LawTalk 799

LAWTALK

6 JULY 2012 / 799

FOR THE NZ LEGAL PROFESSION

NEW ZEALAND LAW SOCIETY NZLS EST 1869

NEW ZEALAND LAW SOCIETY NZLS EST 1869

Practising Certificate I certify that Joe Blogs is enrolled as a Barrister and Solicitor of the High Court of New Zealand under the Lawyers and Conveyancers Act 2006 and is entitled to practise as a Barrister & Solicitor until 30 June 2013.

ID: 123456 Date of issue: 25 May 2012

PROPERTY LAW CONFERENCE - PAGE 4 CERTIFICATE RENEWALS - PAGE 7 Apps - PAGE 16

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Christine Grice Executive Director

MBA a revelation for career lawyer

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ursuit of a Kiwi lifestyle brought Trevor Wairepo back to New Zealand, but it was the opportunity to join AMP NZ Office Ltd as General Counsel that kept him here.

The University of Auckland MBA student left for a London OE in 1999, with law and political science degrees. He forged a successful career with global law firms Freshfields and Gibson Dunn & Crutcher and fell in love with the London lifestyle. Following the birth of their son, Trevor and his wife thought long and hard about whether London “was the right place to raise a family.”

After nine years in London the couple returned to their hometown of Christchurch. This provided an opportunity to reflect on the next stage of his career.

“I had a long look at my career: what I had achieved and what I wanted to achieve in the future. I started an LLM thinking this would help me achieve my goals but quickly realised it wasn’t for me.”

His LLM supervisor suggested he consider an MBA, which was “a revelation.”

“The skills, knowledge, experience and the network of people on offer were very impressive and provided the challenge that I was searching for,” he says.

The Christchurch earthquakes were a turning point for Trevor and his family. He was literally on the phone to a recruitment consultant in Auckland when the second earthquake hit. They were talking about the role with AMP NZ Office Ltd, a $1.3 billion listed property company.

Trevor, who is a UK and New Zealand-qualified solicitor, chartered company secretary and a fellow of the Institute of Chartered Secretaries, joined the Auckland-based company last year.

“I didn’t believe there was a role like this for me in New Zealand. It did make us realise that we could stay in New Zealand, have the family life we were looking for and I could have the career I wanted.”

It was also important to Trevor that he finish his MBA study.

He was accepted into the University of Auckland MBA, which he pursued for its global reputation and credentials.

He will finish the MBA later this year.

“It has been fantastic for the quality and international experience of the lecturers and also the quality of the people who are at the same level, who are equally committed and passionate about learning new skills, frameworks, methodologies and knowledge and applying that to the business they’re involved with.”

As a lawyer, Trevor says he has learned that while the legal component of a business solution is important, “it is not the only or necessarily the most important component.”

“It’s being able to stand back and see where legal fits in and then critically analyse, evaluate and improve commercial solutions in new and innovative ways. The MBA enables a greater and more meaningful contribution to be made beyond that provided by the traditional black box of legal skills.”

He would recommend an MBA for lawyers who have decided to move in-house.

“It’s a great advantage to understand from a solid theoretical and practical basis all of the building blocks of a business.

And that’s a foundation from which to make a positive, meaningful and sustainable contribution that you wouldn’t otherwise be able to provide.”

The MBA study is a “massive sacrifice,” but Trevor says it “provides a rich and rewarding environment where you can gain an enduring competitive advantage.”

The University of Auckland Master of Business Administration (MBA) has intakes in January each year, and welcomes applications from business leaders. Find out more at www.gse.auckland.ac.nz/nlw.

INSIDE

THE MAGAZINE

“Adaptability and flexibility are the hallmarks of operating successfully in the post-earthquake environment.” p. 4

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16 NEW ZEALAND LAW SOCIETY NZLS EST 1869

Practising Certificate I certify that Joe Blogs is enrolled as a Barrister and Solicitor of the High Court of New Zealand under the Lawyers and Conveyancers Act 2006 and is entitled to practise as a Barrister & Solicitor until 30 June 2013.

Be proactive to add value to your firm, your clients and the profession

By HANNAH GRANT

The need for lawyers to be proactive was the reverberating advice from presenters at the NZLS CLE Property Law Conference 2012...

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Going green – buildings and leases

By HANNAH GRANT

ID: 123456

Christine Grice

Date of issue: 25 May 2012

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Executive Director

Profession remains strong

Taking the reins in a state of emergency

Practising certificate renewals have risen slightly for the 2012-13 practising year...

If you ever happen to find yourself the chief legal officer of a brand new authority in a new city in a state of national emergency...

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Lawyer ID card applications open Members can apply for photo ID cards online in an updated, streamlined process at a reduced rate...

More and more people in society are developing a green streak...

NZLS EST 1869

Wounded bulls and sacred cows

By PAUL COLLINS

The statistics of the Lawyers’ Complaints Service show that complaints of overcharging significantly exceed most other categories of conduct or service complaint...

REGULARS

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People in the law

Bookshelf

Effective Practice

Law Reform Report

Branch News

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CLE

Lawyers Complaints Service

10 handy applications for your smartphone or tablet

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Free will service cut

Mandatory CPD submissions considered

The Public Trust has announced that its free wills service will cease for most people on 1 July...

The Law Society’s governing Board has considered the written submissions made on the proposed Continuing Professional Development (CPD) scheme...

Dedicated professional development

21 Simplifying the discovery process

By ANDREW KING

Over recent years there has been an exponential growth in both the volume and sources of electronic information...

Most of New Zealand’s larger law firms have dedicated professional development and/ or learning and development teams...

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nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety

LAWTALK 799 / 6 JULY 2012

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FROM THE LAW SOCIET Y CH RISTIN E G RICE

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he practising certificate renewal round has closed for the 2012-13 year. This annual procedure is an important part of the maintenance of the professional regulatory framework. The declaration that we all make at renewal records our commitment to an ethical professional culture and to our fundamental obligations as lawyers.

Some of the popular annual research surveys on “trust” carried out by organisations such as Readers Digest rank firefighters and paramedics as the most trusted people. Lawyers are lower in the rankings clustered with other advisory professions such as accountants and bankers.

This contrasts with targeted research which says that the vast majority of clients trust and respect their own lawyer.

Detailed research carried out in 1996 sought the views of the public and lawyers. The public rated lawyers much higher than lawyers rated themselves.

For example, 71% of the New Zealand public felt lawyers were reliable, but only 40% of lawyers felt the public would agree that lawyers were reliable. I am sure there would be a similar result if the research were repeated today. The image we have of ourselves might be more of an issue than the image we think the public has of us.

The privileges afforded us are founded on our professional obligations. Users of legal services are entitled to expect a high quality of advice and to be confident that we act independently and in their interests.

Sadly our “trust” reputation gets dented each time one of our colleagues drops the ball. Usually that makes front page news and invites a feeding frenzy for the media. PR campaigns which are sometimes suggested as an antidote to the bad publicity do little in the face of that adverse publicity. The feedback the Law Society gets constantly is that most lawyers value their reputation and the best service that the Law Society can perform is to maintain an ethical professional culture by effective regulation. The scrutiny of professional regulation is constant and most lawyers respect and support the need for vigilant and responsive regulation. Particular recognition goes to those lawyers who willingly provide their services

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LAWTALK 799 / 6 JULY 2012

in the Law Society’s regulatory and disciplinary work.

The Registry team, in maintaining the Register and its oversight of entrants into the profession, plays an important role in ensuring regulation of the profession.

On page 7 of this issue of LawTalk, Registry Manager Lisa Attrill provides an update on the work of the Registry and the upcoming move to online practising certificate renewal.

The Law Society’s branches, sections and those outstanding members of the profession who provide the intellectual grunt, time and energy that supports the machinery of the organised profession contribute to the high regard in which it is held in government circles. Through its commentary on proposed laws and legislation and matters of topical interest as well as supporting the administration of justice of government and work with select committees and other public institutions the Law Society has a reputation for high quality and thoughtful input. The Law Society does speak out when the rule of law is threatened – both within New Zealand and in other countries. Sometimes these views are not popular. Nonetheless, the Law Society spokespeople regularly field compliments from Members of Parliament (of all political leanings) who rely on that input to ensure New Zealand’s legislation is clear and workable. The Law Society guards its reputation in this area very carefully.

The Law Society’s Property Law Section, Family Law Section and CLANZ, the section for in-house lawyers, ensure the public’s awareness of these speciality areas of the law. The effectiveness of the sections is a reflection of the hours committed to them by their members. The voluntary contributions of committee members enables the sections to deliver timely and targeted services.

Earlier this month from 17-23 June New Zealand celebrated Volunteer Awareness Week. When you consider the thousands of hours of pro bono work, free legal advice and services given to community groups, work at community law centres and other ways lawyers willingly give their time and expertise, we should all recognise that this country has a very fine and caring legal profession.

All in all the profession does have much to be proud of.

Christine Grice Executive Director

LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.

STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz Hannah Grant Ph +64 4 463 2902 hannah.grant@lawsociety.org.nz DISPLAY Advertising: Frank Neill Ph +64 4 463 2982, editor@lawsociety.org.nz CLASSIFIED Advertising: Christine Pugh Ph +64 4 463 2966 christine.pugh@lawsociety.org.nz Inquiries about subscriptions to: subscriptions@lawsociety.org.nz DESIGN: Jesse Cogswell Ph +64 4 463 2981 jesse.cogswell@lawsociety.org.nz Printing: Lithoprint, Wellington ISSN 0114-989X

Coming up …

Shirley Smith address Keeping Women in their Place – the question of “Culture” in International Law is the title of this year’s Shirley Smith address.

The NZLS Wellington branch’s Women in Law Committee presents this free public address, with the support of the New Zealand Law Foundation and Thorndon Chambers.

Professor Hilary Charlesworth will deliver the address at Lecture Theatre 1, Victoria University Pipitea Campus, Old Government Buildings, Wellington, from 5:30-7pm on 21 August.

Professor Charlesworth is Professor and Director of the Centre for International Governance and Justice in the Regulatory Institutions Network at the Australian National University.

She is also Professor of International Law and Human Rights in the College of Law, ANU. Professor Charlesworth held an ARC Federation Fellowship from 2005-2010 and currently holds an ARC Laureate Fellowship.

Her lecture will consider how arguments based on culture have been deployed in international institutions to challenge claims of women’s rights.

For example, many state reservations to the Convention on the Elimination of all Forms of Discrimination against Women are based on assertions of national or religious culture.

Professor Charlesworth will examine the negative and positive aspects of protection of cultures at the international level, arguing for a broad account of culture that is consistent with universal standards protecting women’s human rights.

Shirley Smith was a remarkable lawyer, who drew many accolades.

CLIENTS WITH

ACC DISPUTES? The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.

JOHN MILLER LAW

Level 1, 13 Leeds St I PO Box 6314, Wellington +64 (04) 801 5621 I info@jmlaw.co.nz www.jmlaw.co.nz

Just one example came from former Court of Appeal judge, Justice Ted Thomas. Justice Thomas described her as “a real fighter – someone who took the law to its outer limits in advancing the cause of women and family in matrimonial cases”. She was a pioneer, he said – “not someone who sought recognition for what she did. She was a real doer with a vast intellect. She could have made a real contribution at a theoretical level but she chose instead to work with people, for whom she had a real empathy”.

The then Speaker of the House, Margaret Wilson, delivered the first Shirley Smith address in 2008.

To reserve a seat, visit http:// bookwhen.com/wellingtonbranch.

Challenges for ombudsmen The 10th World Conference of the International Ombudsman Institute will be held in Wellington from 14-16 November.

Former Prime Minister Helen Clark will be one of the three keynote speakers at the event, hosted by the New Zealand Office of the Ombudsmen.

The conference theme is Speaking Truth to Power, and it will look at the role of the ombudsman in the 21st century – challenges and opportunities.

“This conference will be of interest to a wide range of people, including lawyers working in the field of public law and administrative justice,” says New Zealand’s Chief Ombudsman, Beverley Wakem.

See www.confer.co.nz/wcioi.

• Wish to refer them to a specialist ACC law firm?

• With nationwide coverage?

• We deal with ACC matters only and will not represent your clients in other areas.

LAWTALK 799 / 6 JULY 2012

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PROPERT Y L AW CONFERENCE

Be proactive to add value to your firm, your clients and the profession

By HANNAH GRANT The need for lawyers to be proactive was the reverberating advice from presenters at the NZLS CLE Property Law Conference 2012, held in Auckland on 18 and 19 June.

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“The events of 2011 in Canterbury have provided an enormous number of challenges for lawyers across the country,” says Law Society Property Law Section deputy chair Andrew Logan.

“Adaptability and flexibility are the hallmarks of operating successfully in the post-earthquake environment,” he says.

“Lawyers need to be more proactive in attempting to add value to their firm, their clients and the profession.”

At the conference, Maurice Williamson, Minister for Building and Construction said the widespread building and infrastructure damage caused by more than 10,000 earthquakes since 4 September 2011 means it has been a busy and complex time for property lawyers. He said with over 7,000 property owners on the move, building activity is now booming in Canterbury.

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Mr Williamson said that the earthquakes have created the most complex insurance and re-insurance criteria in the world and it’s a lawyer’s job to help people understand these complexities across the country.

Mortlock McCormack Law partner Hamish Douch believes a positive approach combined with an early start are key to overcoming complex obstacles and getting results in any area of law.

“It’s unfortunate that lawyers are getting involved at the end stage of development. We need to get involved early and should train clients to come to us early.”

Mr Douch specialises in, among other things, residential and commercial subdivisions. Thousands of these take place in New Zealand each year.

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He says that the earthquakes have changed the subdivision process substantially for lawyers in that it now takes a lot more time and money.

“An elongated process is frustrating for our clients but it does

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LAWTALK 799 / 6 JULY 2012

PROPERT Y L AW CONFERENCE create an opportunity for us to become more involved in the whole process earlier.”

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With subdivisions, Mr Douche explains, it is important to meet with all the professionals involved and to know the market your client is selling into.

“We need to train clients about what they need to be doing at an early stage and never be afraid to bring in specialists, like resource management experts, if needed.

“This proactivity on our part means lawyers can be drivers in the process, rather than the last step to be taken. In doing so we can add extra value to our firms and our clients.

“Selling ourselves as trusted advisers and building relationships with our clients is really important. If we can get in touch with our clients on a regular basis then we will undoubtedly get more work as they will think ‘oh great, I was meaning to talk to you about XYZ’. Clients will realise that we can make it cheaper for them by cutting down the time by working concurrently with other professionals on any deal,” says Mr Douch. LT

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Andrew Logan, NZLS Property Law Section Deputy Chair

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Maurice Williamson, Minister for Building and Construction

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John Greenwood, Robbie Muir, Patrick Costelloe

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Kevin Osborne, Quentin Johnston, Chris Morgan

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Cassandra Crocker, Lisa Hogg

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Les Miller, Josephine Munro

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Jenny Gilmore, Robyn Dewson, Claire Gibson

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David Roughan, Allen Mazengarb

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Rebecca Strachan, Shiree Blackwell

10. David Snelling, Shaghil Hasan, Charles Fletcher

LAWTALK 799 / 6 JULY 2012

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PROPERT Y L AW CONFERENCE

Going green – buildings and leases

By HANNAH GRANT More and more people in society are developing a green streak.

More than ever before the public is attuned to the debate regarding the protection of natural resources and developments in environment policy.

Eco-this and eco-that. More than just buzz words, being “eco” or “green” are concepts that have now spread to the building world. This is evident in the increasing number of environmentally sustainable developments around the globe, but the green building movement is also taking hold of the New Zealand market.

It began from 2003 to 2009 when the Ministry for the Environment led the “Gov3 programme”, managing the introduction of environmental initiatives within government agencies. And in 2007, the then Labour Government announced that office buildings leased by government agencies were to have a minimum five star “Green Star” rating (commercial building rating system that assesses the environmental impact that is a direct consequence of the building’s site selection, design, construction and maintenance).

Statistics published by the New Zealand Green Building Council (NZGBC) show that in May 2012 there were 55 office buildings with a “Green Star” rating over 4 and two 6 star buildings in Christchurch. There are also green buildings certified using other rating systems and buildings that have measures to reduce the environmental impact of the building but are not certified.

Though the current Government has

not continued the minimum Green Star policy decision, mainstream acceptance of the need for green buildings has led to an increase in green leasing. A green lease involves including certain provisions within a typical lease or as an additional lease schedule with the goal of developing and enhancing environmental performance and sustainability.

“The current Government’s decision not to continue the ‘Gov3 programme’ which required all new office buildings to be green star rated has certainly had an impact [on the amount of green initiatives],” says property lawyer, Kay Keam.

Ms Keam says that current best practice in the field entails including environmental clauses for performance standards within a commercial lease, environmental clauses in a separate lease schedule or in a memorandum of understanding outlining environmental obligations.

Environmental clauses could include green management plans, common area charges, performance criteria, auditing, operating covenants, environmental laws, and remedies and reporting requirements.

Though these are steps in the right direction, Ms Keam says there need to be provisions for including regular environmental clause reviews to ensure performance standards keep up with evolving technology and further standardisation of green leasing schedules.

“I am currently working on two green leases. The lack of a standard

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LAWTALK 799 / 6 JULY 2012

green lease means there can be great amounts of negotiation involved.

Each lease negotiation is a unique transaction, making the process quite onerous.

“There is also no performance standard for commercial leases to work towards. There is one in the pipeline but this needs to be completed as soon as possible and further standards established,” she says.

One place where a green lease schedule template in New Zealand exists is on Bell Gully’s website. The schedule is for use in existing buildings or new buildings where all (or a significant number) of the lessees commit to the schedule.

Other than this, New Zealand has to look overseas for guidance.

The Australian Government has the issues template Green Lease Schedules and Energy Management Plans (www.climatechange. gov.au) and the London Better Buildings Initiative (www. betterbuildingspartnership. co.uk) has similar lease schedule templates available.

Ms Keam says that green buildings and leases face both economic (expense of the process and maintenance) and non-economic challenges, but as issues such as standardisation and the development of standards are addressed, green buildings and leases will become more prevalent.

“I would like to see ADLSi and the Property Council publish a green schedule on their website and for leases to be amended to refer to this schedule as amended from time to time or as otherwise agreed by the parties. Alternatively this may be something that the Department of Building and Housing or the NZGBC may pursue,” says Ms Keam.

Kay Keam is a leading commercial property lawyer at Martelli McKegg in Auckland. She presented her paper ‘Green Building and Leasing’ at the NZLS CLE Property Law Conference 2012 in June. LT

NEW ZEALAND LAW SOCIETY NZLS EST 1869

Practising Certificate I certify that Joe Blogs is enrolled as a Barrister and Solicitor of the High Court of New Zealand under the Lawyers and Conveyancers Act 2006 and is entitled to practise as a Barrister & Solicitor until 30 June 2013.

ID: 123456 Date of issue: 25 May 2012

Christine Grice Executive Director

Profession remains strong Practising certificate renewals have risen slightly for the 2012-13 practising year.

At 25 June, 10,551 lawyers had renewed their practising Lisa Attrill certificates compared to 10,446 in 2011-12.

The New Zealand Law Society Registry is always looking for ways to improve its renewal process and is grateful to lawyers who used the online renewal platform and gave feedback on improvements for next year.

Changes will be made based on the feedback it has received.

An example of an improvement suggested by lawyers was making it clear that completing the fit and proper declaration online constitutes the application for renewal.

“The renewal process is a crucial part

of maintaining an up-to-date register of lawyers and reminding them of their obligations,” New Zealand Law Society Registry Manager Lisa Attrill says.

“At the same time, we understand the pressure lawyers are under and are always looking for ways to make the system more streamlined.”

Lawyers are also reminded not to leave changes in details until the renewal process. The Law Society must be advised as soon as lawyers’ employment and contact details change.

This can easily be done online at www. lawsociety.org.nz/home/for_ lawyers/forms/forms/registry_ lawyer_change_of_details.

“Undertaking the renewal of practising certificates is a mammoth task. It is important for the profession’s reputation it is done correctly,” Ms Attrill says.

“However, it simply wouldn’t be possible without the continued cooperation and engagement of lawyers.”

Didn’t renew?

The Law Society Registry informs Land Information New Zealand (LINZ), the Ministry of Justice, and the courts of lawyers known to have been in private practice and offering services directly to the public but who have not renewed their practising certificates.

LawTalk publishes the names of those lawyers who have not informed Registry of their intention not to renew.

Lawyers who did not renew by 30 June may apply for a practising certificate at any time.

Once issued, the certificate is effective from the date of renewal and not from the date at which their previous certificate lapsed.

In effect, they have a gap in practice and in that period they may not give legal advice. LT

LAWTALK 799 / 6 JULY 2012

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PEOPLE IN THE LAW ON THE MOVE

Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, tel (04) 463 2982, fax (04) 463 2985, email editorial.lawtalk@lawsociety.org.nz. The usual editorial discretion applies.

Christchurch-based MDS Law has promoted Sarah Fields to associate.

Sarah specialises in property law with a particular focus on retirement village transactions and compliance, commercial leasing, and residential transactions in the context of earthquake settlements.

Sarah also advises on employment law matters including contract drafting, negotiation and personal grievance issues.

relationship property matters.

Andrew Brown has been appointed general counsel and company secretary at KiwiRail. Moving from Bell Gully, where he was a partner and more recently a consultant to the firm, Andrew has been involved in some of New Zealand’s significant corporate transactions, particularly in the energy sector.

Nathan Speir has joined Rice Craig’s litigation department. Nathan specialises in civil litigation, dispute resolution and criminal law, including jury trials. Penny Walker has joined the firm’s family law department.

Penny specialises in childcare arrangements, domestic violence issues and

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LAWTALK 799 / 6 JULY 2012

Cushla Webster has been appointed a senior associate at Rennie Cox, specialising in family law. Cushla returns to the firm after three years practising as barrister sole in this area. As well as her specialisation in family law, she has a wide range of litigation experience including civil, resource management and ACC. She is a founding member of the Collaborative Law Association of New Zealand.

Annabel Dennett has joined Dennis King Law in New Plymouth.

Annabel’s focus will be on commercial transactions and commercial litigation, as well as assisting with class action litigation.

Buddle Findlay has promoted two new senior associates, both based in the Wellington office. Matthew Farrington and Lara Wood are members of the firm’s corporate and commercial, and banking and finance teams. Mathew specialises in financial regulation, capital markets and securities, derivatives, and funds management. Lara specialises in capital markets and securities, funds

management, corporate governance, banking and finance advice (for lenders and borrowers) and general corporate and commercial advice.

Sheryn Cook has joined Tompkins Wake as the business development manager. Sheryn has an extensive commercial background in both the domestic and international food industry, and has experience in both large corporate and in start-up business.

PEOPLE Former Duncan Cotterill chief executive Grant Bayldon is the new executive director of Amnesty International Aotearoa New Zealand. Mr Bayldon, who is based in Auckland, took up the role in early June. He moved from Oxfam, where he has worked for five years, initially as marketing director and more recently as operations director. Mr Bayldon moved into the not-for-profit sector in 2003 to pursue his interest in international justice and human rights. He succeeds Patrick Holmes, who led Amnesty International in this country from late 2007 to early 2012.

PEOPLE IN THE L AW Lowndes Jordan partner Rick Shera has been appointed to the inaugural board of Network for Learning Ltd, established by the government to deliver an online network for schools.

Mr Shera is a past Vice-President of InternetNZ, where he was part of the working group responsible for the introduction of New Zealand’s current shared registry domain name structure. He also headed up the team responsible for policy development of New Zealand’s domain name dispute resolution service. Mr Shera is the chair of internet safety NGO NetSafe.

Law firm news Tauranga firm Holland Beckett (Hobec) is currently planning a series of community projects to celebrate its 75th anniversary. Hobec has divided its staff into four teams and each one is organising a different project.

The litigation team is working with Baywide Community Law Centre to provide 75 hours of legal services, while the RMA team is planning to plant trees. The other two teams were still working on their ideas when LawTalk went to print. This year’s anniversary celebrations included Hobec’s annual client function in March where the 75th anniversary cake was cut. Other ways the firm has marked its anniversary have included the development of a short history of the practice, written by journalist Liz French. The Destination TV interview covering the firm’s history is on Hobec’s website, www.

Lawyer ID card applications open New Zealand Law Society members can apply for photo ID cards online in an updated, streamlined process at a reduced rate.

NZLS EST 1869

Applications are now processed through the www.lawsociety.org.nz website and cost $10 (excluding GST).

Payments can be made via cheque to the Law Society or by bank transfer.

The Law Society decided to bring the process entirely in-house after last year’s pilot scheme run in partnership

Hobec partner Bill Holland and Mrs Carpenter cutting the firm’s 75th anniversary cake. Mrs Carpenter’s husband, Avon Carpenter, was a previous partner of the firm. He passed away last year.

hobec.co.nz/news-resources/ content/posts/holland-beckettmiscellaneous/75-years.aspx.

Minter Ellison Rudd Watts has been selected as a finalist in 2012 AUT Excellence in Business Support Awards. Recognised for excellence in with the New Zealand Automobile Association.

the large business $50-$200 million turnover category, the firm is the only legal services provider to be named as a finalist. The winners will be announced in October at a black tie gala dinner in Auckland. The Supreme Award will be chosen from the category winners. LT

through prison security.

The trial provided 96 venues where lawyers could apply for cards and have their photo taken at the time of application. However, the use of a third party to print the cards made it difficult to provide consistent service.

Card-holding lawyers are able to take advantage of priority security screening in some courthouses. The ID cards are also convenient when making other out-of-office client visits and when carrying out Lawyer for the Child duties and other matters in the Family Courts.

“Our members will now be able to go online fill in a form and upload a passport photo. We will then be able to immediately cross check records and issue an ID card quickly,” Law Society IT Manager Malcolm Gunn says

The Law Society has provided information on its purpose to agencies such as the Ministry of Justice and Department of Corrections, but acceptance of the ID card is subject to discretion.

The wallet-sized ID cards are printed with the holder’s practising certificate details and have already proved very useful for non-criminal lawyers getting

To apply for an ID card go to http:// www.lawsociety.org.nz/home/ nzls_services_for_lawyers/ photo_identification_card. LT

LAWTALK 799 / 6 JULY 2012

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PEOPLE IN THE L AW

Taking the reins in a state of emergency If you ever happen to find yourself the chief legal officer of a brand new authority in a new city in a state of national emergency, it may pay to have a chat with Bronwyn Arthur.

She’s been there, done that.

The Chapman Tripp Public Sector In-House Lawyer of the Year was seconded from Crown Law to the Canterbury Earthquake Recovery Authority (CERA) shortly after the February 2011 earthquake. As others fled the disaster-ridden city, Ms Arthur set up base in a motel (with a bag of stuff packed at the door “just in case”).

Professionally, Ms Arthur leaned on her experience working with the Resource Management Act at its conception.

As well, she had the benefit of the knowledge she gained through being part of the drafting process of the Canterbury Earthquake Recovery Act. Personally, her nature of being prepared to come to a decision and give advice using information and some practical gut reaction was useful as often there was no precedent – “you’ve just got to give advice”.

A new department The initial legal teething problems were based around the transition when the state of national emergency was lifted on 1 May and three months after its creation CERA took over the emergency management measures.

When CERA took the reins, the authority had to work out what directions and authorisations had been given by the National Controller, and which of the temporary systems would remain, which would be changed, and which were no longer needed.

To illustrate the authority change, Ms Arthur used the example of the red, green, yellow placards which Civil Defence used to swiftly establish building safety.

“We had to decide if we were going replace them,” she said.

They decided to let the residential ones lapse and leave Christchurch City Council to deal with residential building under the Building Act.

Bronwyn Arthur

For other premises, CERA created the current red and yellow notice system.

similar job with CERA,” she said.

Seconded employees and a new act Unlike usual government departments, a great proportion of CERA employees had been seconded from the private sector.

Ms Arthur had to ensure the newly seconded employees understood their obligations as public servants. Since the term “authority” had been used rather than “department” to describe CERA, there was uncertainty among some staff about its position as a government agency.

“Things like the Official Information Act weren’t even part of their vocab,” Ms Arthur said.

“They were quite enthusiastic about using their own judgment. I had to teach them that they could make a suggestion but they couldn’t sign off on the decision.”

Lessons learnt What advice would she give another person in her role in the wake of a natural disaster?

Ms Arthur said she would be a lot clearer up front about the need for keeping records and filing systems and having these completely mobile.

The other point she needed to make clear to staff was the importance of delegated authority in the public sector.

She would also increase the induction process and ensure more emphasis was placed on what the act actually said, and CERA’s background as new people joined the team.

“I was dealing with a lot of people, who in their own lives have made decisions all the time and they were employed to do

“It is hard getting non-lawyers to read what the actual words say and for them not to read in what they think,” she said. LT

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LAWTALK 799 / 6 JULY 2012

THE BOOKSHELF CRIMINAL EVIDENCE AND HUMAN RIGHTS – Reimaging Common Law Procedural Traditions Edited by Paul Roberts and Jill Hunter The 16 essays in this collection explore various aspects of what is seen as a human rights revolution in criminal evidence and procedure in Australia, Canada, England and Wales, Hong Kong, Ireland, Malaysia, New Zealand, Northern Ireland, Singapore, Scotland, South Africa and the United States.

The New Zealand chapter is entitled “Reliability, Hearsay and the right to a fair trial in New Zealand” and is written by Canterbury University senior law lecturer Chris Gallavin. (Hart Publishing, May 2012, 978-1-84946172-6, hardback, 450 pages, £55).

ANTARCTIC SECURITY IN THE TWENTYFIRST CENTURY: Legal and Policy Perspectives Edited by Karen Scott, Alan Hemmings and Donald Rothwell.

Canterbury University Associate Professor of Law Karen Scott and adjunct Professor Alan Hemmings are two of the editors of this collection of essays which look at Antarctic security from legal and policy perspectives.

The essays review the existing security situation, assess its current status and consider how it may be viewed in future. Emerging new security threats are discussed, and the viability of the 1959 Antarctic Treaty is questioned.

(Routledge, April 2012, 978-0-41562025-3, hardback, 368 pages, £85).

DISPLAY ADS

Civil Remedies in New Zealand 2nd Edition

CIVIL REMEDIES IN NEW ZEALAND, 2ND EDITION Consulting Editor Sir Peter Blanchard

Rt Hon Sir Peter Blanchard Consulting Editor

Andrew Barker Andrew Beck Maree Chetwin Johanna Drayton Stephen Kós Bevan Marten

Andrew McIntyre David McLay Geoff McLay Jessica Palmer Charles Rickett Rachael Schmidt-McCleave

Reviewed by Barry Allan*

This book is inspired by a concern that many lawyers can readily identify a cause of action but may have difficulty when it comes to establishing the remedies which might be available.

Indeed, for many clients, the precise nature of the cause of action may well be of little interest to them; their primary concern will often be what the law can and will do about it.

The answers are to be found in Civil Remedies in New Zealand.

It is organised into 11 parts and has 12 authors. Perhaps I am old-fashioned, but I would have liked to have had the various pecuniary remedies considered in contiguous chapters, and with no duplications or overlaps. As is to be expected, compensatory damages do make up the largest and first part: they are recognised as the primary common law remedy. Thorough discussions of damages for breach of contract and negligence are provided, although the impact of s9 of the Contractual Remedies Act 1979 on contractual damages is discussed in a subsequent chapter alongside a consideration of the damages available for breach of the Fair Trading Act 1986. Foreseeability and causation are significant and conceptually difficult limitations in assessing damages for contract, tort and equity. The treatment of both is notably clear in their respective chapters.

Since the first edition (2003), the existence of equitable damages arising from breach of fiduciary duties has been accepted by our Supreme Court, so the focus is now CONTACT on identifying the various causes of FRANK NEILL action in which equitable damages arise and their quantum. There is also editor a brief comparison between equitable @lawsociety.org.nz damages and an account of profit,

which is supplemented by a much more thorough analysis of account in the part concentrating on remedies which require disgorgement of profits.

One improvement would have been some reference to the procedural rules established in Part 16 High Court Rules. I am sure I am not the only reader lacking a thorough grounding in the relatively modern remedy of restitution: the discussion of that topic was admirably clear, starting with a very basic description and moving through to an engagement with some of the more theoretical problems which are still present. This is a personal remedy: the next chapter deals with the proprietary remedies of constructive trust, equitable lien and subrogation.

Damages for breaches of the New Zealand Bill of Rights Act 1990 are in a somewhat more emergent state. There is a useful chapter speculating as to their function and when they will be available and which includes a table of all cases in which damages have been given. Although aggravated damages are in theory compensatory (and there is some consideration given to them in the torts chapter), they are given their own rather cursory chapter in the part dealing with punishment. The exemplary damages chapter provides a good background to their history and function before addressing the current test as set down by the Supreme Court in Couch. Useful guidance is provided as to how much to expect and the relationships between exemplary damages and the criminal law and the statutory bar on compensatory damages for personal injury.

Those who share liability may come under responsibilities to contribute when one liable party pays more than an appropriate share. Dealing with one of a number of parties with shared liabilities creates the risk of discharging the obligations of all parties. These important matters are dealt with in chapter 15. Another matter of concern for those who obtain pecuniary remedies is their liability for tax. A chapter is devoted to this matter.

LAWTALK 799 / 6 JULY 2012

11

THE BOOKSHELF Non-pecuniary remedies include variations on the theme of an injunction. Permanent and interim injunctions are each given their own excellent chapters. Each gives an account of the court’s jurisdiction to give an injunction and the matters which will impact upon the court’s decision to exercise that discretion.

One element of particular usefulness is the discussion of the types of interests which can be protected by an injunction. Given that an interim injunction might well be applied for as a matter of urgency, I would have liked to have seen some practical guidance given as to the procedure to be followed to get one. The subsequent chapter is a detailed guide to obtaining freezing and search orders, including a lot of practical steps to be taken.

Also included are short accounts dealing with pre-judgment charging orders, caveats and preservation of property orders. Given the conceptual similarity between mandatory injunctions and specific performance, it makes a lot of sense to round out this part with a succinct discussion of specific performance. Because part performance may be relied upon to enforce contracts which need to be in writing and signed, it would have been useful to discuss the question of whether a non-complying guarantee can be enforced on the basis of part performance.

Declarations are a particularly fertile and creative form of nonpecuniary remedy which are described comprehensively. The book reflects a

wide view of civil remedies, so it also provides useful accounts of illegal contracts, exclusion of liability, the effect of the Limitations Act 2010 and the kinds of remedies available to assist in obtaining official information and for breaches of privacy and human rights legislation. The very last chapter deals with the civil courts’ costs regimes.

CIVIL REMEDIES IN NEW ZEALAND, 2ND EDITION. Consulting Editor Sir Peter Blanchard, Thomson Reuters, December 2011, 978-0-864727-329, 889 pages, $236 (GST and p&h excl). Available in paperback. *Barry Allan is a former litigator who now teaches contract, tort and civil procedure at the Faculty of Law, Otago University. LT

Wounded bulls and sacred cows Some principles and emerging themes concerning fee complaints and professionally culpable overcharging

By Paul Collins* The statistics of the Lawyers’ Complaints Service show that complaints of overcharging significantly exceed most other categories of conduct or service complaint.

Although the majority of those complaints are not upheld, some important themes and principles are emerging from the experience of lawyers standards committees in the period of nearly four years since the commencement of the Lawyers and Conveyancers Act 2006 (LCA).

The purpose of this article is to consider particular areas where difficulties continue to arise and some recurrent themes being encountered by standards committees.

It will be helpful to explain the basic concepts first: 1. Culpable overcharging may take one of two forms; a finding of unsatisfactory conduct by a Standards Committee, usually expressed in terms of a breach of Rule 9.1 of the Conduct and Client Care Rules, or misconduct which requires a finding by the

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LAWTALK 799 / 6 JULY 2012

Disciplinary Tribunal that the fees charged were “grossly excessive” [s7(1)(a)(iv) LCA]. The experience to date is that most of the fee complaints resulting in a finding of culpable overcharging are in the category of unsatisfactory conduct, which is the focus of this article.

2. Once a standards committee has made a finding of unsatisfactory conduct by overcharging, it may make a range of remedial orders including orders reducing or cancelling fees and/or requiring the lawyer to make a refund [s156(1)(e), (f), & (g) LCA].

3. Determining whether a fee is “fair and reasonable for the services provided” [Rule 9] is not an exact science. It is accepted by standards committees that a fair and reasonable fee for particular work may fall within an acceptable range.

It is only when the fee exceeds that range, which is often determined with the assistance of an expert costs assessor, that a finding of unsatisfactory conduct becomes a possibility.

Despite the willingness of standards committees to make remedial orders, and the fact that some of the adverse findings of standards committees are being published to the profession, some particular areas of difficulty continue to arise.

Exceeded fee estimates The problem of fees exceeding estimates is a relatively common source of complaints. There are two perils for the lawyer in this area, both of which have been the subject of unsatisfactory conduct findings and fee reduction or refund orders. The first concerns the lawyer’s duty to notify the client as soon as it appears that an estimate will be significantly exceeded.

The failure to do so has been found to be unsatisfactory conduct on the basis of a breach of Rules 3.6 and 9.4, by which lawyers are required to ensure that information about their services, including fees, is updated “with due expedition” if it becomes inaccurate.

That duty continues throughout the course of the retainer and updating information should be provided in writing.

The second peril with fee estimates is that a significantly exceeded estimate may well lead to a finding of overcharging because the provision of a quote or estimate by the lawyer is itself a relevant factor in assessing whether a fee is fair and reasonable [Rule 9.1(j)].

Bearing in mind that lawyers are required to provide an estimate of fees if requested [Rule 9.4], the lesson from the experience of standards committees is to ensure that great care is taken in providing estimates and, where it seems likely to be exceeded, to ensure that the client is promptly and accurately informed in writing.

Over-emphasis on time costing There is nothing new about this recurrent theme, which concerns the problem of undue emphasis on time in setting fees (the sacred cow of my title). Time is only one of the 13 “fee factors” in Rule 9.1 but overemphasis on time continues to cause difficulty in complaints seen by standards committees. The approach adopted in the investigation of fee complaints is to thoroughly review the file, taking into account all the Rule 9.1 factors, including but not limited to time, then to make a global assessment of the fee and determine whether in all the circumstances it was fair and reasonable. That will include consideration of a bracket within which a fair and reasonable fee may fall, and a fee exceeding the upper limit may result in a finding of unsatisfactory conduct. In an investigation into a fee complaint, time expended on a client matter will rarely be viewed in isolation as an indicator of the fairness of the fee.

Fee invoices less than $2,000 Except in “special circumstances” a standards committee must not deal with a complaint relating to a fee that does not exceed $2,000 excluding GST [Reg 29(b) Lawyers and Conveyancers Act (Lawyers’ Complaints Service and Standards Committees) Regulations 2008]. The experience of standards committees is that “special circumstances” rarely arise, and complaints are often dismissed on this ground, but there are two categories of fee complaint where exceptions have occurred, resulting in findings of unsatisfactory conduct.

The first of those is concerned with interim billing. It is now wellestablished that standards committees will view fee invoices in aggregate,

where they are concerned with the same client matter, rather than considering a single bill in isolation. It is the aggregate value of fees charged that will be considered, not the individual fee invoice.

with Regulation 9 of the trust account regulations, which allows the payment of fees by deduction only when a dated invoice has been issued and is promptly delivered, or where the client has given a signed and dated authority.

The second situation where smaller fees might cause difficulty is concerned with charging for incidental matters not relating directly to the provision of legal services, or other circumstances where a fee should not fairly be charged at all. This might arise, for example, when transferring files to another lawyer, returning files to a client, or attendances where the lawyer is fixing his or her own mistakes.

A fee cannot be charged (although disbursements might be) for matters that are reasonably seen as incidents of business unless there is a prior arrangement with the client or former client.

The approach to this issue by the Legal Complaints Review Officer (who might have the final say on a complaint) was explained in Abbot v Macclesfield (LCRO 40/2009) in the following terms: “A lawyer may only deal with trust funds in two ways pursuant to [s110 of the Lawyers and Conveyancers Act 2006]. That is by paying those funds to the client, or paying them at the direction of the client. Accordingly if a lawyer wishes to deduct his or her fees from the funds of that client held in trust, he or she must obtain the direction of the client to do so”.

Deducting fees from trust money The final fee complaint category warranting mention as a recurrent theme is not concerned with overcharging but with the situation where fees are deducted from trust money without authority.

This issue gained some prominence at the time of the judgment of Justice Chisholm in the High Court, in Heslop v Cousins [2007] 3 NZLR 679, but there is still some activity in this area.

His Honour held that “… even if an account is rendered a solicitor is not entitled to deduct his or her costs from funds held in a trust account if the deduction would be contrary to the client’s direction”. That case was decided under the Law Practitioners Act 1982 and the key provisions now are s110 LCA, by which a lawyer receiving client money “must hold the money, or ensure that the money is held, exclusively for that person to be paid to that person or as that person directs” [s110(1)(b)], and s113(2) which qualifies s110 with reference to “… any just claim or lien that a practitioner … may have against that money”.

The position taken by the Law Society, which was published to the profession at the time, was that a “just claim” would be available only where the fee was fair and reasonable in terms of Rule 9.1, and where the lawyer had given advance notice of the intention to deduct the fee [Rules 3.4(a) and 9.3]. The lawyer must also comply

At the very least, lawyers must ensure that they give advance notice of the intention to deduct fees and that they comply with the requirements of the trust account regulations. Even that might not be a sufficient answer to a complaint if it is not objectively reasonable in the circumstances to say that the deduction was authorised.

As with the earlier topic of fee estimates, this is an area where great care is needed if lawyers are to avoid difficulties. The safe approach is to ensure that there is a clear written record of advance notification and, preferably, specific authority before fees are paid by deduction from trust money.

As can be seen, fee complaints continue to generate a considerable amount of activity in the work of standards committees. There are many perils for lawyers in this area but close attention to these issues will significantly reduce the possibility of a complaint or, in the event of a complaint, an unsatisfactory conduct finding. *Paul Collins is an Auckland barrister who moved to the independent bar this year. Before that he was a senior litigation partner at Glaister Ennor in Auckland. Paul has advised law societies (including the New Zealand Law Society) since the mid-1990s on a wide range of matters relating to the regulation and governance of the legal profession in New Zealand, including complaints and discipline, admissions and practising certificates, Fidelity Fund, and related matters. LT

LAWTALK 799 / 6 JULY 2012

13

EFFECTIVE PRACTICE Practice Management Systems – a cause for real concern

By Ashley Balls The last Effective Practice column (LawTalk 797) included an item about plans by LexisNexis to cease support of New Zealand’s most widely-used practice management system, LAWBase. This has caused concern among lawyers who do not see the need to replace LAWBase with the alternatives offered. Legal practice management expert Ashley Balls looks at why law firms should be excited at the opportunity to upgrade their practice management capability.

The article “Practice Management Software Phaseout Raises Concerns” is deeply worrying; not just for those considering operating a Practice Management System (PMS) without a support structure, but also for those who have hardware that has reached the end of its service life. Factor in a lack of awareness of just what IT can do in making a lawyer’s life easier by increasing the quality of service to those who matter most in the supply chain – the clients – and the issues and potential benefits become clearer.

As the article made clear, when PMSs first appeared in large numbers – a generation ago – they were a revolutionary change that enabled monitoring of time and costs and streamlined management of trust accounts, bills and accounting.

Any practitioner who considers that this is all a PMS can do is in for a rude awakening. The market has long since moved on from those early systems.

According to the Legal IT guru and barrister Professor Richard Susskind, new and modern PMSs do more to lower the cost of legal service delivery than any other action a firm can take.

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In an environment where most law firms have trimmed the fat (reduced expenditure on library/research, delayed the replacement of capital items, not replaced departing staff and cut/managed costs) few have addressed Susskind’s core question: “What elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality, using different and new methods of working?”

Lawyer demographics have changed dramatically since PMSs first made their appearance and today there are very nearly THREE times the number of lawyers per capita compared with 1975. This, in part, explains the lack of elasticity in prices – some would have it that the only way prices for legal services can go is down; yet law firm costs continue to rise. These challenges represent an opportunity as opposed to a threat – if your glass is half full.

Central to finding a solution to these challenges is IT and how it can drive costs down and increase sales. When I discussed this situation with a specialist who has had a career as a successful practitioner and who has lectured at

Picture a normal Thursday in a suburban law firm in Auckland. The PMS system is due for replacement, the server is no longer under a maintenance agreement and four property settlements are due to be completed the following day – two locally and two in Rotorua. Then the system goes down and there is only the hired geek to call.

When he arrives on Friday morning, his only solution is to attempt to get a tape copy onto another server. If, as is likely, this fails and the internet connection goes through the same server or linked device there will be no way to handle the banking online or email the parties involved. Should a paper back-up exist, it may be possible to complete the two local transactions

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LAWTALK 799 / 6 JULY 2012

To repeat a scenario outlined at a recent CPD session, it is worth considering the following:

Westlaw NZ Call 0800 10 60 60 Visit www.thomsonreuters.co.nz/westlawNZ

14

graduate level on IT, he remarked that fear of change has become the default setting for many practitioners.

It is worth adding that fear of change coupled with reluctance to invest has the potential to cause major harm and is a high-risk strategy best avoided.

EFFECTIVE PR ACTICE manually by attending the bank and using bank drafts and appealing to the goodwill of the bank manager. As for the two in Rotorua – tough luck. If only one of them, having had to find a motel for the weekend and send the furniture into storage, decides to make an official complaint there will be real problems.

The PI insurer will almost certainly take the view that there is no cover and a formal complaints process will ensue with the inevitable unhappy and expensive outcome. This simplified scenario is increasingly likely and only one of many reasons why having an old and unmaintained system (whether hardware or software) is not only a bad idea but is potentially negligent.

Moreover, while this is going on, the competition up the road has learned just what a new PMS can do and is delivering more services for lower cost and attracting the firm’s clients.

Without getting into claims about what an individual PMS system can and cannot do, the central question is what are the IT needs (as opposed to wants) of the individual law firm, what will the solution cost and how can it be financed? The needs list can be extensive and include: •

• • • • • • • • • • •

integration with a PABX, enabling calls/time to and from ‘live’ matters/clients to be automatically captured*; case and document management*; e-discovery; work-flow*; client extranets; Client Relationship Management*; word processing; full remote access from any web enabled device*; library access/research/precedent management; time and cost recording; accounting (including in multiple currencies); and management reporting.

This list is neither exhaustive nor complete. The features that can make a real difference are marked with an asterisk.

It is worth pointing out that workflow (which Susskind refers to as “commoditisation”) can reduce the time taken to complete a matter by up to 75% while being handled by a less experienced lawyer. As for the cost, any firm contemplating an upgrade should allow from $2,500-$4,000 per desktop or user for the complete package, software, data migration and training.

The cost should be fully recovered in about a year and finance is available.

if they have any doubts about whether a certification is genuine,” Ms Grice said.

Having a current fully capable PMS is fast becoming a “must have”. It really is a win-win; law firm operating costs are lowered and clients get an improved, faster, safer service. This is a change no firm, however small, can afford to ignore. Fear of change is all very well and understandable but the clock is ticking and clients won’t wait…

“The Law Society maintains a Register of Lawyers, which provides details of all lawyers who hold a current practising certificate. While this can be used to check whether a lawyer is entitled to practise, any lawyer who has been admitted as a barrister and solicitor of the High Court is able to certify documentation, and while genuinely able to certify, may not appear on the Register.

Warning about forged certified copies If a bank approaches you to check the authenticity of a document, it is doing so on advice from the New Zealand Law Society. It could be that fraudsters have used the good name of your firm without you knowing.

“Our advice is to contact the named law firm or the certifier directly if there is any doubt.”

The Law Society will be watching the situation carefully and it is hoped the forgery is an isolated incident.

Practice Briefings series released

The Law Society has warned banks and other institutions which require certified copies of documents for identification purposes to check with the certifier if they have any doubts about their authenticity.

The Law Society has released the first titles in a series of best practice information sheets which are aimed at providing practical advice on a wide range of matters connected to legal practice.

The warning follows the discovery of forged certification on copies of passports which were used to attempt to open bank accounts. Copies of the identification pages of Swiss and Iranian passports carried a stamp which stated “We certify that this is a true copy of the original” and gave the name and contact details of a genuine New Zealand law firm. The certification was “signed” by someone purporting to work for the firm. The problem is that the firm does not use such a stamp and does not employ any lawyer of the name used.

The “Practice Briefings” series is available as downloadable pdf files on the my.lawsociety website. Titles which are now available are:

Anyone who has been admitted as a barrister and solicitor of the High Court is able to certify a document as being a true copy of the original. It would be worrying if forgeries were to diminish the credibility of such certification by a lawyer. Recognising this, the Law Society decided it was still important to pass on information about the fraud to organisations which rely on certified copies of documents. It released a statement by Executive Director Christine Grice and notified the New Zealand Bankers’ Association, which passed the information onto members

Further titles will be added.

“The Law Society is very concerned that someone is misusing the good name of a reputable law firm for criminal purposes. We have advised New Zealand’s banks that they should be careful and check back with a law firm

• • • • • •

Email scams which target lawyers; Addressing members of the judiciary; Law Society legal research facilities; Seeking employment as a lawyer; Working as a law firm consultant; and Awards and Prizes for New Zealand lawyers.

Legal salary survey response excellent With one week to go before the New Zealand Law Society/Momentum Legal Salary Survey 2012 closes on 12 July, responses have already outstripped the total for the 2011 survey. This would appear to indicate that there is a clear need for information on salaries paid to lawyers around the country. The results will be made available later this year after analysis has been carried out, and LawTalk will also summarise the key findings.

The survey can be found at https:// www.surveymonkey.com/s/ NZLSMomentumLegalSalarySurvey2012. LT

LAWTALK 799 / 6 JULY 2012

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10

handy applications for your smart phone or tablet

While dedicated legal apps for the New Zealand market are still to be developed, there are a host of relevant apps available for download that lawyers may find useful. Here are some:

Black's Law Dictionary 9th Edition Black’s Law Dictionary contains more than 45,000 terms, alternate spellings or equivalent expressions for more than 5,300 terms, and West key numbers.

Compatible with iPhone, iPod touch, and iPad. Requires iOS 5.0 or later.

CamCard – Business card scanner By scanning or from a picture, CamCard captures business card content. The content is automatically organised as a contact and saved into a phone address book.

Compatible with iPhone, iPod touch, iPad (Requires iOS 4.0 or later), Android, Windows Mobile, and Blackberry.

EVERNOTE Evernote lets you send written notes, photos (taken from both within the application and stored in your iPhone’s photo album), and voice memos to an online repository that you can access anywhere with a Web connection.

Compatible with iOS, Android, Blackberry, Windows Phone 7, WebOS (via App Catalog), Mac OS X, Windows, Safari, Chrome, Firefox.

GC Advisor The GC Advisor app for iPad provides information on corporate legal trends, changing US laws and regulations, and news that affect general counsel.

Compatible with iPad iOS 4.0 or later.

Fastcase Fastcase is an American legal research service that gives you access to the national law library.

Compatible with Android 2.1 or later.

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LAWTALK 799 / 6 JULY 2012

TE REO MAORI As well as the words one would expect in a traditional dictionary, Te Aka has encyclopaedic entries including the names of plants and animals (especially native and endemic species), stars, planets and heavenly bodies, important MÄ ori people, key ancestors of traditional narratives, tribal groups and ancestral canoes.

Compatible with Android, iPhone, iPod Touch or iPad.

Salary Checker The annual Robert Walters Global Salary Survey is a review of global recruitment trends and salary levels available including legal jobs.

Compatible with iPhone and iPad.

TimeClock – Time Tracker TimeClock makes it easy to track your billable hours as you are working and then generate invoices or spreadsheets from your time data.

Compatible with Android.

Wunderlist Wunderlist lets you create a to-do list and keep track of your important tasks with reminders and notifications.

Available on Mac, Windows, Linux, iPhone, iPad, Android, BlackBerry, and Windows phone devices, as well as a webbrowser.

Tripit Travel Organiser A tool for frequent travellers which keeps all of your travel plans in one spot on your device and online. Add your travel itineraries instantly by email and it syncs with your calendar.

Compatible with iPhone, iPod touch, iPad, Android, Windows Phone 7 and Blackberry.

LAWTALK 799 / 6 JULY 2012

17

NEED RESEARCH?

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For more information about our services: www.lawsociety.org.nz/home/for_lawyers/law_library/services

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LAWTALK 799 / 6 JULY 2012

NZLS EST 1869

AUCKLAND:

auckland@nzlslibrary.org.nz / 09 304 1020

WELLINGTON: wellington@nzlslibrary.org.nz / 04 473 6202 CANTERBURY: canterbury@nzlslibrary.org.nz / 03 377 1852

Mandatory CPD submissions considered

addressed. Because this is a departure from older, more traditional schemes, it is clear that a lot of information will need to be provided to lawyers on how it will work and what they will need to do.”

The Law Society’s governing Board has considered the written submissions made on the proposed Continuing Professional Development (CPD) scheme.

Ms Grice said she is confident that the lead times between approval of the scheme and its implementation will allow that to occur. LT

The Board expects to submit a final proposal to the Law Society’s Council at its 12 October meeting, with a view to implementation in the 2013/14 legal practice year.

Free will service cut

The proposed mandatory CPD scheme was presented to lawyers for consideration and comment in February 2012.

Over 30 written submissions were received from individual lawyers and also the Large Firm Group, Family Law Section, Property Law Section, CLANZ and the New Zealand Bar Association. In addition, other organisations such as the Ministry of Justice and the Consumers Institute were asked for comment on the proposal.

This means lawyers will now be operating on a level playing field, following the removal of much of the Governmentsubsidised will services, the chair of the Law Society’s Property Law Section, Chris Moore, says.

Law Society Executive Director Christine Grice says the proposed scheme is designed to be outcomes-based, in line with current educational thinking. Individual lawyers would be responsible for identifying and fulfilling their own learning requirements through a structured process of self-assessment and reflection.

“This is an advance on the traditional approach of prescribing what lawyers must study. A number of the submissions considered by the Board confirmed the need to provide in-depth education and guidance as part of the process of implementing CPD in New Zealand,” she said.

“The majority of submissions supported the proposed scheme. It brings an innovative and proactive approach and allows individual continuing education needs to be directly

at the

The Public Trust has announced that its free wills service will cease for most people on 1 July.

The Public Trust’s free will service applied only if the Public Trust were appointed executor, Mr Moore says, and this recognised the costs involved in will preparation. The Public Trust has announced that some clients will still qualify for free wills, but he assumed this would be people on very low incomes.

“For years, many lawyers have absorbed most of the costs of providing a will for clients, particularly when they are carrying out other legal work such as the purchase of a house or a relationship property agreement.”

The Public Trust now charges $195 per will, except to those who still qualify for a free will. LT

Dedicated professional development Most of New Zealand’s larger law firms have dedicated professional development and/or learning and development teams.

This is in contrast to the statement in the article Learn, grow, advance … in LawTalk 797 (8 June 2012, p5).

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In that article, we quoted Julie O’Brien, Professional Development Manager at Simpson Grierson, who said that as far as she knew they were the only firm in New Zealand with a professional development training team.

To quote just four examples, Minter Ellison Rudd Watts, Chapman Tripp, Bell Gully and Russell McVeagh all have learning and development (or professional development) departments. These departments do all of the things referred to by Ms O’Brien in the article.

The large firms in New Zealand also have comprehensive graduate development programmes designed to assist and support new law clerks on their journey to becoming fullyfledged lawyers. LT

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Philip Milne Barrister

021 803 327 or PA 04 499 6653 philip.milne@waterfront.org.nz milnelaw.co.nz

LAWTALK 799 / 6 JULY 2012

19

LAW REFORM REPORT About to be built, Wynn Williams House as drawn by the architects.

Recent submissions The Law Society has recently filed submissions on: •

Legal aid disbursements policy review

•

Corrections Amendment Bill

•

NZX Market Rules – Proposed Gender Diversity Reporting Rule

•

Credit Contracts Consumer Finance exposure draft Amendment Bill

•

Law Commission review of the Evidence Act 2006

•

Immigration Amendment Bill

•

IRD Issues Paper on Recognising Salary Tradeoffs as Income

•

Proposed amendments to the Trade Marks Regulations 2003

•

Revised ethical guidelines for health and disability research

•

QWB 0112: Income Tax – Look-Through Companies, Rental Properties and Avoidance

•

Exposure Draft INS0104 – Status of the Commissioner’s Advice

•

Heritage New Zealand Pouhere Taonga Bill

•

Managing our oceans: a discussion document on the regulations proposed under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill

•

Child Support Amendment Bill

The submissions are available at www.lawsociety.org. nz/publications_and_ submissions/submissions.

Select committee hearings Corrections Amendment Bill – the Law Society, represented by Frances Joychild (NZLS Human Rights and Privacy Committee), addressed Parliament’s Law and Order Committee on 23 May. Immigration Amendment Bill – the Law Society, represented by Dr Rodney Harrison QC, addressed Parliament’s Transport and Industrial Relations Committee on 21 June.

Strip searching law changes opposed The Law Society believes government proposals to change the law on prison strip searching are unnecessary and would decrease controls on a procedure which must be closely regulated.

The Law Society presented its submission on the Corrections Amendment Bill to Parliament’s Law and Order Committee on 23 May. The bill would allow more invasive procedures and also remove safeguards including requirements for prison officers to obtain managerial approval before strip searching in some cases.

A spokesperson for the Law Society, Frances Joychild, told the committee that the Law Society accepted it was necessary to strip search prisoners to reduce contraband and drug-taking in prison. However, it was universally recognised to be a degrading and humiliating experience and its use had to be carefully controlled.

“We believe there is no justification for the proposed changes. The dramatic reduction in positive drug testing in our prisons demonstrates that current strip searching procedures are effective,” she said.

“The Minister of Corrections recently reported a reduction from 36% positive drug tests of prisoners in 1997-98 to 5% in the past year. We are also unaware of other contraband entering prisons at greater levels than in the past.”

Ms Joychild says the bill proposes

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LAWTALK 799 / 6 JULY 2012

removing the requirement for a manager’s approval for a strip search where there are reasonable grounds for believing a prisoner possesses unauthorised items. However, this restriction recognises that the impact of strip searching on privacy and dignity requires a high threshold before statutory safeguards can be removed.

“We recognise the difficult environment which prison officers face. However, whatever else they may have done, prisoners remain human beings, entitled to humane treatment. Any strip searching must be restricted to what is necessary to maintain safety, security and order,” she says.

“The dehumanising of prisoners and a blanket authorisation of humiliating searches that has historically characterised totalitarian and repressive regimes is not part of our culture or our legal and human rights heritage.”

Immigration Amendment Bill legally flawed The Immigration Amendment Bill is legally flawed due to its noncompliance with New Zealand’s obligations under domestic and international human rights and refugee law, the Law Society told Parliament’s Transport and Industrial Relations Committee on 21 June.

As its justification, the bill asserts that “New Zealand faces an ongoing risk of mass arrival of illegal migrants” but the Law Society says that this is an unsubstantiated and sweeping assertion.

Presenting the Law Society’s submission on the bill, Dr Rodney Harrison QC said it focused on the imposition of discriminatory sanctions on refugee status claimants who arrive in New Zealand by “mass arrival”, in contrast to those who do not, and was therefore inconsistent with New Zealand’s obligations under the Refugee Convention.

The right to seek asylum in other countries from prosecution was recognised internationally as a

Simplifying the discovery process A day in the life of a litigation support consultant

Managing electronic information in the same manner as paper documents can lead to substantially increased discovery costs. Paper documents have always been burdensome for lawyers, but you usually knew what you had and where it was. This is not always the case with electronic information. Most cases will still usually turn on only a handful of documents, but how to find those documents in an electronic world is crucial. It is essential to devise methods

A litigation support consultant or e-discovery expert may be able to assist in simplifying the discovery process.

What does a litigation support consultant do?

By Andrew King* Over recent years there has been an exponential growth in both the volume and sources of electronic information. Nearly all information now originates in electronic form. This has complicated the discovery process as it has created many new challenges for lawyers.

on the legal aspects of the case.

to identify key information without having to trawl through volumes of irrelevant information.

The new discovery rules establish a framework to assist parties to reach agreement on discovery issues in a proportionate and costeffective manner. To be able to begin dialogue with the other party about proportionality, lawyers are now expected to be more informed about electronic discovery issues at an earlier stage.

Without the right expertise, electronic discovery can be a complicated process. Specialist expertise can assist lawyers navigate some of the evolving challenges of electronic discovery, reducing their client’s discovery costs and allowing lawyers freedom to focus

fundamental human right. Imposing sanctions on those who arrived here as part of a “mass arrival” and associated measures in the bill involved an unjustified limit on the right to not be arbitrarily detained, as affirmed by the New Zealand Bill of Rights Act 1990.

Dr Harrison said many United Nations documents outline that the detention of asylum seekers is inherently undesirable and should normally be avoided.

“Detaining authorities should assess, on a case-by-case basis, whether there is a compelling need to detain an asylum seeker, not just because they arrived in a boat with over 10 people. The bill shows insufficient regard to alternatives to detention,” he said.

Many may wonder how a litigation support consultant could assist them as most have not needed one up to now.

To help explain how a litigation support consultant could assist law firms and organisations, I thought I would give a summary of a busy day for me from last week.

The working day starts with a breakfast training session at a law firm about the new discovery rules. The session walks them through the key changes of the rules and identifies some practical methods that may assist them with their discovery exercises.

From the training session I am off to a firm that has a large volume of documents and wants to discuss methods of searching the documents.

It is a complex case, so we discuss the limitations of keyword searching as well as the other options available to them,

PROFESSIONAL LEGAL STUDIES COURSE

“Professional, flexible and pragmatic” ED CROOK, RUSSELL MCVEAGH

The Law Society did not support the proposed detention regime and recommended that the bill be withdrawn.

“International law draws no distinction between the obligations owed asylum seekers based on mode of arrival.

Why is an arrival of only 11 people sufficient to trigger a proposed detention regime?” he asked.

Current law reform consultation The Law Society is currently preparing submissions on numerous bills and government discussion documents.

Members are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission deadlines and information about how to participate, visit http://my.lawsociety.org.nz/law_ reform/work_in_progress.

“We have used the College of Law programme for our graduates for over 7 years. We have found them to be professional, flexible and pragmatic.”

The College of Law specialises in practical legal training.

Developed and taught by experienced lawyers, we offer the best and most flexible Professional Legal Studies courses.

Make a real contribution to your career or business.

Call 0800 894 172, email enquiries@collaw.ac.nz or visit www.collaw.ac.nz/plsc

For more information on Law Society law reform activities, contact vicky.stanbridge@lawsociety.org.nz. LT

LAWTALK 799 / 6 JULY 2012

21

like cluster-based search strategies.

Initially they provided me with a set of keywords they had intended to run.

Evaluating the keywords, I am able to identify some of the terms may result in potentially over inclusive, or worse under inclusive results, missing important information.

Next up is a conference call with a US law firm looking for me to manage the document collection process from a New Zealand company involved in US litigation. I am often engaged on US-based litigation, or for US firms involved in New Zealand litigation as there is usually more importance placed upon how information is collected.

It is critical that the integrity of the electronic information is maintained and no information is lost during the copying of this information from the client.

I receive a phone call late morning from a firm in Christchurch that has received some cost estimates for paper scanning and coding work that they want to outsource. They have engaged me to see if the cost estimates are accurate and if there is any advice that I can provide to help them understand their exact requirements, or if there are any alternative strategies.

While travelling to my next meeting I have a call with an IT person from a client. The law firm has asked me to determine from the IT staff what electronic information is available for 10 individuals from a two-year date period. I am then able to explain the technical issues in plain language to the lawyer about what information the client has and what is missing. There are two individuals that are no longer with the firm and their information isn’t readily available, so I explain the lengths and likely costs required to obtain the missing information.

Lunchtime involves visiting a large

law firm to provide them with some education about electronic discovery issues. The focus of the session is about the advice they can provide to their clients about preserving documents as well as going through some methods to improve the efficiency of reviewing information. Essentially I am helping the firm understand the technology and the benefits it can bring to their job.

Immediately following the lunchtime training session I am off to a firm that has been sent an electronic exchange protocol. They have asked me to look at it and try and establish if there is anything contained within the protocol that they might struggle with, or may not be proportionate for them to do so.

It is essential to sort these issues out at an early stage instead of a few days before the discovery deadline.

Late afternoon, I am off to a meeting with a firm that is about to start a discovery exercise. They have asked me to them help plan the exercise to ensure they conduct discovery both proportionately and cost effectively.

At this early stage I am just providing initial advice on the most suitable approach for them. They are new to electronic discovery, so I explain what is required as far as preserving, collecting documents and the various search strategies. I am able to provide them with indicative pricing estimates of the stages of the discovery process, so they can evaluate a proportionate approach as well as outlining the likely discovery costs to their client.

Throughout the day I receive emails and calls from a firm that I am helping to manage their discovery logistics. This matter has been running for a number of months, so assistance is only required at stages that require a bit of guidance.

The query today is how to search for a certain type of document within a specified date range, but to exclude documents from certain individuals.

The expert in professional liability and discipline LANE NEAVE LAWYERS CONTACT DUNCAN WEBB:

T 03 3793 720 M 021 244 3346 E duncan.webb@laneneave.co.nz

www.laneneave.co.nz

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LAWTALK 799 / 6 JULY 2012

One of the emails that I received during the day was from a firm that has a large volume of paper documents.

Due to tight timeframes and to provide substantial cost savings we are looking to outsource this work to a local scanning firm, but getting the coding completed offshore.

They have never done this before but do see the benefits of the substantial cost savings, so I reassure them as to how it will work in practice.

During a little spare time I keep track of the e-discovery space on social media and share anything that I think may be relevant. I also use the odd coffee break to conduct a final review of my latest blog post.

On the way to my last meeting I receive a call from an in-house counsel at a firm to discuss options for them to manage discovery. Like many businesses they are concerned about the costs of litigation. They want to look at alternative approaches that can help them reduce their spend on the discovery phase. I provide them with advice about efficient methods to provide documents to their law firm, as they have previously found this to be a burdensome process. They also want to discuss outsourcing work for scanning, coding and electronic processing, so the law firm is just required for the legal review of the documents. I have been receiving an increasing number of queries from organisations (whether it be their in-house counsel or IT), seeking advice on how they can manage their electronic information more effectively before the involvement of a law firm.

The working day concludes with an early evening training session with a group of local barristers to assist them with the new discovery rules. I also provide them with some demonstrations of a number of e-discovery products so they have more appreciation of what they all do. It is a productive session as they are able to see the various products for themselves and I am able to provide details of what each can and cannot do. * Andrew King is a litigation support consultant at E-Discovery Consulting.

He advises on strategies and techniques to deploy technology effectively and proportionately, simplifying the discovery process for lawyers. Before establishing E-Discovery Consulting, Andrew was Bell Gully’s litigation support manager, after working for over 10 years in leading London law firms. Andrew was a leader on the working group of the High Court Rules Committee which introduced the new electronic discovery rules. Andrew is the author of The NZ E-Discovery Blog www.e-discovery.co.nz/blog, a New Zealand-based commentary on electronic discovery issues. Contact andrew.king@ediscovery.co.nz or 09 375 3055. LT

BRANCH NEWS WELLINGTON

AUCKLAND

NEW ZEALAND LAW SOCIETY

NEW ZEALAND LAW SOCIETY

NZLS EST 1869

NZLS EST 1869

New Wellington Branch President Mark Wilton is the new President of the Law Society’s Wellington branch, after he was elected unopposed at the branch’s annual meeting on 27 June.

Earlier this year, Mr Wilton was appointed the Police Prosecution Service’s first Principal Prosecutor.

For Mr Wilton, the appointment came eight years and eight months after he joined the Police as a prosecutor. That was in August 2003, and this appointment to Police came after he had spent seven years in criminal defence work.

Wairarapa born and bred, Mr Wilton went from Rathkeale College to Canterbury University, where he graduated with a BA LLB. Music was his BA major.

Legal lessons from RWC 2011 Auckland Young Lawyers gained insights into the legal lessons from Rugby World Cup 2011 at Russell McVeagh last month.

Russell McVeagh Senior Solicitor Joe Edwards was seconded with the International Rugby Board and Rugby World Cup Ltd for most of 2011, based in the IRB’s Dublin headquarters then at the Main Operation Centre in Auckland during the competition.

Mr Edwards dealt with matters ranging from social media through to on-field issues. He worked alongside all of the key stakeholders.

1

After his admission in 1993, he went on a working holiday overseas, working as a paralegal at Stephenson Harwood in London, and being admitted in England and Wales in 1995.

On his return to New Zealand, he worked briefly as a litigator in Christchurch before returning to the Wairarapa and working as a criminal and civil litigator with Wollerman Cooke & McClure (now WCM Legal) for about five years.

In 2001, he moved to Wellington, joining Tripe Matthews & Feist as a criminal and civil litigator.

Mr Wilton’s move to the Police Prosecution Service came in late 2003, when he became the Taranaki rural prosecutor, based in Hawera. During his time with the Police, he has been on overseas deployments to Samoa and Tuvalu to train prosecutors and has also been involved in Police Prosecution Service advocacy courses at the Royal New Zealand Police College.

2

Alongside law, Opera is a passion for Mr Wilton. He is married to Annabel, who has practised family law, and they have two sons, Henry and Oscar.

At the annual meeting, Rachael Dewar and Aaron Martin were elected unopposed as the new Wellington branch VicePresidents.

The new council members are: Melanie Baker, Amanda Courtney, Briar Gordon, Annette Gray, Patricia Green, Quentin Lowcay, Ruth Nichols, Chris O’Connor, Catherine Rodgers and Fleur Rowe.

The Wairarapa representative is Ainslie Hewton, the CLANZ representative is David Dunbar and the Young Lawyers Committee representative is David Turner.

1.

Amy Watson and Sarah Anderton, and

2.

Sam Welsh and Simon Cleary at the RWC seminar at Russell McVeagh.

LAWTALK 799 / 6 JULY 2012

23

BR ANCH NEWS

Effective networking seminar Laurie Sharp, head of coaching and development at ASB Bank, guided Auckland young lawyers on effective networking at DLA Phillips Fox recently.

Presenter Laurie Sharp discussed three common findings regarding networking: •

attendees at a potential networking event either don’t prepare well or don’t co-ordinate their efforts before the event, but merely attend;

•

people often have a fear of networking or a lack of confidence, which can hinder effective mingling; and

•

hosts of a potential networking event may question whether they get any return from networking, wondering instead whether the purpose of an event is to provide a merely emotional experience for their guests.

Auckland branch legal executive function Auckland legal executives graduated and celebrated the completion of their qualification at the WHK Growth Centre on 22 June.

The Law Society event attracted 130 people with inspiring speeches from Chris Moore, Sandra De Zoete, and Ian Jespersen.

4

1

WAIKATO BAY OF PLENTY NEW ZEALAND LAW SOCIETY

NZLS EST 1869

2

Golf tournament begins again Holland Beckett solicitors Michael Smith and Tim Neill recently resurrected the New Zealand Law Society Waikato BOP golf tournament.

It was hosted by the Tauranga Golf Club and sponsored

by First Mortgage Trust and attracted more than 40 practitioners from around the region.

Dick Barry (previously Holland Beckett and First Mortgage Trust) won the 27-hole net, Tim Neill (Holland Beckett) won the 18-hole gross and Mike Dixon (Tompkins Wake) won the 18-hole stableford.

5 3

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LAWTALK 799 / 6 JULY 2012

BR ANCH NEWS

OTAGO

6

NEW ZEALAND LAW SOCIETY NZLS EST 1869

Otago legal executive graduation The Law Society’s Otago branch held a graduation ceremony for graduates of the New Zealand Law Society Legal Executive Course on 21 June.

Otago Branch President Donna Buckingham welcomed the graduates and thanked them for their important contribution to the legal profession.

GISBORNE

7

NEW ZEALAND LAW SOCIETY NZLS EST 1869

Gisborne bar dinner The annual Gisborne branch Bar Dinner will be held at the Dome Room on Friday 20 July at 7pm.

The function will cost $70. This covers a meal and a glass of bubbles on arrival.

There will be a cash bar.

Please RSVP to Zaria Weatherhead, branch manager, by Friday 13 July.

CANTERBURY WESTLAND

NEW ZEALAND LAW SOCIETY

NZLS EST 1869

New Canterbury branch President Buddle Findlay Christchurch partner Rachel Dunningham has been elected unopposed as the CanterburyWestland branch President.

She was passed the reins from now New Zealand Law Society South Island Vice-President Allister Davis at the branch’s AGM held on 21 June at the Russley Golf Club. Criminal barrister Colin Eason was elected the branch Vice-President.

Ms Dunningham appears regularly in the District and High Courts

and advises individuals, corporate and local authority clients on local government and resource management issues, commercial disputes and personal and estate litigation.

She has particular expertise in water-related issues having acted for Rangitata Diversion Race Management and Central Plains Water in the context of Water Conservation Order hearings and large scale consent applications under the Resource Management Act. She is qualified to hear and decide matters under the Resource Management Act and belongs to the Resource Management Law Association.

Ms Dunningham is a Lawyers Standards Committee member and is a member of the New Zealand Law Society’s Law Reform Committee.

Amy Shakespeare from Young Hunter also joined the council. LT

Effective Networking seminar 1.

2.

3.

Laurie Sharp.

Eddie Woodmass and Mukesh Patel.

Tim Oliver and Joanna Khoo.

Auckland legal executive function 4. Chris Moore with one of the graduates.

Golf tournament begins again 5. (From left) Dick Barry, Tim Neill and Mike Dixon.

Otago legal executive graduation 6. Branch President Donna Buckingham (seated at right) with those who gathered on Thursday 21 June at the graduation of legal executives in the Otago region.

7. (Back row from left) Jenny Guthrie, Otago branch council member Kate O’Boyle, Otago branch President Donna Buckingham, Sharon Lont, Otago branch Vice-President Gerard de Courcy and Devon Miller. (Front row from left) Andrea Coulter, Susan Gibbs, Arlene Smith, Christina Elliot and Janette Littlejohn.

LAWTALK 799 / 6 JULY 2012

25

UPCOMING PROGRAMMES Programme

Presenters

Content

Where

When

SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Family Legal Aid fixed fees

Michele McCreadie Georgina Miller Adriana Nickless

From 23 July 2012 most new family legal aid cases will come under the fixed fee Your framework. This one hour webinar explains how these changes will affect you and, computer in particular, how to claim payment for a fixed fee case so that it can be processed in a timely fashion. The presenters will discuss the fixed fee schedules, including Webinar the different activity types, talk you through the requirements for invoicing with a focus on; completing a fixed fee invoice form, explain the criteria for “fixed fee plus” cases including, replacing a fixed fee, estimates, and disbursements, the new amendment form and the new fixed fee plus invoice form.

There is no cost for this webinar as it is funded by Legal Aid Services.

However you must register.

10 Jul

Wills - advising your client

John Donovan Chris Kelly

Poor advice and poorly drafted wills create problems. The presenters, by discussing scenarios, will cover the issues of blended families, defacto relationships, family trusts, capacity and undue influence. If you are involved in will drafting, this webinar is a must.

Your computer

19 Jul

Webinar

Building Profitability: Leverage, Leadership and Management

Irene Joyce

There is now a reputable body of evidence that supports the link between law Christchurch firm profitability and effective leverage. However, increasing profitability through leverage is not just about adding more fee-earners. It means that partners must make a shift from the all-consuming role of “producer”, and take on the leadership and management of others. It requires partners to act like owners rather than employees. The shift includes developing proactive leadership skills to manage staff performance and productivity. The workshop will identify the day-to-day skills required to motivate staff and achieve high performing leveraged teams.

23 Jul

GST - what lawyers need to know

Allan Bullot Graeme Olding

GST is part of most commercial transactions and those involved in the legal Your side of these transactions need to have an in-depth knowledge of how GST computer is applied. How you: - minimise the risk of GST in commercial documents, including possible subsequent IRD penalties; determine if GST applies to Webinar disbursements and how to bill; deal with the GST component of insurance receipts are all issues with important practical implications for you and your clients. This webinar will help you become aware of what you should be advising your clients when dealing with GST.

25 Jul

Litigation Against Directors and Companies

Colin Carruthers QC Victoria Heine

With the recent successful prosecutions, are you confident that you are giving the best advice to company directors and officers? This seminar gives an overview of current law and law reform proposals, including the range of new enforcement actions under the Financial Markets Conduct Bill and enforcement under the Commerce Act. Key practical and strategic issues which need to be considered when advising directors facing regulatory investigations, or litigation will also be discussed.

A live two hour webinar will be held for smaller centres.

Dunedin Christchurch Wellington Auckland Webinar

24 Jul 25 Jul 26 Jul 27 Jul 26 Jul

Stepping Up – Foundation for practising on own account

Director: John Mackintosh

The new national course Stepping Up replaces the various local Flying Start Christchurch courses. All lawyers wishing to practise on their own account whether alone, Auckland 2 in partnership, in an incorporated practice or as a barrister, will be required to Wellington complete the course. Developed with the support of the New Zealand Law Foundation. (From 1 August 2012 (date subject to ministerial approval) Stepping Up will be a compulsory prerequisite for lawyers applying to be barristers sole).

19-21 Jul 6-8 Sep 8-10 Nov

Tax Conference

Chair: Mathew McKay

The annual NZLS CLE Tax Conference is an important event for all those working Auckland in this ever-changing and demanding area of the law. You can look forward to first class presentations around the latest developments in case law and black letter law. The day provides a great opportunity for NZ’s relatively small number of tax practitioners to come together and share ideas and experiences.

5 Sep

Transactions and people cross borders with great frequency. It is common Christchurch for all lawyers to encounter transactions, relationships and disputes that have Auckland connections with more than one country. The issues are as diverse as the Wellington jurisdiction in which a billion dollar financing agreement may be enforced, and trying to enforce a New South Wales District Court judgment against a judgment debtor living in New Zealand.These issues affect all practitioners and you especially need to be aware of the new High Court Rules; and new regime for trans-Tasman proceedings which will shortly be in force.

2 Aug 9 Aug 10 Aug

Private International David Gooddard QC Prof Campbell Law - litigating in McLachlan QC the trans-Tasman context and beyond

Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email cle@lawyerseducation.co.nz or contact CLE information, tel 0800 333 111.

Online registration and payment can be made at www.lawyerseducation.co.nz

Programme

Presenters

Litigation Skills

Director: Jonathan Krebs Deputy Director: Janine Bonifant

Content

Where

When

SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 This highly regarded residential week-long course is open to applicants Christchurch with at least three years’ litigation experience. Based upon the National Institute for Trial Advocacy (NITA) teaching method, selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations.

19-25 Aug

Applications close 22 June 2012 Writing Persuasive Opinions

Judge John Adams Simon Cunliffe Margot Schwass

Successful opinions are persuasive. Persuasive opinions are clear, Wellington succinct, jargon-free, cogently structured, legally acute and tailored to the Auckland needs of your reader/client. Comprising a mix of presentations and smallgroup work, this workshop will demystify the practice of writing complex legal opinions. It will provide the chance to practise and receive feedback on your writing from experienced tutors in a supportive, creative and enjoyable setting.

Note: places are limited so book early to avoid disappointment

26 Sep 28 Sep

Introduction to High Court Civil Litigation Skills

Sandra Grant John Hardie Judge Rod Joyce QC Nikki Pender Paul Radich Tom Weston QC

Surveys of recently admitted practitioners repeatedly identify civil litigation as Wellington the area in which most practitioners in their first three years of practice want Auckland formal training. This programme has been developed in response to this Christchurch need and to complement both the skills based pre-admission courses and the NZLS Litigation Skills Programme.

29-30 Oct 12-13 Nov 19-20 Nov

Lawyer as Negotiator

Jane Chart

Building on participants’ own experience, this one and a half day workshop Wellington 2 provides hands-on practice and feedback, as well as a conceptual framework Auckland 2 for preparing for and undertaking negotiations. It uses cutting edge research to examine different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, for addressing specific issues which participants might wish to raise and for generally enhancing skill and confidence in this vitally important aspect of practice.

30-31 Oct 7-8 Nov

TRUST ACCOUNT TRAINING PROGRAMMES Trust Account Supervisor Training Programme

Mark Anderson, John Hicks or David Littlefair.

And David Chapman, Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ Hamilton Wellington preparation, attend the assessment day and pass all assessments.

Make sure you register in time to do the preparatory work before the Auckland Christchurch assessment day as listed on the right.

11 Jul 12 Sep 14 Nov 21 Nov

ENTRY LEVEL PROGRAMMES

Developed with the support of the Law Foundation Residential Property Transactions

Debra Dorrington Simon Ellis Nick Kearney Duncan Terris

This very popular two-day, limited-number workshop, for solicitors at the start of their property law career and legal executives with some experience, follows three files from client instructions to settlement and beyond.

Duty Solicitor Training Programme Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day)

Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

Wellington Hamilton Auckland

16-17 Jul 18-19 Jul 23-24 Jul

Intro

Asssessment

Practice Court

1 Jun 1 Jun 1 Jun 13 Jul 13 Jul 3 Aug 3 Aug 3 Aug 3 Aug 3 Aug 21 Sep 21 Sep

20 Jul 20 Jul (in Ham) 20 Jul (in Ham) 31 Aug 31 Aug (in Dun) 14 Sep 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 26 Oct 26 Oct (in Man)

21 Jul 21 Jul (in Ham) 21 Jul (in Ham) 1 Sep 1 Sep (in Dun) 15 Sep 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 27 Oct 27 Oct (in Man)

Programme brochures, online registration and booket purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz

OVERSEAS Release ICC staff The International Bar Association’s Human Rights Institute (IBAHRI) has called for the immediate release of four staff members of the International Criminal Court (ICC) who have been arbitrarily detained in Libya since 7 June.

The four were detained after meeting with Saif al-Islam Gaddafi, who is accused of crimes against humanity.

Reportedly the four staff members were initially held at an unknown location then later moved to jail without having access to counsel or external contacts.

The ICC delegation travelled to Libya on 6 June on a visit arranged by the Registry following a court order of 27 April 2012. It included counsel of the Office of Public Counsel for the Defence (OPCD), appointed earlier in April by the ICC Pre-Trial Chamber I to represent Mr Gaddafi, as well as Registry staff mandated to inform Mr Gaddafi on the possibility and modalities for the appointment of counsel of his own choosing.

The visit was authorised and facilitated by the Libyan authorities who agreed to facilitate the mission in line with their obligation to cooperate with the court pursuant to the unanimous UN Security Council Resolution 1970, which referred the situation of Libya to the ICC. The detained ICC staff members are Ms Helene Assaf, an ICC translator and interpreter; Mr Alexander Khodakov, a Russian career diplomat and the external relations and cooperation senior adviser at the ICC Registry; Mr Esteban Peralta Losilla, Chief of the ICC Counsel Support Section and Ms Melinda Taylor, counsel from the OPCD.

Plot to assassinate human rights lawyer Both LAWASIA and the International Bar Association’s Human Rights Institute (IBAHRI) have expressed grave concern over the alleged plot to assassinate Asma Jilani Jahangir, a Pakistan lawyer and prominent defender of human rights.

The IBAHRI “urges Pakistan’s authorities to immediately, thoroughly and transparently investigate the matter of a suspected plot to end the life of Asma Jilani Jahangir,” IBAHRI co-chair Sternford Moyo said in a 15 June media release.

Three days later, LAWASIA’s President, Malathi Das, wrote to Pakistan’s President, Asif Ali Zardari. Her letter “urges the Pakistani Government to investigate the nature and source of the threats and to take all possible steps to ensure her protection as well as the security of all human rights defenders, journalists and lawyers in Pakistan, who are an important pillar of efforts to strengthen democracy and the

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LAWTALK 799 / 6 JULY 2012

rule of law.”

A former President of the Supreme Court Bar Association of Pakistan, Ms Jahangir told reporters at a recent press conference that she had been warned by a “highly credible source” that her life was at risk. Ms Jahangir spoke of a “straightforward plan” to kill her, planned by the highest levels of the security establishment in Pakistan.

Ms Jahangir was a leading figure in the campaign against the Hudood Ordinances; a set of laws introduced in Pakistan in 1979, incorporating offences for which the Qur’an prescribed fixed punishments into the criminal law, including adultery and rape, where the burden of proof had not been met.

Ms Jahangir has also been a frequent rights defender in cases of discrimination against minorities, women and children and is recognised as founding the Human Rights Commission of Pakistan. She has also been the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution and United Nations Special Rapporteur on Freedom of Religion or Belief.

Lawyers attack secret civil court hearings Government plans to hold certain civil court hearings in secret have come under fire from 50 senior lawyers, the Gazette, magazine of the Law Society of England and Wales, reports (15 June).

The 50 lawyers, all special advocates with experience of the present system of closed hearings, have written and signed a response to the Justice and Security Bill, which proposes introducing closed material procedures (CMP) in cases where the disclosure of information might damage national security.

The lawyers object, in particular, to the bill’s requirement that the judge must accede to the government’s application for a CMP even if the judge considers that the case could and should be fairly tried under existing public interest immunity rules.

This contradicts an assurance given by justice secretary Kenneth Clarke in May that judges, not politicians, would decide whether cases involving national security should be heard behind closed doors.

The lawyers wrote: “…contrary to the assurance given by the lord chancellor in the Foreword to the Response, the bill does not ensure that the decision to trigger a CMP ‘can only be taken where evidence a (CMP) needed on national security grounds is found to be persuasive by a judge’”.

Responding to a government green paper, the special advocates said CMPs were “inherently unfair and contrary to the common law tradition” and that the government would have to show the “most compelling reasons to justify their introduction”. They said: “No such reasons have been advanced and, in our view, none exists.”

LAWYERS COMPLAINTS SERVICE Fined for acting without instructions Auckland lawyer Robert Rondel was censured and fined $10,000 by the Legal Complaints Review Officer after acting for both the buyer and seller in a property sale where he was also a trustee of the buyer trust. Mr Rondel did not obtain the seller’s informed consent and he acted without client instruction.

Mr Rondel was also ordered to pay the seller, Ms Rosalie Berry, $7,425.31 compensation, and to cancel his fee of $650 plus GST, which had already been paid, and refund the money within a month.

The facts Ms Berry owned a Gisborne property which she subdivided into two lots in 2008. In November that year, she entered an agreement to sell the rear lot to a family trust. Mr Rondel acted for both parties and the settlement took place in December 2008.

Ms Berry had tried unsuccessfully to sell the front lot, on which there was a house, and it was agreed that the trust would also buy that property for $140,000. However, the trust was unable to borrow that amount.

Ms Berry therefore agreed to sell half the property outright to the trust and to accept payment for the other half by 10 annual payments of $7,000 each.

Two agreements were prepared before Mr Rondel’s involvement. One was for the sale of an undivided half share in the property. The second agreement, for the remaining half share, provided a sale price of $70,000 and for payment by 10 instalments. This agreement contained a provision where Ms Berry’s half share in the property was “to lessen in time in proportion to the proportion of the $70,000 … which has been paid.” It also provided that once all 10 instalments had been paid, the purchaser would be entitled to full and exclusive title to 100% of the fee simple to the land and buildings.

Mr Rondel was to act for both parties and the agreements were delivered to him.

He formed the view that it was expensive and cumbersome to implement the terms of the second agreement and, instead, proposed that the whole of the property should be transferred at the same time to the trust and that the trust would enter into a loan agreement which recorded the terms of payment. The loan agreement was also to contain an agreement to mortgage, with Ms Berry being appointed as attorney of the trustees to execute a mortgage if required.

The matter proceeded on that basis and the property was transferred to the trust. No caveat was registered to protect Ms Berry’s interest in relation to the loan advance, either.

Ms Berry was never advised of the terms of Mr Rondel’s proposals, nor were new instructions sought. Ms Berry was not provided with a copy of the title following registration.

In June 2010, it became clear that the property had not been insured by the new owner. Mr Rondel contacted Ms Berry’s insurers and advised them that the policy would be amended to include the trust and Ms Berry as joint owners and that the bank concerned was to be recorded as first mortgagee. He also advised the insurer that Ms Berry resided in the property, which was not correct.

Some time later, Ms Berry wished to purchase another property, and needed loan finance. She sought to use what she thought was her half share in the property as security for the borrowing.

Investigations by the bank revealed that the title to the property had been transferred to the trust, causing Ms Berry concern.

Subsequent enquiries by her new lawyer brought the matters complained of to light and Ms Berry lodged a complaint with the New Zealand Law Society Lawyers Complaints Service.

The complaint Ms Berry alleged that Mr Rondel

and the person who established the trust (also a lawyer) were guilty of fraud in that the documentation had been altered and the loan agreement concocted so that the trust could use the property as security for a loan from the bank.

A Lawyers Standards Committee resolved to deal with all issues of complaint together, because in the committee’s view the main issue of complaint was that Mr Rondel did not follow the terms and conditions in the agreement.

The committee said it formed the view that the loan agreement provided adequate and satisfactory security for Ms Berry. In addition, it enabled her to register a caveat over the entire title.

It also came to the view that the loan agreement also provided adequate security for the trust.

The committee noted that the trust effectively now owned two thirds of the property, however it only held half of the title. The committee said it came to the view that the loan agreement equally benefited both parties.

The LCRO reversed the standards committee decision, finding that Mr Rondel’s conduct was “unsatisfactory conduct” in terms of s12(a), (b) and (c) of the Lawyers and Conveyancers Act 2006.

Before making that finding, the LCRO said it gave “serious thought as to whether or not this matter should be referred to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal”.

Mitigating against that, Mr Rondel had acknowledged the shortcoming in the service provided Ms Berry, he had not been dishonest or fraudulent and he had stated that he desired to assist Ms Berry.

Conflict of duty The LCRO noted that it was possible that the same solicitor may act for both vendor and purchaser without a conflict of duties arising. However, it is “readily apparent” that a conflict exists where one party advances funds

LAWTALK 799 / 6 JULY 2012

29

L AW YERS COMPL AINTS SERVICE to another.

The conflict of duty was exacerbated when Mr Rondel proceeded to implement the sale by introducing a loan agreement, rather than implementing the agreements as they had been prepared.

The LCRO also noted rule 6.1 of the Conduct and Client Care Rules, which states: “In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interest of third parties”.

Mr Rondel was further conflicted by virtue of his position as trustee of the buyer trust and this conflict situation should have been obvious to Mr Rondel, the LCRO said.

“He was preparing a loan agreement on behalf of a lender, whilst at the same time not only was he acting for the borrower, but he was in fact one of the borrowers.”

The trustees had entered into the loan agreement without securing a means of meeting their obligations in terms of the agreement.

“This only serves to heighten the complete disregard for Ms Berry’s interests, and brings into sharp focus the clear conflict of interest that existed between the trustees (of which Mr Rondel was one) and Ms Berry.”

Client information Mr Rondel also acknowledged that he did not provide Ms Berry information in advance and before undertaking significant work.

Acting without instructions One of the “most troubling” aspects of the complaint was that Mr Rondel implemented the transaction in a way that was not reflected in the agreements as drawn, the LCRO said. He did this “without instructions, and certainly without instructions from Ms Berry”.

Mr Rondel had a duty to consult with and advise Ms Berry of his proposals and to act only in accordance with her instructions. It was Ms Berry’s “absolute prerogative to instruct Mr Rondel to act in accordance with her instructions notwithstanding his advice. She was not provided with this opportunity.

“To exacerbate matters, it was not until much later that she discovered,

30

LAWTALK 799 / 6 JULY 2012

contrary to her expectations, that she no longer retained an interest in the form of an undivided one half share in the property.”

No caveat Having proceeded with the loan agreement and the transfer of the title, Mr Rondel did not immediately lodge a caveat against the title to protect Ms Berry’s interests.

In addition, when the files were provided to her new lawyer, neither the original of the loan agreement nor any copy of it was provided to him. It was therefore unclear to the new lawyer that Ms Berry had any security at all, and he could see no basis on which to lodge a caveat. This is a further breach of rule 6, the LCRO said.

A & I forms Following the hearing, Mr Rondel sent a copy of the relevant Authority and Instruction form to Ms Berry. However the form he provided referred to a transfer of a half share in the property.

It was not an authority to register a transfer of the whole of the title.

“Mr Rondel did not, therefore, have authority to register a transfer of the whole of the property to [the] trust.”

There was also uncertainty about whether Mr Rondel had held appropriate authorities at the time of creating the e-dealing. In light of this, the LCRO directed that a copy of the decision be referred to the RegistrarGeneral of Land.

Misleading conduct Nothing provided by Mr Rondel to Ms Berry gave any indication that the arrangement contemplated by her had not proceeded. The bill referred to the sale of one half share of the property.

In addition, Mr Rondel did not provide Ms Berry with a copy of the loan agreement at any time and it was not until this was provided to the standards committee and then to Ms Berry that she became aware of its existence.

Neither had the loan agreement been provided to Ms Berry’s new lawyer, to enable him to understand how her interest in the property had been dealt with, breaching rules 7 and 7.1.

The LCRO, however, did not share Ms Berry’s view that the course of action adopted by Mr Rondel was motivated to secure funding from the bank for the trust.

Orders As well as the censure, fine, compensation and fee cancellation, the LCRO made a series of orders.

Mr Rondel was ordered to make his practice available for inspection by a practitioner appointed by the LCRO for one year. Mr Rondel was ordered to pay costs of any such inspection as and when they occurred.

Mr Rondel was ordered to pay costs of $2,000 to the New Zealand Law Society and $1,200 to Ms Berry.

The names of Mr Rondel and Ms Berry, at her request, are to be published. LT

Lawyer’s duties when holding sale proceeds for tenants in common The Legal Complaints Review Officer has affirmed that a lawyer acting for tenants in common on the sale of their property should open a single trust ledger for all the sale proceeds and must not disburse the proceeds to any of the owners unless they all agree to this.

The facts and the complaint The complainant and his brother and sister inherited a farm as tenants in common in equal shares. As they couldn’t agree on terms for extending the mortgage, a mortgagee sale was imminent. Mr A, who knew all three siblings and was also the sister’s attorney, offered to mediate between the three to help them reach agreement on new mortgage terms.

Mr A drafted an agreement and instructed the lawyer at the centre of this decision (B) to turn this into a formal deed. The deed recorded Mr A’s obligations, which included arranging a new loan, negotiating a sale of the farm within 12 months after getting it into a saleable condition, and appointing a lawyer to act for the three owners as a group.

The complainant and his brother both signed the deed. Mr A was to sign on his own behalf and as the sister’s attorney, but this did not happen. The parties did, however, execute documents extending the farm loan as the deed had provided for, and a mortgagee sale was avoided.

The farm was later sold by auction, with the sale documents being signed by the

L AW YERS COMPL AINTS SERVICE two brothers and by Mr A as the sister’s attorney. B receipted the proceeds into a single trust account ledger for the three owners. A second deed was drawn up dealing with how the proceeds were to be distributed, but this wasn’t signed by any of the parties.

Several days after settlement, the complainant demanded that B pay him one third of the sale proceeds. B refused to do this. Instead he paid out an undisputed amount to each of the three siblings, while retaining an amount that represented a potential GST liability and an adjustment for the complainant having already received proceeds from the sale of stock. The complainant’s brother specifically instructed B to continue to hold the balance until all three siblings agreed on how to proceed.

In his complaint, the complainant argued that as one of three tenants in common owning equal shares, he was entitled to demand payment of one third of the proceeds. He also said the first deed was unenforceable as it hadn’t been executed by all the parties.

B responded that he had acted in the sale on instructions from Mr A, who had ostensible authority from all three owners. He said the fact that the complainant had himself signed the first deed was evidence he approved of its terms. B argued that the complainant could not now take a different position, even if the deed wasn’t binding.

The LCRO’s decision The Lawyers Standards Committee decided that B had been correct to refuse to release the balance of the sale proceeds without joint instructions from all three registered owners.

The complainant applied to the LCRO, who agreed with the committee.

The LCRO accepted that B had acted on authority from all three owners: by signing the first deed the complainant and his brother had confirmed Mr A’s authority to instruct B, and Mr A had also been the sister’s attorney.

The LCRO restated a previous ruling that it was correct for a lawyer acting on the sale of a property owned by tenants in common to pay the proceeds into a single trust account ledger (LCRO 134/2010). Any payment out of the trust account then had to be approved by all the registered owners. The LCRO said this approach protects the parties’ beneficial interests in the property. He noted that the division of sale proceeds must reflect beneficial interests, which may be different from the ownership shares registered on the title (referring to Bennion, Brown, Thomas and Toomey, New Zealand Land Law, 2nd ed).

The LCRO said the NZLS Inspectorate had informed him that it interpreted the trust account regulations as requiring only a single account ledger to be opened in this situation. Although the regulations require a separate ledger account for each client, they also specify that “a joint client must be treated as a single client” (Lawyers and Conveyancers (Trust Account) Regulation 2008, reg 12(1) and (2)). The Inspectorate interprets “joint client” as including tenants in common, rather than interpreting the term in its technical sense. The LCRO added that this was also the standard practice among lawyers.

The LCRO said that had B complied with the complainant’s demand in this case, he would have breached his statutory duties to hold the funds until he had proper authority to release them (see reg 12(6) and the Lawyers and Conveyancers Act 2006, s110(1)(b)).

Failure to provide client service information The complainant had also noted that the lawyer hadn’t

provided him with the client service information required under the Conduct and Client Care Rules (Rules 3.4 and 3.5).

The standards committee had found that B’s non-compliance had been excused by the urgency of the situation, under the exception in Rule 3.7(b), which applies if providing the information “is, in the circumstances, impracticable”. The LCRO said, however, that urgency may mean the information doesn’t have to be provided “in advance” (as required by Rule 3.4) or “prior to undertaking significant work” (Rule 3.5), but it doesn’t mean the information doesn’t have to be provided at all.

However, the LCRO accepted B’s claim that he had provided the information to Mr A, who had ostensible authority from the three owners to instruct the lawyer. The LCRO found there had been no breach other than that there may not have

Registry The following people have applied to the NZLS for certificates or approvals.

Admission under Part 3 of the Lawyers and Conveyancers Act 2006

Auckland Branch GEDGE Dylan Patrick MEYER Amy Childs Canterbury Westland Branch PETERSON Thomas William POWELL Renee Christina Otago Branch CALLANDER Jeremy Charles PRZYGODA Ewa Dominika SCOTT Emma Karen Waikato Bay of Plenty Branch ALLEN Aidan Thomas Tyrone ALLISOM Michelle Sarah Elizabeth DONALD Joseph William EADES Damian John MAREROA Stacey Hiria MILLS Simon Bruce

MOYER (nee SOUTHERN) Kirsten Jayne ROACHE Samantha-Lee SHADBOLT Alex Jayne Hinemoa WARE Maria Cecelia ZEKE Clive Ford Wanganui Branch LEWIS Stephanie Ann Wellington Branch AUSTIN-ELLIS Georgina Louise BARBALICH Rowan Jeffrey BRUNEL Peta-Claire CARR Robert Benjamin Crabtree LA John Pill MARTIN Joanna Helen Shipley OGLETREE Aaron Peron ORSMAN Jessica Jane RAINEY Sue Helen REYNERS Conrad Andrew

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006

Canterbury Westland Branch LAMBIE-SHAW Leandra Faye

PETAIA Peter Atoa

The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/ applications_for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 12 July 2012.

Any submissions should be given on the understanding that they may be disclosed to the candidate.

Lisa Attrill, Registry Manager Email: lisa.attrill@lawsociety.org.nz, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989

LAWTALK 799 / 6 JULY 2012

31

New practice notes The Māori Land Court and Waitangi Tribunal recently issued practice notes.

The Māori Land Court Practice Note concerns the use of the Māori Land Court Special Aid Fund where a barrister or solicitor is appointed under ss70(3), 98(3) and 98(9)(c) of Te Ture Whenua Māori Act 1993, and in particular: general principles to be applied by the court in relation to the use of the Special Aid Fund; material to accompany an application for payment from the Special Aid Fund (in addition to the material already required under rules 16.2, 16.6 and 16.7 of the Māori Land Court Rules 2011); rates of payment for barristers and solicitors appointed under ss70 and 98; costs orders where the party against whom costs is sought is in receipt of Special Aid; and requirements for notification where a barrister or solicitor is appointed under ss70 or 98.

The Waitangi Tribunal Practice Note updates paragraph 2.5 of been strict compliance with the terms of the rules, and he decided this shouldn’t result in an adverse finding against B. The LCRO added, however, that B hadn’t been able to provide evidence that he had given Mr A the information. The LCRO reminded lawyers that “they should be in a position to positively affirm that the rules have been complied with.” LT

SITUATIONS VACANT

the Tribunal’s Guide To Practice and Procedure. This section of the guide concerns the considerations to be applied by the tribunal in determining applications for urgent hearing and the process to be followed where urgent hearings are granted.

The practice notes can be viewed online at www. justice.govt.nz/courts/maori-land-court/newsevents/important-notices and www.waitangitribunal.govt.nz/doclibrary/public/practicenote/ PracticeNoteUrgency.pdf. LT

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Staff Lawyer I seek an ambitious staff lawyer to join my successful and growing practice.

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We are a specialist litigation firm.

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PO Box 31-240, Lower Hutt 5040

Phone: (04) 570 0442 Fax: (04) 569 4260 www.tdsl.co.nz

A vacancy has arisen for an Intermediate Crown Prosecutor at O’Donoghue Webber, the office of the Crown Solicitor for Tasman, based in Nelson.

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We have taken a leading role in assisting local businesses and property owners through these recent difficult times.

Due to the tremendous growth in our workload post-earthquake we have a new position for a commercial/property lawyer. We are looking for a lawyer with 3-5 years post admission experience. As we value highly the strength of our relationships with clients, the successful candidate will, in addition to sound legal aptitude and relevant experience, possess excellent inter-personal skills and a desire to build a practice.

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Passionate, Proven, Professional

32

LAWTALK 799 / 6 JULY 2012

ngatangi te marearea Would any lawyer holding a will for the above-named, late of Mourea, near Rotorua, who died on 18 August 1978, please contact Ngaire Rendell at East Brewster Lawyers, PO Box 1742, Rotorua 3040, ph 07 348 2030, fax 07 347 8701, email ngaire.rendell@ eastbrewster.co.nz.

nola florence walpole Would any lawyer holding a will for the above-named, late of Lakewood Rest Home, 31 Horseshoe Lake Road, Christchurch who died on 11 December 2011, please contact Greg Presland, PO Box 20310, Glen Eden, Auckland 0641, ph 09 818 1071, fax 09 818 4966 or email greg.presland@mylawyer.co.nz.

WILLS Rajnikant chhotabhai patel

dinesh ramji ladwa

carole campbell

Would any lawyer holding a will or has acted for the above-named, late of 8 Sunlea Lane, Mangawhai, Businessman, born 5 June 1933, who died on 30 May 2010, please contact Shean Singh Barristers & Solicitors, PO Box 10018, Dominion Road, Mt Eden, Auckland 1446, ph 09 630 0054, fax 09 630 0650, email darsan@sheansingh. co.nz.

Would any lawyer holding a will or has acted for the above-named, late of 25 Cairns Crescent, Rototuna, Hamilton, systems service engineer, born 3 September 1966, who died on 5 November 2011, please contact Shean Singh Barristers & Solicitors, PO Box 10018, Dominion Road, Mt Eden, Auckland 1446, ph 09 630 0054, fax 09 630 0650, email darsan@sheansingh. co.nz.

Would any lawyer holding a will for the above-named, late of 52 Jervois Road, Jervoistown, Napier, homemaker, born 23 May 1946, who died on 14 January 2011, please contact Vanessa Harpur, Gresson Grayson Limited, PO Box 1045, Hastings 4156, ph 06 873 2710, fax 06 878 2192, email vanessa@ gressongrayson.co.nz.

susil chandra Would any lawyer holding a will or has acted for the above-named, late of 23 Stanhope Road, Mount Wellington, Auckland, bus driver, born 8 October 1956, who died on 14 December 2011, please contact Shean Singh Barristers & Solicitors, PO Box 10018, Dominion Road, Mt Eden, Auckland 1446, ph 09 630 0054, fax 09 630 0650, email darsan@sheansingh.co.nz.

andrew john collinge campbell

Would any lawyer holding a will for the above-named, late of 52 Jervois Road, Jervoistown, Napier, teacher, born 1 August 1943, who died on 15 May 2012, please contact Vanessa Harpur, Gresson Grayson Limited, PO Box 1045, Hastings 4156, ph 06 873 2710, fax 06 878 2192, email vanessa@ gressongrayson.co.nz.

frank sykes Would any lawyer holding a will for the above-named, late of 11 Seymour Grove, Upper Hutt, who died on 24 April 2012, aged 82, please contact Don McCulloch of Ward McCulloch, PO Box 40072, Upper Hutt 5140, ph 04 528 8069, fax 04 528 4295, email wardmc@attglobal.net.

lancelot sherwood bibby Would any lawyer holding a will for the above-named, late of Auckland, company director, born 26 December 1935, who died on 12 June 2012, please contact Robert G Metcalf, of Burns Metcalf & Co, Lawyers, PO Box 38, Wellington 6140, DX SP 22046, ph 04 472 0071, fax 04 471 1568, email bob.metcalf@clear.net.nz.

Would any lawyer holding a will for the above-named, late of Kemp Home and Hospital, 21 Te Pene Avenue, Titahi Bay, before that 201 Onepu Road, Lyall Bay, Wellington, who died on 26 December 2000, please contact Stephen McKenzie, SPM Law Limited, PO Box 38538, Howick, Manukau 2145, ph 09 274 8042, fax 09 274 8057, email stephenm@xtra.co.nz.

william francis topp

gloria ngarimu Ropitini

Would any lawyer holding a will for the above-named, last known address Flat 4, 14 Brynley Street, Hornby, Christchurch, who died on 5 March 2012, please contact Louise Lane of Alpers & Co, Northwest Law Office, PO Box 29115, Fendalton, Christchurch 8540, ph 03 359 8311, fax 03 359 4496 or email info@advocate.co.nz.

Would any lawyer holding a will for the above-named, late of 6 Te Ariki Place, Ngongotaha, Rotorua, sickness beneficiary, who died on 21 March 2012 , please contact Roslyn Morshead, McKechnie Quirke & Lewis, DX JP 30036 or PO Box 242, Rotorua 3040, ph 07.3494400, fax 07.3478150 or email ros@mql.co.nz.

LEGAL SERVICES

jason keith william frandi Would any lawyer holding a will for the above-named, who died on 26 May 2012, please contact Alister Wilson, Dean & Associates Barristers and Solicitors, ph 03 434 5128, fax 03 434 7695, email alisterw@deanlaw.co.nz.

Tamauli mitimeti Would any lawyer holding a will for the above-named, late of 75 Cedar Heights Avenue, Massey, who died on 21 January 2012, please contact Sharron Dickins, DG Law Limited, PO Box 14 081, Panmure, Auckland 7141, ph 09 574 5316, fax 09 570 9529, email sharrond@dglaw.co.nz.

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LAWTALK 799 / 6 JULY 2012

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21/

SITUATIONS VACANT

Wellington Ph: +64 4 499 6161 PO Box 11003

Auckland Ph: +64 9 306 5500 PO Box 105732

Legal Standards Solicitor

The Best of the Best

• Intermediate to senior • Wellington CBD The New Zealand Law Society is the regulatory body for all lawyers and represents its lawyer members. A vacancy has arisen for a Legal Standards Solicitor.

The key purpose of the role is to assist Standards Committees in handling complaints from the public and lawyers. Responsibilies include dealing with enquiries from the public; receiving complaints, referring these to standards committees; investigating; and drafting decisions. The role offers a lot of variety and will appeal to someone who wishes to use their legal skills in an area which has the ‘human interest’ factor.

We are seeking applicants with: • At least 5 years’ post admission experience; preferably with some private practice experience • Sound written and oral communication skills • The ability to perform under pressure • Good judgement and diplomacy.

Applications close on 16 July 2012 at 5pm.

To apply, please email your CV and covering letter to wellingtonjobs@momentum.co.nz quoting reference number 30551. For further information in strict confidence including the position description, please contact Carla Wellington or Marissa Barnao on (04) 499 6161.

Corporate Counsel – 3 year PQE In house role of the year at this level. Leading privately held investment company with substantial investments within New Zealand and internationally.

Provide legal support to NZ based businesses and work on a range of NZ and international corporate M&A transactions and restructures.

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The expanding Auckland office seeks a corporate lawyer with between 3 – 5 yrs experience. Join a specialised practice in a supportive, friendly and balanced working environment. A solid corporate advisory role where you will receive exposure to a breadth of transactions and readily accessible mentoring from highly regarded partners. Ref 29316 To apply, please email your CV to aucklandjobs@momentum.co.nz quoting the reference number. For further information in strict confidence, please contact Meryn Hemmingsen on 09 306 5500.

Intermediate/Senior Solicitor Commercial Litigation Meredith Connell is New Zealand’s largest litigation practice. It is the office of the Crown Solicitor for Auckland and also has considerable expertise in corporate law, commercial property and regulatory and commercial law. Based in Auckland’s CBD, we are looking for an experienced civil litigator with 5 – 8 years’ experience to join our commercial litigation department.

The work will be primarily focused on managing a number of litigation matters for one of the firm’s major governmental clients. The role involves a number of significant contract and tort claims in the High Court in Auckland and throughout the country. You will be required to manage files independently, including preparing pre-claim legal advice, drafting claims, dealing with interlocutory matters, attending Court and managing and mentoring junior staff. There will be a high level of client interaction at several levels.

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Private Client Solicitor, 3 – 5 yrs PQE, Christchurch This is a great opportunity to use your generalist private practice experience and make the step up to a large national firm. You will be rewarded with high quality work and a prestigious, loyal client base. You will ideally have a minimum of three years’ PQE and experience in trusts, wills, estates, conveyancing and general commercial/company work.

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Call now for a confidential discussion about this role and your current situation.

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For further information in strict confidence contact Ben Traynor or Clare Savali on 04 471 1423 or email admin@ nicherecruitment.co.nz

To apply, please email your CV and academic transcript to Alana Podbielski by email: alana.podbielski@meredithconnell.co.nz.

Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz

Applications close on 30 July 2012.