At the Bar June 2010

At The Bar June 2010

INTEGRATION OF BARRISTERS AND SOLICITORS IN ENGLAND AND WALES SPEEDS UP New Punitive Era in Criminal Justice

INSIDE THIS ISSUE Pg 2 - Integration of Barristers and Solicitors in England and Wales Speeds Up Pg 4 - New Punitive Era in Criminal Justice, Says Professor Pg 5 - International Court of Justice Plays Important Role - Sir Kenneth Keith Pg 6 - Lengthy Deliberations in International Court Pg 7 - Barristers’ Recovery of Fees When Instructed by In-House Counsel Pg 8 - NZBA Bench and Bar Dinner Photos Pg 10 - Barristers Chargeout Rates Pg 12 - NZBA and CBA Criminal Law Seminar Series Pg 13 - Buying a New Computer Made (Almost) Easy Pg 14 - What Members Need to Know Pg 16 - NZBA Annual Conference Pg 17 - Junior Barristers Update Pg 18 - NZBA National Calendar Pg 19 - International Conferences and Events Pg 20 - NZBA Grants for the NZLS Litigation Skills Programme Pg 21 - Summary of Council Meeting Minutes EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Tel: 0064 9 377 8959 Email: miriam@barrists.co.nz Monique Pearson Tel: 0064 9 303 4515 Email: nzbar@nzbar.org.nz Graham Kohler Tel: 0064 9 307 9816 Email: kohler@shortlandchambers.co.nz John Matthews Tel: 0064 9 409 2010 Email: jgmatthews@xtra.co.nz Design and layout by Hot Lobster Printing courtesy of Ricoh New Zealand NEW ZEALAND BAR ASSOCIATION Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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Integration of Barristers and Solicitors in England and Wales Speeds Up S

weeping changes to the way in which barristers practise in England and Wales have come into force. The new rules are expected by some commentators to speed up the integration of the two traditionally-separate branches of the English and Welsh legal profession - barristers and solicitors.

The reforms have been a staged process. On 16 July 2009 the Bar Standards Board approved changes to the Bar’s Code of Conduct, following recommendations by the board arising from a review of the Public Access Scheme. The amendments are designed to allow greater access to barristers’ services by consumers and to permit barristers to offer services in a broader range of areas than previously, as well as to engage in correspondence between parties. Approval of such changes was previously required from the Ministry of Justice, but the Legal Services Board assumed responsibility for such approvals from January 2010.

The Bar Standards Board was established by the Bar Council in January 2006 to regulate barristers called to the Bar in England and Wales. The board took over the regulatory functions of the Bar Council and is responsible for setting the education and training requirements for becoming a barrister, providing for continuing education, setting standards of conduct for barristers, monitoring the quality of barristers’ services and dealing with complaints. The board has 15 members, eight of whom are barristers. The chair is a lay person, Baroness Ruth Deech.

The board operates through seven committees.

A further stage in the reform process was the approval by the board at its 19 November 2009 meeting of an amendment to allow barristers to become managers of Legal Disciplinary Practices regulated by the Solicitors’ Regulation Authority without being required to qualify as solicitors. The change also enables barristers to be shareholders in LDPs, whether or not they are employees or managers of the LDP in question. This means that barristers are now able to practise in more than one capacity at the same time – for example, as self-employed barristers and as employees of law firms.

The board at its November meeting approved further revisions to the code to change the structure of self-employed practice. Barristers may now share premises and office facilities, investigate and collect evidence, take witness statements, attend at police stations and conduct correspondence. All of the changes approved by the board in November were submitted to the Legal Standards Board, which approved the amendments. They took effect from 31 March 2010.

Bar Standards Board chair, Baroness Deech, said that the board was committed to making appropriate changes to permitted practice at the Bar to benefit its clients in terms of greater access to barristers’ services, broadening the range of services available from the Bar, giving consumers more choice and bringing down costs while maintaining the high standards associated with the Bar. The Bar Standards Board in March issued a 10 page paper

titled Guidance on practice in LDPs and Entities etc permitted by amendments to Code of Conduct to explain the changes. The document states that, from 26 March 2010, the prohibition in the Bar’s Code of Conduct on barristers (other than employed barristers) supplying legal services to the public through or on behalf of any other person ceased to have effect. Instead, barristers are now permitted to supply legal services to the public in three different ways – • as self-employed barristers (no change) • as managers or employees of recognised bodies, subject to the rules of the approved regulator of that body, or • as employed barristers.

whole of the SRA’s Code of Conduct, except those parts expressed to apply only to solicitors or trainee solicitors.

“The opportunity for barristers to become managers of recognised bodies means that barristers may be exposed, for the first time, to business practices that are unfamiliar to them. In particular, the SRA rules make all managers of recognised bodies responsible for (and entitled to deal with) client monies. This is something that barristers have not previously been entitled to do.”

The guidance notes state that the significant change relates to barristers practising as managers of “recognised bodies.”

“These are entities of all kinds, or sole principals, authorised to provide reserved legal activities by an approved regulator other than the Bar Standards Board.

So, for example, a law firm regulated by the Solicitors Regulation Authority is a recognised body. A “manager” for these purposes is a partner of a firm, a director of a limited company or a member of a limited liability partnership which is a recognised body, as the case may be.”

The document says that “recognised bodies” include Legal Disciplinary Practices, which were created by the Legal Service Act 2007. They may have different kinds of qualified lawyers and non-lawyers as managers and employees. At present, no more than 25 per cent of the managers or shareholding in a Solicitors’ Regulation Authority-regulated LDP can be non-lawyers and only non-lawyers who are managers can own shareholdings.

Only the SRA is permitted to regulate LDPs authorised to conduct litigation and exercise rights of audience.

Recognised bodies can only supply legal services to the public, and not to other services such as accountancy or valuation services.

However, the guidance notes state that in due course – and possibly as early as 2011 – the restrictions on who can own or participate in LDPs, and on the services which they can provide, may be abolished. The paper says that the Legal Services Board is planning to enable the licensing of bodies under the act that can be externally owned and supply other services as well as legal services. These are called Alternative Business Structures. The document notes that some LDPs – those including non-lawyer managers – will have to become ABSs following a transitional period. The board will carry out consultation in 2010 and 2011 on whether or not barristers should be permitted to become either managers or employees of ABSs.

The board intends to review the rules and guidance for ownership interests two years after the implementation of the rule changes to ensure that safeguards are operating properly and that regulatory objectives are being advanced. Bar Council chairman, Nicholas Green QC, in January called on barristers to establish separate business units to assist them in competing with solicitors to obtain work from clients. The units are called “ProcureCos” and bring together barristers, solicitors and other professionals such as accountants to enable chambers to offer one-stop-shop services to clients more cheaply than those provided by solicitors. Mr Green said that the Bar had a cost advantage by comparison with many solicitors’ firms and that the ProcureCo structure could be used by the commercial Bar as well as by the publicly-funded Bar. Argent Chambers in London, a criminal chambers, was the first ProcureCo to be established, setting up shop in April. Argent Law provides commercial advice on regulatory and compliance matters, following a pilot run in cooperation with a private equity house and a large insurer.

Observers anticipate that a new contracting regime for criminal defence services will result in many English and Welsh firms leaving the market. That is expected to leave redundant solicitors looking for work and willing to work with barristers and be on ProcureCo panels.

However, the paper notes that it is already possible for barristers to become managers of SRA-regulated LDPs alongside solicitors, other qualified lawyers and nonlawyers. This means that barristers will be subject to the

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New Punitive Era in Criminal Justice, Says Professor The Three Strikes policy and the abolition of the partial defence of provocation together signalled a new era of punitiveness in the New Zealand criminal justice system, said Professor Warren Brookbanks of the University of Auckland’s Faculty of Law. He spoke about developments in criminal law to the first seminar in the NZBA/CBA 2010 Criminal Law Seminar Series.

when accused persons did not intend to appropriate property for their own use, added an “overarching additional mental element” to the offence. The Crown was required to negative the accused’s explanation and satisfy the jury beyond reasonable doubt that the accused’s altruistic explanation was untrue.

all cases. The Supreme Court had said that the accused had the right to employ a lawyer, but the state did not guarantee to provide the lawyer’s services. The Court of Appeal said that Mr Chatha had been advised on at least two occasions prior to trial to seek legal aid, but had chosen to disregard the court’s recommendations and represent himself.

Turning to defences, Professor Brookbanks observed that the defence of intoxication continued to cause problems for the courts. In R v Rogers one issue had been whether the trial judge had failed adequately to direct the jury on the issue of intoxication. Professor Brookbanks said that the decision reiterated earlier jurisprudence on intoxication to the effect that, while drunkenness was potentially relevant as bearing on whether the Crown had proved the relevant intent, its relevance should not be restricted to intent. He said that another aspect of intoxication that continued to cause problems was the distinction between the capacity to “With these changes, such distinctions In the case before it, the accused had not are no longer relevant and people who advanced an overarching explanation. There form intent and whether or not intent had been formed in fact. The problem commit multiple serious offences are was accordingly no evidentiary foundation always was that reference to capacity simply going to he hammered, regardless requiring the trial judge to direct the jury on of any prospects of rehabilitation that the issue of dishonest intent, other than the unnecessarily elevated the threshold at which evidence of intoxication might otherwise have existed. Of course, dishonesty implicit in taking possession of it is possible that judges may consider the items knowing that they were stolen or being might be exculpatory, when the simple new regime oppressive and unnecessary reckless as to that circumstance. Professor question was “did he or she have the necessary intent at the relevant time ?” and refuse to fully enforce the law by Brookbanks said that the requirement invoking the “manifestly unjust” clause, at that the mental element be knowledge or Professor Brookbanks said that the least in relation to ineligibility for parole. recklessness of the item having been stolen matter had recently been considered In these circumstances it can only be or illegally obtained was consistent with the by the High Court of Australia in hoped that the legislation will prove to changes brought about in the 2003 Crimes Bellchambers v The Queen. The be unworkable and too costly to enforce Act amendment. principal ground of appeal had been and be repealed like the ill-fated home that, in directing the jury, the judge Professor Brookbanks noted that the issue invasion laws.” had directed on the capacity to form of self-representation had been raised in the specific intent of the offence of Professor Brookbanks discussed recent the case of R v Chatha. It had involved maliciously inflicting GBH, and had developments relating to receiving, noting unsuccessful appeals against conviction failed to direct as to the possible that the Court of Appeal decision of R v on six counts of immigration fraud and relevance of intoxication to whether the Ma had clarified some important issues. a sentence of two years’ imprisonment. appellant did – as opposed to could The case had involved an appeal against Professor Brookbanks said that one – form the relevant specific intent. The conviction concerning the correct direction ground of appeal had been that Mr appeal was allowed, with the court to the jury on the mental element to be Chatha had been deprived of his right to noting that the clear direction as to proved. It was claimed that the trial judge legal representation. The Court of Appeal capacity misled the jury into a false had erred in summing up because he did referred to the Supreme Court’s statement issue. The direction should have been not direct the jury that “dishonesty” was in R v Condon that the New Zealand Bill as to whether or not the specific intent a necessary element of the offence. The of Rights Act 1990 did not guarantee the had been held, not whether or not court noted that exculpatory defences, provision of a lawyer for the defence in there was capacity to form it.

Professor Brookbanks said that the list of qualifying offences for the Three Strikes policy included all major violent and sexual offences with maximum penalties of seven years or more jail. It was anticipated that the new regime would result in a gradual increase in the number of prison beds required – at least 142 in the first 10 years.

Professor Brookbanks said that he was concerned that the policy could lead to substantial injustices occurring, particularly when the third offence was a homicide offence and the offender might previously have been eligible for provocation to reduce murder to manslaughter and justify a reduced sentence.

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International Court Of Justice Plays Important Role – Sir Kenneth Keith A cautiously optimistic view could be taken about the future role of courts in resolving international disputes, said Sir Kenneth Keith, New Zealand’s first judge on the International Court of Justice.

Sir Kenneth told At the Bar during a visit to New Zealand at the half-way point of his term on the court, that states were increasingly willing to make the serious decision to enter into international litigation.

He said that the International Court of Justice had made a significant impact on international law between 1946 and the early 1960s, but by the 1970s the court’s docket was essentially empty.

A decision produced by the court in relation to the legal status of South West Africa was regarded by many as disastrous, and the court’s reputation had suffered as a result. Sir Kenneth said that the future for international courts and international arbitration had accordingly looked pretty bleak. However, he said that in the past 40 years the situation had been transformed.

The International Court of Justice was now busy, and so were other international courts and tribunals such as the World Trade Organisation’s dispute settlement bodies, the International Criminal Court, the Permanent Court of Arbitration and the European Court of Human Rights.

Sir Kenneth said that the Permanent Court of Arbitration had in the past 10 years provided the registry for 30 decisions in state versus state matters. The subject matters had ranged from the legality of the use of armed force to the law regulating warfare, and from environmental matters to river administration.

Sir Kenneth said that the work of the International Court of Justice was also hugely varied. Recent cases had included disputes involving nations from all continents, including Argentina versus Uruguay, Malaysia versus Singapore, Djibouti versus France and Mexico versus the United States. More than 40 states had participated in the advisory proceedings relating to the unilateral declaration of independence issued by the provisional institutions of government of Kosovo, including for the first time all five permanent members of the Security Council. That was the first time that China had appeared before the court, meaning that major international players were now appearing there.

Sir Kenneth said that the issues being dealt with by the court were now far more diverse than in the past. The subject matter of recent cases before the court had extended from territorial disputes to maritime boundaries, diplomatic protection and international criminal law. Sir Kenneth said that the evidence presented might extend back over several centuries and could cover extensive areas of land and sea, as well as many different incidents. It might also include diplomatic correspondence, maps, newspaper stories, treaties, and national legislation. Evidence might be highly scientific or technical, as was the case in the proceedings relating to the operation of a pulp mill on a river in Uruguay.

The variety of disputes dealt with by the court in recent years demonstrated that nations were increasingly willing to submit themselves to the court’s jurisdiction, as well as to the jurisdiction of other international tribunals. A number of reasons for this were identified by Sir Kenneth. One was the work record of the judges and tribunal members, who were regarded as independent and qualified, and who followed careful processes which enabled state parties to present their arguments and evidence in a full and equal way. “Another explanation may be the recognition of states that it may be better to seek binding third party resolutions of their disputes than to leave them to fester or, to go back to the 1945 language, to be resolved by the vicissitudes of war or by brute force. This motivation may be seen more in particular areas of increasingly close regulation such as trade and investment, both in regional and universal bodies. No doubt the end of the Cold War and all that accompanies that is a factor in the increased willingness to litigate or at least to consider litigation.”

Sir Kenneth said that this major change in attitude was to be seen not just in particular actions of states, such as the legal advisers in the State Department in Washington and the Foreign Ministry in Moscow appearing in the Great Hall of Justice just months apart in 2008 for their states in proceedings brought by Mexico in one case and by Georgia in another. It was also apparent in the more general declarations by the world community. On the twenty-fifth anniversary of the foundation of the United Nations in 1970, the General Assembly had unanimously adopted the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States. Sir Kenneth said that the statement

about the obligations of peaceful settlement had emphasised each state’s free choice of means as well as their sovereign equality and the necessity of agreement on the means.

The declaration had made no reference at all to the International Court of Justice.

By contrast, when world leaders had come together on the 60th anniversary of the United Nations in 2005, they had emphasised both the international rule of law and the role of the court. That emphasis had been reinforced a few months later by then-Russian President Putin when he had addressed the court, under the presidency of Judge Shi of China, with recollections of Russia’s long commitment to international law in its role in 1899 and 1907.

“It is, however, important to keep a sense of perspective. Have the expectations expressed so optimistically in San Francisco in 1945 that the court would have a central place in the settlement of international disputes and that orderly judicial process might be substituted for war and the reign of brutal force been fulfilled ?”

Sir Kenneth said that it was possible to point to the rulings of the court and international tribunals relating to the dreadful conflicts in the Great Lakes, the Balkans, Cambodia and East Timor. However, many would say that these had been too little and too late. “And the real resolution of such situations requires action far beyond the competence and powers of courts. That is also true nationally.” He also observed that some particularly thorny issues had still not been dealt with by international bodies. One example was the question of Iraq, which had not come before a court in any way.

Sir Kenneth concluded that the hopes of Czar Nicholas and the delegates who had gathered at the Palace in the Woods in 1899 for an “empire of law” were being fulfilled, if in limited but widening areas.

“In those areas, in terms of the rhetoric of the early part of the last century, law may be seen to be replacing war or, more commonly, stalemate. Those developments may be seen as now having a certain momentum. I would be surprised and disappointed if that momentum were to be reversed. The contrast with 50 years ago is very striking. Those professionally involved with international legal practice at that time would, I think, be astonished at the extent of present day international adjudication and arbitration.”

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Lengthy Deliberations in International Court The International Court of Justice was established in 1945 by the United Nations Charter. It consists of 15 judges elected to nine-year terms by the United Nations General Assembly and the United Nations Security Council. Elections take place every three years, with one-third of the judges retiring each time, in order to ensure continuity in the court.

Sir Kenneth said that the backgrounds of the judges were quite different, but the court followed well-established procedures in the way in which it operated. A lot of argument in cases related to interpretation of texts, which he said was similar to the work encountered by judges in national courts. For example, in a recent case involving Malaysia and Singapore, the judges had been required to work out the meaning and effect of agreements signed by the East India Company and the Sultan of Johore in the early 1800s.

Sir Kenneth said that, for him, that had rung bells in terms of Treaty of Waitangi interpretation. He said that the court heard oral argument as well as receiving large volumes of documents. However, the judges at the oral hearings for the most part listened passively. Questions were asked very formally. As the court was a court both of first and of last instance, it did not have either the advantage of a judgment from a lower court, or the comfort of knowing that errors would be corrected by a higher court.

Sir Kenneth said that the procedure followed by the judges was for them to have a long series of deliberations involving all judges. Each judge would write a note after the oral hearing, addressing the main questions to be resolved and setting out his or her tentative answers. The notes, which

ranged between 5 and 100 pages in length, would be translated and distributed. There would then be the first of three deliberations, each of which might last several days. The President would sum up the debate and then the judges would elect a drafting committee of two judges to draft a decision. The draft would be gone through paragraph by paragraph, after which judges would indicate whether they intended to write separate decisions. A second draft of the main judgment would be produced and a vote would then be held on the critical paragraph at the end of the judgment.

Finally, the judgment would be publicly delivered. Sir Kenneth said that this process underlined the world character of the product which resulted from this very inclusive process.

Poppa - There’s a Hole in your Eugenia

by David Bates A new children’s book published in March 2010 by Polygraphia Ltd Price: NZ$20.00 ISBN 978-1-877332-75-3

David Bates was born in 1947. At age 15 he enlisted as a Seaman Boy in the Royal New Zealand Navy. At 19 he became a member of the New Zealand Police where he spent 17 years, attaining the rank of inspector. He graduated LLB from Victoria University of Wellington in 1981, resigned from the Police in 1982 to practise law full time and for the past 22 years, as a Barrister, has specialised in the practise of criminal law. He and his wife Christine live in Tauranga, New Zealand.

They have two children and three grandchildren.

David is the author or co-author of five legal books. His first novel, “Beneath the Cherry Tree”, is available on the eBook site “Kobo Books”.

A delightful rhyming, colourfully illustrated story ideal for children aged 2 to 8 years. A blackbird makes her nest in Poppa’s neatly trimmed Eugenia tree and alarms Ollie. But then, he learns it really is the safest place to be, especially if you are newly hatched or dreaming you might be!

An ideal anytime story to be read to or by young children, especially at bedtimes.

There’s even space at the end to write names of birds and plants and other things in your garden or Poppa’s and Nana’s garden.

38pp, 15cm x 21cm, soft cover: RRP NZ$20.00 + p&p as arranged.

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Barristers’ Recovery of Fees When Instructed

by In-House Counsel Barristers cannot take any enforcement action in relation to the recovery of fees even when acting on instructions from inhouse counsel employed by a company, says Kensington Swan consultant Ian Haynes. However, he noted that the position might change following the completion of a review of the intervention rule which was currently underway.

An NZBA member had observed that, when a barrister was instructed by a company in-house counsel who held a practising certificate as a barrister and solicitor, the liability was that of the company. The member had accordingly asked whether it might be that the service of a statutory demand would not infringe the rule against suing for fees.

However, Mr Haynes, a former New Zealand Law Society President and architect of the Lawyers and Conveyancers Act 2006 model, said that, at the present time, barristers must continue to operate under the intervention rule. Rule 14.4 of the Rules of Conduct and Client Care provided that a barrister sole must not accept instructions to act for another person other than from a person who held a practising certificate as a barrister and solicitor.

Exceptions set out in Rules 14.6 and 14.7 provided that direct instructions could be accepted in specified circumstances. These included when a barrister was acting in a judicial or quasi-judicial capacity, was appointed by the court, was representing a prisoner in an internal disciplinary hearing, or had been granted a specific or general dispensation by the Law Society in consultation with the Ministry of Justice and the NZBA. Accordingly, said Mr Haynes, the instructions in the above case must come to the barrister from the in-house counsel, rather than from the company itself.

“Accordingly, the company is not liable for the barrister’s fee and it follows that the barrister cannot take any enforcement action (including the issue of a statutory demand) against the company. In the absence of any special arrangement to the contrary,

the in-house counsel will be responsible professionally (but not contractually) for the payment of the barrister’s fee.”

Mr Haynes said that it therefore followed that in-house counsel instructing barristers needed to ensure that they had their employers’ authority to do so.

“Essentially, the position of an in-house lawyer who, on behalf of his or her client employer, instructs a barrister is no different from a lawyer in private practice who, on behalf of a client, instructs a barrister.”

Mr Haynes said that, to the extent that the intervention rule might cease to apply or become voluntary, the position outlined above would change.

“A barrister not subject to the rule would then be free to accept instructions from a company through its in-house counsel and the company would then be contractually liable for payment of the barrister’s fee.”

The Ministry of Justice pressed for an end to the intervention rule at the time the act and the rules were being drafted, The NZLS is at present reviewing the intervention rule, as required by Rule 14.5, as it regards it as being a restraint of trade and anti-competitive. However, which provides that a review of the rule must be carried out within 18 months after it was argued that more time was needed to consider the implications the coming into force of the rules. The of abolition and provision for a review society is required to carry out the review “with reasonable expedition having regard within a specified time was accordingly written into the rules. The rule has been to all the circumstances” and to consult with the Ministry of Justice, NZBA and such abolished in a number of Australian states. One option in New Zealand would other organisations, groups or persons be for it to be abolished in compulsory as the society considers have an interest form, but for barristers who wish to do so in the review. Submissions on the review to continue to accept instructions only closed a few days ago and are at present from instructing solicitors. being analysed by the review group.

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NZBA Bench and Bar Dinner - 6 May 2010

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The biggest Bench and Bar dinner the NZBA has ever held was attended by over 120 guests at the Northern Club in Auckland.

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Barristers Fee Surveys by Richard Burcher of Validatum™ Limited Barristers’ Chargeout Rates The first survey produced some interesting results, some of which were predictable, some less so.

The most common approach to pricing by most barristers (53%) is to charge an hourly rate but to also attempt to take into account the other reasonable fee factors to see if a premium or discount is warranted.

Disappointingly, but not surprisingly, 40% of respondents demonstrated that they have no regard at all to the other fee factors in setting a fee. By failing to do so, they do their clients, but more often themselves, a disservice.

Working with the NZBA, legal profession pricing consultant Richard Burcher of Validatum™ Limited ran a survey late last year, specifically catering for barristers. The survey covered: • Comparison of pricing methodologies including hourly rates, daily rates, “seat of the pants” etc • % of annual revenue derived from Legal Aid v full paying clients • % of annual revenue derived from different work types (family, civil, criminal etc) • Hourly charge out rates by work type (family, civil, criminal etc) • Hourly charge out rates relative to years experience • Comparison of your revenue generated by Legal Aid v full paying clients by different work types (family, civil, criminal etc) • Differentiated charge out rates based on jurisdiction e.g. District Court v High Court etc • Premiums charged for urgency and outstanding results • Termination fees • The various ways that office expenses (tolls, faxes, forms, photocopying, etc) are handled • Gross revenue and net profit benchmarking (optional)

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The results also showed that over 50% of barristers are writing off between 1% and 20% of their recorded billable time. On an average turnover of some $322,000 per annum, that represents between $3,200 and nearly $65,000 per annum of potential profit that is forfeited as a result of inadequate pricing management.

The situation is actually rather worse if one takes into account the comments of Walton J in Maltby v DJ Freeman & Co [1978] 2 All ER 913 at 917, in which he roundly criticises the inadequacy of time recording as a means of capturing the totality of a practitioners devotion to a clients legal affairs; “No Professional man or senior employee of a professional man stops thinking about the days problems the minute he lifts his coat and umbrella from the stand and sets out on the journey home. Ideas, often very valuable ideas, occur on the way home in the train or car or in the bath or even while watching television, yet nothing is ever put down on a time sheet or can be put down on a time sheet adequately to reflect this out of hours devotion of time” The message is that even the most diligent of time recorders will fail to completely capture all the time and effort that the practitioner devotes to a client’s affairs.

It follows therefore that even if one is a firm disciple of billing by reference to time records, we will often be using a starting point that represents a discount to the client.

An analysis of the relativity of hourly charge out rates to barristers’ years of legal experience produced quite a different

result to that disclosed amongst solicitors and law firms. Throughout the barrister’s career, hourly charge out rates generally track upwards in a linear fashion.

This is in stark contrast to solicitors in law firms whose charge out rate rises steadily through the first seven years of legal experience and then flattens very abruptly such that the difference between a solicitor with seven years experience and a solicitor with 40 years experience is only about 20%. Contrast this to barristers where the differential is closer to 100% - $250 plus GST per hour with 10 years experience and about $500 per hour plus GST with 40 years experience.

Having said that, there are a number of very senior members of the independent bar with charge out rates of $1,000 plus GST per hour or more.

As many practitioners will be aware, I have long advocated a multifaceted approach to determining an appropriate fee instead of the myopic, onedimensional, homogenous approach associated with time recording and hourly rates alone. This is not an issue confined to the New Zealand legal profession either.

Our colleagues in Australia, North America and the UK are grappling with the same issues, as the profession at large comes under increasing pressure from clients, regulatory bodies and the judiciary to bring a contemporary and more businesslike approach to pricing our services.

Currently, members of the profession fall into one of three categories; naysayers who remain of the view that the present system is not broken so why bother wasting time fixing it, those who readily perceive the need to change but are bereft of the skills, training and confidence to effect change within their own practices, and lastly, those who ‘get it’ and are doing it.

Lest anyone should be under any illusion that change is coming, I commend to barristers a speech entitled ‘Billable Hours - Past their Use-by Date’, presented by the Hon Wayne Martin, Chief Justice of Western Australia to the Perth Press Council celebrating the recent Australian Law Week. The theme of the speech

was that the profession should “enthusiastically embrace the pressure for change, and generally adopt alternative methods of charging for services rendered”.

In making the call for change, Justice Martin said time billing focuses the efforts of the legal practitioner upon the production of billable hours, rather than the production of value for the client. “It rewards effort and not results, promotes quantity over quality, repetition over creativity.” He said that time costing fosters a “production mentality”, which discourages efficiency or innovation because a lawyers’ bills and profit are reduced by the development of efficiencies. “Cost plus billing is the antithesis of efficiency, and encourages the service provider to increase cost, thereby increasing profits,” he said.

He added that time billing stymies good communication between a client and lawyer, as the more communication there is, the higher the cost. “There is a natural disinclination to communicate with the lawyer, even on important issues.”

Meanwhile, lawyers within firms compete with each other on the production of billable hours, said Justice Martin, discouraging collegiality and mutual cooperation between lawyers. On top of this, competitive practitioners within a firm have a tendency to hoard work to ensure they fulfill their quota of target hours. This, said Justice Martin, means some low-level work ends up being performed by high-level associates, increasing cost to the client and decreasing general efficiency.

Literature is replete with complaints from young practitioners about the unsatisfying nature of legal work in a time billing environment, said the judge. An emphasis on the production of billable hours creates a working environment that “discourages professionalism and reduces work satisfaction to unacceptable levels”.

“Clever young lawyers are leaving the profession in droves, or shifting to corporate, government and NGO roles where their motivation is provided, and their performance assessed by outcomes other than the production of billable hours,” he said. He also pointed to the high levels of depression and substance abuse amongst lawyers.

Justice Martin said: “Time billing can have alienating, and worse impacts, upon lawyers. Those many lawyers who come to the profession motivated, at least in part, by idealism and altruism, and a desire to help the clients they serve, may instead find a competitive and relentlessly demanding environment driven by commercial imperatives.”

What Justice Martin didn’t say but which is equally valid is that time billing particularly penalises the more experienced and able members of the profession, expressed far more eloquently than I could by Holland J when he commented in re JBL Consolidated Limited (in receivership) (High Court Auckland M 1950/80, 20 August 1982)

Accompanying this article are the lyrics to “I’m Billing Time” which Richard played to delegates at the conclusion of the seminar “How to make your practice more profitable” earlier this year.

The melody is Cindy Lauper’s “Time After Time” Lying in my bed I hear the clock tick And think of you Caught up in lawsuits Insomnia is nothing new Downstairs at midnight oooh... it’s coffee time Read a briefcase of documents

“If Counsel is entitled to say ‘I have reached some degree of seniority and therefore I am entitled to $x for every hour that I am professionally engaged’, then the incompetent will be encouraged to be prolix and dilatory and the efficient and truly skilled will be inadequately rewarded” [my emphasis added]

I’m billing time…….

However, hourly charge-out rates remain a component of the pricing matrix and reliable market data is important in assisting barristers to understand where their charge out rates currently sit on the pricing continuum.

Don’t make me say this twice….

The NZBA is encouraging all its members to participate in the rerun of the Validatum™ Barristers Hourly Charge-out Rates Survey.

The cost of the report will be $150 plus GST. You can access the link from the Validatum website http://www.validatum.com/acatalog/Barristers_Fee_Surveys.html

The survey closes on Wednesday 30th June. To prevent access by web surfers, you will need to enter the password which is: rumpole Richard Burcher will be presenting a paper on pricing at the NZBA annual conference in Queenstown in August. Those who participate in the survey will be invited to indicate what aspects of pricing you would like Richard’s conference paper and presentation to focus on.

Richard will also be shortly opening a survey specifically for specialist family law barristers and solicitors and is running a series of half day workshops entitled Profitable Pricing in 12 centres around the country during June/July. Details and the registration form are available from the company’s website www.validatum.com

Sometimes you call me up And beg me for free advice You’re stealing from me And wondering why I’m not nice My mind, my time Are my merchandise

(Chorus) If you come to my office Or call my phone I’m billing time If you stop me at parties To whine and moan I’m billing time You say you want the best But then you don’t pay the fee Motions cost money But you think they should be free You cry “for why, is my bill so high?”

Well let me clarify…

(Chorus) If you come to my office Or call my phone I’m billing time If you stop me at parties To whine and moan I’m billing time If I think of you when I am all alone I’m billing time If you’re late for appointments I will be waiting……

And billing time Still billing time I’m billing time……..

11

NZBA and CBA Criminal Law Seminar Series Physical evidence will be the focus of the next seminar in the New Zealand Bar Association/ Criminal Bar Association of New Zealand’s criminal law seminar series. Senior Scientist Physical Evidence, Gerhard Wevers, and Science Leader, Dr Douglas Elliot, of the Auckland Forensic Service Centre will provide an overview of physical evidence, including firearms, tool marks and glass analysis. They will also discuss forensic research initiatives at the seminar, to be held at 1pm on 12 June 2010.

NZBA Vice-President, Jonathan Eaton, says that the workshops are tailor-made for busy criminal law practitioners.

“The timing of the seminars on Saturday afternoon is aimed partly at allowing practitioners from out of Auckland to attend.

With cheap airfares, travel to the seminars from a distance is feasible and, to date, practitioners from Christchurch, Wellington, Whangarei and Tauranga have attended.”

CBA President, Anthony Rogers, says that continuing legal education is vital to ensure a high standard of representation for clients. “As we are about to learn in the context of legal aid

cases, quality representation is essential if practitioners are to achieve, maintain and advance legal aid categorisation.”

The seminar series comprises 16 Saturday afternoon workshops, with 11 of them still to come. On 19 June, Professor Warren Brookbanks will provide an update on criminal law, following on from the comprehensive update he provided at the first seminar in the series in March.

A detailed look at DNA evidence will be provided over the course of two seminars to be held on 3 and 31 July.

Specific issues under the microscope will include the New Zealand DNA databank, new DNA developments and technologies, DNA evidence interpretation and statistics.

Technical Leader Biology, Dr Sally Ann Harbison of ESR will address the first DNA seminar, while ESR’s Principal Scientist, Dr John Buckleton, will be the speaker at the second.

Participants in the seminar series will be invited to make a site visit to ESR on 4 September. Other topics to be covered in the seminar series this year include evidence law, toxicology services, and criminal procedure.

In a recent edition of Legal Business Magazine and also Marsh legal survey of the top 150 United Kingdom legal firms, it was established that the top 10 most common causes of claims were:

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

Failure to identify the client Inadvertently advising third parties Failure to define the scope of the instruction or “mission creep” Failure to distinguish role from those of other professionals Failure to record instructions and advice in notes or correspondence Advising outside area of expertise Missing time limits / failure of diary system Lack of supervision Time pressure Failure to identify and properly deal with conflicts of interest

Mark your diaries for 23 September when Liam Pomfret and Andrew Jollands of Marsh will discuss with members recent claims examples and tips to avoid them.

Visit the national events calendar on the NZBA website www.nzbar.org.nz for further information.

12

Buying a New Computer Made (Almost) Easy

by Callum Mills, Ideal Systems So it’s time to buy a new computer.

What you buy and where you buy it from should be informed choices that you don’t regret in a year’s time.

The first question to consider is a fairly simple one - a laptop or a desktop system.

Laptops offer tremendous flexibility, but are difficult to expand or upgrade and they are more expensive than a comparable desktop system. Laptops also have a shorter life expectancy than a desktop system. You should plan on a laptop system lasting for three years compared to a desktop which should last five years. It is not that the systems will stop working after that time; they will just be unacceptably slow. Laptop systems choose their components based on low power consumption and low heat generation; this always leads to a reduction of processing capability.

Always buy a machine from a well-known manufacturer. My preference is HP, Toshiba or Lenovo (previously the IBM PC company). All manufacturers have ranges of domestic and commercial machines. Domestic machines are aimed at the home market and have lots of frills. Commercial machines have fewer frills but offer some great pricing and warranties for a more powerful machine. Opt for a three-year warranty from the manufacturer. This is more cost effective than a generic warranty you get from a store.

Whatever machine you buy make sure you get the best processor that your budget allows. This is the engine of the computer and cannot be readily upgraded. Try to avoid cut down processors such as Celerons. Instead, opt for full dual core or, even better, quad core processors, which offer processing power that will last the distance. There is always a choice between Intel or

AMD processors on all the major manufacturers’ systems and it can be difficult to draw a full comparison. It is a bit of a Ford v Holden contrast and both manufacturers offer a strong range of processors. Intel is winning the power race with their quad core devices, and I have always opted for the Intel option without any regrets.

Now you have to look at the amount of memory in the device. This is RAM memory rather than disk storage. The more memory a system has the faster it can run. Most computers are sold with two gigabytes of RAM, which is enough for the computer to run reasonably well. I recommend doubling that to four gigabytes. This should be a fairly inexpensive upgrade costing around $100 and will help the computer cope with running multiple tasks simultaneously. This means that when your virus scanner kicks in the computer won’t start to crawl.

Disk storage is less fraught. Most systems have at least 300Gb of storage, which should be more than adequate. Check how much data you have now and then multiply it by five to gauge how much you will need.

Screen size is critical. Too small a screen on a laptop can make it useless unless you have perfect eyesight or you carry around a large screen to plug into the back. Many of the smaller laptops are equipped with 10” screens which are great for transportability and battery life, but of less use for most people over the age of forty. A 14” screen is quite useable under most circumstances and larger screened laptops are readily available. On a desktop system the minimum starting point is a 17” screen and manufacturers will often have a

deal to increase the screen size to say a 22” for only $100 more. Do check what special offers are around.

You still have a few choices to make, such as an operating system. You can still buy PCs with Windows XP, which has been around for almost ten years. Vista was not a favourite with most users and sales were disappointing (for Microsoft at least), and now we have Windows 7, the latest operating system from Microsoft. I run all three operating systems without issue, but my choice is Windows 7. It offers great flexibility and is noticeably faster than Vista. The only reason I would choose Windows XP was if I had some legacy applications that would only run on Windows XP. Each of the operating systems comes in several different versions. Avoid the home versions especially if you are planning to network your PCs. Opt for the professional or ultimate versions instead.

Don’t put away your cheque book or credit card just yet. You will also need to budget for a new version of Microsoft Office and a suitable backup device.

Do you need the Basic or Professional version of Office? The cost difference is several hundred dollars. Backup devices that contain software to make backups easy are very cost effective and easy to install and use. Have a look at the Western Digital range at www.wdc.com Callum Mills, the author of this article has worked in the IT industry in Europe and Australasia for over thirty years, specialising in consultancy for the Legal, Media, Retail and Fashion sectors.

Callum would be happy to answer any IT related questions that you may have.

Please send them to callum@ideal-systems.co.nz.

13

WHAT MEMBERS NEED TO KNOW Winner of the Western Digital Tb My Book Elite Edition Congratulations to NZBA member Martin Taylor of Cuba Chambers in Wellington who was the first person to email callum@ideal-systems.co.nz with a translation of the title of the article “Abundans cautela non nocet” which featured in the March issue of At the Bar.

NZBA Mentoring Programme A reminder to members that the NZBA has a mentoring programme which aims to provide a means for less experienced practitioners and members who are new to the independent bar and/or to the NZBA with an opportunity to receive valuable support and guidance in their professional development from a senior member of the NZBA. The mentoring programme is an informal arrangement made between a mentor and mentee. The Bar Council is conscious that there are far too many variables to consider a “one size fits all” approach. For that reason, the aim of the programme is to be flexible in a way that allows a mentee to develop at a comfortable pace.

Visit the “Professional Development” page of the NZBA website www.nzbar.org.nz to find out how to register as a mentor and/or mentee.

NZBA “Find-A-Barrister” Directory The on-line directory is available on the website and includes information on practising barristers, their areas of practice and contact details.

Members can update their own details or send any changes in particulars to the NZBA administrator at nzbar@nzbar.org.nz.

Annual Subscriptions The payment date of annual subscriptions was 20 May 2010. A reminder to members that services provided by the NZBA including PII premiums offered by Marsh, are dependent on members being financial.

NZBA Insurance Plan To enable Marsh to contact you prior to your renewal date, please contact Liam Pomfret at liam.pomfret@marsh.com.

This will ensure you do not miss renewing your insurance and you maintain continuity with the NZBA Insurance Plan facility.

New Bar Association Members The Bar Association welcomes the following new members to the independent bar and/or the Bar Association: AUCKLAND:

Arlan Arman, Paul Dalkie, John Eichelbaum, Alex Lankovsky, Davina Murray, Keely Muston, Matt Taylor, Lisa Wansbrough

WELLINGTON:

Paul Chisnall, Kevin Sullivan

BAY OF PLENTY:

Daniel Kerr, Pauline Nidd, David O’Connor

OTAGO:

Jan McLeod

Bar Council Meetings and Events Members should feel free to contact any of the Bar Council members – or the Bar Association – with any matters they would like raised on their behalf at future Bar Council meetings.

DATE

EVENT

VENUE

25 June

Council Meeting

Video conference

27-29 August

Annual Conference

Queenstown

08 October

Council Meeting

Hamilton

03 December

Council Meeting

Auckland

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WHAT MEMBERS NEED TO KNOW Daily Recovery Rates The changes to the daily recovery rates proposed by the Rules Committee have been approved by Cabinet. The commencement date for the new rates is 24 May 2010.

The new rates are as follows: High Court The following are the appropriate daily recovery rates for the categories of proceedings referred to in rule 14.3 of the High Court Rules: • • •

Category 1 proceedings $1,250 per day Category 2 proceedings $1,880 per day Category 3 proceedings $2,780 per day

District Courts The following are the appropriate daily recovery rates for the categories of proceedings referred to in rule 4.3 of the District Courts Rules: • • •

Although there will be no impact on listed lawyers and other legal aid providers from the change in the GST rate in terms of payment for the services provided, ie the GST exclusive rate, there will be an impact on the legally aided person for whom a debt is established - they will be making repayments based on the cost of services at the new GST inclusive rate.

The Agency will notify providers of the changes to the hourly and fixed fee rates resulting from the change in GST rate in July. Changes to the current claim forms used to invoice the Agency will be needed. Guidance on to how manage the change in GST rate will also be developed and communicated to lawyers and other listed providers.

Rates of payment for legal aid In the Budget, the Government approved funding to continue the rates of payment for legal aid at the current level for 2010/11.

This means that the Agency’s hourly and fixed fee rates of payment will remain at current rates.

Category 1 proceedings $1,000 per day Category 2 proceedings $1,500 per day Category 3 proceedings $2,220 per day

Please refer to High Court Amendment Rules 2010 (SR 2010/88) and District Courts Amendment Rules 2010 (SR 2010/89) for transitional provisions.

Budget 2010 GST and rates of payment for legal aid The Government has raised the rate of GST from 12.5% to 15.0 % with effect from 1 October 2010.

The rates of payment for legal aid will not change but the inclusive rate will.

For example, the GST rate change, on the hourly rate for a level 3 provider undertaking category 1 matters in the criminal jurisdiction, will be:

GST inclusive rate (rounded) GST exclusive rate

Before (@12.5% GST)

After (@15.0% GST)

$119.00/hour

$122.00/hour

$105.78/hour

$105.78/hour

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NZBA ANNUAL CONFERENCE NZBA ANNUAL CONFERENCE – 27 TO 29 AUGUST – MILLBROOK QUEENSTOWN

to the rule of law. This session will consider a range of recent and proposed changes against this background.

The theme of this year’s conference is “JUSTICE AT ANY COST?” and will take place at the beautiful Millbrook Resort in Queenstown.

Court awarded costs are a vital pre-action consideration and frequently hotly contested where a determination on liability has already been reached. When applied on a standard basis the “follow the event” method of their application is intended to indirectly regulate the merit of claims brought to trial. The use of increased and indemnity costs, the recent proposals to allow them to be imposed directly upon counsel, are intended to reflect and designate the merits of parties’ actions during trial.

This session will consider the existing regime, its efficacy, and recent developments within this broader regulatory context.

The conference weekend will begin with an informal dinner on the Friday evening. The keynote speaker for Saturday’s conference is The Rt. Hon. Lord Justice Jackson who, upon accepting the NZBAs invitation to speak at the conference, commented “your programme looks excellent”.

Members will recall Sir Rupert’s visit to New Zealand last year in relation to the Review of the costs of litigation. His visit was written up in chapter 59 of the Preliminary Report, which subsequently stimulated much debate during the consultation period. The proposals in Sir Rupert’s Final Report have been influenced by what he learnt from other jurisdictions, including New Zealand.

“The experience of last year has convinced me that all common law jurisdictions have much to learn from one another”. Sir Rupert has been asked by the Master of the Rolls to assist with implementing his costs report recommendations.

SATURDAY, 28 AUGUST 2010 Session 1: Litigation Efficiency and the Costs of Access to Justice: Just Determination v Cost Effectiveness Part A: Litigation Efficiency: Present and Future Improvements to Court Processes Several recent or proposed changes aim to update and improve New Zealand’s civil and criminal litigation processes.

These have included the extensive revision of the District Court Rules, the increasing prominence of judicial settlement conferences, and the introduction of court assisted mediation in the High Court, and the omnibus Criminal Procedure Bill.

The aim of achieving efficiency through such improvements is laudable for reasons ranging from the need to best use public funds to its underlying our society’s fundamental commitment

Part B: The ‘Costs’ of Justice: Court Awarded Costs, and Judicial Regulation of the Litigation Process

Session 2: Litigation Funding: Accountability, Transparency, and Access to Justice - the Public/Private Divide In 2008/2009 the Legal Services Agency paid $128 million to New Zealand lawyers. The same year saw New Zealand’s first professional litigation funders enter our legal services market.

Both, in essence (although in widely different ways), are committed to providing access to justice. This session aims to examine recent and likely developments in the role played by each, and their impact upon barristers and the legal profession as a whole.

Session 3: Counsel’s Duty to Co-operate: Ethics at the Bar The proposed introduction of a duty to co-operate raises questions as to the nature and extent of that obligation as it exists.

This session aims to address issues arising out of the obligation, including: just what such co-operation requires and what it does not; how barristers are uniquely subject to ethical duties to the court; and where future developments in the duty might lead.

SUNDAY, 29 AUGUST 2010 Breakfast with Lord Justice Jackson followed by discussions on Law in Recessionary Times and the Law and Emerging Technologies

REGISTRATION OPENS ON 14 JUNE 2010 16

Junior Barristers’ Update for Hamilton and Auckland and members should visit the NZBA website to download a registration form.

From left to right, Stephen Mills QC, NZBA Auckland Vice-President, winner of the Sentencing Advocacy Competition, Benedict Tompkins; Justice Courtney, Jaime Pang, runner-up; and Justice Wylie (Photograph provided courtesy of ADLS Inc).

Dear Jubes, Mid-year fast approaches. I trust this finds you both busy and productive.

Much in the news recently are the tax cuts planned for this year’s budget. With the top personal tax rate likely to be reduced to within peering distance of the corporate tax rate, barristers who had or were considering incorporating their practices since the Lawyers and Conveyancers Act 2006 may now be wondering whether the benefit is worth the bother. For those who attended the “How to make your practice more profitable” seminar in March however, the pros, cons and necessary steps of incorporation will be markedly clearer. The seminar also offered a valuable oversight of the ‘reasonable fee factors’ contained in the Lawyers’ Conduct and Client Care Rules. Addressing both how to generate profit and how to keep it, the session was well received and likely to be repeated.

Barristers-to-be from Auckland and Hamilton recently got a chance to test their skills in the NZBA sponsored Sentencing Advocacy Competition held at the University of Auckland and the Auckland High Court. Finalists Benedict Tompkins and Jaime Pang appeared before Justices Courtney and Wylie in front of an audience of about 60 on a difficult “one-punch” death problem scenario. NZBA Auckland vice-president, Stephen Mills QC, complimented both on the high standard of their submissions, presenting Benedict with the NZBA’s prize of $600 for first place, and Jaime with $400 as runner up. The competition was a great success and is likely to be extended to Wellington. Judges for preliminary rounds will be required, and junior barristers interested in participating should contact the High Court.

In more local news, I hope you will have read announcements for the very popular “Take the Lead and Shape your Future” seminar. The seminar presents an unparalleled opportunity for junior litigators (and especially barristers!) to hear firsthand from leading members of the profession as to what seniors are looking for from juniors. Dates have been set

Also recently announced was the NZBA Annual Conference. The venue has been confirmed as the Millbrook Resort in Queenstown for the dates of 27 to 29 August. The theme will be “Justice at any Cost?” and we are very pleased to have secured the Rt. Hon. Lord Justice Jackson as the keynote speaker. The programme looks to include sessions on litigation efficiency; the regulation of litigation conduct through costs; public and private funding; and counsel’s duty to co-operate and ethics at the bar. Millbrook and Queenstown of course also offer skiing, golf, full spa facilities and wine-tasting. Reservations will be open shortly..!

The same week as the Annual Conference (and conveniently close by) is the renowned NZLS Litigation Skills Programme.

This should be a vital training event for any junior barrister and, to assist, the NZBA is offering scholarships to two junior members. See the NZBA’s website for details on how to apply for a scholarship.

A reminder too, as you expand your fields of practice, to maintain and develop your profile on the NZBA website.

After logging in, go to “your dashboard” to review and edit your profile. The information you provide will be available to anyone using the website’s “Find a Barrister” service, and is a quick and easy way to provide your contact details to briefing agents, solicitors and the public.

Lastly, for those of you not averse to a different kind of marketing; the most recent edition of “barnews”, the journal of the New South Wales Association, contains an eminently sensible and enlightened article by Phil Greenwood SC at page 37. There, in a piece entitled “Junior counsel: brief them early and often”, Mr Greenwood notes the decision of Justice White of the NSW Supreme Court in April Fine Paper Macao Commerce Offshore Ltd v Moore Business Systems Australia Ltd [2009] NSWSC 867. In the course of a decision on legal costs, the Supreme Court stated: In a usual case of commercial litigation, counsel, at least junior counsel, should be briefed early. Where there is work that can be done either by the solicitor or by junior counsel... then the solicitor’s duty to his or her client is to ensure that the work is done at the lower cost. That general statement is, of course, subject to the ability of the individual legal practitioners involved. But very often one sees work done by a solicitor in a firm which could be done equally well or better at a fraction of the cost by junior counsel with considerably more experience as a litigation solicitor and with more expertise.

Food for thought, and perhaps an article worth sharing? As always, please do get in touch if you have suggestions or questions on how the NZBA can work for you. I look forward to seeing you all at the conference in August.

Toby Futter, Junior Barrister Representative E: toby@futter.co.nz T: +64 9 308 0516

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NZBA NATIONAL CALENDAR MARK YOUR DIARIES NOW! A list of NZBA events for 2010 can be found below. Programmes and registration forms are available on the events calendar page of the NZBA website www.nzbar.org.nz. Please note that these dates are subject to change. Members are encouraged to refer to the NZBA website for updates to this schedule.

DATE 02 June 11 June 12 June 19 June 03 July 15 July

SEMINAR Take the Lead and Shape Your Future : a half-day seminar followed by networking function Closing date for applications for NZBA scholarship grants to attend the NZLS Litigation Skills Course ESR: Physical Evidence, presented by Gerhard Wevers, Senior Scientist Physical Evidence and Dr Douglas Elliot, Science Leader Auckland Forensic Service Centre Criminal Law Update: presented by Professor Warren Brookbanks ESR: DNA Evidence (Part I), presented by Dr SallyAnn Harbison, Technical Leader Biology Take the Lead and Shape Your Future half-day seminar followed by networking function

24 July

Criminal Law Update: presented by Professor Warren Brookbanks

31 July

ESR: DNA Evidence (Part II), presented by Dr John Buckleton, Principal Scientist

21 August

Criminal Law Update: presented by Professor Kris Gledhill

27-29 August

“Justice At Any Cost?” NZBA annual conference

04 September

ESR: Site visit

18 September

Criminal Law Update: Evidence Law, presented by Peter Sankoff

23 September

Risk Management: Business Basics for Barristers and Sole Practitioners, presented by Marsh Ltd followed by networking function

02 October

ESR: Toxicology Services, presented by Dr Keith Bedford, GM Forensic

16 October

Criminal Law Update: presented by Professor Warren Brookbanks

TBC October

Practical tips and techniques to consider when “Finding the Facts”

20 November

Criminal Law Update: presented by Associate Professor Scott Optican

Additional Professional Development seminars – dates to follow 1. Forensic accounting and forensic technology, presented by Deloitte 2. “The Art of Written Persuasion”, presented by Professor James C Raymond

18

VENUE Waikato Stadium 2-6pm Christchurch Pioneer Women’s Hall, central Auckland 1-3pm Pioneer Women’s Hall, central Auckland 1-3pm Pioneer Women’s Hall, central Auckland 1-3pm Central Auckland 1:30–6pm Pioneer Women’s Hall, central Auckland 1-3pm Pioneer Women’s Hall, central Auckland 1-3pm Pioneer Women’s Hall, central Auckland 1-3pm Millbrook, Queenstown Auckland Pioneer Women’s Hall, central Auckland 1-3pm Central Auckland 4-6pm Pioneer Women’s Hall, central Auckland 1-3pm Pioneer Women’s Hall, central Auckland 1-3pm Central Auckland Pioneer Women’s Hall, central Auckland 1-3pm

INTERNATIONAL CONFERENCES AND EVENTS ABA annual meeting in San Francisco 5 – 10 August 2010 The American Bar Association annual meeting returns to San Francisco, a city with a robust bar community that offers world-class restaurants, shopping, and other attractions.

The ABA’s sections, divisions, and other entities are developing more than 220 CLE programs that will help delegates improve their professional skills and expertise.

There will be abundant opportunities to network with lawyers and judges from around the world. The meeting will also feature the world’s largest legal EXPO, providing an array of goods and services pertaining to the practice of law.

The Opening Assembly will be held on Saturday, 7 August at 5:30pm at the Herbst Theatre. The President’s Reception will immediately follow at the San Francisco City Hall and it promises to be a superb evening.

For up-to-date information about the meeting, please visit the ABA website at www.abanet.org/annual/2010

IBA annual conference in Vancouver 3 – 8 October 2010 This year the sections and committees of the IBA’s Legal Practice Division are once again offering scholarships to young lawyers who wish to participate in the IBA annual conference, but may find financial difficulties in doing so.

If you are interested in applying for a scholarship, please visit http://www.ibanet.org/Education_and_Internships/education_ and_internships.aspx for further information. The deadline for submissions is Monday, 26 April 2010.

The IBA conference is the opportunity for legal professionals from around the world to meet and discuss key developments across multiple jurisdictions. In the current economic climate, it is ever more crucial to be fully informed and to practice to the best of our abilities. As the global voice of the profession, the IBA is uniquely qualified to provide delegates with skills, knowledge, and connections required to help you do so.

The Rt. Hon. Stephen Harper, Prime Minister of Canada, has been invited to formally open the conference, whilst Bob Woodward, the foremost journalist of his generation, will deliver the keynote speech at this year’s opening ceremony.

From his defining role in revealing the full extent of the Watergate scandal, to the Supreme Court, the CIA, the Pentagon, President Clinton, the Federal Reserve, the 9/11 terrorist attacks, four books on the wars of President George W Bush, and now the Obama administration, Woodward has consistently found the inside, hidden story of Washington institutions and the American Presidency.

Register before Friday, 16 July to receive the early registration discount at www.int-bar.org/conferences/Vancouver2010

National alternative dispute resolution bodies, the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) and the Institute of Arbitrators and Mediators Australia (IAMA) will hold a joint conference in Christchurch, 5 - 7 August 2010, “Challenges & Change” sponsored by Lane Neave. The conference will bring together the leaders of dispute resolution from throughout the region and promises to be the largest dispute resolution conference ever held in New Zealand.

The conference will focus on all methods of alternative dispute resolution including mediation, arbitration, adjudication and expert determination. Conference information and registration details can be found at www.aminz.org.nz The New Zealand Bar Association is a supporting organisation of the conference and as such NZBA members can register at AMINZ member rates. Please enter the promotional code: CONF2010 when you register online, in order to receive member rates.

19

2010 COUNCIL CONTACT DETAILS

NEW ZEALAND BAR ASSOCIATION

Grant for the New Zealand Law Society Litigation Skills Programme In recent years there has been increasing criticism levelled at junior counsel making court appearances when they are lacking the basic experience and training necessary to enable them to carry out their duties to their clients and the court properly and adequately. The perception has been that a reasonable standard of competence is lacking in all areas of conducting cases in court, including advocacy skills, a realistic understanding and assessment of the issues involved and the processes of the courts including fundamental issues of practice and procedure.

Both the Bar Association and the Law Society are currently undertaking a close examination of ways to improve the standards of junior counsel, both those practising at the independent bar and those in firms of barristers and solicitors. It is hoped that in due course a comprehensive formal scheme for preparing barristers for court appearances will be put in place. In the meantime the Council of the New Zealand Bar Association has decided to give financial assistance to two recent new members of the independent bar. The grants are being offered by the Council as an indication of its determination to support the initiatives presently being taken to improve the standard of litigation skills of those at the independent bar.

We invite applications for the 2010 New Zealand Bar Association grants for the Litigation Skills Programme. The closing date for receipt of applications is Friday 11 June 2010. The grants take the form of financial assistance to attend the Litigation Skills Programme run by the New Zealand Law Society. The Bar Association will make a grant of $3,250 (GST inc) towards the cost of each of two barristers practising at the independent bar. You do not have to be a member of the New Zealand Bar Association but you must be eligible to join ie practising as a barrister sole. The scholarship recipients will be required to join the Association and will be expected to remain members for a minimum of 3 years.

Please forward a curriculum vitae and a few short paragraphs as to why you think you should receive the scholarship to: The Executive Director New Zealand Bar Association P O Box 631 Shortland Street Auckland, 1140

The deadline for the application is FRIDAY 11 JUNE 2010.

NB: Applicants requiring further financial assistance may also wish to apply to the Douglas Wilson Advocacy Scholarship Trust. For an application form please visit www.lawyerseducation.co.nz or contact: Amy Wills Advocacy Programme Coordinator New Zealand Law Society Fax: (04) 463 2986 Freephone: (0800) 333 111 amy.wills@lawyerseducation.co.nz

20

COLIN CARRUTHERS QC - President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Wellington, 6140 crc@crcarruthers.co.nz

MIRIAM DEAN QC - President–Elect Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Shortland Street, Auckland, 1140 miriam@barrists.co.nz

STEPHEN MILLS QC - Vice-President Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 stephen.mills@shortlandchambers.co.nz

CHRISTOPHER GUDSELL QC - Vice-President Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton, 3244 ctgudsell@xtra.co.nz

JONATHAN EATON - Vice-President Ph: 0064 3 471 2727 Fax: 0064 3 499 4620 P O Box 13-868, Armagh, Christchurch, 8141 j.eaton@.bridgesidechambers.co.nz

KENNETH JOHNSTON - Treasurer Ph: 0064 4 372 3466 Fax: 0064 4 365 2592 P O Box 5058, Lambton Quay, Wellington, 6145 k-johnston@clear.net.nz

TOBY FUTTER - Junior Barristers’ Representative Ph: 0064 9 308 0516 Fax: 0064 9 308 0518 Bankside Chambers, Level 22, 88 Shortland Street, Auckland toby@futter.co.nz

CATHERINE BIBBEY Ph: 0064 3 377 5589Fax: 0064 3 365 2592 P O Box 13-868, Armagh, Christchurch, 8141 c.e.bibbey@xtra.co.nz

TIM CASTLE Ph: 0064 4 471 0523 Fax: 0064 4 471 0672 P O Box 10048, Wellington tim.castle@xtra.co.nz

GERARD CURRY Ph: 0064 9 377 9783 Fax: 0064 9 377 9784 P O Box 106586, Auckland, 1143 gerard.curry@argylechambers.com

KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland, 1140 kate@katedavenport.co.nz

GRAHAM KOHLER Ph: 0064 9 307 9816 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 kohler@shortlandchambers.co.nz

ELLIOT HUDSON Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton, 3244 elliothudson@xtra.co.nz

JOHN MATTHEWS Ph: 0064 3 409 2010 Fax: 0064 3 409 2012 P O Box 1770, Queenstown, 9348 jgmatthews@xtra.co.nz

ANTHONY ROGERS Ph: 0064 9 377 4850 Fax: 0064 9 377 4850 P O Box 1771, Shortland Street, Auckland, 1140 agvr@xtra.co.nz

Summary of Council Meeting Minutes The Minutes of the Council Meeting of the NZBA held on Friday, 5 March 2010 at 11:30am at the Christchurch Club. Local barristers joined the Council for lunch between 1:00-2:00pm.

Present: Colin Carruthers QC, Stephen Mills QC, Gerard Curry, Graham Kohler, Kenneth Johnston, John Matthews, Tim Castle, Anthony Rogers, Toby Futter, Monique Pearson Apologies: Miriam Dean QC, Christopher Gudsell QC, Jonathan Eaton, Kate Davenport, Elliot Hudson, Catherine Bibbey K Johnston reported on the financial accounts for November and December 2009 and January 2010. Points of interest included receipt of the NZBA’s first administration payment from Marsh and sundry income earned from interest on term deposits.

The meeting noted that, overall, Council travel expenses were higher against last year’s figures. K Johnston explained that the reason for the increase was due partly to the inclusion of overseas travel to ABA and ACT Council meetings, to which the President of the NZBA has a standing invitation. The Council viewed the Australian connection as critical and agreed there was much benefit to having a presence at the Australian meetings. In addition, the increased expenses factored in the fees paid to the NZBA’s contract administrator.

Following a general discussion regarding membership categories, in particular the 0-3 year group, the Council agreed that subscriptions for the period 1 April 2010 to 31 March 2011 would remain unchanged.

M Pearson provided the Council with an updated profile of the NZBA and its membership; considered the current position of the NZBA in light of recent regulatory changes; and made recommendations to advance the NZBA strategically. A series of questions were dotted throughout the report to assist the Council with determining short, medium, and long-term goals.

C Carruthers thanked M Pearson for the comprehensive report and invited Council members to defer any matters concerning its content to M Pearson. The Council agreed to form a planning group that could focus on the agreed way forward.

The meeting discussed and confirmed the date of the annual conference as 3-5 September [subsequently amended to 27 to 29 August]. The meeting was in favour of C Carruthers inviting Lord Justice Rupert Jackson as the keynote speaker.

C Carruthers briefed the Council on his meeting with Dr Collins regarding CLO membership of the NZBA and the Equitable Briefing Policy. In terms of the Equitable Briefing Policy, C Carruthers asked Council members to give some thought as to how the NZBA might achieve its objective of independent oversight and the audit of the Policy. Carruthers referred to the view of the CLO regarding its possible resumption of corporate membership of the NZBA. CLO expressed the possibility of access to NZBA training as being an incentive, however, noted the need to establish value in such training. The Council agreed to consider this further with a view to possible proposals in the future.

The Council agreed it would again offer two full scholarships to attend this year’s course despite an increase in course fees.

M Pearson confirmed the NZBA had made a financial contribution to the IBA appeal towards the reconstruction of the Haitian judiciary.

M Pearson and T Futter discussed their attendance at the DLA Phillips Fox luncheon with the American Bar Association delegation on 12 February. The ABA group was visiting Australia and New Zealand as part of an International Legal Exchange.

The luncheon presented the NZBA the opportunity to promote its presence and role within the New Zealand legal profession to appropriate members of its international counterpart.

T Futter advised that the NZBA had secured sponsorship rights in respect of the Sentencing Advocacy Competition at the High Court in Auckland on the evening of 22 March. He advised that the Ministry of Justice as co-sponsor appeared interested in regularising the arrangement in Auckland and expanding it to a similar competition in Wellington.

T Futter advised that he had consulted and prepared a draft annual conference programme outline detailing seminar topics and proposing speakers. He further advised that the keynote speaker presently under consideration was Lord Justice Rupert Jackson.

M Pearson reported on the training programme.

A repeat of Take the Lead and Shape Your Future would almost certainly take place in Auckland sometime in May [subsequently fixed at 15 July].

Administration for the Criminal Law Updates was coming along and Professor Brookbanks’ programme for the monthly seminars had been finalised.

The ESR seminar series programme would commence in on 10 April.

The Training Committee would explore with Professor Raymond possible dates to repeat the Art of Written Persuasion in Auckland and Wellington.

G Curry agreed to draft the programme for Finding the Facts, which would essentially look at some discovery and related issues.

M Pearson would confirm with Deloitte a programme for the Understanding Forensic Accounting and Technology seminar.

S Mills asked M Pearson to send out an email to all members of the NZBA requesting their feedback on the Duty to cooperate consultation paper. Although a formal subcommittee exists, S Mills invited Council members to email indications of their willingness to participate in preparing the NZBA’s submission to M Pearson.

C Carruthers reported on the first meeting with J Marshall and the committee reviewing the Intervention Rule. He commented the review was very much in its early stages and thought there was much more to debate. Mary Olivier was putting together material for the committee, which C Carruthers said he would circulate to the Council.

G Curry raised the issue of procedural impropriety in legal complaints boards and the need for greater independence between investigative and prosecutorial functions of it. C Carruthers asked G Kohler and G Curry to give some thought to the issue and produce suggestions as to whether and how the NZBA might assist. The Council continued to discuss the matter and an initial suggestion was that a database of barristers willing to offer preliminary advice and if desired to act for those subject to complaints might be developed.

The meeting adjourned at 3:55pm.

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