf of your clients. It is worth prioritising your most valuable BY CRAIG asset, healthy minds, with a stra- STEPHEN tegic approach. Mental health in the workplace also reflects highly complex changes in society relating to allows only one type of person identity, meaning, lifestyle changes, The Aotearoa Legal Workers’ to be able to succeed and doesn’t technology and information. Union (ALWU) was launched in May necessarily acknowledge empathy, Of course, workplaces are not in a blaze of publicity. New unions family and other commitments, it fully responsible for their employ- are rare, and the days of the closed only recognises a work-only person- ees’ health, happiness and mental shop and record levels of member- ality. So what needs to change is to health but they do have a significant ship are long gone. Why do some allow different types of people to role to play. members of the legal profession feel succeed in the profession so that we Lawyers have a reputation for the need to form a union, and what have a range of people at the top, not being excellent problem solvers and are its objectives? just one personality type.” communicators, having analytical The ALWU’s interim President minds and being social leaders. Hayley Coles and committee Solutions to long hours I’m hopeful the legal profession member Eve Bain met LawTalk Hayley Coles says while she under- will bring these positive traits into before a Q and A session in stands that work can come in on an wider critiques and thought lead- Wellington a week after the union’s urgent basis, and therefore junior ership relating to mental health in launch. Both are in their mid-20s, lawyers have to stay behind to carry legal firms, workplaces in general, and their fellow committee mem- it out, there are, nevertheless, solu- and wider society. bers are also mostly in their 20s. tions to having people stay behind For further information on steps Ms Bain is a solicitor at Bell into the night. She suggests firms to building a mentally healthy Gully where she has been for two hire more staff or compensate in organisation, please contact Sarah years; Ms Coles was previously other ways, eg, by paying the young Taylor at the email address below. ▪ a solicitor at Simpson Grierson lawyers for those extra hours and and LangtonHudsonButcher in then giving them time off to recover. Hugh Norriss is an independent Auckland, and is now working for “It’s what the union is about, it’s workplace wellbeing programme the union full-time. about making sure everyone in the consultant with over 20 years’ Neither has had serious work- profession is valued, whether that senior management experience in place issues themselves but say they is junior lawyers, or secretaries and the delivery and development of know plenty who have. Their focus administrators, or the mum who has mental health services and mental is on improving the work environ- three children and wants to have wellbeing programmes. ments of those who are generally a legal career but also wants to go starting out in their careers and home and spend time with her kids. Sarah Taylor is the co-ordinator of who may already be contemplating “If you take the average salary in this series, a senior lawyer, and the getting out. a large corporate law firm, when Director of Business Development “It breaks my heart that people someone works longer hours, say 50, at LOD NZ, a law firm focused who are so passionate and intel- 60 or even more hours a week, when on the success and wellbeing of ligent – exactly the right kind of you average it out that’s when you lawyers. people who you want to be lawyers get quite close to minimum wage or – are essentially forced out because even under. We believe that junior If you’d like to contribute to an they are not prepared to sacrifice lawyers should be paid for each hour article in this series, please contact everything for work,” says Eve Bain. they work.” Sarah: [email protected] “We are seeing a system that She says that working extremely

42 long hours – such as where people ▴ From left to right: Honor Kerry, Owen Wilkinson, don’t finish till near midnight – is Hayley Coles, Harrison Cunningham, Bridget not good for productivity or mental Sinclair, Eve Bain, Laura Taylor, Morgan Evans, health. Allanah Colley. She hopes that there will also Not pictured: Josie Te Rata, Tess Upperton, be a knock-on effect for the people Bridget McLay, Ollie Neas. lawyers serve. “When the profession has improved we will be able to help our She feels the attitude among some in the profession clients better; it means that we will is that if junior lawyers put the hours in and show dedi- be able to do a better job because cation to the cause, they will reap the benefits the more we’re in a better mental health experience they gain. But she says that view doesn’t space and are able to practise as hold in the modern world. well as we can. We can then thrive “There is this perception that that it all pays off in the in the profession, not just survive end, and that if a lawyer works all these crazy hours, day-to-day.” with low pay in the beginning, by the time you make partner it all equals out in the end,” Ms Bain says. Misconceptions “But the problem is that most people end up burnt versus the reality out and leave the profession and so, I think, the overall Eve Bain says there is a perception goal of the union is to actually keep more great people that lawyers are “rolling in cash” “The climate in the profession. They come in to the profession due to through television programmes of the a love of the law but end up looking elsewhere because and the media. profession they’re not being looked after or properly compensated. “They’re seen as being paid so is ripe for “It’s not too much to ask to get paid for, say, five hours much and it’s a glamorous profes- a union. The overtime after you are due to finish. It’s not that we sion; and that isn’t really the case, response we don’t want to work hard or we are lazy, it’s just that especially for junior lawyers, and I have had is we want to want to be compensated and that is a very think part of what we want to do overwhelmingly reasonable request.” is highlight these misconceptions supportive. versus the reality. And I think some- Nearly every Revelations and their role times clients often are unaware young lawyer in union formation that the large amounts they pay a that I have The idea of the union came about through the harass- lawyer or a firm for time, how little reached out ment and bullying revelations of 2018 and its impact is actually paid to the person doing to has been on the profession. that work. It might be shocking in positive Hayley says the stories that came out in the media some cases.” about it” were the catalyst to act to get some change to support

43 PRACTICE July 2019 · LAWTALK 930

those who don’t otherwise have much power or a voice. "We know “Most of us work reasonable “We hope that the union will be a place to bring several people hours but all of us have friends everyone together and have a collective voice that is who have had in the legal profession who don’t stronger than if they were acting on their own. We’re to leave the have that experience and we have looking at a lot of recommendations from the reports profession friends and colleagues who are by Dame Margaret Bazley and Dame Silvia Cartwright, because of stuck in the office when we leave. and we want to see all the recommendations introduced mental health We know several people who have at all law firms.” crises and had to leave the profession because The current focus is on young lawyers in Auckland others who are of mental health crises and others and Wellington, but as it develops the union expects at breaking who are at breaking point. People to be able to represent workers across the profession point. People shouldn’t have to give up their and around the country. However, while the intention shouldn’t have dreams because the conditions are is to represent as many people as they can, they say to give up too difficult.” there are clearly some people who require assistance their dreams The ALWU says it is prepared more than others. because the for pushback, particularly from “I think we are very conscious that we are the Aotearoa conditions are conservative firms when it comes Legal Workers Union, we are not the ‘junior lawyers too difficult” to negotiating on behalf of their and the top seven firms in Auckland and Wellington members. union’,” says Eve. “We really hope that firms col- “That is where our origins are and where our first laborate with us and come to the priorities will be but, as we develop our governance table and talk to us about what’s structure and grow, we will definitely want to have going to work for them and what we representation in smaller and medium-sized firms. So, can make work between us,” says while we’re not shy about our immediate priorities Hayley. “But we understand that often focusing on junior lawyers and corporate firms, we are asking for things that are as a first step, they’re not going to be our only goal as a different to how things have been union either. One step at a time, we can’t bite off more for quite a long time, and know that than we chew.” can sometimes be hard for firms to Both women made it clear that neither have experi- deal with, and that there may be enced any major issues themselves at work and love some resistance because of that.” the profession. “I love my job and have the best boss and the best Unions of the past team,” says Eve. “But that is perhaps why I am involved Little is known about past legal with the union because I think that success and job unions but they are not new. satisfaction in the law is a real lottery. In my experience Lawfully Occupied, The Centennial working at Bell Gully has been an amazing experience History of the Otago District Law but that is quite clearly an exception rather than the Society by MJ Cullen (1979), notes rule.” that in the mid-1930s, law clerks Hayley also had good personal experiences in the two in Otago formed a local law clerks firms she worked with, and it is a similar situation with union. There is also evidence of some of the other founders of the ALWU. a Dunedin Law Practitioner’s Employees Union. In the early 1970s, a group of law clerks in Wellington joined the Clerical Workers Union which negotiated the Wellington Law Practitioners’ Employees award in 1973, says Labour historian Peter Franks. “An award was similar to today’s collective employment agreements. There was a similar development in Auckland which resulted in the revival of the Northern Legal Employees Union. Taranaki also had a legal employees

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union,” he says. "They’re Both say they’ve also had posi- Over the following six years the Wellington award was seen as being tive feedback from senior lawyers extended to cover the Marlborough, Nelson, Westland, paid so much and the union’s website contains Canterbury, Otago and Southland industrial districts, and it’s a a number of supportive com- Mr Franks adds. glamorous ments from senior lawyers such “The awards went out of existence after the profession; as Frances Joychild QC, Robyn Employment Contracts Act became law in 1991 as did and that isn’t Zwaan, academics Khylee Quince the clerical workers unions.” really the case, and Andrew Geddis, the Wellington In the October 1975 edition of LawTalk, it’s noted that especially for Young Lawyers’ Committee and the Otago Legal Practitioners Employees Union was junior lawyers, activists such as Olivia Wensley wound up the year before and members had to join the and I think part and Zoë Lawton. Clerical Workers Union. One Dunedin law clerk refused of what we The union has a givealittle page to do so and was ordered by the Industrial Court to pay want to do is but from August when a member- a $20 penalty for refusing to join the Otago branch of highlight these ship fee will be set at its inaugural the bigger union. misconceptions annual meeting, the union hopes In 2014, a Legal Workers Union of New Zealand was versus the to become self-sufficient with paid registered with the Companies Office but failed to get reality" staff. off the ground. The New Zealand Law Society Otherwise, legal workers would have been involved President Tiana Epati has said the in the New Zealand Clerical Workers Association, and ALWU will be a valuable voice, its successor the New Zealand Clerical Workers Union, particularly for young, and newly which folded in 1991. admitted and employed lawyers Hayley Coles says she was told by someone pivotal in throughout the law profession. the 2014 attempt to form a union that it didn’t take off “I think the ALWU is a great initi- because the people involved either left the profession ative created by young lawyers for or moved overseas to further their career. all employed lawyers. We welcome Asked about the possibility that the ALWU could them to the table and we are ready suffer the same fate, she says there are some distinct to listen and work with them,” Ms organisational differences. “I don’t think they ever got Epati said on the union’s launch. ▪ as far as we have, so they didn’t fully launch and build up a membership base in the same ways as we have done, and now that we do have a membership base we don’t see any issue with it continuing as even if current interim executive members leave the profession or go overseas, elections will be held every year and new members can step in so the union isn’t reliant wholly on the founding members.” HAYS LEGAL PARTNER WITH Watershed moment THE EXPERTS Considering the current environment where union mem- Are you considering a new opportunity within the legal sector? Are you looking bership is generally low and unions are less influential for more responsibility or have you than in the past, Hayley Coles says there are plenty of been thinking about giving in-house opportunities a go? success stories and some professions that have strong unions. Hays Legal is seeking local candidates for positions including: “Almost every doctor is a member of a union and we • Litigator – national firm would like to see that replicated in the legal profession. It • Senior Solicitor – private client/ commerical property is going to take a long time, however, and we appreciate • Staff Solicitor – commercial law/ that it will take a lot of work to build up this union.” resource management

Old attitudes are changing because of what has hap- To find your pened over the past two years or so, Eve Bain believes. local office, visit hays.net.nz “We are at a watershed moment in the legal profession and the climate of the profession is ripe for a union. The response we have had is overwhelmingly supportive. Nearly every young lawyer that I have reached out to hays.net.nz has been positive about it.”

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PRACTICE Catherine O’Connell First foreign woman to set up sole practice in Japan

BY TRACEY CORMACK

weeks there she found it easy to fall in New Zealand qualified lawyer love with the country. On completion of Catherine O’Connell is the first non-Japa- the two-year full-time course, Ms O’Connell nese female lawyer to operate a practice was speaking Japanese fluently and had in Japan. graduated top of her class. She runs a law firm based on flexible She was soon employed by JTB New lawyering supporting in-house legal Zealand and Mt Cook Airlines as a tour teams and business with ad-hoc and guide for Japanese tourists. The tourists contract-based, short term and part-time were keen to learn more about New legal support. Among Ms O’Connell’s Zealand, including details about the legal work is a contract with former employer system. So Catherine studied up on the Panasonic, for a compliance role to sup- legal system and added this to her repertoire as a tour port the revamp of the global compliance guide. hotline and investigation process. This prompted her to think about law as a career option. She has two contract staff who do When a friend suggested she go to law school to become administration work and provide mar- a lawyer who could also communicate in Japanese with keting support and two lawyers who are Japanese business clients, she decided to do that. helping with the contract work. At university, Catherine enrolled in law and Japanese “It is lots of fun running my own hybrid and was asked to teach the first-year Japanese class. legal practice as in-house legal counsel for Occasionally, she would be called to court to do translation several companies and providing regular work. This and the teaching role kept her financially afloat commercial legal advice to expanding during her studies. businesses, and to New Zealand businesses In 1995 Catherine was offered a job at Anderson Lloyd in Japan and in New Zealand wanting to in Christchurch where she worked in Family Court, Traffic have commercial relations with Japan. I Court, and was involved in conveyancing and commer- am pretty much at capacity now and I am cial matters. Anderson Lloyd sent her to Auckland once looking to hire talent,” she says. a month to run a free Japanese language legal service to “It is a new style of doing law here – chal- It is a new support Japanese clients. lenging the traditional way of doing legal style of doing People who knew her from her previous career in services – which in Japan is either in-house law here – tourism referred her for estate work, wills, trusts, com- or working in a firm, and there is really no challenging the mercial leases, conveyancing, etc. The work involved a one else doing this kind of hybrid practice. I traditional way mix of private clients and commercial work. At Anderson am sort-of changing things a little bit here.” of doing legal Lloyd she would work on any case that had a Japanese services – which component – often supporting the litigator. How it began in Japan is Her journey began with a Japanese lan- either in-house Taking the plunge guage course in Christchurch. After leaving or working in a Seven years later, a lawyer friend drew her attention to an Villa Maria College in the city in 1985, she firm, and there advertisement in LawTalk – “Global Japanese manufacturer opted to invest in learning Japanese rather is really no one seeks Commonwealth qualified lawyer”. than go immediately to university. She won else doing this That was in November 2002 and apart from a 10-month a Japanese speech competition with a first kind of hybrid secondment in London at Hogan Lovells, she has worked prize of a trip to Japan. During her two practice in Japan ever since.

46 Following her initial job at Olympus any Bar exams. She says the Bar is extremely hard to get Corporation in Tokyo as in-house counsel, into in Japan. Catherine worked for Panasonic in Osaka While she was the only English-speaking person at for four years as senior in-house counsel both Olympus and Panasonic, this was less of a chal- and Hogan Lovells’ office in Tokyo as a lenge because Catherine understood Japanese and the senior associate for four years. While work- local business culture. Without an understanding of ing with Lovells she also had a secondment that culture it would have been really tough, she says. in 2008 with Mitsubishi Motors. “The contracts are very vague – sometimes only one At Hogan Lovells in London part of her or two pages long – and might say something like ‘if employment contract included that she the parties have a dispute, they will use best efforts to pass the Bar in England and Wales. negotiate’. This is because Japan is largely a non-litigious “So, I studied while working – luckily society, so lawyers equipped with this kind of cultural at the time on secondment from Hogan understanding can work more easily in Japan than those Lovells to Mitsubishi, the labour depart- who don’t. ment imposed an overtime ban as many “This can be good or not. Japanese people have tended to people were staying at the workplace be non-confrontational. Things are changing now as there is until the last train home, so they would be a recognition that you can’t have that kind of agreement if there until just before midnight. So, what The admission you want to stand up alongside other international players. happened was at 6 o’clock they switched was an informal This is the influence of the international market on Japan the lights off and physically you had to affair without and the impact of the steady increase in foreign lawyers go home. That enabled me to have the ceremony or working in Japan. It has been pretty insular – but now evenings to study for the UK Bar.” robes and held the domestic market is shrinking in Japan and they are in a committee looking outward. Corporates are cash-abundant and Prime Only foreign in-house lawyer meeting room... Minister [Shinzo] Abe is encouraging businesses to embark At Olympus Corporation and Panasonic, There were no on outbound M&A deals. Catherine O’Connell was the only foreign congratulations “They know that they have to produce better agreements in-house lawyer and only foreign female or fanfare to international counterparts that are not simple two or working at both companies. She says in compared to three-page vaguely-worded agreements. They have foreign, Japan you can work with a team that are admission to English proficient lawyers on the ground here now to help often not lawyers. Those workers may have the High Court them do that. It’s a good thing that Japan is pulling its a law degree, but likely won’t have done in New Zealand socks up in that way.”

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2011 earthquake and nuclear accident After completing a year in the commercial team of the London office of Hogan Lovells she came back to the Tokyo office and then worked there for a year in 2011. That was the year of the triple disaster – the magni- tude 9 Great East Japan Earthquake, and the resulting tsunami which triggered the Fukushima nuclear disaster. “It was a very, very tough year for everyone in Japan. I was on the 14th floor of a 20-storey building when the quake struck and that was horrific.” On the day of the earthquake, 11 March, she took a call from a recruiter who asked her if she would consider working for an American subsidiary of Molex which was looking to set up a legal department there from scratch. They were going to be based out of Tokyo, so she wasn’t keen on the commute. While she was considering the offer, the earthquake occurred. She returned to New Zealand while the nuclear issue was unravelling to be with family who were dealing with the aftermath of the Christchurch quake. On returning to Japan some months later she moved to Molex to build an in-house legal department and be part of a global management team. Her advice: “Never judge a role based simply on where it is located and the length of the commute – go for the opportunity itself.” Registering in Japan First, lawyers need to become a Foreign Registered Lawyer (FRL). The requirements are three or more years’ experience in the home jurisdiction. The application is done largely on the papers, followed by an interview with the Japanese Ministry of Justice. Gathering all of the documents and processing the application at the ministry took eight months. While setting up her business Catherine was doing consulting work as it is not permitted to provide legal advice while under the application process. “In-house lawyers can provide advice to the business without a current practising certificate, and only need to have a bar qualification. However, you cannot provide legal advice in Japan working in or running a law firm, unless you are registered as a Foreign Registered Lawyer,” she says.

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Admission ‘a tick of the box’ opening a bank account – most people Catherine says that admission was an who don’t speak Japanese well would need anti-climax because the submissions for someone to help them do those things. “If admission as a foreign lawyer are approved you get mad and annoyed that Japan is as part of the admissions committee meeting not English-ified enough you won’t enjoy each month. She was the only person admit- living here.” ted as an FRL that month, but five Japanese In her spare time Catherine meets up lawyers were admitted on the same day. with friends for dinner and visits galleries The admission was an informal affair and Onsen (hot pools). She is also Vice without ceremony or robes and held in Chair of the Australian and New Zealand a committee meeting room. In Japanese, Chamber of Commerce in Japan which Catherine gave a self-introduction explain- ensures she is heavily involved in the ing about her qualifications in her home business community in Tokyo. jurisdiction and about her desire to be a Catherine says eating out is very simple FRL in Japan. She then had to give a pledge and inexpensive. “You can buy such to promise to abide by the rules and reg- high-quality food here. Sashimi and other ulations for FRL. ingredients are available and it is easier “They responded – ‘thank you’ and to bring it back and put it together, rather ticked that item off the agenda and I than cooking from scratch – although I do walked out the door and was handed an that sometimes at the weekend.” officially-stamped document outside the While she eats mainly Japanese food, room. There were no congratulations or there has been an influx of New Zealand fanfare compared to admission to the food and so she enjoys an occasional lamb High Court in New Zealand. It was not chop, which she says is better quality than very exciting, but I managed to get one of what is available in Aotearoa. “Grain-fed the other newly-minted lawyers to take a beef from the Wakanui feedlot in Ashburton photograph of me holding my certificate in is available at the Wakanui Restaurant in front of a plaque and then met up with a central Tokyo for example, and the chefs friend to celebrate with some champagne. here know how to cook lamb so well.” “The eight months of paperwork is a test New Zealand wine is also now readily of your patience and tenacity – they are available and becoming popular with the testing to see whether you really do want Japanese. Several New Zealand winemak- to be an FRL.” ers come to Japan to do winemaker din- Catherine also had to file an application ners and presentations on New Zealand with the New Zealand Law Society to prac- wines. “It is fantastic to see New Zealand tise on her own account in Japan. This was wine and food available in Japan and the first application NZLS had received for with the Comprehensive and Progressive a New Zealand lawyer wanting to operate a Agreement for Trans-Pacific Partnership sole practice in Japan. Catherine completed we should see much more and at reduced the Stepping Up course in Wellington in prices as the tariffs are decreased over October 2017, and had a lengthy interview time” she says. with two senior New Zealand practitioners. Catherine says Japan is quite different to The New Zealand Law Society approved Western countries but she is glad to have Catherine to practise on her own account made the move and says doing so can be in Japan a few weeks after her admission very rewarding. in Japan. And on 1 April 2018 she opened “I would encourage people to come here her practice in Tokyo. and give it a try if they want to challenge their comfort zone. Japanese people are very Living in Japan polite, friendly, honest and easy to deal with Catherine says Japan is a very safe place and work with. It is a challenge working in to live and she is happy to walk home by a new city, and a new country and though herself at night. She says people are keen Tokyo is a lively 24/7 city there are still quiet to get to know you but won’t divulge their spots even in the middle of the metropolis. own personal information until they get “Next year the Olympics and Paralympic to know someone well. games will be held here, and in September Setting up the internet, buying house- the Rugby World Cup kicks off, so it is a hold appliances, filling out a tax return, really great time to be in Tokyo.” ▪

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PRACTICE Oh the places you’ll go

BY MARK WILTON

This year I mark 15 years as an in-house lawyer. So, as I write this, I have been musing on how I got here and what has changed along the way. I never envisaged in-house as an option for my legal career when I was studying law at Canterbury University in the 1990s. In the past law schools seldom exposed aspiring members of the profession to this type of practice despite the significant number of lawyers employed in such in-house roles. Rather, the unconscious focus at varsity was on private practice in a law firm, with the ultimate indicator of success being partnership. Although that has changed to some degree (no pun intended) we still engage with law students at careers days who don’t know that this career option exists – and yet almost one in four lawyers practising in New Zealand is an in-house lawyer. Why is in-house such an attractive proposition? I can only reflect on my own experience as National Legal Counsel for the Police Prosecution Service (PPS). I am • Opportunity to see the impact of truly fortunate to have the luxury of practising criminal your advice on core business. law without the rigours of a timesheet to record my • Opportunity to add strategic billable hours. I have a supportive employer interested value to core business. in my professional development. I can (and do) appear • A diet of rich and varied of work. in all courts around the country for my employer as • The ability to specialise in one prosecutor and legal counsel. I also have a governance area of law. responsibility for national oversight of the PPS network. You will find in-house lawyers I am regularly afforded the opportunity to teach advo- working in tech start-ups, govern- cacy courses at the Royal New Zealand Police College and In-house is ment departments, NGOs, major on a number of occasions over the last seven years have defined by corporates such as Air New Zealand been deployed to teach advocacy skills to prosecutors the variety of and Fonterra, utilities companies, in Samoa, Cook Islands, Tuvalu and Vanuatu. I never settings rather research institutes and many more envisaged this breadth was possible when I started than a practice industries. In-house is defined by out, or that I was choosing a legal pathway that would type with the variety of settings rather than a become such an integral part of the profession. in-house lawyers practice type with in-house lawyers covering areas covering areas of law as diverse Some advantages for the of law as diverse as criminal, intellectual property, in-house lawyer as criminal, family, commercial and property • The ability to practise an area of law without running intellectual law. the business. property, family, The breadth of work for in-house • The ability to practise an area of law and contribute commercial and counsel can see lawyers, in the to the running or governance the business. property law course of a working day, sit on

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ILANZ As a member of the In-house Lawyers’ Association of New Zealand (ILANZ) committee, I have also seen the increased connectivity and maturing of this community of interest. Like many legal interest groups, ILANZ had its beginnings in a small passionate group of volunteers who sought recognition for an evolving but little recognised area of practice. Since the first gathering at ‘conferences’ at the Chateau Tongariro Hotel in the 1980s and the subsequent formation of CLANZ (Corporate Lawyers Association of New Zealand) to ILANZ becoming an established section of the New Zealand Law Society, the common theme throughout this development has been the need for collegiality and professional support for this part of the legal community. And what’s next? From those beginnings of wanting to be recognised as worthy of a seat at the table, in-house lawyers have become a substantial force in the legal profession. ILANZ sees opportunities for in-house lawyers to play key roles in influencing and driving change across the profession. We are also turning our minds to the development needs of the in-house community now and in the future with member feedback leading to new initiatives for skills programmes focused on the three stages of the in-house career – gaining an in-house mindset, pivoting mid-career, and stepping up to a General Counsel role and beyond to general management roles. The definition of who is an in-house lawyer is no longer as clear cut as it once was and from a representative view we are engaging with our regulatory colleagues boards in governance roles, appear in a criminal court (as with regard to what that might mean for the future. either prosecutor or defence counsel), or get multi-mil- In May 2020 we look forward to hosting international lion dollar deals across the line. In-house lawyers work colleagues from In-house Counsel Worldwide (ICW), a in both private and public practice providing regulated global network of in-house counsel, at our conference services to their employer as a trusted legal adviser. The in Wellington. We know from our regular discussions list is endless and like all lawyers, an in-house lawyer’s with ICW colleagues that we have more in common practice is full of challenges in dynamic workplaces. than we have differences. Ethics, of course, concern all lawyers but for in-house I encourage all members of the profession to consider there is the challenge of balancing the responsibilities to making in-house work part of your career and profes- your employer and duties to the court to contend with. sional development experience at some point of practice. It is not just in my personal experience that there The opportunities are rich and rewarding. has been significant growth and change. The in-house As Dr Seuss so wisely said: “You have brains in your community as a whole has grown and adapted from head. You have feet in your shoes. You can steer yourself the days when in-house was seen as the “soft option” any direction you choose.” Don’t forget that the in-house before moving to a dynamic and influential part of the direction is there and it is a great direction to go in. ▪ profession and a career path of choice much earlier in careers. It is now not uncommon to hear of lawyers Mark Wilton  [email protected] is the ILANZ moving from private to in-house and vice versa maybe Vice President. He is also the convenor of the New more than once in their career. Zealand Law Society’s Courthouse Committee and a In the last five years there has been a 30% increase in past Law Society Vice-President and Board member. In New Zealand-based in-house lawyers compared with addition he has served as President of the Wellington an increase of 15% in all New Zealand-based lawyers. branch of the Law Society and is a current faculty And 62% of in-house lawyers are women. member of the NZLS CLE Ltd Litigation Skills programme.

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PRACTICE Climate crisis: the cold hard facts about all that “hot air”

BY JENNY COOPER QC

budgets and to monitor progress “Celebrating the anniversary of School students are striking, towards the targets in the bill. The three key events in climate change the Extinction Rebellion movement first three emissions budgets must science”, Nature Climate Change, 25 is growing, and local governments be set by 31 December 2021 and will February 2019). in New Zealand and around the cover the period from 2022-2035. The In simple terms, global warming world have declared a climate emer- government is required to have a is caused by an increase in the con- gency. But not everyone is ready to plan in place to meet the 2050 target centration of greenhouse gases in join the zero emissions revolution. and the five-year emissions budgets. the atmosphere, which trap heat. There are still sceptics, most notably The bill provides much needed The main greenhouse gases are in the White House, but also closer clarity about what we are aiming carbon dioxide (CO2), methane to home, who dismiss the talk of a for but a lot of the difficult conver- (CH4), and nitrous oxide (N2O). CO2 climate crisis as just a lot of hot air. sations about how to achieve those levels in the atmosphere have risen The need to build consensus goals, and who should bear the costs rapidly over the last century, espe- about how to tackle climate change of doing so, are still ahead of us. As cially in the last 50 years, largely is becoming increasingly urgent as lawyers, we have an important as the result of burning fossil fuels. temperatures and CO2 levels con- role to play in those discussions to Atmospheric CO2 levels are now tinue to rise. The negative reaction ensure that legislative and policy above 400 ppm (parts per million), from parts of the agricultural sector responses to climate change are far higher than than at any other to the Climate Change Response evidence-based, effective, and time during human existence. (Zero Carbon) Amendment Bill, consistent with the rule of law, Te Before the last century, the highest introduced on 8 May 2019, high- Tiriti o Waitangi, and New Zealand’s peak in CO2 levels was 300 ppm, lights the challenges ahead. The international obligations. 325,000 years ago. bill provides a framework for New This article summarises what we The CO2 that has already been Zealand’s contribution to limiting need to know about climate change, released will stay in the atmos- the average temperature increase why we should get involved, and phere for thousands of years, while to 1.5°C above pre-industrial how we can help. methane lasts decades. Therefore, levels. It sets a target of reducing even if we cut our rate of emis- New Zealand’s net greenhouse gas The basic science sions, warming will continue to emissions (except biogenic methane The most important facts to know increase as long as more emissions from agriculture and waste) to zero about climate change are: (a) it is are released and their cumulative by 2050. Biogenic methane is subject occurring now; (b) it is caused by concentration in the atmosphere to a separate target of 10% below human activity; and (c) there is increases. That is why we need to 2017 levels by 2030 and within the overwhelming consensus among reduce our CO2 emissions to zero range of 24-47% below 2017 levels scientists about both (a) and (b). to stop warming getting worse (and by 2050. Anyone claiming that there is still why there is a valid argument for The bill doesn’t address how uncertainty about either of these treating methane separately, given those targets will be met. Instead, facts is simply wrong. Indeed, a its shorter lifespan). an independent Climate Change recent paper notes that the scien- The most comprehensive and Commission will be created to tific evidence for human-induced authoritative statement of the cur- advise the government on setting climate change reached the “gold rent scientific consensus on climate a series of five-year emissions standard” in 2005 (Santer & Ors, change is the special report by the

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Intergovernmental Panel on Climate Change (IPCC), Global Warming of 1.5°C, published in October 2018. The IPCC is the United Nations body for assessing the science related to climate change. It was established in 1988 and has 195 member states (more than the UN itself). It does not conduct its own research but relies on panels of scientists from around the world to assess scientific papers and identify where there is agreement, where there are differences of opinion, and where further research is needed. When the Paris Agreement on climate change was adopted in December 2015 the IPCC was invited to produce a special report on global warming of 1.5°C above pre-industrial levels. This reflects the Key messages notes that: “Temperature rise to date Paris Agreement target of “holding Climate change is has already resulted in profound the increase in the global average already happening alterations to human and natural temperature to well below 2°C above The IPCC report tells us that systems, including increases in pre-industrial levels and pursuing human-induced global warming droughts, floods, and some other efforts to limit the temperature reached approximately 1°C above types of extreme weather; sea level increase to 1.5°C above pre-indus- pre-industrial levels in 2017, based rise; and biodiversity loss ...” (p 53). trial levels”. on the increase in combined air and Many commentators have linked The IPCC report is the outcome sea surface temperatures, averaged the impact of climate change with of that request. It is the product of over the globe and over a 30-year increased migration and conflict, 91 authors from 44 countries, 188 period (p 51). such as the wars in Syria and Sudan. contributing authors, over 6,000 That doesn’t sound like much, but Even if warming is limited to 1.5°C, cited references, and a total of 42,001 it is enough to have real impacts on 70-90% of coral reefs are expected expert and government review ecological and weather systems, as to disappear (p 179). That is grim but comments. It deserves to be taken evidenced by melting ice-sheets, does not fully capture the extent of seriously. dying coral reefs and intensifica- the problem. The report notes that: Everyone should read the IPCC tion of weather events. It is also “The ocean has absorbed about 30% report but, realistically, very few important to remember that it is of the anthropogenic carbon diox- people will. So here’s a rundown an average and the effects are not ide, resulting in ocean acidification on what you need to know. evenly distributed. The IPCC report and changes to carbonate chemistry

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that are unprecedented for at least the last 65 million years.” (p 178). Further changes have the potential to be catastrophic for marine life.

Climate change is caused by human activity Yes, the climate changed before there were humans and yes, non-human factors can influence the climate, but neither of those facts means that we aren’t causing the change this time around or that the effects won’t be devastating. The link between human emissions and climate change is demon- strated by the close match between observed patterns of climate change and the predicted patterns based on human rates of emissions. Meanwhile, studies quantifying solar and volcanic contributions to global warming from 1890 to 2010 have found their net impact on warming over the full period to be less than plus or minus 0.1°C (p 59). Ominously, the IPCC report states: “global-level rates of human-driven change far exceed the rates of change driven by geophysical or biosphere forces that have altered the Earth System trajectory in the expensive, many of the required increase, the higher the cost. If past; even abrupt geophysical events changes will have significant we value future human wellbeing, do not approach current rates of co-benefits. For example, buildings the case for investment now is human-driven change”. (p 54). designed and built to minimise compelling. Being clear about the cause of energy consumption will be warmer global warming enables us to be and drier. Electrification of transport If we do nothing it will clear about the solution: we need and better public transport systems get a lot worse to stop emitting CO2 and other will reduce congestion and air The main message of the IPCC greenhouse gases at a higher rate pollution. Planting and restoration report is that there is a big difference than they can be absorbed. of forests and wetlands to absorb between 1.5°C of warming and 2°C carbon will improve biodiversity or higher. The report describes how It is still possible to keep and water quality. the outcome will be significantly global warming to 1.5°C Because it is difficult to fully worse on every measure if warming A temperature increase of around quantify the costs of mitigation exceeds 1.5°C. For example, limiting 1.5°C is virtually inevitable at this or the long-term economic costs warming to 1.5°C instead of 2°C could point. But, beyond that, it is still of global warming, it is difficult to result in around 420 million fewer within our control. It is technically undertake a cost-benefit analysis of people being frequently exposed to feasible to make the global changes the investment required to mitigate extreme heatwaves (p 178). needed to limit warming to 1.5°C (p climate change. But it is clear that But even the less ambitious goal 51). the costs of climate change will be of keeping warming to 2°C would Doing so will require significant very substantial (in both financial require a big shift from our currect investment in new technology and and non-financial terms) and trajectory. In the absence of effective infrastructure. While this will be that the greater the temperature action to reduce emissions, global

54 PRACTICE

emissions by about 45% from 2010 countries with much lower stand- levels by 2030, reaching net zero ards of living than ours. And we can CO2 emissions by around 2050, certainly reduce our transport and with concurrent deep reductions in other CO2 emissions. other greenhouse gases, particularly methane (p 95). “We can’t do anything about The target of a 45% CO2 reduction agricultural emissions without by 2030 was widely misreported as wrecking the economy” the IPCC saying we have 12 years to Methane is a potent greenhouse gas save the planet. The world will not and reduction of agricultural emis- end in 2030. But the longer we carry sions is necessary if we want to limit on producing greenhouse gases, the global warming. Doing so without harder it will get to preserve the reducing production is difficult but world we know. not impossible. A 2014 paper from the New Zealand Agricultural Greenhouse OK, that’s bad, but it’s Gas Research Centre, “Reducing our not our job to fix it, is it? agricultural GHG emissions: how The IPCC report makes it clear that we are getting there”, reported that drastic cuts to emissions are critical emissions per unit of milk or meat to avoid irreversible global catastro- produced on New Zealand farms phe. But some popular misconcep- declined by an average of 1% a year tions undermine our willingness to since at least 1990, but increased take action. For example: production over the same period resulted in an overall 15% increase “New Zealand is not a in agricultural emissions. significant contributor The New Zealand Agricultural to global warming.” Greenhouse Gas Research Centre is It is true that New Zealand’s share currently looking at ways to reduce of total greenhouse gas emissions agricultural emissions, including is small, but our emissions per selection of low methane-producing person are very high. According to animals, low methane feeds, a vac- warming is likely to reach between the OECD, New Zealand has the fifth cine to reduce methane production, 3.7°C and 4.8°C above pre-industrial highest greenhouse gas emissions reducing nitrous oxide and nitrate levels by the end of the century. The per capita in the OECD, behind leaching, and increasing soil carbon IPCC report provides a “worst-case Australia, the United States, Canada levels (see www.nzagrc.org.nz). In scenario” snapshot of what the and Luxembourg. some situations emissions can world might look like in 2100 with According to Statistics NZ, New be offset by using mixed farming just 3°C of warming (p 208-281). This Zealand’s greenhouse gas emissions models and converting less produc- includes heatwaves, droughts, flood- are about 44% CO2 – of which 39% tive land to forestry. ing, ecosystems being destroyed, a comes from road vehicles, 20% from Ultimately we may need to reduce decrease in global crop production, manufacturing and construction, the number of cows and sheep on our with an increase in starvation, high and 9% from electricity generation, farms but we may also find there’s a levels of political destabilisation with the remaining 32% of CO2 from lot we can do to reduce agricultural and conflict, mass migration, high other sources – and about 42.8% emissions without reducing pro- extinction rates and an overall methane and 11.6% nitrous oxide, duction (and a lot we can do besides substantial decline in the health both of which mainly come from farming sheep and cows). and wellbeing of people compared agriculture. to 2020. It is a disturbing picture of Our emissions profile is different “Action in New Zealand how the world could look within to many other countries because of is pointless while the our children’s lifetimes. our high agricultural emissions. But major emitters aren’t Based on a review of various these emissions still contribute to doing anything” models, the report concludes that global warming. We can’t expect While there is undeniably a long limiting warming to 1.5°C requires other countries to give us a free way to go, other countries are us to reduce global net CO2 pass on them. Especially developing taking action. A useful source

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of information is the website analytical and communication skills which we can use climateactiontracker.org. This to help decision-makers and the general public to get reports that the United Kingdom good information and raise the quality of the debate. has reduced its total emissions by We can also vote for and support central and local 42% from 1990 levels, mainly by government actions to reduce emissions, and we can decreasing its use of coal. The rest use our power as consumers and investors to support of the EU, India and China are also businesses which are zero carbon, or actively working reducing their reliance on coal and to reduce emissions. investing heavily in solar and other For those who want to get more involved, Lawyers renewable energy sources. for Climate Action NZ Inc is a newly formed society Meanwhile, despite Donald whose purposes include advocating for legislation Trump’s roll-back of federal envi- and policies to ensure New Zealand achieves net zero ronmental measures, California is carbon emissions no later than 2050. More information on track to reduce its emissions to is available at www.lawyersforclimateaction.nz. 1990 levels by 2020, despite strong Finally, while there’s no question that the scale of population and economic growth, the problem requires government-level policy changes, and is targeting 40% below 1990 there are small changes we can all make to reduce our levels by 2030 (see oehha.ca.gov). personal emissions: Other state and city governments Take fewer flights: We can stop flying for meetings in the US are also taking steps to that could be held by telephone or video conference. We reduce emissions. can spend more of our holidays in New Zealand. And Comparatively, New Zealand’s we can pay a little extra to offset our carbon emissions efforts so far are dismal. According when we do fly. to Statistics NZ our gross greenhouse Use cars less or get an electric car: Walk, ride a gas emissions increased by 24% from bike, or use public transport. Or get an electric car – they 1990 to 2015, while our net emissions are more expensive to buy but cost very little to run. increased by a whopping 64% due to Buy less, buy wisely: Most of us have so much stuff reduced uptake of CO2 by forestry. we don’t know what to do with it. Making, packaging, Climateactiontracker.org claims transporting and disposing of all that stuff produces that “if all countries were to follow emissions. We need to buy things we genuinely need, New Zealand’s approach, warming not junk we don’t really want. could reach over 3°C and up to 4°C. Reduce red meat consumption: We’re not going to This means New Zealand’s current convert everyone to veganism or vegetarianism over- policies are not in line with any night. But we can cut back on our red meat portion sizes interpretation of a “fair” approach or frequency, or both. to the former 2°C goal, let alone the Reduce food waste and use a compost bin, Paris Agreement’s 1.5°C limit”. bokashi bin, and/or worm farm: Food waste is not New Zealand needs to do better The number only wasteful of the resources that have gone into if it wants to preserve its interna- one thing we producing and transporting the food, but when it goes tional reputation and brand image should not to landfill it produces methane. Composting avoids as an environmentally responsible do is despair. those methane emissions and enables valuable organic member of the global community. The situation matter and nutrients to be put back into the soil. If you New Zealand can also demonstrate is bad but don’t want to do it yourself, We Compost has recently leadership by showing the major not hopeless. started a domestic food waste collection service in emitters how an effective emissions Millions of Auckland (www.wecompost.co.nz). reduction programme can work. people are Meanwhile, the number one thing we should not do is working hard to despair. The situation is bad but not hopeless. Millions So, what can we do? make it better. of people are working hard to make it better. The more The most important thing we The more of of us who get on board to support them, the better the can each do as individuals is get us who get future will be. ▪ involved in the discussion about on board to these issues, whether through our support them, Jenny Cooper QC is a barrister at Shortland Chambers work or in our communities. As the better the and acting president of Lawyers for Climate Action NZ lawyers, we have good research, future will be Inc,  www.lawyersforclimateaction.nz.

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PRACTICE Sustainable Practice

With this issue we begin a regular feature which looks at what lawyers and legal workplaces can do to operate more sustainability and to help arrest climate change.

I’m a lawyer, what understanding of the threat of deal with them. Global climate can I do? climate change, advocating for leg- change is one of the biggest risks Deeply worried about what is islation and policies to ensure New and among the “celebrated signa- happening to our environment? Zealand meets or exceeds its com- tories” to an appeal to Parliament Very concerned that, whatever mitment under the Paris Agreement, for a NZ Risk Assessment are a law the rhetoric, we do have a climate advocating for legislation and poli- academic and Wellington barrister crisis? Lawyers have particular skills cies to ensure New Zealand achieves Sir Geoffrey Palmer QC. which have the potential to achieve net zero carbon emissions as soon as Among the 22 organisations which positive social outcomes, and a possible, advocating for legislation are members of the New Zealand growing number are organising to and policies with material impacts Climate Action Network (www. fight for legislative change and for on emissions, and facilitating free nzcan.org/) is the Aotearoa New courtroom victories in the battle to or reduced cost legal assistance to Zealand Human Rights Lawyers save the planet. Lawyers also work community groups working to fight Association. The Network aims to in enterprises that emit carbon, climate change. link organisations aiming for a zero burn energy, use increasingly scarce One of the founders, Jenny carbon future, powered by 100% resources and have many impacts Cooper QC, told LawTalk before the renewable energy. on the environment. AGM that the group website would With the formation of a special If you’re a lawyer in a New be live by July and that more than lawyers’ group, New Zealand has Zealand legal workplace, what 20 lawyers, including eight QCs, joined a growing number of lawyer have you done? What can you do? were already on board. organisations which focus on using What is your employer doing? This Generation Zero (www. legal skills to protect our environ- quick lawyer-focused survey looks generationzero.org/) includes lawyers ment. Three of the most prominent: at things in two different ways: among its members. It is a non-par- London-based ClientEarth (www. how lawyers are acting to fight the tisan, youth-led climate organisation clientearth.org/) is a charity which climate crisis, and how legal work- that champions solutions towards a has the objective of using the power places are committing to sustainable carbon neutral Aotearoa: “We cam- of the law to protect the planet and eco-friendly practices. paign for smarter transport, liveable the people who live on it. “We are cities and independence from fossil lawyers and environmental experts Fighting the climate crisis fuels by lobbying government, busi- who are fighting against climate New Zealand now has a lawyers’ ness and other actors to advance change and to protect nature and group which is committed to climate change action. It’s time for the environment.” Founded in 2007, action on climate. Formed in New Zealand to step up.” it is funded by private donors and May 2019, Lawyers for Climate Wise Response ( www. foundations to undertake specific Action NZ Incorporated (https:// wiseresponse.org.nz/) describes itself legal work and interventions. www.lawyersforclimateaction.nz) as a broad coalition of academics, Earthjustice (www.earthjustice. had its first AGM on 29 June and engineers, lawyers, artists, sport- org/) is based in San Francisco is planning to hold a public launch speople, etc who are calling on and says it is the largest nonprofit and membership drive in the next Parliament to comprehensively environmental law organisation in few months. Its stated purposes assess imminent risks to New the United States. “We leverage our are raising public awareness and Zealand and to draw up plans to expertise and commitment to fight

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for justice and advance the promise The Australian Legal Sector (www.legalsustainabilityalliance. of a healthy world for all. We repre- Alliance (www.legalsectoralliance. com) which operates in England sent every one of our clients free of com.au) is a group of Australian and Wales. This was founded in charge,” it states. Earthjustice has law firms with the mission: To 2007 and is a collaborative net- just announced a partnership with work collaboratively to promote work of almost 300 firms across former New York mayor Michael sustainable practices across the the United Kingdom. Membership Bloomberg’s Beyond Carbon cam- legal sector. A not for profit, it was is free as the LSA Executive Firms paign to spur a transition to 100% founded in 2010 and provides tools and the Law Society of England and clean energy in communities around and resources to member law firms Wales provide financial support the world. that assist in implementing sustain- and leadership. Member firms are Columbia Law School’s Sabin able work practices. Membership committed to looking at and acting Center for Climate Change Law fees range from AUD$300 to $1500 on all areas of sustainability. They (www.columbiaclimatelaw.com/) has a year, depending on business must also report from time to time just released its second US Climate size. Currently, there are about 39 on how they are reducing their Change Litigation Report which lists member firms. Of these, three – DLA carbon footprint and/or meeting 159 climate change cases in 2017 and Piper, MinterEllison and Wotton the LSA Principles. DLA Piper and 2018 which have shaped federal Kearney – have New Zealand offices. DAC Beachcroft are members with climate change policy. The centre Members commit to five princi- New Zealand connections. says its mission is to develop legal ples covering their own operations, New Zealand does have the techniques to fight climate change, but also how members may influ- Sustainable Business Network to train students and lawyers in ence clients, suppliers, employees (www.sustainable.org.nz). Founded their use, and to provide up-to-date and policy makers. The initial focus in 2002, the Network says it is resources on key topics in climate is on environmental sustainability the largest oganisation dedicated change law and regulation. and the principles include meas- to sustainable business in New uring, managing and reducing the Zealand. Membership starts at $500 Working sustainably direct and indirect environmental per year. At the start of June 2019 New Zealand doesn’t yet have a impact of their operations. there were 588 members. A search special lawyers’ organisation which The Australian group is modelled of its membership directory shows focuses on sustainable workplaces. on the Legal Sustainability Alliance three law firm members: Mortlock

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solid pigments. Vegetable-based inks take longer to dry than petroleum-based, but they release only 2-4% of Volatile Organic Compounds (VOCs) into the atmosphere – compared to 30% for petroleum-based. Our printers source their ink from Huber Group.

Ah, but the plastic wrap… We use 27 micron biodegradable film made in New Zealand. This means it can be broken down by the action of living organisms. It degrades naturally. If you throw it out, the compost bin is a good place – but to be honest it breaks down best in a commercial compost. Home composting works, but is slower. Our printers source the wrap from Convex.

OK, but I still don’t want the paper McCormack Law, Buddle Findlay and Chapman Tripp. A If you want to just read LawTalk number of other members will employ in-house lawyers. online, simply email subscriptions@ All members are asked to make an annual commitment lawsociety.org.nz, with “please stop to sustainability. The SBN Pledge requires members to LawTalk hardcopy” in the subject select and commit to focus areas and goals. This includes line and advise your name, lawyer a commitment to support the network’s major projects ID (lawyer login number), workplace by taking specified actions. and address. We need these as the LawTalk mailing list is automatically About those paper LawTalks generated from all current practising For the last few years, LawTalk has been printed on certificate holders and we need to environmentally responsible paper. The body at the instruct the computer to remove heart of this is the Forestry Stewardship Council – an your name. international not for profit organisation which works to We’re very happy to comply. Of promote environmentally appropriate, socially beneficial course, if you email us from your and economically viable management of the world’s mobile phone, be aware that you forests. The council certifies forests which meet its best Touch this are holding about 30 different practice standards. FSC certification tracks the wood from page of chemical elements (out of only the forest to the shelf. Touch this page of LawTalk: you LawTalk: 98 which naturally occur) and the can be absolutely certain that the forest it has come from you can be bright colours in the display are will remain a thriving environment for future generations. absolutely produced by small amounts of rare On our Contents page we have the FSC logo. Just before certain that earth elements. Many of these are printing this is added by an approved auditor (who works the forest hard to obtain. Do you really need for our printers, Format) and who is part of the chain of it has come to upgrade to the latest iPhone? An custody. If you go to the FSC website you can input the from will estimated 10 million smartphones unique number and track the chain of custody. remain a are discarded or replaced every thriving month in the EU alone. If that wor- What about the ink? environment ries you, there’s always NZ Post or Vegetable-based inks are used. These are made from veg- for future DX … but they use aeroplanes and etable oils. Soy is popular because of its ability to carry generations diesel trucks … It’s difficult.▪

59 TECHNOLOGY July 2019 · LAWTALK 930

TECHNOLOGY

Legal tech in New Zealand Where’s the disruption?

BY GEOFF ADLAM

tech moves Legal technology is a burgeon- the game from ing industry with an enormous and finding out what vibrant array of conferences, work- the law is to the things shops, hackathons, CLOC events lawyers do. and seminars around the world. Add Being able to automate routine the word “disruption” and throw tasks and to customise to individual in talk of artificial intelligence and needs also has the potential to enable law- robot lawyers and it becomes both yers to change how they work and how they sell exciting and sometimes confusing. legal services. This is where the “disruption” element In this issue of LawTalk we look at enters. some of the legal tech developments “The biggest challenge in terms of advancing more in New Zealand and talk to some of universal adoption [of new legal technology] remains the people involved. that many lawyers simply favour the traditional way So, what’s “legal tech”? A good of working,” three British academics concluded at the working definition comes from US end of 2018. lawyer and legal tech commentator In “Disruptive technologies and legal service provi- Jonathan Nessler: sion in the UK: A preliminary study” (available through “Some legal technologies are SSRN) Dr Alan Cunningham, Professor Andrew Jones designed to help law firms to and Professor Bruce Tether from the University of acquire more clients. Some of these Manchester use surveys and observation to look at “the technologies help law firms better increased application of technology to the difficulties serve current clients by helping involved in efficiently and transparently providing the firm operate and provide legal quality legal services”. Things are changing, they say – at services more efficiently. Legal tech least in the UK – with a quarter of all new legal service also includes certain technological organisations introducing a new or improved service advancements, like Blockchain and in the last three years and a whole new landscape of artificial intelligence, that are being start-ups emerging; many with an exclusive focus on identified as technologies that many legal service provision. experts predict will disrupt the legal “On the whole, clients demand accessible, excellent profession in an unprecedented service, value for money and transparent, competitive way.” fees. The increased application of technology solutions Of course, digital technology has in the legal sector – and competition from alternative assisted lawyers since the 1970s and business structures utilising tech solutions/tech focused the days of dial-up databases such as law start-ups – may result in increasing pressure LexisNexis and Westlaw, through to on traditional firms to adopt the application of BriefCase and LINX in New Zealand fixed fee and invoice transparency. This may in the late 1980s, followed by CD and result in the further challenge of satisfying then online legal information. Legal in-house procurement and the development

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of outsourcing specialists.” (at 52-53) The products are not have been New Zealand, of course, also that differentiated in most being able to has a healthy legal tech industry. instances. You’re going to see check my email on Automio and Simmonds Stewart, acquisitions, you’re going to see bank- my iPhone, and some LawHawk and a number of other ruptcies and you’re going to see platforms,” stuff we were doing with clever enterprises and products he said. Word Macros for document such as Actionstep, LawVu and sev- The predicted platforms are a number of mega legal automation. eral smart contract developers have tech app stores. Professor Katz – who is also vice-pres- The biggest overall change all emerged in the last decade or so. ident of global legal work and operational support firm since then would be the widespread A lot of the focus has been on Elevate and therefore has a commercial interest in this adoption of cloud technology. As a behind-the-scenes products as well – says big players such as LegalZoom and the lawyer who wanted to use technol- and services for purchase by Big Four accounting firms are already moving towards ogy, but needed an IT team to install law firms or in-house teams. one-stop app stores for legal tech. and maintain it for me, even just for Basically, a range of tech tools and a trial, it just felt like it was going to solutions are either being offered The New Zealand environment be too hard and expensive to even directly to New Zealanders wanting Respected legal practice commentator and creator of work out what was possible. to access some transactional legal the annual Future Firm Forum, Simon Tupman, says With cloud technology, it’s so services such as wills or to firms and he feels that technology has made some legal services much easier to sign up and start in-house operations which want to more accessible, more easily understood, the price more testing and using many products automate some of their functions transparent, and in some cases cheaper. straight away, often on free (or such as contract generation. “I’m not entirely convinced technology is really very low cost) trials. If it doesn’t LawFest founder Andrew King’s transforming law firms but it is true to say we do now work, or I find something better, I LegalTechHub includes many tools have smarter tools to manage and measure things that can turn it off. There’s nothing to for more efficient lawyers but it’s matter in the workplace compared with 20 years ago, eg, stop anyone (lawyer, secretary or moot whether the result will be seri- document management, health and wellness, client sat- manager) from having a play with ous disruption of our legal services isfaction, etc. In spite of all the technological advances, some new software on their own industry. Legal Beagle’s standard I believe the operational focus in many law firms is still computer at home to see what it documents (“our legal documents much the same as it was 20 years ago. Many are still can do, and how it could support cost between $20 and $350 – way recording hours billed and using partner profitability their firm and their clients. cheaper than a lawyer”) may be a as key measures of productivity and success.” All the technology that we use good indicator of the current level The world is changing and law firms need to change at LawHawk is now either directly of disruption. too, Mr Tupman says. via the cloud, or still available over “Law firm leaders would do well not to rely on tech- the internet through the managed Where’s it all going? nology to keep step with change but to drive an agenda IT service that Resolve Technology Recently Chicago-Kent College of that focuses their operations on client satisfaction, provide for us. Law Professor Daniel Katz caused team well-being and engagement, and environmental Integrations are also a lot easier consternation at the June 2019 performance.” with cloud software, and that is Artificial Intelligence in Legal increasingly happening. This means Services Summit in London when Biggest changes you don’t have to look for one single he predicted a massive consolida- Two important players in the New Zealand legal tech overall solution forever – you can tion in the legal tech world. scene were asked for their views on what is happening pick different specialist products for “You can’t have 17 people and where they see things developing. Gene Turner, a particular issues, and combine them doing the exact same former Buddle Findlay partner, is founder of document with other existing or new systems, thing, without a automation developer LawHawk. eDiscovery pioneer and then change them as needed. dime’s worth of Andrew King has developed and organised the annual There’s also been a lot more difference. LawFest event which is the most important gathering investment into the sector. You can and forum for New Zealand’s legal tech. see this in a number of ways. In the document automation space the Looking at the legal technology available main players (HotDocs and Contract and being used in New Zealand now, Express) have both been acquired what do you see as the biggest by substantial legal platform pro- changes over the last decade? viders (HotDocs by AbacusNext Gene Turner: Looking back to 2009, so much has and Contract Express by Thomson changed. For me, back then, the biggest thing would Reuters) who are investing heavily

61 freeing up lawyers to spend more into the plat- technology time working with their clients forms and rolling to how we to create better outcomes. Many out new products and func- can actually of these tasks are now being per- tionality. At the same time there’s do this. From formed quicker, cheaper and more a host of new entrants all looking a LawFest perspective, it is great to accurately through the assistance to provide a new way of doing it. see an influx of people attending of technology. There is a lot of choice. to find what others are doing and How we access case law, research, There’s also a lot of powerful their practical examples of how they manage documents, dictate, bill functionality that is being rolled are innovating through leveraging and communicate is all changing. out through normal business tools technology. It is vital to continue Technology continues to be a game offered by Microsoft and Google that to explore ways that you can adapt changer for conveyancing, research, can effectively be used as legal tech. and thrive in this changing market, wills, M&A and company searches, Andrew King: There has been so to help you deliver legal services for together with using data to help much change with legal tech. today and the future. make better business decisions for Over the past few years there has you and your clients. Do you think the various legal been considerable development of Close to my own heart, how eDis- tech developments have great legal tech locally. This has covery is approached has changed had any real impact on the resulted in some fantastic legal tech dramatically. Thanks to the great way New Zealand lawyers start-ups, with many now taking tools available you can get to only deliver legal services? their solutions to the world. what you need without having to One of the key developments is Andrew King: These are exciting eyeball every document. that many of these solutions have times with the impact that legal tech Sure, technology cannot and will been lawyer-led, or by those inside is making and will continue to make. never do everything. Critical skills a law firm that are intimately aware Technology is changing how like analysis, judgement and problem of pain points. They have developed legal services are delivered and will solving are just as important as they solutions to meet these problems continue to change. Legal tech has have ever been; it is just that tech- – ultimately making lawyers more become integral to the delivery of nology can be used to assist in this. efficient and to better meet the legal services, as it enables lawyers The technology should help to make demands of their clients. to do things better, cheaper and lawyers’ life easier, more efficient and This has contributed to us creating faster. better meet the demands of clients. the LegalTechHub as a resource to An increasing number of lawyers Gene Turner: For those using the keep up with everything you need and their firms are opening up to the new technology in a material way, to know about legal technology in opportunities to innovate through as part of a core business process, New Zealand. leveraging technology. we have definitely seen substantial The market has evolved from why Routine and repetitive adminis- positive impacts. Some of these you need to innovate and leverage trative tasks are being automated, are financial, but they also include

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higher quality, lower risk, better be improved a lot, and you can relationships with clients, increased increase the amount of service learning, and greater overall job and the quality without trade off. ❝ I’m sure there satisfaction. There’s definitely a lot more As one of our customers said, potential for revolutionary change will be a point they were struggling under “an too, including how lawyers could where lawyers unmanageable workload with more deliver different services, to differ- and more demands being thrown ent clients, using different business realise it can in”, but “using LawHawk has made models. You can really embed your the impossible task possible and the firm into your client’s core business be lawyers AND team now feel like they have doable processes and make a massive dif- tech, rather than jobs”. Not a bad result from a very ference. However, that will most targeted project. likely need to come after more lawyers OR tech, Overall though, not really. Most people have adopted the technol- but it’s not here lawyers are not really at the point ogy and can more easily see those where they are doing anything opportunities and how they can yet ❞ meaningfully different. I don’t think be achieved. Things might become this is unique to New Zealand. An more interesting then, because Australian with a good understand- competition could increasingly be ing of that market told me that for the whole of the market, not “we find that there is a deep, but just a share of it. mostly denied concern about being The revolution will come, but only ‘replaced’,” if they use technology, when enough people are ready to business models will open new and “more sophisticated adopters change. opportunities, which will make you know that they are not about to be Even if the rate of change has to more valuable. Technology should replaced and that they can look at a be more measured, I would love be at the heart of your new business wide range of tools for a wide range to see more ambition as to the models, as it can provide amazing of solutions, but that is only about objective. I think it’s disappointing opportunities to generate new rev- 10% of the potential user base”. So that both the Bazley report and the enue streams. You can start selling there’s room to improve… recent commentary around young legal products online, anywhere I’m sure there will be a point lawyers unionising seem to be from legal documents to services. where lawyers realise it can be law- based on an assumption that legal Technology can help level the play- yers AND tech, rather than lawyers work can only be done by working ing field delivering opportunities to OR tech, but it’s not here yet. long hours, and so there’s a focus compete with firms that may have Progress will also be easier when on increasing compensation. With more resources. the people you work with are also clever use of technology, we could Technology can also help provide comfortable using the technology. see real progress in areas of access greater access to justice for those Most legal processes involve multiple to justice, law firm culture, diversity, who may not always seek legal parties, so you can’t just choose to and part-time work if we were more services due to cost. This will be change things yourself. As a simple open to investing in better outcomes provided by non-traditional sources, example, I love digital signing and and changing the way we work. which will include ‘robo-advice’ and would use it every time if I could. But Andrew King: Before technol- ‘chat-bots’ for straightforward legal if the other party isn’t comfortable, I ogy is considered, it is important problems. still have to print, sign, scan, email, to consider exactly what you want There will be further automation of file … I hope this changes soon. to achieve to meet your business tasks that are time consuming, costly goals – and if technology can enable and presently performed by humans. Is legal tech just about you to achieve this. The profession will be able to focus tools which make lawyers Sure, technology can greatly on practising law and providing work smarter and more assist lawyers to work smarter and expert legal advice for their clients, cost-effectively, or could it more efficiently, although it can be instead of being restricted by time be more revolutionary? so much more. consuming administrative tasks. Gene Turner: At this stage, what Legal tech provides opportunities The law firms of tomorrow will be we’ve seen is a lot more about using – the opportunity to deliver legal ser- the ones that innovate through lev- technology to do the same work, for vices that better service your clients eraging technology, to deliver more the same clients, in a better way, but and the potential of new clients. Your efficient, valuable legal services that using the same business model. That clients’ needs will be evolving, and better service clients. The ones that in itself can yield some fantastic they will require innovative ways of choose not to, could be left behind results because we all know that delivering legal services. by an increasingly competitive the way a lot of law is delivered can Embracing technology and new market. ▪

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TECHNOLOGY

LegalTechNZ aims to promote benefits of technology ▴ Ben Winslade and what are the opportunities regarding legal technology,” he says. BY NICK LegalTechNZ runs free information BUTCHER events and has one coming up on 25 July in Auckland focused on document automation technology. “We’ll present practical case studies Legal technology should be embraced, not feared about how document automation is and artificial intelligence is unlikely to make lawyers already being used successfully in the unemployed. context of law. So there’ll be representa- Not everyone in the legal profession would agree with tives of both a large and a small law firm that statement but it makes sense for lawyers to network to talk about their experience, along with and talk about the advance of applications and software an in-house team. The panel will canvas that can assist in legal work. In the end it is designed not a range of different technology types and to replace lawyers, but to make the work/life balance less they’ll touch on what went well and what stressful, providing you with more time to focus on your benefits they are seeing. Perhaps also what core lawyering skills. didn’t and how they might do things differently going forward,” Mr Winslade says. Legal Tech LegalTechNZ is a non-profit organisation Nothing to fear about AI that formed over the last few years. It’s a The fear of artificial intelligence taking over forum for promoting and progressing the the role of lawyers is an argument that use of technology for the benefit of the draws a variety of opinions. New Zealand legal community. Mr Winslade says they’ve had law stu- The organisation is made up of a balance dents inquire as to whether they’ll have of lawyers, others working in supporting jobs in the future, and generally question roles within the profession, and companies ❝ In the what impact disruptive technology will building and developing technology for the end it is have on the future job market. legal market. “We’ve certainly had these sorts of ques- Ben Winslade, the LegalTechNZ chair, designed not tions and concerns raised at our events. is an experienced commercial and tech- The way we work as lawyers and the types nology lawyer. He was Senior Counsel for to replace of tools we use will definitely change – Spark for five years. lawyers, but lawyers didn’t always draft documents “LegalTechNZ is about bringing together in Microsoft Word for example. There are all the people involved or interested in legal to make the definitely two schools of thought when it technology. We have law firms, both small work/life comes to artificial intelligence. Personally, and large, along with in-house legal teams, I think it will be useful, but lawyers aren’t as well as a range of legal technology ven- balance less going anywhere fast. Technology will dors and practice managers. This enables continue to change but the job will still us to encourage thorough conversations stressful ❞ be there,” he says. about what’s available, what’s best practice When practising law, a lot of time can be

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swallowed up reviewing and preparing documents which can help assist there too. He says there are many new tools Mr Winslade says legal technology can assist with to speed that can assist in the negotiation process, collaborating up the process. on document versions and exchanging comments in new “With commercial lawyers, for example, there are ways. artificial intelligence tools that can be used to automate But as Mr Winslade explains, existing technology can reviewing large numbers of low value, low risk contracts also be used in different ways. that can take a long time for a person to review. Equally, “So with document automation for example. It’s nor- with the preparation of documents – lawyers can spend mally done by one party automating its own bespoke a lot of time doing this and technology can help either documents which means that when it goes to a second lawyers prepare these more efficiently or enable clients party you’re back in the original position of having to to prepare initial versions themselves.” review and argue over a lot of fine print. But if you can provide a document automation service between the two Technology provides more parties, that negotiation process can move along more time to be a lawyer quickly,” he says. He says people will still need a professional to take them Mr Winslade says it’s natural that some lawyers will through the tricky and high risk parts of a transaction. have fears about legal technology, particularly the speed “Technology provides a lawyer with more time to do it is advancing at. that. My hope would be that you can do this work more “The only way to get over it is to start engaging with efficiently and provide a better service to your client if the technology and networking with people who can help you’re not taking up a lot of time doing menial tasks such you learn more. The longer you leave it, the more catching as preparing and reviewing the parts of documents that up you’ll have to do. That’s something we can help people don’t really matter,” he says. with – staying up to date with the latest innovations and Negotiations are also time consuming and technology talking about whether you need them or not,” he says. ▪

TECHNOLOGY

Nuix releases a SaaS eDiscovery solution to support the ‘New Law’ frontier

BY CRAIG STEPHEN are still using traditional search methods reducing the costs of legal discovery and limiting information visibility and putting regulatory response,” he says. them on the backfoot for their clients,” Nuix, which formed in Sydney in 2000, Nuix Ringtail SaaS is a cloud-based says Nuix’s Asia Pacific and Japan Chief has more than 2,000 customers in about platform with Amazon Web Services Executive Paul Muller. 75 countries. providing automatic updates for “Australia and New Zealand are highly Among the abilities of the product are users, removing infrastructure and sophisticated technology markets, often rapidly indexing, searching, and extracting upgrade costs. early adopters of new technologies and meaningful information from a range of The Australian-based company in many respects ahead of the digital formats – including documents, email, Nuix says the technology makes the transformation curve. text messages, images, and social media ‘new law’ shake-up a much simpler “We know that businesses involved in content – for faster and more accurate and quicker transition for users, discovery want smarter ways of work- analysis. reducing eDiscovery work that ing and we’re seeing a positive market The global market for eDiscovery soft- usually takes hours to just seconds. response to Ringtail SaaS. Technologies ware and services was estimated at nearly “Despite more documents like Nuix Ringtail SaaS can have a huge US$11 billion in 2018 with predicted annual becoming digital, some law firms impact on improving productivity and growth of 10% through to 2023. ▪

65 TECHNOLOGY July 2019 · LAWTALK 930

TECHNOLOGY

The hawks helping lawyers automate legal documents

BY TRACEY CORMACK

of high quality solutions very quickly and with low Back in 2016 LawHawk burst on to the New Zealand risk. “In a number of cases we’ve successfully delivered legal scene and has gone from strength to strength since. projects in weeks after others have tried and failed over “Legal tech is taking off around the world, as people longer periods.” see how technology has revolutionised other industries and professions and want to bring the same benefits to Changes in the market law,” founder Gene Turner says. Since launching in 2016 there have been a number of LawHawk specialises in helping other lawyers auto- other market entrants who have raised awareness mate legal documents. It provides an end-to-end service of automation. – from helping to identify the opportunities; analysing “Almost every ‘AI Chatbot’ that launches and improving the underlying documents and processes; appears at its core to be another docu- training; and providing the underlying technology via ment automation tool. The challenge a secure cloud portal. is helping customers work out what “We help our customers get the benefits of automation solution best meets their needs.” quickly and affordably, without doing it all themselves,” Mr Turner says an important says Mr Turner. and exciting part of his work is He founded LawHawk with business partner Allen Li. not so much the technology Until 2014 Gene Turner was a partner at Buddle Findlay itself but focusing on the and at the time he was interested in having the IT team people and processes. This at Buddle Findlay develop the kind of software he now determines the success provides through LawHawk. He decided to learn how of the project. do it himself after several attempts from the IT staff A lot of analysis at Buddle Findlay failed to produce exactly what he is needed before wanted. automation and it “That’s not a criticism of their skills in other areas, requires an invest- but we’ve seen many times that it just isn’t possible for ment of time and someone without legal training to automate complex thought as much as legal processes – so I decided to learn the software, money to get real build a website and integrate the software, and offer a benefits. There is no full managed service.” point in automating a LawHawk is doing well, although Mr Turner admits bad process. Technology that the business is “just scratching the surface”. can do all sorts of things. Their key customers have worked with them to iden- “It’s knowing the right tify areas where automation can make a difference in things to do, at the right times, that is key to getting their organisations. “The early work we have done with good outcomes,” says Gene Turner. them has not only made for some substantial immediate He suspects that New Zealand is probably behind the improvements, but also opened the door to even more times, but that is partially due to the size of the market ambitious improvements to come, and we are seeing here. More competitive markets in the UK, United States a lot more repeat work,” he says. and Australia are always looking for better ways of work- LawHawk has built up a base of intellectual property ing. Clients too are demanding it – and they should be. from other successful projects, which allows delivery “If clients knew how lawyers worked they might

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will have time to think about and customise what you are providing for your client.” But are lawyers who use the technology charging less? Not necessarily, but in some areas of work they aren’t getting the full hours spent on work anyway, so the software can help offset this lost income. “One of our clients tells us they save at least 8-10 hours per job. In many cases, a $5,000 job can take $7,000 worth of time, but the law firm only charges $5,000. Saving 10 hours can help avoid those ▴ LawHawk founder Gene Turner write-offs. It also gives certainty of fees. If lawyers technology might enable firms to get can guarantee a away from the hourly rate. The need fixed fee of $5,000, would then be to work out the value that work will be of of the job, rather than the hourly really high quality, and rate. A job that once took eight be upset be delivered in a day – then hours may, with technology, only that they are there is value in that,” Mr take half an hour, but it would still paying so much Turner says. have more value than a half hour per hour with the “An estimated fee does work in hourly rate. “The conversation will very manual bespoke favour of those who might want to shift to working out a fixed fee that processes that lawyers cur- work a bit more slowly, but only is good for everyone.” rently have. People tend to only while clients accept an estimate and go to lawyers when they absolutely nobody else is offering a fixed fee Where to start? have to, so there is scope for some alternative.” While there is increasing interest in law firms to do things better – com- Gene Turner believes the use of technology, people are struggling pete a bit more and let it be known that they work differently for better value.” Less need for lawyers? “It’s estimated that 85% of people with a legal problem don’t go to see a lawyer,” he says. “Technology ❝ It provides an end-to-end means that lawyers can price things at a lower point and make more service – from helping to identify money. There won’t be less legal the opportunities; analysing and work, but it might be done by different people.” improving the underlying documents Technology will enable people to work more efficiently and more and processes; training; and accurately. While the technology is providing the underlying technology not perfect, it can certainly make lawyers a lot more effective. “You via a secure cloud portal ❞

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with how to buy it and why. There is a lack of confidence and a lack of TECHNOLOGY knowledge. “With so many options a lot of lawyers are stuck, waiting for the perfect solution and scared of making a mistake – or concerned that a better solution might be around the corner,” he says. “However, I would advise to take the improvement that is available now and if something better comes up in a year, it’s not that hard to change. Whatever the technology, a lot of solutions are now cloud-based that can be used on live transactions within weeks, with minimal investment.” He adds that by freeing themselves up with technology, lawyers will have more time for other things. “Take that first step.” As far as any lingering concerns about security and risk, Mr Turner says the systems are secure and probably better than the systems people are using now. Is software The future of tech There is more interest in technology eating the now, but there is a lack of linkage of the technology to the business strategy, which seems to be especially law? true of law firms. Automation of easy tasks is a given, but clients will just as easily do that themselves. The The world according rise of in-house legal operations is a major risk to law firms. to Simmonds Stewart “Thinking further ahead, what are law firms going to do that their clients won’t be able to do them- BY JAMIE selves and how can marrying that DOBSON technology with their distinctive expertise and ways of working help LawTalk about how they see the with that?” The technology industry is fond state of legal tech and innovation Gene Turner says there are also of the idiom “software is eating the in New Zealand, and how New many new technology providers world”. It paints a picture of tech- Zealand’s efforts compare to legal emerging across a range of different nology crashing into every industry, tech innovation overseas. areas, which is exciting for a firm requiring incumbent players to like LawHawk that specialises in adopt cutting edge technologies or Lessons from the using technology to create great risk getting cast aside by smaller, tech sector legal outcomes beyond just docu- tech-enabled alternatives. Simmonds Stewart say they run ment creation. It creates potential Simmonds Stewart partners themselves like a tech startup. The for other things that can be done Victoria Stewart and Andrew law firm has hundreds of clients in with customers. For example, there Simmonds have been using the tech industry, many of whom has been a lot of improvements to technology to eat into the New are fast-growing startups who aim tools that LawHawk’s customers Zealand legal market, and more to disrupt their chosen industry by already use such as Office 365 – recently they’ve been using these deploying innovative software and which creates new opportunities techniques to build a client base business models. to do a lot on a lower budget. ▪ in south-east Asia. They spoke to “Our tech company clients

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generally focus on two things: building a product or budget exists for legal services, and service that changes the way that their target customers we’re on their side – we won’t waste do things, and then connecting with those customers as their money on routine paperwork,” ❝ A lot of quickly and efficiently as possible,” Mr Simmonds says. adds Andrew Simmonds. “We’ve taken this mindset on board – providing solu- The templates have also had bene- lawyers tions that save clients time and money, and applying fits internally as an effective training will say tech company growth strategies to find new clients.” tool. “Our staff are smart,” Victoria Stewart says. “It’s important we Embracing disruption with open ‘why would provide them with interesting and source templates and resources challenging work.” you do Simmonds Stewart embraced disruption by publishing a The templates allow newcom- that?’... library of free resources on their website. Fifty templates ers to the firm to get up to speed and 25 document generators covering the basis legal with the routine work in the tech “Our value documentation businesses need in their early stages industry. “Juniors, graduates and are now available online. Comprehensive user notes young staff get the basics under doesn’t help non-lawyers navigate each item, which include their belt quickly and move on to come in privacy policies, website T&Cs, shareholder resolutions more challenging work.” and SaaS agreements. Simmonds Stewart have also filling in “The templates empower businesses to look after their taken concepts like automation own routine legal paperwork without needing to involve further with the release of free a form – it a lawyer,” Mr Simmonds says. document generators. “Document comes when The decision to make the templates free to download automation is great for navigating was inspired by the tech industry’s ‘open-source’ busi- more complex documents,” says we can help ness model. The pair estimate the templates have been Mr Simmonds. “Answering a set of clients used by thousands of New Zealand businesses as well questions to create a document is as hundreds of lawyers. the logical next step from a static with the “It’s a bit counterintuitive. A lot of lawyers will say template – it allows for greater flex- ‘why would you do that?’ but a lot of this work is very ibility in terms and can be easier hard routine and you don’t need a law degree to do it,” Ms to use.” stuff” ❞ Stewart says. “Our value doesn’t come in filling in a One lesson has been that a form – it comes when we can help clients with the well-designed user experience (UX) hard stuff.” is critical for online resources. “We “It also shows our clients that we recognise a finite tinkered for a long time with the

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Fox, is now helping to bring the website and user experience up to speed with the latest trends in the online world. way we presented the templates. was too slow and hard. When we got it right, we saw a We needed a much Observations on the legal tech scene massive jump in the per-day vis- quicker way to connect Mr Simmonds notes that until fairly recently, New itors to the website. The UX for with potential new clients. Zealand’s legal tech scene was dominated by companies our document makers still need Copying tech company digital mar- focused on the legal back office. The focus was largely work, and this is next on our work keting techniques seemed to offer on practice management solutions, or tools to improve programme.” the best opportunity, particularly as the efficiency and quality of research, document review, no other New Zealand firms were or discovery. Much of this technology operated on serv- Coffee doesn’t doing this at the time.” er-based software, rather than software as a service scale – winning The firm focused its efforts on (SaaS) platforms like Xero. clients on the content marketing (via its online Some of the newer back office technologies have internet templates, blogs, guides and been SaaS offerings, such as Sortify.tm’s AI-powered Simmonds Stewart has webinars) and search engine opti- trademark goods and services tool for patent attorneys, invested heavily in scal- misation (SEO) to create a funnel and LawVu’s SaaS legal operations platform. Andrew able sales and marketing of new client leads. These leads are Simmonds thinks this ‘trend to the cloud’ will continue. techniques. “We know that automatically shared with all of the “Where New Zealand has been lagging other common most firms traditionally lawyers in the firm via tech industry law jurisdictions is the emergence of new technology get their business through tools like Slack and Pipedrive, and platforms or business models that threaten the status relationships and referrals,” wins are celebrated with automated quo in a legal market by delivering legal services to Andrew Simmonds says. messaging. end users differently. For instance, alt law providers “But as a new, small firm, A full-time marketing manager, like Legal Zoom and Clerky in the United States, Zegal the traditional approach ex-Simpson Grierson lawyer Liz in Hong Kong, or Law Path and Lawlab in Australia,”

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he says. Victoria Stewart speculates that “this may be because the New Zealand legal market is small and relatively sleepy in comparison to those larger markets, but possibly also because New Zealand firms are unable to raise equity from outside investors which was a game changer for Legal Zoom and Law Path, and also Legal Vision in Australia.” Mr Simmonds adds that, ▴ Andrew Simmonds ▴ Victoria Stewart over the last year or so, there has been some early signs of more disruptive technologies and business models emerging, such as Chapman Tripp’s document automation to more students, but it’s really offering Zegal, McCarthy Finch and important to us that the students are Automio, not to mention Simmonds well-supported,” she adds. A buddy Stewart’s free document makers, system ensures support is in place. but there hasn’t been much visible A common sentiment exists impact on the market yet. that academic study alone does “That’s where the action will be not equip law students to become in the future, but software has just practising lawyers. An internship been taking little nibbles out of the programme helps bridge this gap, New Zealand legal market so far whilst also presenting entrepreneur- rather than eating it whole.” ial opportunities that exist in tech. ❝ Where New Zealand “You get the creativity crushed Bridging the gap out of you at law school,” says Mr between the legal has been lagging Simmonds. “Entrepreneurship is industry and the other common law exciting. With the rise of the gig tech industry economy, more and more people Simmonds Stewart has also jurisdictions is need to be entrepreneurial in how watched how tech companies use they create work and financial internships to nurture young talent the emergence of opportunities. Hustling for cus- and have produced their own take new technology tomers, capital, making payroll, with the techlaw programme. In nothing’s more entrepreneurial than 2018, Simmonds Stewart piloted the platforms or that. Sparking the creative spirit of programme, pairing six University business models new lawyers is one benefit we see of Auckland students in their penul- from the internship.” timate year of law school with tech that threaten With the emergence of new tech- companies. The students gained 100 nology, the design of legal services hours paid work and practical legal the status quo in – how they’re provided – is being experience which exposed them to a legal market challenged, as much is the case in the realities of tech business and other service industries. practising law. by delivering It is likely technology will not In 2019 they expanded to eight digest the legal job market with internships. “Starting off, the legal services automation, as was the fear more companies participated to do us a to end users generally with previous industrial favour,” Ms Stewart says. “But they revolutions. So long as entrepre- all saw value from the interns. This differently ❞ neurial nous remains to encourage year we had an over-subscription creativity, expect tech to come of both companies and students.” far more embedded in day-to-day “We’d love to make it available solutions for legal services. ▪

71 TECHNOLOGY July 2019 · LAWTALK 930

TECHNOLOGY that the victim was found lying face down, the victim was wearing bright red shoes or had short brown hair or that there was a large full-length mirror at the back of the room the victim was found in. Using brain By running through these three types of stimuli repeatedly and comparing the results of the different types of brainwaves, fingerprinting it can be determined whether or not the person had knowledge of the probe information. If the probe information pertains in court to a crime scene only, people who had been at the scene would recognise this information. This technology allows inferences to BY EMMA be made as to whether a person was at a PAIRMAN scene or not. Subconscious brainwaves Many people believe they have control over The technology that is going to shape our future the way they think, what they think, and is already here. Much like the introduction of DNA evi- what they recognise. This may be true for dence, Forensic Brainwave Analysis (FBA) is a powerful tool some people’s conscious thinking, but which could change the way serious crime is investigated. our brains emit subconscious brainwaves FBA is a neuroscientific technique where a brainwave which we have no control over. They are known as the P300 wave and the following Memory and the brain’s immediate reactions to assist us Encoding Related Multifaceted Electroencephalographic in processing data we receive. Because the Response (MERMER) are measured to determine whether P300 wave and MERMER are subconscious, a person recognises information which has been provided it is likely impossible to manipulate it. The to them. Many people believe this technique is similar to system has extremely high accuracy when polygraphs (commonly known as lie detectors), however, used correctly. To date it has not produced polygraphs measure physical responses to stimuli and rely a false positive or negative since the anal- on inferences drawn from the reaction to these stimuli. In ysis of the MERMER following the P300 contrast, FBA measures subconscious brainwaves which wave was introduced. signal recognition. This approach appears, at face value, This technology is comparable with DNA to be an extremely reliable way of determining whether evidence. This means it may be subject to or not someone’s brain contains particular knowledge. some of the same issues. A key issue with When you are shown stimuli you rec- DNA testing is the introduction of human ognise, your brain emits what is known error throughout the DNA analysis process. as a P300 wave and a following MERMER. When used correctly, FBA and DNA analysis This reaction can be applied to forensic give very accurate readings. The danger investigation using three types of stimuli: of such a high level of accuracy is that known information, unknown information, inaccuracy can still be caused by human and probe information. ❝ FBA raises error. Any human error could have serious Theknown information is supplied by issues that consequences for the involved parties due the tester to the subject to get an accurate to the perception that the technology is initial reading of that person’s particular go to the perfectly accurate. Using a technology P300 wave and MERMER. The unknown heart of law so powerful comes with responsibility to information is information the tester ensure it is being used in such a way that knows the subject does not know, often as brain minimises human error. because the information is made up. This unknown information is used to determine fingerprinting Legal application the person’s non-recognition brainwaves. could arguably We must start thinking about the possible Finally, the subject is supplied with probe legal application of FBA and other upcom- information which would only be recog- be more ing technologies. FBA raises issues that go nised by a person who was at the scene or to the heart of law as brain fingerprinting event being tested. This probe information powerful in could arguably be more powerful in court is distinct. To use a murder scene as an court than a than a DNA match. People tend to trust example, probes could include: the murder DNA evidence because of its high level weapon, number of stab wounds, the fact DNA match ❞ of reliability. Technology which provides

72 LAWTALK 930 · July 2019 ❝ As a society, we should be asking if this type of technology is something we want in our legal system. We need to accept that new technology is not only coming, but is already here ❞

objective, science-based evidence inevita- bly becomes trusted among people. This kind of technology also raises issues about fairness to defendants. As our technology develops and new investigative techniques are developed, it will be important to bear in mind some of the fundamental concepts about fairness which are entrenched in our legal system to prevent them from eroding defendants’ rights. For example, with technology such as FBA it will be important to consider whether defendants can be compelled to undergo FBA. Is it right to allow these types of tests to be conducted against a defendant’s will? These are the types of questions which must be at the forefront of our minds as we push into newer and more powerful investigative techniques. We are at a crossroads. As a society, we should be asking if this type of technology is something we want in our legal system. We need to accept that new technology is not only coming, but is already here. Let’s start having the necessary conversations about what we do and do not want. We need to openly discuss the future of our legal system. For more information please refer to Palmer, R. (2018) “Time to Take Brain- Fingerprinting Seriously?” Te Wharenga-New Zealand Criminal Law Review, 330-356. ▪

Emma Pairman  emma.pairman@ bvalaw.nz is a Crown Prosecutor at BVA The Practice in Palmerston North. Emma was part of the forensic brainwave analysis research team at Canterbury University in 2017.

73 TECHNOLOGY July 2019 · LAWTALK 930

TECHNOLOGY

5G: Big deal or not really?

BY DAMIAN FUNNELL

So, 5G is almost upon us. Apparently, it is going to bring us driverless cars, world peace and self-folding washing. Or something like that. But what is 5G and is it really such a big deal? Put simply, 5G is an umbrella term for ‘5th generation’ cellular transmission technologies that use much shorter radio wavelengths, and that can generally deliver much greater throughput than the current 4G standards. And it’s fast. How fast? Who really cares?! I mean, seriously, do we ever think about how fast 4G is? Not really, because 4G is generally fast enough to do everything we want it to do. I can watch 4K movies over 4G at the beach. How much more bandwidth do I need? Yes, 5G will be umpteen times faster than 4G, but for personal use this is a bit irrelevant, as 4G is already fast enough for what we’re doing today, thanks very much. Don’t get me wrong, more speed is always good, but it’s not raw bandwidth that makes 5G interesting. What’s really interesting is how Asia has, so far, taken the lead in developing 5G products and technologies and how 5G will enable a truly connected world. An Internet of Things. first commercially available tablet computer, flash storage, watch phone and even the Retina display), manufacturing Asia takes the lead and energy (nuclear and renewable). US companies innovate and Asia imitates, right? Asian Look at what China has done in construction, man- countries, as we have been told many times, can never ufacturing, green tech, social media (WeChat has over become true technological leaders, as they lack the crea- one billion active monthly users) and electronic payments tivity and entrepreneurial spirit of the United States and (between them, WeChat Pay and Alibaba process billions other English-speaking countries. They’re only really good of electronic payments per month). at taking innovative products and commoditising them. But despite all of the evidence to the contrary, we still They’re only good at tapping their vast supplies of cheap hear about how Asian countries copy and steal, rather labour to churn out copycat products, usually copies of than innovate. products they’re manufacturing for other, more innovative companies. …and along came 5G Working in tech I’ve heard derivatives of this narrative And then along comes 5G. so many times that I too bought into it for a while, but of Asian behemoths such as Korea’s Samsung and, most course it’s complete rubbish. Look at what the Japanese notably, China’s Huawei are years ahead of the traditional did to manufacturing, the motorcar and to consumer industry ‘leaders’ (ie, the US and various European coun- electronics. Look at what the Koreans have done in con- tries) in the development of 5G products and technologies. sumer electronics (Samsung, not Apple, developed the The implications of this cannot be overstated.

74 LAWTALK 930 · July 2019 TECHNOLOGY

For China this represents the culmination of a long and determined strategy toward becoming one of the world’s true technology powerhouses. It’s working and it’s freaking the hell out of Western companies and governments. It’s one of the factors that led to the Trump administration’s ham-fisted blacklisting of Huawei, blocking its access to the US market and to American suppliers. Watch how this blows up in America’s face. China has suddenly been forced to divert untold billions into the development of hardware and software to replace products that Huawei (and possibly other Chinese companies in future) can no longer buy from US suppliers. This is driving Chinese companies to compete in areas where the US currently reigns supreme and will undoubtedly come back to haunt the US long after these so-called national security bans have been lifted. A connected everything In many ways 5G resembles wi-fi. Because it uses shorter wavelengths 5G signals don’t travel as far and they’re not as good at penetrating buildings as earlier technologies. This means a lot more cellular base stations (‘cell towers’), although these will be a lot smaller and less noticeable than with previous generations. This all means that devices that connect to 5G can do so with less latency (the time it takes for data to traverse the network) and using less power. We’ve all seen how wi-fi is now built into everything, from our smartphones to our TVs, Chromecasts, Kindles, etc. With 5G it will become just as inexpensive for manufacturers to integrate cellular connections into just about everything as well. In fact, many devices will contain a single chipset that allows them to connect to wi-fiand 5G. The distinction between wi-fi and mobile data will become less and less clear. No, 5G won’t on its own bring us self-driving cars or a virtual reality world. What it will deliver is the high speed, low latency and low power network that billions of smart devices will need to maintain cheap and reliable connections to the internet. ❝ No, 5G won’t on 5G connectivity will be so cheap and plentiful that many of us will ditch our wired broadband connections altogether (including that UFB its own bring connection you waited years for) and some of us will even get rid of wi-fi. us self-driving Why bother with patchy wi-fi when your TV, fridge and washing machine can all connect to the internet over a cellular network? cars... What it We call this interconnection of everyday devices via the internet the ‘Internet of Things’. This process is already underway, but will be helped will deliver is greatly by the emergence of 5G connectivity. the high speed, It’s a pretty big deal low latency and Yes, 5G is a big deal and its impact will be profound, but no one really low power network knows yet what applications of it will truly capture our imaginations. Self-driving cars are already here. They will use, but won’t actually rely that billions of upon, 5G, so that’s not it. I’m not sure where it is yet, but I’m really excited to see where the smart devices technology takes us. will need to I’m even more interested to see how the world responds to China’s emergence as a true technology leader, rather than simply a manufacturer maintain cheap of other countries’ products. The geopolitical, societal and technological impacts will be felt by us all. Will we come to see them as good or bad? ▪ and reliable connections to Damian Funnell  [email protected] is a technologist and founder of Choice Technology, an IT services company, and Hoodoo, the internet ❞ an app development studio.

75 TECHNOLOGY July 2019 · LAWTALK 930

TECHNOLOGY

How lawyers can successfully embrace social media

BY ANDREW KING

wider audience than traditional The legal profession is only marketing. Sharing great content starting to take advantage of the on social media like blogs, podcasts, numerous opportunities that tech- videos, e-books and downloadable nology brings, although many aren’t guides, your potential client base taking advantage of what is one of will be able to read content they the most popular forms of commu- may not otherwise nication today – social media. have come across. Social media can provide great Social media opportunities to engage with exist- is a lot more than ing clients, but also help you win just circulating press new work and clients. releases. It is a great way to Before exploring how you can be authentic and connect with embrace social media, it is impor- real issues. Just as it is important tant to look at just why social media to increase the visibility of the can be so valuable for lawyers and brand of your organisation, it is also their firms. important to increase the presence of the personal brand of many of the social media Enhance your brand subject matter experts inside your can be a very cost-effective option Many lawyers will have LinkedIn organisation. for you to connect with who you accounts, and many use Twitter. There are a growing number of want to. Digital advertising can still However, there are many that either law firms and clients who are on be very expensive, so to see any real are not present on social media or social media – this will also include benefit you must run a continuous not maximising their use of it. your competitors. If your competi- campaign. For many, social media is about tors are leveraging the social media Social media is free to use. If connecting, but it is also a great way well and you aren’t it could mean you handle your own social media to stay relevant to existing clients the difference between winning or management, running a social and potentially win new business. losing new clients. networking campaign is as cheap When you are more visible to as it gets. your target customer base, they’re Social media doesn’t Embracing social media can be a more likely to buy from you when need to be expensive great tool to enable smaller brands they need your legal services. Social Social media can be a very cost-ef- the same platform as larger ones. media doesn’t just keep your com- fective option for you to connect pany’s name in front of potential with who you want to. Where to start? customers, it also gives you the Most organisations have moved Getting started is not difficult, opportunity to constantly stay from traditional forms of advertis- although it is important that you relevant to them. ing like print to digital advertising. do have a strategy of how you and Your content can reach a much Unlike a lot of digital marketing, your organisation will use social

76 A social media health check will usually consist of: • A discussion of how you currently use social media, plus what you are looking to achieve; and • Recommendations to improve how you use social media. The health check can be as simple as a phone conversation with some easy to implement recommendations, through to further strategy and implementation advice. Start embracing social media today Social media is now part of doing business, and if your firm isn’t already active on social networking sites, now is the time to start. Social media doesn’t replace in-person contact, but it is another channel of communication to help take your brand to another level. It is the opportunity to share what you are doing, be authentic, and connect with the industry. The choice is yours as to how you use social media, media, similar to having a what is important though is that you do use it. ▪ strategy with other parts of your business. Andrew King  [email protected] is the You can be totally self-sufficient, organiser of LawFest and founder of LegalMarketer, through to working with a special- which provides specialised social media strategy and ist that can take care of your strategy, management for lawyers and professional services. content and delivery of your social media. The choice is yours. Many engage marketing firms, who often cost thousands. Many may be great at marketing, but they are not always specialists in providing support for the legal profession and to their clients. If you get the right advice and have a strategy in place, it is very simple to be self-sufficient in your implementation and management of your social media content. ❝ It is also a great way Expertise that is tailored to the legal profession is to stay relevant to essential. existing clients and A social media health check is a great way to start potentially win new A social media health check will be useful for those new business. When you are to social media, together with those that may want an independent perspective on taking their social media more visible to your engagement to another level. target customer base, The health check will review what’s working, what’s not and what can be improved on across your social they’re more likely media channels. You can look at small incremental changes that can improve your social media engage- to buy from you when ment, ensuring your social strategy ties into your overall they need your legal business goals. Have you the right hashtags, have you linked the right people and organisations? services ❞

77 LAWYERS COMPLAINTS SERVICE July 2019 · LAWTALK 930

LAWYERS COMPLAINTS SERVICE

Complaints decision summaries

Drafted document is concerned that [La Creevy] has played amounted to indirect communication some part in this”. with Mr Harthouse, a consequence of seeking complaint which was the potential circumvention Fees fair and reasonable of the purpose of Rule 10.2 of the Lawyers withdrawal Having commissioned a report from a costs and Conveyancers Act (Lawyers: Conduct assessor, who expressed a view that the and Client Care) Rules, and the protections [All names used in this article are fictitious] fees La Creevy rendered were fair and afforded to Mr Harthouse via his represent- reasonable in their entirety, the committee ative, Mr Guppy. A lawyer who drafted a document purport- determined to take no further action in As well as censuring La Creevy and fining ing to withdraw a complaint about him relation to that aspect of Mr Harthouse’s him $5,000, the committee ordered him to has been censured and fined $5,000 by a complaint. pay $3,000 costs. lawyers standards committee. However, the committee considered that The lawyer, La Creevy, also drafted a doc- La Creevy’s conduct in the course of its LCRO upholds determination ument purporting to instruct that all future inquiry amounted to unsatisfactory con- On review, the Legal Complaints Review correspondence in relation to an estate be duct. That conduct followed an approach Officer (LCRO) upheld the determination directed to the complainant personally and by a person known to both La Creevy and of the committee. not through his lawyer. Mr Harthouse, who told La Creevy that he It was “unprofessional for [La Creevy] La Creevy acted for Mr Tetterby, who at may be able to persuade Mr Harthouse to to be involved to the extent he was in the the time of his death was the partner of the withdraw his complaint. attempts to effect the withdrawal of the complainant, Mr Harthouse. La Creevy had La Creevy subsequently prepared complaint,” the LCRO said in LCRO 35/2018. previously prepared Mr Tetterby’s will, in two notices for the person to put to Mr “For [La Creevy] to propose that he which Mr Tetterby appointed a friend and Harthouse to sign. The two notices were should communicate directly with Mr La Creevy executors and trustees. that Mr Harthouse wished to withdraw [Guppy]’s client, and to suggest that a Mr Harthouse, who was a residual ben- his complaint, and that Mr Harthouse third party obtain an authority from Mr eficiary of the estate, consulted a lawyer, request and direct that all correspondence [Harthouse] from him to do so was not Mr Guppy, who sought information from relating to the estate be sent directly to Mr conduct that lawyers of good standing La Creevy about the administration of Mr Harthouse and not through his solicitor, would find acceptable. Tetterby’s estate and advised La Creevy Mr Guppy. “It could also be described as a breach that Mr Harthouse was concerned at delays Whilst the committee was satisfied that of professionalism and discourteous to Mr in receiving this information. the suggestion that Mr Harthouse with- [Guppy].” After Mr Harthouse received an interim draw his complaint was not prompted by The LCRO also ordered La Creevy to pay distribution statement, Mr Guppy wrote La Creevy, it determined that his subse- $1,600 costs. to La Creevy questioning the expenses the quent correspondence, in conjunction with executors charged the estate and referring his drafting of the notice of withdrawal to legal fees La Creevy had charged the amounted to unsatisfactory conduct pur- estate and his earlier requests for invoices suant to section 12(b) of the Lawyers and Fined for and timesheets. Conveyancers Act 2006. When the requested information was not “[La Creevy] had improperly involved improper threat received, Mr Guppy lodged Mr Harthouse’s himself in an attempt to have the com- complaints with the Lawyers Complaints plaint about himself withdrawn,” the [All names used in this article are fictitious] Service. committee said. During the course of the committee’s The committee also considered La A lawyer, Casby, has been fined $500 for inquiry into the complaint, Mr Guppy Creevy’s drafting of a document pur- threatening to use the complaints process sent the Lawyers Complaints Service a porting to instruct that any future cor- for an improper purpose. copy of an email which said Mr Harthouse respondence in relation to Mr Tetterby’s Casby represented Ms Hawdon, who “has come under improper pressure to estate be directed to Mr Harthouse him- had complained about another lawyer, withdraw the complaint to NZLS and he self, instead of his solicitor, Mr Guppy, Merdle. Ms Hawdon alleged that Merdle

78 LAWTALK 930 · July 2019 LAWYERS COMPLAINTS SERVICE

had registered a caveat against her prop- lawyer’s client … Had the lawyer with- an litigation funding company’s agreement erty on behalf of her brother when she was drawn the caveat, he would have been to fund the client and the withdrawal of a client of Merdle’s firm, and that Merdle undermining [his client]’s position, and Mr Shand’s firm from representing him. had thereby acted in a conflict of interest preferring his own interests to those of The client immediately instructed another situation. his client. That in itself would have raised lawyer. Mr Shand responded to adverse When responding to the complaint, conduct issues on the part of the lawyer.” media comment by providing confidential Merdle drew the committee’s attention “Either there was or was not a conflict of details of his client to a journalist. He also to Casby’s letter to him, which stated: interest. Removing the caveat would not took eight months to provide the other “Our client requests that you withdraw have removed any conflict of interest,” the lawyer with all documents relating to his the caveat immediately or she will lodge committee said. former client. a complaint with the New Zealand Law The committee found Casby had The Tribunal noted technological diffi- Society.” breached rules 2.7 and 2.10 and made one culties hampered Mr Shand’s provision of Rule 2.7 of the Lawyers and Conveyancers finding of unsatisfactory conduct. all documents to the former client, but said Act (Lawyers: Conduct and Client Care) However, the committee said it accepted he was required to address the difficulties Rules 2008 states: “A lawyer must not that Casby had not intentionally breached with more self-application than displayed. threaten, expressly or by implication, to the rules concerned, and that in the It also found that in his comments to the make any accusation against a person or circumstances, a modest fine would be journalist he had breached the rules relat- to disclose something about any person appropriate. ing to client confidentiality. for any improper purpose”. As well as the $500 fine, the committee In determining an appropriate penalty, Rule 2.10 states: “A lawyer must not use, ordered Casby to pay $500 costs. the Tribunal said it had some sympathy or threaten to use, the complaints or disci- for Mr Shand, but considered his actions plinary process for an improper purpose”. should attract a sanction. Additionally, Mr Casby told the committee that his Shand could not claim an unblemished statement asking Merdle to withdraw the Grant Donald disciplinary record and he had been the caveat was not a threat. Instead, Casby said subject of lawyers standards committee that he was pointing out to Merdle that Shand censured investigations in the past. he had made an error which had caused As well as censuring Mr Shand, the harm to a client and that he should put and fined Tribunal imposed a fine of $3,000. He the matter right and reinstate her to her was ordered to pay $25,000 towards the previous position. Auckland lawyer Grant Donald Shand New Zealand Law Society’s costs and to However, the committee considered that has been censured and fined by the New reimburse the Law Society’s Tribunal costs Casby had improperly used the threat of a Zealand Lawyers and Conveyancers of $10,080. complaint as leverage to secure a collateral Disciplinary Tribunal. advantage for his client, that being the In January 2019 the Tribunal found Mr removal of the caveat. Shand guilty of unsatisfactory conduct. “The proper process for removal of the This related to his failure to timeously Full client caveat was to either apply to the Court provide all documents, upon request, to for an order removing the caveat, or to the new lawyers for a former client, and file must be take steps to have the caveat lapse,” the breaching confidentiality by disclosing committee said. to the public confidential information transferred “[Casby] was trying to circumvent the obtained during his relationship with the process by using the threat of a complaint former client. [All names used in this article are fictitious] to the Lawyers Complaints Service as lev- The matters related to court proceedings erage to improperly pressure the lawyer to arising from the Christchurch earthquake A lawyer who failed to provide the entire withdraw the caveat of his own accord. of 2010. Issues around proof of earthquake client file to his former client’s new lawyer “The caveat had been lodged to protect damage and the client’s refusal to accept a has been censured and fined $2,500 by a an alleged interest in the property by the settlement offer resulted in termination of lawyers standards committee.

79 LAWYERS COMPLAINTS SERVICE July 2019 · LAWTALK 930

The lawyer, Drood, also failed to hold The committee also considered whether dispute. The mother had instructed Bagnet, money exclusively for the person who paid an $85,000 retainer was professionally in relation to the appointment of Longford, him, and to only pay the money to that acceptable in the circumstances. as lawyer for the children as she was con- person or as that person directs. A cost assessor’s report commissioned cerned about Longford’s friendship with Drood represented his client, Finching, by the committee noted that while Drood’s Ms Bayham. Ms Bayham, who was also a on charges in the District Court, where he time records were inadequate, Drood’s lawyer, was the new partner of the father sought a sentence indication on behalf of submissions on behalf of Finching were of the children involved in the dispute. Finching. detailed. The report also found that the Bagnet wrote to Longford: “Here the After Finching changed lawyers, all quantum of the retainer was not unrea- issue is whether your close personal charges against her were dismissed due sonable and that the invoice ultimately relationship with [Ms Bayham] creates a to a lack of evidence. issued by Drood was not contrary to rule conflict or an appearance of a conflict of Her new lawyer, Jellyman, lodged a 9 of the RCCC. interest in terms of your representing [the complaint about Drood with the Lawyers On the material before it, the committee children].” Complaints Service. His complaint said it was unable to resolve the factual Bagnet said it was “clear” there was a included four allegations: issues relating to the complaint that Drood close personal relationship. He attached • Drood had failed to transfer Finching’s had been negligent or incompetent in his a selection of Longford’s Facebook posts, entire file to him; representation of Finching. which he said, “makes it clear that your • Drood had breached trust account Drood said he had been acting on friendship is ongoing and that [Ms Bayham] regulations by deducting money held instructions when he accepted, on publicly supports you in the most personal in trust without appropriate authorisa- Finching’s behalf, the Police accusation of matters”. tion and by refusing to transfer money against her, and in seeking a sentence Bagnet further wrote to Longford: “[The to Finching’s new solicitors; indication. Finching, however, disputed mother of the children] asks through me • Drood demanded an exorbitant retainer this assertion that you please carefully consider your from Finching in advance; and The committee noted that Finching’s position as the children’s lawyer.” • Drood had been negligent in accepting instructions were not recorded in writing, the Police accusation against Finching, and that Drood ought to have done that. Personal Facebook and in representing to the court that The committee also considered the out- post annexed Finching was guilty. come following Finching’s change of legal The letter annexed a copy of a personal The committee noted that Drood acknowl- representation – namely no conviction and Facebook post made by Longford and edged that he had not provided Jellyman a court order of $50,000 costs against the Ms Bayham’s Facebook comment on that with all documents. Crown. post. Bagnet had accessed the material Drood’s failure to provide Jellyman In the circumstances, the committee as a “Facebook friend” of Longford, and with the entire client file constituted a was of the view that there was insufficient provided a copy of his letter, including all breach of rule 4.4.1 of the Lawyers and basis to warrant further investigation of annexures, to his client. Conveyancers Act (Lawyers: Conduct this particular aspect of the complaint. In response, Longford filed a memoran- and Client Care) Rules 2008 (RCCC), and As well as the censure and fine, the com- dum in the Family Court, seeking leave to amounted to unsatisfactory conduct, the mittee ordered Drood to pay $1,000 costs. withdraw as lawyer for the children. committee found. Longford subsequently lodged a “It was inappropriate for a practitioner to complaint about Bagnet’s conduct with select what parts of a client’s file to transfer the New Zealand Law Society Lawyers to the client’s new legal representative,” Using Facebook Complaints Service. the committee said. Longford took issue with the fact that Further, Drood’s deduction of monies post didn’t Bagnet had provided a copy of his letter held in trust for Finching breached s 110(1) to his client, with the result that his client (b) of the Lawyers and Conveyancers Act break rules then had access to Longford’s personal 2006 (LCA) and also amounted to unsat- information from her Facebook page. isfactory conduct, the committee found. [All names used in this article are fictitious] While the standards committee initially The committee was satisfied that Drood’s requested the parties to explore mediation, engagement letter did not expressly pro- A lawyers standards committee has found the agreement of both parties could not vide that Drood could deduct his fees from that a lawyer’s use of another lawyer’s be obtained. the funds he held on trust for Finching. Facebook post to promote the interest of Having inquired into the complaint, Finching had also instructed Drood to his client did not breach any rules, even the committee considered the Facebook transfer all the trust monies to her new though the post was personal. material was relevant to the matter that solicitor and removed Drood’s authority The lawyer, Bagnet, acted for a client Bagnet’s client had engaged him to pursue; to deal with her trust monies. in relation to a Care of Children Act 2004 the friendship between Longford and Ms

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ACCESS TO JUSTICE

Bayham. The committee said that Longford had put her Facebook friendship at issue by Access to outlining some of the details of the same in correspondence to the parents’ respective legal representatives. Justice: An Pursuant to sections 4(c) and 4(d) of the Lawyers and Conveyancers Act 2006, and rules 6, 7 and 13 of the Lawyers and insurance- Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC), the committee considered that Bagnet was based proposal required to access and utilise the Facebook material which was lawfully available to him as Longford’s [Facebook] friend. BY JOSS “Bagnet was required by rule 6 [of the OPIE RCCC] to use the material to which he had lawful access, to protect and promote the interests of his client, who was seeking to Joss Opie continues the discussion about access have [Longford] removed as lawyer for her to justice issues. He provides his view on manda- children for perceived conflict of interest,” the committee said. tory pro bono and increases to legal aid funding, and summarises an innovative proposal: public No expectation of privacy legal expenses insurance The committee also determined that Longford did not have a reasonable expec- The May issue of LawTalk included the article by Craig Stephen, tation of privacy in relation to Ms Bayham’s “Finding a match: how well does pro bono work in New Zealand?” Facebook interactions with Longford, (LawTalk 928, p.63-67). The article discussed whether pro bono given that Bagnet was a Facebook friend should be mandatory as part of efforts to improve access to justice of Longford. in New Zealand. It also referred to issues created by restricting It was noted by the committee that while legal aid to very low income earners, legal aid repayment obli- Longford’s Facebook profile may have been gations, and the low number of lawyers who do civil legal aid ‘private’, she had no control over how the work. Potential changes were debated, including increases to material she shared might be utilised by legal aid funding. her Facebook friends (including by liking, sharing or re-posting). No mandatory pro bono The committee also considered it I have done a significant amount of pro bono, but I do not think relevant that Bagnet disseminated the it should be mandatory. If a lawyer offers to work for free it is Facebook material to two parties only: often because they are motivated by considerations other than Longford and his client. money to do the work, and to do the work well. Requiring a lawyer The committee noted that Bagnet had to work for free may impact on the quality of the lawyer-client advised he was willing to draft a sincere relationship (ie, ‘I am working for you not because I want to but written apology to Longford, inde- because I have to’) and on the quality of the work provided. Some pendently of any adverse disciplinary lawyers may also want to contribute to the community in other finding against him. ways, such as by coaching sports teams. Others may feel they “A suitable apology from [Bagnet] might do not have time to do free legal work, because of commitments represent an appropriate conclusion to this such as family. matter,” the committee said. Also, as Dr Bridgette Toy-Cronin was quoted as saying in Craig Because Bagnet had not breached any Stephen’s article, pro bono work cannot be relied on to respond to rules, the committee determined to take legal aid deficiencies or market failure. I don’t think many people no further action on the complaint. would argue that, for example, doctors should provide more free health services to respond to access to healthcare issues. For guidance on social media use please refer to the article ‘Lawyers and social Increases to legal aid funding are needed media’ in issue 926 of LawTalk, March I agree that legal aid funding should be increased. I am a civil legal 2019 page 79. aid provider and one of my practice areas is employment law. There

81 are considerable financial disincentives would also have to think carefully about aid spend in four years”). to work on a legal aid employment law whether it should award a lesser sum than That does not mean, however, that the instruction coming within the Ministry of $4,209. Otherwise it would be awarding 2016 average rate or a greater rate is not Justice’s fixed fee schedule. an indemnity rather than a contribution. justifiable. For example, in a civil dispute For example, applying the schedule I am not sure how the fixed fee schedule involving significant interests and/or to an instruction involving a mediation was set and I understand departures from monetary values, an hourly rate which and an Employment Relations Authority it may be authorised in limited cases. And the public may consider high could be (ERA) hearing of six hours each, plus the above example is only that. However, justifiable depending on the overall fee a costs application, produces a fee of the example makes the schedule seem it produces. The issue in any case will approximately $4,740 plus GST. I think it at best unreasonably low, and at worst require consideration of the reasonable fee is safe to say that this is well below what irrational. factors in the Rules of Conduct and Client most employment law practitioners would Care. This will include, in general terms, normally charge for this amount of work How much of an increase? whether the overall fee is proportionate to – see the article on the New Zealand Law In my view legal aid funding should go up. the benefit or potential benefit from the Society website by typing the headline into But, how much of an increase is reasonable services provided (reasonably estimated, the search function: “Survey shows major as well as being sustainable politically and and taking into account both non-financial ERA median cost discrepancy”. economically? and financial benefits). In addition, the ERA has a notional daily Work by Kayla Stewart and Dr Toy- Further, even if hourly rates were on tariff for costs awards of $4,500 for a one- Cronin found that the average hourly rate average $150, many people may still day hearing (see Practice Note 2: Costs in for lawyers in 2016 was $292 (plus GST) struggle to pay. the Employment Relations Authority). – see “The New Zealand Legal Services So, the difficulty in particular cases may Mediation-related costs are not normally Mapping Project: Finding Free and Low- not be so much hourly rates per se. Rather, included in costs awards and the purpose Cost Legal Services – Auckland and Otago the greater issue may be the inability of of an award is generally only to contribute Pilot Report” (Civil Justice Insight Series: private individuals to fund those rates to the successful party’s costs rather than University of Otago Legal Issues Centre, before a matter is resolved and to take on to pay them in full. If mediation-related May 2018) at 11. I suspect a reasonable pro- the risk of failure. Working out appropriate costs are excluded from the fixed fee portion of the New Zealand public would rates and how to fund them is a compli- schedule calculation in my example above, not support legal aid being publicly funded cated exercise, requiring a sophisticated the resulting fee is $3,660 plus GST of at that average rate. According to an article knowledge of legal services. $549: a total of $4,209. So, less than the in Stuff online on 1 March 2018, the 2011 ERA’s daily tariff. In such a case the ERA reforms which produced the current situa- An innovative proposal arguably could not award its daily tariff as tion were caused by public “outrage” over In 2012, Sujit Choudry, Michael Trebilcock that would result in an award greater than what legal aid then cost (Debrin Foxcroft, and James Wilson published an article the costs incurred for the hearing. The ERA “Lawyers question $32 million rise in legal entitled “Growing Legal Aid Ontario into

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the Middle Class: A Proposal for Public basis. Savings would be achieved by having the same agency Legal Expenses Insurance” (in Michael manage legal aid and the public insurance programme, and having Trebilcock, Anthony Duggan and Lorne responsibility for the programme would result in a higher level Sossin, eds., Middle Income Access to of funding for the agency. In my view, this would also create Justice, University of Toronto Press, 2011, upward pressure on legal aid rates. The authors do not refer to this chapter 13). possibility, but the agency could require that lawyers providing The article refers to concerns about services related to the programme accept legal aid instructions. access to justice in Ontario, Canada which Lawyers could choose to opt in to the programme subject to appear very similar to concerns here. It meeting expertise and other requirements (as is currently the expresses the view that increasing legal aid case for legal aid in New Zealand). They would be incentivised funding to a sufficient level to meet civil to do this by the referrals and rates on offer (the latter currently justice needs is “an economic and polit- being a disincentive to do legal aid work here). ical non-starter”. Instead, it proposes an Of course, various aspects of this proposal are debatable. For interesting alternative – a public insurance example, I don’t necessarily agree with the authors’ view that programme for legal aid services grafted on increasing legal aid coverage to a sufficient level is an economic to Ontario’s existing legal aid programme. non-starter. Apparently three quarters of the Finnish population Under the proposal, every Ontarian come under the means cap in the Finnish legal aid system, accord- would be enrolled in the programme ing to Paul Vayda and Stephen Ginsberg in their chapter “Legal by default but could opt out (similar to Services Plans: Crucial-Time Access to Lawyers and the Case for KiwiSaver). This is to ensure enough par- a Public-Private Partnership” in Middle Income Access to Justice ticipants and a sufficiently diversified risk (at page 249). pool. Cover would be available for legal Politically, however, it may well be difficult. The authors say expenses related to unexpected and costly that in Ontario, public programmes which benefit the middle events requiring legal services (with the class such as health care and education have consistently been programme having the right not to fund preferred over legal aid in contests for increased public funding. unmeritorious claims), and for high-de- It appears the same may have recently occurred here. On 4 June mand legal services such as wills. The 2019, the Ministry of Justice advised that it had not received Budget authors argue that the concentration of funding to address issues identified in a review it undertook of significant demand into one purchaser “legal aid policy settings” during the 2018/2019 financial year. would exercise downward pressure on These issues included provider remuneration and eligibility (ie, the cost of legal services and encourage income) thresholds for civil/family legal aid (see the New Zealand innovation in service delivery (like the All Law Society website news story of 4 June 2019, “Lack of Budget of Government Panel). funding means no changes in legal aid policy”.) To avoid people opting out, the pro- Further, it could be queried whether opt-out legal expenses gramme would need to ensure a high insurance should be managed by the Ministry of Justice, or whether quality of service delivery. Part of this there is a role for private-sector insurers (again like KiwiSaver). would involve paying reasonably attractive Potential advantages of this could be increased competition and rates to lawyers. As the programme would efficiency gains through insurers using oversee high volumes of work, I consider pre-existing knowledge and systems. that it would acquire and/or refine detailed Potential disadvantages could be losing the knowledge about rates for legal services benefits referred to above of having legal and how much particular types of work aid and legal expenses insurance managed should reasonably cost. This would inform While we by the same agency. its purchasing decisions. should If this is not already occurring, I think continue to the authors’ proposal deserves serious Taxpayer premiums advocate consideration in thinking about solutions The programme would initially require for increases for access to justice issues in New Zealand. public funding but would then be paid to legal aid While we should continue to advocate for by taxpayer premiums. The amount funding within for increases to legal aid funding within of these would be actuarially-determined existing existing frameworks, more fundamental rather than by an individual’s ability to pay. frameworks, institutional change may produce better The authors argue that once established more outcomes. ▪ the programme would have broad support fundamental as the middle class would directly benefit institutional Joss Opie  [email protected] from it, unlike legal aid which they assist change may is a partner with Wellington-based firm to fund but for which they are ineligible. produce DarrochForrest where he specialises Legal aid, potentially expanded in scope, better in employment law, health and safety, would remain available on a means-tested outcomes privacy, civil litigation, and human rights.

83 WILL NOTICES · CLASSIFIEDS July 2019 · LAWTALK 930

Will Notices

Ahn, Jin Ju Beatson, Mark Jeremy Carr, Russell John Alexander, Stacey-Leah Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Apirana, Nathan Nikora named, late of Auckland, Retired, born on 27 named, late of 73 Gormack Street, Balclutha, Beatson, Mark Jeremy October 1951, who died on 26 May 2019, please who died on 13 April 2019, please Mark Deacon, Blair, Darrell Raymond contact Wisam Al Salhi of Ayres Legal: Sumpter Moore Lawyers:   Blair, Maria Joy [email protected] [email protected]  09 309 3202  03 418 0066 Brady, John Lewis  PO Box 8159, Symonds St, Auckland 1150  PO Box 89, Balclutha 9240 Calman, Aaron Scott Blair, Darrell Raymond (also Carleton (nee Trebilcock), Cherrington, James Waetford Dianne Margaret known as Blair, Darrel Raymond) Would any lawyer holding a will for the above- Carr, Russell John Would any lawyer holding a will for the above- named, late of 73 Main Road, Moerewa, who Cherrington, James Waetford named, late of Ashburton and formerly of died at Moerewa on 13 December 2018, please Auckland, born on 27 October 1953 who died Feng, Yuejin contact Andrew Luxford of Oaks Law Centre on 4 June 2019, please contact Daphne Lewis- Hogan, Brian Francis Limited.: Mannix of White Fox & Jones: Lafferty Hannah, Colleen Patricia  [email protected]  [email protected]  03 353 0650  09 430 0207 or Fax: 09 430 0247 Lydford-King, Lesley Dawn  PO Box 1353, Christchurch 8140  Magasiva, Puaivanu Paulo PO Box 200, Whangarei 0140 McClue, David Robert Blair, Maria Joy Milner, Mereana Would any lawyer holding a will for the above- Feng, Yuejin Papuni, Aro Rangi named, late of Ashburton and formerly of Would any lawyer holding a will for the above- Pei, Edna Auckland, born on 10 Decemebr 1956 who named, born in Xishui, China on 27 December died on 4 June 2019, please contact Daphne 1958, who died on 5 June 2019, please contact Riddell, Sylvia Lydia Lewis-Mannix of White Fox & Jones: Rika Louw of Martelli McKegg: Rogers, Norma Shirley  [email protected]  03 353 0650  [email protected] Sawyer, Patricia Noreen  PO Box 1353, Christchurch 8140  09 300 7634 Scott, Brad Ratema  PO Box 5745, Auckland 1141 Spiller, Robert John Brady, John Lewis Upmanyu, AKA Upmanyu Sharma Would any lawyer holding a will for the Hogan, Brian Francis above-named, late of Whakatane and Matata Vahai, Alamoti Paea I Muli in the Bay of Plenty, Retired Meat Worker and Would any lawyer holding a will for the above- Unionist, born on 5 October 1935 who died on named, late of Marton, formerly of Wellington, born on 8 March 1948, and died on 30 March Ahn, Jin Ju 27 January 2019, please contact Mike Gibbs of Linwood Law: 2019, please contact Burley Attwood Law: Would any lawyer holding a will for the above-   [email protected]  03 389 2121 [email protected] named, late of Maroubra, New South Wales,   PO Box 24111, City East, Christchurch 8141 07 928 9000 or Fax: 07 928 9001 Australia, housewife, who was born on 5  PO Box 13-120, Tauranga 3110 December 1946 and who died on 6 December Calman, Aaron Scott 2012, please contact Harsimran Mahal of Hesketh Henry Lawyers: Would any lawyer holding a will for the above- Lafferty Hannah, Colleen Patricia  [email protected] named, late of 5A Cleary Road, Panmure, Would any lawyer holding a will for the above-  09 375 8720 Auckland, Restauranteur, born on 19 January named, late of Hamilton, Businesswoman, born  Private Bag 92093, Auckland 1142 1972, who died in Auckland on 7 November 2018, on 11 November 1946, who died on 15 October aged 46 years, please contact Richard Burrell 2018, please contact Diane Harvey: , Stacey-Leah of Lovegroves Lawyers: Alexander  [email protected]  Would any lawyer holding a will for the above- [email protected]  07 838 3109  named, late of Upper Hutt who died 4 April 09 575 6540  PO Box 460, Hamilton 3240 2019, please contact Main Street Legal Limited:  PO Box 25066, St Heliers, Auckland 1740  or DX CP35501, St Heliers [email protected] Lydford-King, Lesley Dawn  04 527 9727 or Fax: 04 527 9723 Carleton (nee Trebilcock),  PO Box 40 457, DX RP44011, Upper Hutt (Formerly Lesley Dawn King) Dianne Margaret Would any lawyer holding a will for the above- Apirana, Nathan Nikora Would any lawyer holding a will for the named, late of 2 Linwood Avenue, Forrest Hill, Would any lawyer holding a will for the above-named, late of Papakura, Auckland, Auckland, born on 5 August 1950, who died above-named, late of Murupara who died on Receptionist, who died on 5 May 2019, please on 5 April 2019, please contact John Hickey 15 September 2018, please contact Ian Harvey, contact Oliver Lucas: of HickeyLaw: Lance Lawson, Rotorua:  [email protected]  [email protected]  [email protected]  09 269 2844 or Fax: 09 269 2847  09 477 0333  07 346 0796  PO Box 75-144, Manurewa, Auckland,  PO Box 100-802, North Shore Mail Centre,  PO Box 12048, Rotorua South, 3045 2243, DX EP76006 Auckland

84 LAWTALK 930 · July 2019 CLASSIFIEDS · WILL NOTICES

Magasiva, Puaivanu Paulo Pei, Edna Scott, Brad Ratema Would any lawyer holding a will for the Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- above-named, late of Kitchener Road, Milford, named, late of Palmerston North, who died on named, late of 5 Matahaere Road, Ngongotaha, Auckland, Actor, born 10 August 1980, who died 13 January 2019, please contact Mark Sinclair, Rotorua, Linesman, born on 23 June 1967 who on 11 May 2019, please contact Stephen Tee: Jacobs Florentine: died on 4 January 2019, please contact Jill Crowe  [email protected]  [email protected] at Rodgers & Co Lawyers:  09 486 1729  06 358 8129 or Fax: 06 358 2100  [email protected]  PO Box 331133, Takapuna, Auckland, 0740,  PO Box 12-058, Palmerston North  07 349 6393 DX BP66025, Takapuna Riddell, Sylvia Lydia Spiller, Robert John Would any lawyer holding a will for the above- McClue, David Robert Would any lawyer holding a will for the above- named, late of 13 Haynes Crescent Rotorua and Would any lawyer holding a will for the above- named, late of Levin, Farmer, born on 9 June formerly of Tauranga, Auckland and Taranaki, named, late of Auckland, Retired, born on 8 May 1965, who died on 16 August 2017, please born on 9 January 1933, who died on 18 January 1945, who died on 18 December 2018, please contact Gregory Francis Kelly: 2019, please contact The Law Shop Rotorua: contact Violet Yu:  [email protected]  [email protected]  [email protected]  04 498 8504  07 349 2924  09 306 0621  PO Box 25243, Wellington, 6140  PO Box 2173, Rotorua 3040  PO Box 119, Auckland 1140 Rogers, Norma Shirley Upmanyu, AKA Upmanyu Sharma Milner, Mereana Would any lawyer, particularly in the Auckland Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- area, holding a will for the above-named, named, late of Wellington, born on 20 May 1995 named, late of Kawakawa, retired, born on 5 formerly of 155 Gowing Drive, Meadowbank, who died on 20 January 2019 at Hunua Falls, July 1921, who died on 10 January 2007, please Auckland, but recently of Epsom South Rest Auckland, please contact Paul Whitmarsh of contact Eddie Bluegum: Home, 57 Par Road Epsom, Auckland, please Whitmarsh Law: contact Tania Fraser of Public Trust:  [email protected]  [email protected]  09 215 2224  [email protected]  04 550 4053  PO Box 104152, Lincoln North  09 985 6806 or Fax: 09 985 6883  PO Box 30-852, Lower Hutt 5040  Private Bag 17906, Auckland 1546 DX EX 10995 Papuni, Aro Rangi Vahai, Alamoti Paea I Muli Would any lawyer holding a will for the Sawyer, Patricia Noreen Would any lawyer holding a will for the above- above-named, late of 850A Te Ngae Road, RD Would any lawyer holding a will for the above- named, late of Auckland, Labourer, who died 4, Rotorua, Retired, born on 30 March 1937, who named, late of Taupo, Retired, born on 2 July on 22 April 2018 (aged 34 years), please contact died on 11 May 2019, please contact Jill Crowe 1939 who died on 13 July 2017, please contact Jo Lovett of Franklin Law: at Rodgers & Co Lawyers: Dineen Grantham of Grantham Law Ltd:  [email protected]  [email protected]  [email protected]  09 237 0066 or Fax 09 238 7141  07 349 6393  07 376 0014  DX EP 77020 or PO Box 43, Pukekohe 2340  PO Box 1346, Taupo, 3351

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85 LEGAL JOBS · CLASSIFIEDS July 2019 · LAWTALK 930

Employment Lawyer

AUCKLAND CBD Leading niche employment law ﬁ rm INTERMEDIATE

LangtonHudsonButcher is a specialist employment law fi rm, LITIGATION LAWYER recognised as a leader in its fi eld. We are the largest employment law team in Auckland, providing advice to and representation of top-tier corporates. We offer a highly collaborative work Medico Law is a specialist law firm practising in environment and an extensive range of employment law work. the health/ACC arena. We are based in central Auckland. We want this work to be performed by clever and passionate lawyers, who know their clients and their clients’ business. We are seeking an intermediate litigation lawyer (3+ PQE) to join our busy practise. Ideally the We are currently seeking a highly motivated intermediate/ candidate will have had some exposure to this senior-level lawyer to join the team. Our ideal candidate will area of law. Litigation experience is essential. have strong academics, at least 3 years’ experience in employment The role offers: support as needed, a relaxed law (contentious and advisory), a commitment to the on-going environment, autonomy and regular court refi nement of legal skills, a focus on client service, and a track record appearances. of contributing to the achievement of team goals. We are open to discussing fl exible working arrangements for the right candidate. The successful candidate must demonstrate: · Initiative and good work ethic For a confi dential discussion about this opportunity, please contact · The ability to work independently Lara Brown, Practice Manager, on 09 916 2593, or submit your application to [email protected] · Excellent litigation/communication skills · Calm and poise

Applications should be sent to: Fenella Becroft [email protected]

Richard Anthony Rowland Roberts (Deceased)

Born in Stoke on Trent, United Kingdom on 5 December 1944 and died on 15 November 2018 on the Gold Coast Queensland Australia. Mr Roberts emigrated to New Zealand when SENIOR COMMERCIAL he was about 19/20 years old. PROPERTY LAWYER We are trying to locate the following people in accordance with UCPR 1999 Reg 610 (a)-(i): the deceased’s surviving spouse; children; grandchildren or great grandchildren; parent Evans Bailey is a well known Hamilton law or parents; brothers and sisters; nieces and firm, established in 1971. nephews; grandparent or grandparents; uncles and aunts; first cousins. We are looking for a senior commercial property lawyer, with an interest in trust Would the above or anyone knowing of their administration, to join our team. current whereabouts please contact within 14 days from the date hereof: Ideally you will be looking to advance your career. There will be a pathway to Parker Simmonds Solicitors partnership, within a short period of time, & Lawyers Pty Ltd for the right candidate. Suite 47 Level 2 Oasis Shopping Centre Victoria Avenue Broadbeach Please forward your CV and covering letter 4218 Queensland Australia to [email protected]. PH: 0011 617 5592 5077

86 LAWTALK 930 · July 2019 CLASSIFIEDS · LEGAL JOBS

“What is the secret of happiness?”, they asked. “Why, it’s simple,” said the butterﬂy, “Something to do, something to love and something to look for�ard to.”

commercial/property solicitor Intermediate – senior role in Lower Hutt

Due to growth in our commercial practice, we have a fantastic opportunity for a solicitor to join our Lower Hutt commercial team. Working closely with two partners you will enjoy a wide variety of interesting Junior and Intermediate commercial and property work. One day you might be negotiating a contract to sell an air bridge to an Australian airport, the next day you might be Litigation Lawyers completing the sale of a local New World. Gilbert Walker is a specialist advisory and dispute resolution Skills and experience practice based in Auckland. We practise across a broad • commercial and/or property experience within a firm range of civil disputes, including commercial, construction, • enjoy working with and helping people insurance, property, trusts and regulatory matters. We are • excellent verbal and written skills - communication comes easily to you currently acting on a wide range of interesting and • logical, thorough and practical - you’ll provide our clients accurate tailored advice they can act on challenging matters for high proﬁle clients. • with a strong business and marketing mind-set you are always looking We are seeking two lawyers to join our busy team, one with out for new opportunities. 1-3 years’ experience and one with at least 5 years’ • you’re a self-starter who’s flexible and willing to give anything a go. experience. We maintain a low ratio of senior to junior We Offer lawyers. You can expect to work with each of our three • the opportunity to specialise and develop your skills partners. All of our lawyers engage directly with our clients • autonomy and work/life balance • the chance to work in our well regarded franchise and property and appear regularly in court and in other dispute resolution practices forums. We work in an open and collegial environment. • supportive and collegial team environment – we’re small enough to stand around and tackle the daily quiz in the DomPost over cheese and We are interested in hearing from candidates with an crackers, but big enough to have regular social events between our outstanding record of academic and professional offices in Wellington, Lower Hutt and Masterton achievement. • CPD through a varied range of learning and development offerings • competitive remuneration package and a wide range of staff benefits • genuine career advancement opportunities for the right person. Applications should be sent to: Martin Smith, Gilbert Walker, PO Box 1595, Shortland Street, Auckland, or emailed to Although this role is full-time, we are open to proposals for flexible working arrangements. [email protected] To apply for this exciting opportunity, please send your CV, covering letter and academic transcript to [email protected] For further information about our ﬁrm, please by contact any of our partners or sta, or visit our 31 August 2019 Applicants must have, or be eligible to apply for, a website: www.gilbertwalker.com practising certificate in New Zealand. www.gibsonsheat.com

87 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT

INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Wellington 21-22 Oct* LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 2 4-5 Nov* litigation in an intense small-group workshop. You will learn Nikki Pender 9 CPD hours how to handle a single file from beginning to end, be able Paul Radich QC to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation files, competently and confidently. Note: Douglas Wilson Scholarship applications for Wellington and Auckland 2 close 23 Sept*. COMPANY, COMMERCIAL AND TAX

COMMERCIAL LEASING Donna Hurley Case law can have a large impact on the considerations Auckland 2 Jul UPDATE Tara Wylie that you need to give to drafting and negotiating the terms Live Web Stream 2 Jul of a commercial lease. Often you will be aware of a recent 2 CPD hours decision but unsure of the practical implications. This seminar will review some recent cases and discuss their applicability, including points to consider when drafting or negotiating lease terms.

TAX CONFERENCE – THE Chair: The annual NZLS CLE Tax Conference focuses on the most Auckland 12 Sep ROAD AHEAD Fred Ward relevant tax developments and issues for lawyers, whether Live Web Stream 12 Sep you are a tax specialist or commercial or private client 6 CPD hours advisor, and is designed to ensure you are kept abreast of the latest developments that may affect your clients. CRIMINAL

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

HOW TO RUN A JURY Fiona Guy Kidd QC Working in groups you will follow step-by-step the practical Invercargill 23 Jul TRIAL Craig Ruane aspects of preparing and conducting a jury trial. This Christchurch 24 Jul workshop is a must for all practitioners who see themselves as specialising in criminal law, who are already on the level Wellington 30 Jul 7 CPD hours one legal aid list, and are seeking inclusion in the level two Auckland 31 Jul legal aid list, or have been recently appointed to the level two legal aid list.

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

SECTION 15 PRA Lynda Kearns 18 years after s 15 was implemented, in the aftermath Auckland 23 Jul REVISITED – WALKING Kevin Muir of Scott v Williams and in the looming shadow of the Live Web Stream 23 Jul THE TIGHT ROPE Law Commission’s proposed “Family Income Sharing BETWEEN CERTAINTY Agreements” are we any better placed to assess with AND FAIRNESS certainty an economic disparity claim? In this seminar we review key recent developments and propose suggestions 2 CPD hours for a “tool-kit” for practitioners.

PROPERTY AND TRUSTS

RESIDENTIAL PROPERTY Lauchie Griffin This small group intensive workshop guides you step-by-step Christchurch 15-16 Jul TRANSACTIONS Michael Hofmann-Body through through three transactions: a stand-alone fee simple Wellington 29-30 Jul residential dwelling, a cross-lease dwelling and a unit title Nick Kearney Auckland 12-13 Aug 13 CPD hours property. Michelle Moore Hamilton 26-27 Aug Duncan Terris Anita Wan

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION AND EMPLOYMENT PROPERTY AND TRUSTS

INTRODUCTION TO CIVIL Roderick Joyce QSO QC This workshop is an excellent opportunity for recently Wellington 21-22 Oct* CONSTRUCTION LAW – Michael Taylor It is important for lawyers to be aware of the legal issues Auckland 20 Jul LITIGATION SKILLS Sandra Grant admitted practitioners to develop practical skills in civil Auckland 2 4-5 Nov* UPDATE John Walton that arise in construction projects and how to protect clients’ Live Web Stream 20 Jul litigation in an intense small-group workshop. You will learn interests and ensure successful project outcomes. This Nikki Pender 9 CPD hours how to handle a single file from beginning to end, be able 2 CPD hours seminar will examine some of these key current issues and Paul Radich QC to identify and understand the various steps in the process, developments in the construction arena and help enable you develop the practical skills you need to handle this and a to provide your clients with effective advice. range of other litigation files, competently and confidently. Note: Douglas Wilson Scholarship applications for Wellington PRACTICE AND PROFESSIONAL SKILLS and Auckland 2 close 23 Sept*. KUA AO TE RĀ: Alana Thomas This one-day workshop is specifically tailored for lawyers and Christchurch 27 Aug MĀORI CULTURAL Apimaera Thomas is designed to enhance your ability to connect with Māori who COMPANY, COMMERCIAL AND TAX DEVELOPMENT FOR you may be working with as clients, stakeholders, partners, COMMERCIAL LEASING Donna Hurley Case law can have a large impact on the considerations Auckland 2 Jul LAWYERS or in another capacity. Experienced facilitators will guide you through an interactive day as you consider the who, why and UPDATE Tara Wylie that you need to give to drafting and negotiating the terms Live Web Stream 2 Jul of a commercial lease. Often you will be aware of a recent 6 CPD hours the how to successfully engage with Māori in the law.

2 CPD hours decision but unsure of the practical implications. This seminar will review some recent cases and discuss their TRUST ACCOUNT Under the Financial Assurance Scheme all practices operating Hamilton 18 Jul applicability, including points to consider when drafting or Philip Strang SUPERVISOR TRAINING a trust account must appoint a qualified trust account negotiating lease terms. Wellington 24 Sep PROGRAMME supervisor. A candidate must be a lawyer and must pass Auckland 2 5 Nov TAX CONFERENCE – THE Chair: The annual NZLS CLE Tax Conference focuses on the most Auckland 12 Sep the NZLS trust account supervisor assessments, which take place during a full day programme. The training consists of Christchurch 12 Nov ROAD AHEAD Fred Ward relevant tax developments and issues for lawyers, whether Live Web Stream 12 Sep 7.5 CPD hours you are a tax specialist or commercial or private client self-study learning material (approx. 40-50 hours) to help you prepare for the assessments. 6 CPD hours advisor, and is designed to ensure you are kept abreast of the latest developments that may affect your clients. STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 2 25-27 Jul CRIMINAL FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a Wellington 12-14 Sep PRACTISING ON OWN barrister, will be required to complete this course. Auckland 3 21-23 Nov DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Jul-Oct ACCOUNT 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 18.5 CPD hours 11* CPD hours made up of several parts. *CPD hours may vary, see website MEDIATION PRINCIPLES Virginia Goldblatt A practical two-day workshop focused on the professionals Wellington 26-27 Jul HOW TO RUN A JURY Fiona Guy Kidd QC Working in groups you will follow step-by-step the practical Invercargill 23 Jul AND PRACTICE David Patten in the mediation process, whether that is as advocates or mediators. You will learn new skills and also enhance and TRIAL Craig Ruane aspects of preparing and conducting a jury trial. This Christchurch 24 Jul Adam Lewis workshop is a must for all practitioners who see themselves 13 CPD hours adapt skills you currently possess so that you can improve as specialising in criminal law, who are already on the level Wellington 30 Jul your representation of parties at mediation and your 7 CPD hours knowledge of the role of a mediator. It can lead, if you wish, to one legal aid list, and are seeking inclusion in the level two Auckland 31 Jul legal aid list, or have been recently appointed to the level a second workshop focused on training to be a mediator. two legal aid list. Note: Douglas Wilson Scholarship applications close 26 June.

INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Auckland 2-3 Sep CRIMINAL LAW PRACTICE being an effective criminal lawyer. This workshop will benefit LEGAL EXECUTIVES Chair: Pam Harliwich A sell-out in 2017, the biennial “must attend” conference for Wellington 19-20 Aug all practitioners wanting to be appointed to level one of the CONFERENCE all legal executives. The conference recognises the specialist Live Web Stream 19-20 Aug 13 CPD hours criminal legal aid list, and those recently appointed to level role of legal executives in legal practice with a programme designed to be directly relevant to the day-to-day work one. 11.5 CPD hours Note: Douglas Wilson Scholarship applications close for carried out by the majority of legal executives. Auckland 31 July. TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Auckland 18 Sep FAMILY ADMINISTRATORS training is for new trust accounting staff, legal executives, Hamilton 19 Sep legal secretaries and office managers. SECTION 15 PRA Lynda Kearns 18 years after s 15 was implemented, in the aftermath Auckland 23 Jul 4 CPD hours REVISITED – WALKING Kevin Muir of Scott v Williams and in the looming shadow of the Live Web Stream 23 Jul THE TIGHT ROPE Law Commission’s proposed “Family Income Sharing BETWEEN CERTAINTY Agreements” are we any better placed to assess with MEDIATION SKILLS AND Virginia Goldblatt Building on the prior workshop Mediation Principles and Auckland 18-19 Oct AND FAIRNESS certainty an economic disparity claim? In this seminar we STRATEGIES – CIVIL/ David Patten Process (previously Mediation for Lawyers Part A) you review key recent developments and propose suggestions COMMERCIAL, FAMILY, will learn and practise essential mediation skills in order Denise Evans 2 CPD hours for a “tool-kit” for practitioners. EDUCATION DISPUTES to prepare to become a mediator. Will offer area-specific coverage as well as generic skills. 13 CPD hours PROPERTY AND TRUSTS RESIDENTIAL PROPERTY Lauchie Griffin This small group intensive workshop guides you step-by-step Christchurch 15-16 Jul TRANSACTIONS Michael Hofmann-Body through through three transactions: a stand-alone fee simple Wellington 29-30 Jul residential dwelling, a cross-lease dwelling and a unit title Nick Kearney Auckland 12-13 Aug 13 CPD hours property. Michelle Moore Hamilton 26-27 Aug Duncan Terris Anita Wan

To contact us | Visit: www.lawyerseducation.co.nz

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 OTHER PRACTICE AREAS LIFESTYLE July 2019 · LAWTALK 930

LIFESTYLE

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SET BY MĀYĀ 19

20 21 22

T O S T A D A M E M O R I S E D U N P U A U O T I 24 25 P H O T O R A T A T A T T A T S U W S O A U O R O A R B I T E R R A I R C R E W N O L A X I A L U N 26 27 U S A G E S K R A V E N S K R T H I S I X U N D U L A T E K I N G F I S H E L D P I G T O B O R A G E L O F F P A T Across Down Y N W H E L P A U S A P R I O R I I A I R D R O P 1 Man amongst 18's bidding (6) 1 Use a loofah in reverse to wake? (8) B O S N A R T S R 4 Son in the capacity of King 2/12 Lover of Demetrius (Nick E X A C T I T U D E S H O U R I A R I E E E E E N interrupting what Theseus and Bottom?!) to prevail over Klan men R E S T C U R E S C O R N D O G Hippolyta did - imitated a parrot? with new Justice (5,10) (8) 3 Fleet Toni Wall? (6,4) Solution to June 9 Old King to rise for poet (9) 5 Silky sort of clue son's contrived 2019 crossword 11 Mildly admonishes an African (5) to promote beforehand (6,7) Across 12 See 2 Down 6 Say National leader deposed - 1. Tostada, 5. Memorised, 10. Photo, 13 Discharge Old Father (retd.) (4) could get pretentious (4) 11. Rat-a-tat-tats, 12. Arbiter, 15 Commit after Republican in 7 Woman and one such as Theseus, 13. Aircrew, 14. Axial, 15. Usages, robbery with violins (6,7) Duke (for starters) could be capital (9) 17. Ravens, 19. His, 21. Undulate, 18 The greatest distinction, 8 I'm told tea from Copenhagen is 22. Kingfish,24. DPI, 26. Borage, madame? Cumulus clouds (5,3,5) delicate (6) 28. Off Pat, 30. Whelp, 32. A Priori, 20 Leave, giving 13 10 for 1000 (4) 10 Sea girl Jenny (alias Hermia) 34. Air Drop, 35. Exactitudes, 21 Restore Puck, mostly to become I'd occassionally upset for 2/12's 36. Houri, 37. Rest Cures, a tormentor (10) predecessor (4,4,5) 38. Corn Dog. 24 See 22 Down 14 Oberon's debut in Infernal City 25 Uncomfortable how proud and castle ruin moves from its Down Titania was met by a flirt(3,2,4) proper place (10) 1. Tupu-ā-Nuku, 2. Snowboarder, 26 Glorify report that I trade in 16 Degenerate in command? 3. Apostle, 4. Aurora, 5. Matariki, sightly organs (8) Worried? Go to the country (9) 6. Mutual, 7. Rotorua, 8. Starr, 27 "...all my right of her I do _____ 17 Bottom, we hear, is like an Irish 9. Disowns, 16. Stale, 17. Ringo, unto Demetrius" - Egeus mentions song (8) 18. Exit Pursued, 19. Hed, his online kingdom? (6) 19 The old-fashioned fellows I call 20. Ski, 23. Hot Spring, 25. Pleiades, Arabian (6) 26. By A Bear, 27. Gnostic, 22/24 Titania upset about pea soup 29. Farther, 30. Winter, 31. Parsec, for president (5,5) 33. Roars. 23 Account for the English? (4)

90 LAWTALK 930 · July 2019 LIFESTYLE

LIFESTYLE

The Devil’s Own – far more than a fusty male preserve

BY ALICE NUNN

Four years ago, my supervising partner, esteemed Devil’s Own legend and previous winner, Ron Backhouse, suggested I come to the Devil’s Own. At the time I had been playing golf sporadically for about three months. I explained this to Ron, who said that did not really matter at all (and he was right). I duly attended my first “DO”. On the face of it, a long weekend in Palmerston North to play golf with 130 lawyers in September may not sound all that alluring. However, I can assure you that it should. In my view the DO is the most entertaining annual event you are likely to ever experience and I have gone back every year since. It is hard to explain the enigma that is the DO and its broad appeal. There is friendly and fierce competition, camaraderie, humour, socialising, history and the opportunity to play one of New Zealand’s best golf courses. But, until you experience it for yourself words do not do the DO justice. Instead I will attempt to encourage you to attend DO by removing all perceived barriers. For example “I can’t play golf ” or “it is a fusty male preserve” are not good enough reasons not to come. It is a golf tournament, so I need to play golf right? I will be clear: it is helpful if you can hit a ball. I could not (and cannot) really play golf. I can hit the ball less than 10 times to get to the hole, so that is a great starting point. Some people hit the ball an average of 12 times to get to the hole. If you hit the ball more than 12 times to get to a hole, I suggest that you enter the “social golf ” part of the tournament rather than one of the other competitions. But do not be dismayed as your social contribution will be just as well received as your golfing contribution. I have been known to run an intensive golf training programme to get new golfers to the DO. If you are in

91 Hamilton I am happy to assist with and employers like it when you this. The intensive includes many network. There are very few occa- YouTube video tutorials, a couple of sions in the legal profession where lunchtime 45-minute driving range practitioners of all ages and stages visits (at least a bucket of balls) and come together, like they do at the two golf course visits. If you under- DO. You could also go for a collective take my training programme you approach and get a group together will be fine at the DO. from your work or region and make an annual bonding trip. At my firm I don’t know the a group of usually five or more of rules of golf? us attend the DO each year. There Nobody really knows the rules is power in numbers. (with the exception of Mike Dixon). However, do google the terms: rules Is it a fusty male of golf, golf etiquette, Stableford preserve? points and match play. If you are Firstly, who cares if it is; break some still wary, the committee will ensure glass ceilings and enjoy what the DO you play with a group who will not has to offer. Secondly, I am not male, yell at you if you walk on someone’s and I have been told that I am not putting line. yet fusty. My female colleagues who have joined me over the past few My work won’t give years at the DO would also argue me time off? they are neither male nor fusty. ▪ I have set out the following argu- ments for you to present to your Alice Nunn  alice.nunn@nwm. employers. co.nz is an associate with Hamilton Exercise and fresh air is good for law firm Norris Ward McKinnon. your wellbeing and makes you more When she isn’t on the golf course, productive. You tick both these she specialises in equine law, trusts, boxes at the DO. The DO is a great asset protection and succession networking opportunity. Partners planning.

92 85 and going strong It has its own website and logo. It’s New Zealand’s oldest privately run golf tournament. Back in September 1931, four lawyers played a four ball match at Hokowhitu Golf Club. They enjoyed it so much that they organised a tournament in September 1932. And this year, from 26 to 29 September, the 85th tournament will be held. Same place, same time of year. Same participants – an invitation to the Devil’s Own is extended only to past or present members of the legal profession or judiciary. If you haven’t been invited but want to play, visit the website at www.devilsown.org.nz.

93 TAIL END July 2019 · LAWTALK 930

TAIL END Some cases involving sheep

The Confederate sheep US 457, with the court (by 5-4 majority) not sufficient, White J decided, and the Loyal United States citizen Mrs Lee lived holding that paper money issued under plaintiff’s claim failed. in Pennsylvania but owned a flock of 608 the Act did not conflict with Article One sheep in Texas (witnesses later disagreed of the US Constitution (which gives all The Irish sheep safety signs on the exact number). The American Civil federal legislative power to Congress). Mary O’Sullivan, 85, of Hilltop House, War broke out in April 1861 and Mrs Lee Dreenacappara, near Ardgroom (ie, quite left her sheep in charge of a shepherd. In Sheep in clover remote) in Ireland has farmed sheep March 1863 the Confederates deemed the January 1971 was hotter than average in since she was six years old. She’s one sheep the property of an “alien enemy”. the South Island with little rain and strong of 74 shareholders in the mountainous They were confiscated and sold to Mr northeasterly winds. In the area around 1,140-acre Kilcatherine commonage – Knox at $10.87 each in Confederate Waimate there was talk of a drought. A which means she has grazing rights and currency. After the Civil War had ended, farmer was well on the way to growing needs to exercise them to retain them. Mrs Lee took action against Mr Knox for a 24 acre seed crop of delicious white Ms O’Sullivan actually owns a 14-acre damages for taking and converting the clover. On 4 January a flock of sheep farm down on the flat, but her flock of sheep. She claimed US$15 a head and the owned by the adjoining farm managed to 37 sheep are a Scotch Black mountain jury awarded her $7,368. The case ended break down part of the gorse and cyclone breed which thrives on the mountains. up in the Supreme Court. The real issue netting dividing fence and entered the One of her neighbours complained about was the seemingly innocuous instruction paddock, with disastrous results for the the sheep wandering on the narrow public to the jury that whatever they awarded clover. A claim for damages made the road, which draws a lot of tourist traffic could be “discharged by the payment of Supreme Court (McKenzie v Risk [1974] in the summer. Ms O’Sullivan didn’t solve such amount in legal tender notes of the 2 NZLR 214). One big problem for the the problem, so the neighbour went to United States”. To finance the Civil War, aggrieved clover owner was that the the gardai and Ms O’Sullivan ended up in the North’s 1862 Legal Tender Act had fence hadn’t been very sound before the court charged with an offence against the authorised the creation of paper money sheep attack. And the biggest problem Summary Jurisdiction (Ireland) Act 1851. which was not redeemable in gold or was the Impounding Act 1955 and subse- The case – in February 2019 – was silver. At issue was whether the Legal quent court decisions which only allowed widely covered in the media. Judge James Tender Act applied to contracts made damages caused by stock trespass if McNulty asked Ms O’Sullivan if she knew before it was passed. On 15 January 1872 the land was enclosed by a “sufficient the difference between her farm on the judgment was delivered in Knox v Lee 79 fence”. The fence around the clover was flat and the commonage. “I know the

Notable Quotes ❝ In Queenstown far too many people after midnight make a complete fool of themselves. ❞ ❝ There is no invasion of privacy at all, because there is no — Judge John Brandts-Giesen in the Queenstown District Court privacy. ❞ while sentencing Briton Raymond Stead, who was found to — Orin Snyder, a lawyer for Facebook, defending the company have a breath alcohol level of 893 mcg after leaping into a in a US Distrct Court against a class action lawsuit over the milk delivery truck at 5:20am and reversing it while the driver Cambridge Analytica scandal. was working in the back.

❝ This was carried out in a premeditated and sophisticated way ❝ My defence is that it is an army officer’s duty to rebel against – if they were out of money why steal chia seeds, kombucha an unjust and illegal and immoral regime. ❞ and hummus? ❞ — Former Australian military lawyer David McBride, 55, talks — Judge David Ruth rejects the argument of foreign shoplifters to reporters outside the court where he was charged with Heden Raffen and Jemma Cammish that they stole luxury leaking sensitive material about civilian deaths at the hands food items from a Blenheim supermarket out of desparation of special forces in Afghanistan to journalists for the ABC because food is so expensive in New Zealand. investigative report The Afghan Files.

94 LAWTALK 930 · July 2019 TAIL END

difference between brown bread and sweet the flock continued its journey – increased sufficient evidence to satisfy the jury that cake, and sheep are cleverer than me,” by 34. An enraged Farmer Dunbar sued they were his sheep.” (Dunbar v McGill she told him. Reluctantly, Judge McNulty McGill, the flock owner, for damages for (1887) 64 Mich 676, 31 NW 578). found that she had breached the law. Ms conversion and the case ended up before O’Sullivan could erect “three, or preferably a jury. McGill’s counsel demanded proof One sheep is another four signs – tasteful signage, I don’t want from Dunbar that the 34 sheep were his. Headlines were made in February 1997 anything garish,” he said. The signs could The presiding judge told the jury they had when it was announced that a mammal read: “Caution. My sheep may wander to decide if there was more evidence to had been cloned from an adult cell by Keith on this road. Take Care. Mary O’Sullivan.” show that 34 sheep in the flock belonged Campbell and Ian Wilmut of the Roslin Judge McNulty said the signage need to Dunbar than there was to show they Institute of the University of Edinburgh. not be expensive and if Ms O’Sullivan – did not belong to Dunbar. Dolly the sheep (no need to mention how who has no previous convictions – agreed The case reached the Supreme Court the name was chosen) was born on 5 July to erect and maintain them for up to of Michigan. Ordering a new trial, the 1996 and it would take another 18 years three years, the matter could be dealt Supreme Court said the judge had got it before resulting legal proceedings ended. with under a conditional discharge. That wrong and it gave the legal world a handy At issue were patent rights. The Roslin has happened. If you like Irish accents, statement about the burden of proof: “We Institute received a United States patent check out the YouTube video of a relieved think this instruction was misleading. It on the process used – somatic cell nuclear Ms Sullivan after the case www.youtube. leaves out of view an important element transfer (SCNT). Problems arose with its com/watch?v=1C846A0IhCU to be considered in the application of the claim for a patent on Dolly herself, and preponderance of probabilities; and that any other animals created with SCNT. The Sorting the sheep is, the testimony introduced tending to final chapter came in May 2014 when a US from the … sheep show that these were plaintiff’s sheep Federal Circuit court delivered its decision To the uninitiated one sheep looks must have been of such character and in In Re Roslin Institute (Edinburgh), 750 very much like another. Back in 1886 weight as satisfied the jury that the F.3d 1333. The court decided that a cloned in Michigan, 34 sheep were peacefully sheep which mingled with defendant’s, sheep was not patentable because it was an grazing in an unfenced paddock on a and which it was claimed defendant exact replica of another sheep and so did farm owned by a farmer called Dunbar. converted, were the property of the not have markedly different characteristics Suddenly a large flock of sheep and plaintiff. This question did not depend than any farm animals found in nature. shepherds came down a road next to upon whether there was more evidence Various attempts to argue that Dolly was the paddock. The grass looked good to show that these were Dunbar’s sheep not identical did not succeed. “Dolly’s so the flock joined Dunbar’s sheep. The than that they were not his sheep, but genetic identity to her donor parent renders shepherds … shepherded them along and upon the question whether there was her unpatentable,” the court said. ▪

❝ The legal assistance sector in Tasmania is underfunded by ❝ It is a judgment that has profound human rights importance at least one-third of what it should be funded. This is a real which will resonate throughout the common law world – it crisis for some of the most disadvantaged in our community is not just important in New Zealand. ❞ in need of legal assistance. ❞ — Tony Ellis, lawyer for successful appellant Kyung Yup Kim — Law Society of Tasmania President Evan Hughes comments after the Court of Appeal quashed a ministerial decision to on a shortfall in legal aid funding. allow his extradition to China.

❝ General Michael Flynn, the 33 year war hero who has served ❝ Good firms are collapsing. Young lawyers are rejecting this with distinction, has not retained a good lawyer, he has area of law. In parts of the country, the criminal defence retained a GREAT LAWYER, Sidney Powell. Best Wishes and solicitor is going extinct, and the possibility of a fair trial is Good Luck to them both! ❞ critically endangered. The evidence of the damage being — US President Donald Trump tweets his approval of the news done is overwhelming. ❞ that his former national security adviser Michael Flynn has — Law Society of England and Wales President Christina hired a new lawyer as sentencing approaches following his Blacklaws speaks out about government underfunding of guilty plea to lying to the FBI about his contracts with Russia. the criminal justice system.

95 Asking for help is a sign of strength

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