Lawtalk 822 by New Zealand Law Society

LawTalk 5 July 2013 路 822

Moving from an adversarial mindset to embracing emotional intelligence FEATURE PAGE 04

HELP IS AT HAND To provide a service for lawyers seeking independent help with an issue in their life, the New Zealand Law Society has signed an agreement with Lifeline Aotearoa. Lifeline offers a discounted rate to New Zealand Law Society members and their families. Lifelineâ&#x20AC;&#x2122;s team of qualified professional counsellors is experienced in working with clients across a broad range of issues. They can help with day to day issues such as stress, anxiety, burnout, depression, relationship issues, grief, trauma and addiction. Phone lifeline Aotearoa: (09) 909 8750 email: face2face@lifeline.org.nz

PRACTISING WELL Supporting lawyers since 2009.

m y. l a w s o c i e t y. o r g . n z / p r a c t i s i n g - w e l l

Contents. Emotional intelligence is on a par with legal expertise. These soft skills ... are a good component of what we’re looking for in terms of the complete package.

— Andrew Poole, Chapman Tripp Managing Partner

Feature. Page 4

Regulars ..............................................................................

..................................................................................

People in the Law Practising Well

The New Zealand Law Society’s agreement with Business Mentors New Zealand gives lawyers access to unrivalled business expertise.

Gallavin on litigation

..........................................................................

Organisation and Guts: the key to filing effective pre-trial applications?

Law Reform committee members wanted

.............................................

15 17

Lawyers who who are enthusiastic about making a real contribution to law reform in New Zealand have an opportunity to get involved.

Moving towards CPD

..........................................................................

From 1 April 2014 all New Zealand lawyers will be required to complete an annual minimum of 10 hours of continuing professional development (CPD).

Courtroom practice

............................................................................

The government in England and Wales announced last month that they will be piloting the pre-recording of children’s cross-examination in three criminal courts around the country. .....................................................................................

..........................................................................................

Section news In-house

The Ministry for Primary Industries legal manager’s monthly meeting is held in the innovation room.

Technology

.......................................................................................

The secret to making your electronic documents safe is to back them up.

Inspectors’ briefcase

..........................................................................

In this article we share a variety of matters that have been the source of recent inquiries. We also explain some enhancements to the trust account review process.

Anti Money Laundering

.......................................................................

Is your professional indemnity cover compromised?

Regulatory

........................................................................................

How long should a lawyer retain files following the termination of a retainer?

Branch News

.....................................................................................

23 24

Good lawyers are good with people

Elliot Sim The skills required to practice the technical aspects of the law are almost the polar opposite of the skills required to run effective relationships.

28 30

................................................................

.........................................................................

Lawyers Complaints Service

Soft skills

....................................................

NZLS CLE Ltd upcoming programmes Classified Advertising

Feature

LawTalk 822 · 5 July 2013 ·

From the Law Society Christine Grice

“

e all know that becoming a lawyer involves much more than learning the law and its sources. What a client expects often differs in substance and form from the expectations of a judge, a magistrate, and a fellow practitioner.” The “Magistrate” is a hint that this was said a while ago; however, every other word in these comments by then New Zealand Law Society President Lester Castle

NZLS Executive Director Christine Grice speaking on behalf of the Law Society at the recent swearing in of Justice David Gendall as a Judge of the High Court

in the Law Society’s Annual Report in 1975 is as true today as it was then. His statement was followed by expressions of concern that there was perhaps too much of a focus on producing lawyers who were well informed on legal principles but lacked the many practical communication and other skills needed by any lawyer. “The ‘professor’ of law has supplanted the ‘artisan’,” Mr Castle said. Almost 40 years later much has changed. There is a much greater awareness of the need for lawyers to be trained in communication and related skills. This is reflected in the course options now available in law schools, post-admission training and continuing legal education courses. However, the message remains: success as a lawyer involves far more than a knowledge of the law. This issue of LawTalk examines some of the skills lawyers need in the interactions they have with their clients, other lawyers, the judiciary and other parties.

· LawTalk 822 · 5 July 2013

Looking at the resources which are now available, it is encouraging that there is a realisation that necessary “legal” skills cover a wider ambit than “black letter law”. The introduction of mandatory continuing professional development (CPD) is an opportunity for us to consider what skills, as well as substantive knowledge, we need to acquire. This might include enhancing people management, marketing or interviewing skills. These contribute to a successful career as much as knowledge of the law itself. Anyone who wishes to practise on their own must now complete the Stepping Up course which the Law Society introduced in 2012. Stepping Up covers areas such as leadership, marketing and professional conduct. One of the key components is called “the people dimension”. This looks at motivating and retaining staff, delegation, managing staff performance, and handling the special stresses involved in being a lawyer who practises on their own account. These skills are just as important as more technical matters such as financial and file management. Lawyers now may also draw on an increasingly wide range of professional development opportunities which are aimed at developing and sharpening their people skills. “Secrets of success”, “Dealing with difficult people”, “Tricky issues in the life of a lawyer”, “Conflicts, governance and professionalism” and “Building profitability: leverage leadership and management” are all workshops and seminars which have been offered to the legal profession in 2013 by the Law Society’s CPD provider NZLS CLE Ltd. Within law firms, barristers chambers and the organisations which employ lawyers there is also now major emphasis on the lawyer’s role as a leader, and development of the necessary skills. This changing focus is another indicator that the successful lawyer in 2013 is someone who possesses a wide range of skills. A high degree of emotional intelligence and people skills has always been an ingredient for success. What is clear is that it is now required of anyone who wants a successful legal career – whatever the area of law they choose. Christine Grice New Zealand Law Society 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.

26 Waring Taylor Street, Wellington

DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand Edi t o r: Frank Neill 04 463 2982 editor@lawsociety.org.nz Wri t ers : Rachael Breckon 04 463 2910 rachael.breckon@lawsociety.org.nz Elliot Sim 04 463 2902 elliot.sim@lawsociety.org.nz Advert i s ing: Christine Wilson 04 463 2905 advertising@lawsociety.org.nz Subscript ion I nq u irie s : subscriptions@lawsociety.org.nz Desi gn: Andrew Jacombs 04 463 2981 andrew.jacombs@lawsociety.org.nz Pri nt i ng: Lithoprint, Wellington

ISSN 0114-989X

News Points Human rights needs strengthening Mechanisms protecting human rights in New Zealand would benefit from further strengthening, the New Zealand Law Society has told the United Nations’ Human Rights Council. In a submission to the council for the second Universal Periodic Review of New Zealand’s human rights record, the Law Society identified a number of legislative measures which it says failed to meet New Zealand’s domestic and international human rights obligations. Twelve pieces of legislation in recent years have been identified as inconsistent with the rights and freedoms protected in the New Zealand Bill of Rights, Law Society President Chris Moore says. “On a number of occasions urgency has been used in Parliament to limit or bypass

select committee scrutiny. The Law Society is also concerned that there has been legislation prohibiting review of government decisions by the courts, and proposing restrictions on rights to legal representation in Family Court proceedings. Other significant concerns include giving the power to amend legislation by regulation without parliamentary scrutiny, and not vetting late amendments to draft bills for their consistency with the Bill of Rights.” Mr Moore says the Law Society’s submission recommends that the government take concrete, targeted steps to give international human rights obligations greater visibility in New Zealand. The Society also recommends the government establish a formal process for publicising, considering and responding to human rights recommendations by United Nations bodies.

Leave to appeal withdrawn The Crown will withdraw its application to the Supreme Court for leave to appeal the decision in The Criminal Bar Association of New Zealand Incorporated v The Attorney-General [2013] NZCA 176, Justice Minister Judith Collins announced on 21 June. In this decision, the Court of Appeal found that the Secretary for Justice acted unlawfully in implementing the Criminal Fixed Fee and Complex Cases Policy. Ms Collins’ announcement followed a decision by the Legal Services Commissioner concerning legal aid payments for criminal defence lawyers. The commissioner has made interim changes to clarify when and for what reasons legal aid payments to criminal defence lawyers can be amended, Ms Collins

said. The commissioner may decide to vary the amount where cases involve significant additional work.

Lawtalk is printed on an environmentally responsible paper, produced using Elemental Chlorine Free (ECF), FSC® Certified Mixed Source pulp sourced from Well Managed & Legally Harvested Forests. 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.

LawTalk 822 · 5 July 2013 ·

Moving from

an adversa rial m emotional in indset to embracing telligence F E AT U R E

路 LawTalk 822 路 5 July 2013

BY ELLIOT SIM

LawTalk 822 路 5 July 2013 路

ACT 1 – IN WHICH WE SET THE SCENE

Interpersonal skills important for lawyers An interview with corporate psychologist Dr Lynley McMillan

he skills required to practise the technical aspects of the law are almost the polar opposite of the skills required to run effective relationships, says corporate psychologist Dr Lynley McMillan. She draws on 20 years’ business experience – specialising in corporate psychology – with law, finance, accounting, and consulting firms, and has a range of clients including partners, chief executives, and boards of directors. For example, in-house lawyers have to balance a multi-dimensional role, as they need to advance organisational strategy and align with their internal clients while they retain their independence and ensure compliance with the law which is the core obligation of a lawyer. “It’s probably fair to say that in law school they’re trained for the second goal brilliantly, but perhaps not quite so much for the first one.” The stressful and time-scarce nature of the profession compounds the issue. When time is squeezed by huge workloads and client demands, it mutes our social skills. The higher our workload is, the harder it is to slow ourselves down and know what the other person is going through. “When someone is pushed for time and building relationships, empathy is placed on a schedule of extinction. This means that the relationship building becomes less satisfying and our interpersonal skills actually begin to diminish. It’s a logical outcome that we become drawn to

· LawTalk 822 · 5 July 2013

the technical, as opposed to the interpersonal facets of our roles,” Dr McMillan says. Research indicates that people gravitate toward law based on having personality traits such v Law yers’ skills ild as being ambitious, ing skills bu ip sh on relati sceptical, perfectiondoubt, but trust is ist and a need to be in • A lawyer skill is to ionship building. control. important for relat d to cross-examine an These qualities • A lawyer skill is a en wh n do that that persuade juries they will quite ofte r stress. work like acid on relationship is unde argue, although to is ill relationships. • A lawyer sk u have got things “ I t ’s a r e a l l y admitting when yo ionship. interesting dilemma wrong builds a relat n be a good skill to ca e nc that the profession • An attacking sta ing relationships we is faced with. If we have, but when build le have weaknesses look at lawyers as need to accept peop d ey ’re emotional an a profession they and sometimes th tend to be thinkers unpredictable. ity. ofessional vulnerabil and tend to analyse • Lawyers avoid pr ip sh ion at is a better rel rather than emote, and Conceding a point tend to be task oriented building skill. tenthink for others. Lis and speak their minds.” • A lawyer skill is to is a s ion in other’s op Rather than striving ing or respecting skill. to win, compromise can relationship building be an important tool when building stakeholder relationships. “People are imperfect and they do things wrong; they’re hard to understand sometimes. So the ability to compromise is a really healthy skill to have. “In a lawyer role, people are required to

interact with a huge diversity of stakeholders from employers, partners and financial clients. “I think the most critical thing that isn’t trained into lawyers is interpersonal flexibility. That’s a core emotional intelligence skill. “I have colleagues in the psychology profession who have advocated for years that our professions are really similar in terms of needing to understand human behaviour and that there is a really important cross-over.”

Having the ability to ‘change gears’ Switching from cut-throat courtroom etiquette to professional relationship building with a client requires a deliberate choice. “In my professional experience it’s the gear-change which is the most difficult, especially when we come back to time-squeeze. We all do what we know best when we are under pressure and that takes us back to our fundamental training,” Dr McMillan says. She says a sense of inquisitiveness or curiosity about people in terms of relationship building is paramount. “What I have seen in the law traditionally is people will form a hypothesis about why someone acted and why they might act in the future and stick with it, because it helps their line of argument.” Being open to diversity is a great starting point. Simply letting go of assumptions and accepting people as imperfect humans can substantially enhance relationships. “Lawyers attempt to make a point by

collecting appropriate evidence to confirm that point, whereas in building relationships it’s more about inductively taking it as the moment goes. “There’s a growing need to boost relationship building skills in the law. While the area can get incredibly technical and people have written numerous books about how to do it, they can be an arduous read. The bottom line is having a sense of empathy for where the other person is coming from. It’s pretty much as simple as that. “To dislocate that sense of wanting to make a point, actively consider the other person’s emotional experience; think about what they want and what they fear gaining or losing. Adopt a stance or sense of empathy, compassion and emotional intelligence and sustainable results will follow,” Dr McMillan says.

Emotional intelligence Emotional intelligence (EQ ) is the ability to identify, use, understand, and manage emotions in positive ways to relieve stress, communicate effectively, empathise with others, overcome challenges, and defuse conflict, says psychologist and sociologist Dr Jeanne Segal. If you have high emotional intelligence you are able to recognise your own emotional state and the emotional states of others, and engage with people in a way that draws them to you. You can use this understanding of emotions to relate better to other people, form healthier relationships, achieve greater success at work, and lead a more fulfilling life, says Dr Segal, who has spent more than 35 years exploring the relationship between EQ and mental and physical health. EQ consists of four attributes: Self-Awareness You recognise your own emotions and how they affect your thoughts and behaviour, know your strengths and weaknesses, and have self-confidence. Self-Management You are able to control impulsive feelings and behaviours, manage your emotions in healthy ways, take initiative, follow through on commitments, and adapt to changing circumstances. Social Awareness You can understand the emotions, needs, and concerns of other people, pick up on emotional cues, feel comfortable socially, and recognise the power dynamics in a group or organisation. Relationship Management You know how to develop and maintain good relationships, communicate clearly, inspire and influence others, work well in a team, and manage conflict. Relationship management requires a series of skills, such as communication (including active listening, reflecting and clarifying), building rapport, employing empathy and assertiveness.

LawTalk 822 · 5 July 2013 ·

ACT 2 – IN WHICH THE RUBBER MEETS THE ROAD

Good lawyers are good with people An interview with Chapman Tripp managing partner Andrew Poole motional intelligence is on par with legal expertise, Chapman Tripp managing partner Andrew Poole says. “Those soft skills have moved, over some decades, from being much less relevant to highly relevant and a good component of what we’re looking for in terms of the complete package.” He says the firm has made a shift or transition over the last few years in terms of its view of core skills for a lawyer or partner in the business. “I think the old fashioned or certainly much earlier view would have been very much that it is someone who’s very smart and knowledgeable in the law, and that was kind of the core or almost exclusive strength. “The other side of it, which I think we’ve seen play out more in the last five or so years, is a different element of that emphasis on emotional intelligence in relationships, which is the external relationship with the client and internal relationships too,” Mr Poole says. The ability to build those relationships and maintain them, he says, is along the same lines as if they were a personal relationship. “So when I stand back now and think about a partner candidate, I’m asking myself is this person someone who is really smart and

Those soft skills [are now] highly relevant and a good component of what we’re looking for in terms of the complete package 08

· LawTalk 822 · 5 July 2013

knowledgeable in the law, which in that pure black letter sense, makes a good lawyer. Secondly, is this someone who will be a very good co-owner and has good ownership instincts, is good with people, a good supervisor, a good delegator, a good mentor and a team player internally? “The third component is whether the person is really going to be able to build and maintain business. That’s all about not only being recognised for their expertise but being able to run or participate in the running of a relationship,” Mr Poole says. It’s not quite right to say, however, that “lawyers are naturally trained with adversarial instincts”. Mr Poole says litigation has changed a lot in most law firms, where the opportunities to spend a significant amount of time on your feet in court in an adversarial situation are much diminished. “Most of what our litigation team spends its time doing, while it’s in a more general litigation sense, is advising clients on risk, working very much in the pre-litigation phase or working in a mediation environment as well as going to court and being advocates in an adversarial environment. “But that’s certainly not the majority of their time. So we look to our litigation partners and lawyers to have the full suite of relationship skills as well. And I would say now, interestingly, for typically a corporate, finance or indeed any lawyer in the place, the amount of advocacy they would undertake is almost the same as the litigator. It’s just that it’s advocacy of a client’s position in a negotiation or in a document,” he says.

ACT 3 – IN WHICH WE ENTER THE WORLD OF ACADEMIA

Interpersonal skills in the curriculum A look at how two of our universities approach the teaching of these soft skills aikato University’s Te Piringa – Faculty of Law views interpersonal skills as a very important facet of being an effective lawyer, according to senior law lecturer Juliet Chevalier-Watts It offers a compulsory year-long third year course in dispute resolution, which exposes students to experience real-world scenarios. “They’re [law students] heading towards the end of their degree. They’ve built up a subset of skills already and they understand legal principles, but those legal principles are just one aspect of their legal education and they have to be able to utilise those skills as well as other skills appropriately. “The aim of the course is to get students to understand that the adversarial approach is not the only way of solving disputes. In fact, for some, it’s probably the least useful method, for many reasons, to resolve a dispute,” Ms Chevalier-Watts says. One of the first aspects of the course is teaching the skills of client interviewing, and how to draw information from different types of clients. “They have to be able to listen first and foremost; to be able to understand exactly what their client actually wants. “They have to learn the art of open questions, which is something many people find really difficult to do,” she says, and to be able to utilise the art of paraphrasing effectively. This technique proves the students understand the context of the issues and subsequently students provide

the client with various options to suit their own personal situation, both legal and non-legal. The students then learn the art of negotiation by using a collaborative approach, as opposed to the standard adversarial approach to negotiation, as well as developing their mooting skills. Acquiring strong interpersonal skills, according to Ms Chevalier-Watts, is a fundamental part of the students’ learning process. “It’s not just how to tell us all about the legal skills and how to apply the law, but to be able to deal with real life situations, and real life clients who don’t necessarily want to go to court but don’t know that. Often clients will think that’s the only option, but actually there’s a whole host of options.

Acquirin g personal strong inters fundame kills ... is a n students tal part of the ’ learnin g process

Our students have to be able to work through that and explain the reality of it to individuals. “We need a more empathetic and realistic approach to being a lawyer, and that’s what we’re trying to do here,” she says.

LawTalk 822 · 5 July 2013 ·

University of Canterbury Canterbury University’s law faculty is set to roll-out a community engagement programme with interpersonal skills being a key element. In the next few months, the faculty will be launching New Zealand’s first comprehensive clinical legal programme, the Law Dean, Associate Professor Chris Gallavin, says. “As part of that programme there will be two

We can teach students what the law is but the law changes key components – first, our community law centre relationship and second a compulsory element of community and professional engagement. “While specific training on interpersonal skills is not provided, both those programmes have at their core the interaction with real people with real problems. These need not necessarily be ‘legal’ problems. Therefore, we hope that students will learn that not all problems involve a ‘legal’ answer but a myriad of other approaches will be necessary. “We are also seriously looking at the development of alternative dispute resolution as a compulsory element of the LLB. That is not something we intend to have finalised until 2015, but we are excited about the opportunities,” he says.

University of Otago Otago University is working towards a full clinical approach to teaching its law students interpersonal skills, says Associate Professor Selene Mize.

· LawTalk 822 · 5 July 2013

The faculty already teaches interpersonal skills in its family law course taught by Law Dean Mark Henaghan, as well as in its negotiation course taught by Professor Mize and an advocacy course taught by Dunedin practitioner Len Anderson. Professor Mize says she hopes to implement a compulsory client interviewing requirement in the next few years. “I would love to see a full clinical approach at some point where our students would actually take on real clients, working under supervision of a licensed lawyer and do real legal work. But it’s not on the cards yet. “There’s a real revolution going on at the moment in American law schools. There’s been a major report [Carnegie Report] that says there needs to be more skills training in law schools. “We can teach students what the law is but the law changes. And if you think about the traditional skills orientation in the law faculties in New Zealand it’s mooting, but mooting is court advocacy, and how many lawyers get involved in this kind of advocacy on a regular basis? Very few. All lawyers, however, will negotiate about something at some point in their life. “Almost all of them will be interviewing clients and witnesses, so we need to shift focus, I think, onto some new skills including initial client interviewing, where there’re a lot of things that can go wrong. Interviewing is not nearly as intuitive or as easy as people perceive it to be.” The law faculty has a compulsory research and writing requirement, as well as a short oral argument as part of the tutorial programme, a moot session which the students must participate in to graduate and other minor skills training throughout the curriculum.

ms e l b o r p l l Not a l’ a g e l ‘ a e involv ta u b r e w s an er h t o f o d myria ill w s e h c a o appr ary be necess

People in the law Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. Submissions may be sent to editorial.lawtalk@lawsociety.org.nz. If possible, please include colour photographs of any persons mentioned. Image files should be print resolution of 300dpi, minimum of 500px wide for headshots, 2000px wide for group shots. JPEG or TIFF format acceptable, GIF unacceptable. If digital files are unavailable, hardcopy photographic prints of minimum 10cm x 15cm may be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145. We will endeavour to return hardcopy photographs, provided a return address is included.

People Justice Terence Arnold QC has been appointed a Judge of the Supreme Court. Justice Arnold has a BA and two LLM degrees, from Victoria University and New York University. A partner of Chapman Tripp Sheffield Young between 1985 and 1994, he became a barrister sole in 1994. He was appointed Queen’s Counsel in 1997. From 2000 to 2006 Justice Arnold was Solicitor-General, representing the Crown in a number of leading cases in the Court of Appeal, Supreme Court and Privy Council in the areas of taxation, Treaty of Waitangi jurisprudence, human rights law, criminal law and administrative law. As Solicitor-General, Justice Arnold was also chair of the Ministerial Advisory Group which provided recommendations to the then Attorney-General on the purpose, structure, composition and role of the new Supreme Court. Justice Arnold was appointed a Judge of the High Court and Court of Appeal in 2006. Justice Forrest Miller has been appointed a Judge of the Court of Appeal. Justice Miller graduated LLB (Hons) from Otago University in 1981 and LLM from Toronto University in 1997. Initially he worked for the Alexandra firm Bodkins Solicitors and in 1984 moved to Wellington and practised with Chapman Tripp, specialising in securities, regulatory and competition law. Justice Miller became a partner of Chapman Tripp in 1987 and remained with that firm until being appointed a High Court Judge in February 2004. Wellington barrister Brendan Brown QC has been appointed a Judge of the High Court. Justice Brown will be sworn in on 24 July in Wellington and will sit in Auckland. Justice Brown graduated with an LLB (Hons) from Canterbury University in 1976. After

employment as a law clerk at Brockett Cameron & Co in Christchurch, Justice Brown joined Wellington firm Bell Gully as a solicitor, becoming a partner of that firm in 1982. In 1992 Justice Brown began practice as a barrister sole. He was appointed Queen’s Counsel in 1997, practising from Thomas More Chambers and specialising in intellectual property law, competition law, taxation and Treaty of Waitangi issues. In 2000 he was counsel assisting the Royal Commission on Genetic Modification, and appeared for the Crown in the Wai 262 claims regarding indigenous flora and fauna. Judge C a r o ly n Henwood has been reappointed chair of the Confidential Listening and Assistance Service. The service is a time-limited body established to provide assistance to people who allege abuse or neglect or have concerns about their time in State care before 1992. It has provided assistance and support to more than 700 people to date. Judge Henwood, a convenor of the New Zealand Parole Board, has over 20 years’ experience as a District Court and Youth Court Judge and has chaired the Service since its inception in 2008.

On the Move

Georgina Hamilton

district and regional planning (including on land transportation and water allocation issues), resource consenting and compliance issues, and major infrastructure projects. Jo Kim has joined Lane Neave’s commercial property team as an associate. Jo focuses on all types of commercial and residential property transactions including sale and purchases, leasing, subdivision development and overseas investment projects in New Zealand. Jo also advises on emission trading schemes and issues. Jo is a committee member of the Korea New Zealand Business Council and a member of the International Korean Lawyers Association. Craig Stevens is retiring from the partnership of DLA Phillips Fox with effect from 30 September 2013. He will join the independent bar at Capital Chambers. Craig joined DLA Phillips Fox in May 1980. In his 33 years with the firm, he appeared as lead counsel in numerous courts including the Privy Council. He was also managing partner of the firm in the mid 1990s.

Rebecca Piechocki

Jo Kim

Georgina Hamilton has joined Lane Neave as an associate, specialising in resource management law. Georgina’s experience includes advising both private and public sector clients on a wide range of resource management and environmental law matters, including environmental due diligence,

Karen Overend

Duncan Cotterill Lawyers has made three senior appointments. Rebecca Piechocki is a senior associate in the Sydney employment team. She Adam Gallagher regularly advises on major employment related litigation. She is also frequently involved in alternative dispute resolution, including mediation and conciliation. Karen Overend has moved from Auckland to Christchurch, taking up an associate role. She specialises in property development, including acquisition, leasing, construction and infrastructure, and is also LawTalk 822 · 5 July 2013 ·

People in the law experienced in commercial and contract law, joint ventures, finance and securities law, and mergers and acquisitions. She has worked with leading New Zealand law firms, and in-house positions with major property development companies in the Middle East and New Zealand. Adam Gallagher is an associate in the Christchurch employment team, focusing on health and safety in the workplace. This includes occupational safety and health extending to stress related issues for both employees’ and employers’ rights and responsibilities. He advises on a wide range of workplace issues including negotiating and drafting collective and individual employment agreements, handling collective bargaining disputes, occupational safety and health compliance, alternative dispute resolution and mediation and Employment Authority representation.

Lower Hutt lawyer Eugene Collins on his way to a new New Zealan

Working within high performing international teams With the 34th America’s Cup beginning shortly, LawTalk spoke with Hamish Ross, an Auckland lawyer who has worked inside the America’s Cup for 15 years. Mr Ross was a partner of Bell Gully for 10 years before joining the Alinghi Team as general counsel. More recently he has been general counsel with America’s Cup Race Management, an entity independent of the teams, commissioned in 2010 to conduct racing for the cup. During his time working within the cup he has lived and worked in Switzerland, Spain and will be living in San Francisco for a large part of this year. His life involves a fair amount of commuting between New Zealand and sailing venues in Europe and the United States. How did you become involved with the America’s Cup? I have been involved in sailing for some time, mostly restoration and racing of classic yachts entirely at the opposite end of the technology spectrum from the America’s Cup. While at Bell Gully I assisted the New York Yacht Club’s Young America campaign, and ended up representing that team before the International Jury and Arbitration Panel during its campaign. When Team Alinghi

· LawTalk 822 · 5 July 2013

Hamish Ross. Photo © ACEA / Photo Gilles Martin-Raget.

was formed, my involvement in the cup increased further and soon evolved into a full-time general counsel role. What sort of work do you do? An America’s Cup team is not much different from any large international organisation so far as its legal needs are concerned. A large well-funded cup team has budgets of well over

NZ$200,000,000 involving employment of a team of skilled specialists, sponsor contracts with multinational companies, supply contracts with specialised suppliers from different parts of the world, and also negotiating and advising on sometimes arcane America’s Cup rules in a litigious environment. It requires working with people from many different nationalities and backgrounds, from billionaires to technical

People in the law

Lawyer sets new cycling record Lower Hutt Lawyer Eugene Collins has carved his way into New Zealand’s sporting record books. Mr Collins has smashed the New Zealand 24 hour Indoor Velodrome record by 260 laps (or 65km). Cycling on the Invercargill Velodrome, he overtook the previous mark of 660.9km (set by endurance cycling legend Colin Anderson in 2008). Mr Collins set a new mark of 725.75km – or 2903 laps of the velodrome – at the end of his 24-hour ride. “I am never ever riding on a track again,” he announced to those watching when he stepped off his cycle. “The bike is for sale. “The last two hours were absolute agony, my neck and back muscles had locked up so I couldn’t even look at the people cheering

me on track side and I have lost a lot of skin.” Now after the discomfort and pain of the wounds of the 15-16 March ride have healed he is thinking a further attempt to lengthen his own record is a possibility. The record ride was part of the Ride4life campaign to raise awareness and funds for The Neonatal Trust, a charity Mr Collins has remained close to after his first son was born seriously ill and against all odds survived. The ride was two years in the planning and involved a large number of support crew to ensure compliance with Bike NZ and UCI regulations. Riding the latest in bike technology, an Avanti Team Chrono Evo II time trial bike supplied by his sponsor Avantiplus Lower Hutt with an electronic gearing system and

six spare carbon wheels, nothing was left to chance. Nutrition was one of the key elements. After five hours Mr Collins wasn’t sure he would finish as stomach cramps started to affect his speed. A call by his nutrition manager to the New Zealand supplier of his specialised products determined he had consumed too much liquid carbohydrate and they recommended no food for one hour. This resulted in the cramps disappearing. His speed returned to his scheduled pace and he remained on target. Industrial heaters were hired to keep the stadium’s temperature at the optimum as the cooler night air slows the speed of the track. A portaloo was kept track side so time off the bike was kept to a minimum.

specialists. The key is to insulate a team from distractions, allowing it to compete effectively to its full potential. Jury advocacy work before a five-person international jury has been an important part of the role. More recently I have been working with the regatta organisers to help facilitate the establishment and smooth running of the competition in addition to the usual legal work. The environment is always dynamic and challenging, requiring flexibility and depends on maintaining good working professional relationships across competing interests.

competition. These individuals have been spectacularly successful in their business lives, and bring a “win at all costs” business approach to the cup. Litigation has only been a recent phenomenon, first occurring in 1984 when an American competitor filed the first proceedings in the lead-up to the Fremantle Cup when New Zealand first competed. The New York courts have never been neutral forums to resolve international sporting disputes involving their own competitors. Judges of the New York Supreme Court are elected by citizens of that state and are endorsed by political parties. New York Governor Mario Cuomo acknowledged as much when he wrote in 1990, “one elected to public office in the United States is ill-advised to cheer against a boat by the name of Stars and Stripes”. There is indirect provision within the 1887 Deed of Gift that governs the competition for an independent international arbitral solution to solve disputes, but regrettably so far neither litigants nor the courts have been willing to avail themselves of it.

What is the future of the Cup? Unquestionably there will always be an America’s Cup. The mutual consent provisions of the Deed of Gift allow the competition to evolve and develop with the times and not become locked in the past. The new wing-powered multi-hull yachts sailing on their foils will be visually spectacular this year, but the costs to compete are simply not sustainable in this economic environment. There must be some downsizing of the yachts after this cup. Whether the cup will return to the more familiar mono-hulls remains to be seen as the winner will have the lead in writing the rules of the next event.

nd record.

What have been some of the highlights? The opportunity to work both alongside and across the table from the world’s best people in their specialist fields has been a unique experience. On the competitive side, being twice part of a winning team has been memorable. Helping to create the 32nd America’s Cup in Valencia, which will stand for some time as a high water mark as a successful sporting event, was another highlight. Why has the cup been so litigious in the past? The competition since its inception has been between wealthy individuals, even though it is notionally an inter-yacht club

Have there been difficult times? Apart from the travel and being away from my family at times, perhaps the most frustrating thing has been on occasion when your advice as counsel is not taken on an important point, with predictable results. It can be difficult for outsiders and non-lawyers to understand that decisions made are sometimes made against the advice of their counsel. I know many in the profession will have experienced the same frustration from time to time.

What will you be doing after this cup? It would be nice to stay involved with the cup in some capacity but I am now ready to look to new challenges. It has been a remarkable time for me, and I am looking forward to bringing back to New Zealand the experience gained of working within high performing international teams in a very intensely competitive environment. Who is going to win this year? As counsel for an independent entity running the races it would be imprudent to select a winner. Even a minor accident can change prospects in an instant. If one listens to the talk around the docks in San Francisco many are picking a close match between the Defender Oracle Team USA and Emirates Team New Zealand.

LawTalk 822 · 5 July 2013 ·

Practising Well

Access to unrivalled business expertise By Peter Boyes It has become an integral part of New Z e a l a n d s o c i e t y, becoming a volunteer business mentor so that you can put something back into the local economy and community, and almost 2,000 men and women across the country do just that. These people get a real buzz from helping people move forward with their businesses. Often all small business owners need is a fresh perspective from someone independent of the company. That’s one of the unique benefits of the Business Mentors New Zealand programme – experienced businesspeople sharing what they’ve learned with up and coming companies, freely on a voluntary basis. There is no cost other than a $150 registration fee to cover administrative set up. The New Zealand Law Society and Business Mentors New Zealand have agreed to work together to enhance the sustainability of legal practices in New Zealand. The leaders of the two organisations have signed a memorandum of understanding, which formalises access by Law Society members to Business Mentors New Zealand’s mentoring service after payment of a registration fee. New Zealand Law Society President Chris Moore says the Law Society sees the agreement as a key development in its Practising Well programme which aims to provide support and resources to enhance the health and wellbeing of lawyers. Business Mentors New Zealand has over 1,950 knowledgeable volunteer mentors, all of whom are willing to share their skills, expertise and experience with small and medium sized business owners. Most mentors are either not available on a commercial basis or would be far too expensive to retain. It’s another of the unique aspects of the Business Mentors programme – access to unrivalled expertise not available anywhere else in New Zealand – and 65,000 companies have used the service to date. Even though many volunteer mentors have a busy commercial life, they enjoy a special satisfaction in getting stuck into

· LawTalk 822 · 5 July 2013

their volunteer mentoring role. One thing that distinguishes the client companies is that they are extremely motivated and are excited about taking their businesses to the next stage. They are very open to new ideas on how to maximise their business’s potential which makes for a great working relationship. Mentors may spend between an hour and four hours a month with each client. Each mentor is different in how much time they spend with their clients but every one of them will use their own extensive experience in marketing, finance and business strategy to provide a valuable outside perspective, offer advice on specific problems and help each company pinpoint potential areas for growth. The long, in-depth experience common to Business Mentors New Zealand mentors means they are able to help business owners avoid some common pitfalls and mistakes. One thing many clients have issues with is business planning. Often, a business owner will have spent so many hours working in the business, focusing on the day-to-day tasks, that they won’t have taken the time to step back and think about where they’re going. Having someone come in from outside the company enables them to see their business from a different point of view. They can take a moment to consider what they want to achieve and how they’re going to get there. It’s also important that the plan is written down on paper and updated regularly. Many business owners make the mistake of keeping any business strategy they might have in their head. Having it in a solid form keeps people focused. Working for a wide range of business sectors in New Zealand and abroad over the past 22 years, Business Mentors New Zealand has learned that planning ahead is something many businesses tend to overlook. They put off even attempting it because they just don’t know where to start. However, it’s important to have

something in place, even if it’s the most basic option of a three- or four-page business plan. Despite juggling a number of work commitments along with the mentoring, volunteer mentors get great enjoyment out of helping their clients succeed and mentoring is recommended to anyone who is knowledgeable in business, has empathy for others and a willingness to help others do well. The Business Mentors service is a great resource for smaller enterprises and its mentors are proud to be involved and find it a hugely constructive learning experience, for both themselves and their clients. If you would like to apply for a business mentor or are interested in becoming a mentor for Business Mentors New Zealand, visit our website – www.businessmentors.org. nz – where you can apply online to be part of the programme. The site provides information on the programme, case studies and has an exclusive support area for mentors. Business Mentors is a fully funded service of Business in the Community and can be contacted at www.businessmentors.org.nz. Lawyers who are interested in becoming a mentor can do so by registering their interest online at the Business Mentors website. Lawyers who have business clients may also, if their business clients may want or benefit from a mentor, refer their clients to the service Business Mentors provides. Peter Boyes is Managing Director of Boyes PR and Communications Adviser to Business Mentors New Zealand.

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

Gallavin on Litigation

Organisation and Guts The key to filing effective pre-trial applications?

The sales pitch of any evidence and procedure scholar worth his or her salt goes something like this: “If you master the rules of evidence and procedure then you can negate the necessity of trial advocacy in a great many cases.” The pre-trial destruction of the foundation of an opponent’s case, whether they be prosecution, defence, plaintiff or respondent, eliminates the inherent uncertainty that comes with every trial, no matter how strong one believes his or her case theory to be. Of course it also saves your client and/or the State, money, time, stress and publicity. Such applications usually take one of two forms. The first involves applications concerning issues of admissibility. In this regard hearsay, privilege, propensity or veracity are a few common themes. The second concerns procedural issues and includes s347 applications and stays of proceeding. These latter applications are rare and usually revolve around accusations of impropriety by the State or a plaintiff. No more difficult a circumstance for such an application has arisen of late than that faced by Jonathan Eaton in his defence of those accused of the Ryder assault in Christchurch. The object of this column is not to review the particulars of that application, suffice it to say it is a bold move taken by an extremely experienced advocate. However, I want here to examine what such an application tells us about the art of litigation and the processes involved in putting a case together.

Organisation

It will come as no surprise to litigators that it is imperative that one be organised. In the courtroom bold moves ought not to be the product of spontaneity but should be the result of calculated deliberation; bold is not a byword for gamble. In large part the purpose of the reform of the law of evidence

in 2006 and the near continual reform of both Guts criminal and civil procedure has been to iron In addition to organisation comes guts. out bottlenecks in the system created in part Intuition, judgement, experience, or even by uneven periods of judicial case monitoring. arrogance, call it what you will, but all finely This unevenness meant that litigators, if tuned litigators have a sophisticated “smell unorganised, were able to leave things to test”. While it is possible to teach students effectively the last minute, clogging the the theory of law, its practical consequences system and delaying scheduled hearings with and in part the skills needed to be a successapplications often stumbled upon in haste. ful litigator, it is near impossible to teach Early and consistent reviews by registrars judgement. Judgement or guts only comes and judges combined with the necessity to with experience. In Mr Eaton’s application file notice of intention to call evidence (ie, for a stay in the Ryder case he formed a clear hearsay) along with changes to the legal aid scheme mean that a litigator must now be more in control of a case from day one than ever before. An early understanding of a case has at least two clear benefits. First, early engagement with disclosure documents, for example, creates opportunities to apply more pressure upon the other side through the early identification of issues both evidential and procedural. The other is that an early understanding of a case allows for the formulation of a more robust Photo courtesy Canterbury University factual chronology, case theory and finally a more comprehensive case proof theory early on. Given the particular form of in which lines of reasoning are drawn from many criminal cases this is not unusual as established facts (items of established or the initial interview with a client will likely hoped to be established evidence) in support plant at least a seed of a theory. However, of factual propositions relating to aspects of Mr Eaton came to file his application through the legal case needed to be proved or, as the being organised, relying at least in part, on case may be, undermined. Such lines include his sophisticated smell test. reasoning of the direct and circumstantial Combined with a sharp intellect, I think kind, the identification of which depends on for me it is organisation and guts that form the relationship between the item of evidence the two most basic attributes of a successful and the factual proposition intended to be litigator and perhaps the two most important drawn from it. attributes of successful pre-trial applications. A clear and early understanding of a case Far from merely aspirational the goal of places a litigator in a position of strength. being organised and the development of There is, of course, a risk of pre judgement judgement ought to be, I believe, the focus in such circumstances, where with little of any young litigator. evidence available an often unintentional but nonetheless rigid case theory is formed Dr Chris Gallavin is an Associate Professor in the mind of a litigator against which new of Law at Canterbury University. He is also evidence is measured for relevance and the Dean of the Law Faculty and the Head of consistency and adopted or dismissed accordSchool at Canterbury. Dr Gallavin has published ing to its relationship with the premature extensively on criminal justice and on evidence theory. This risk aside, there is no substitute and procedure in particular. He is the author of for early preparation as the identification the appellant handbook, Evidence (LexisNexis, of pre-trial applications and the vigour in Wellington, 2008) which they are pursued relies upon it. LawTalk 822 · 5 July 2013 ·

The one thing you can guarantee

Join an NZLS law reform committee The law is constantly evolving. You can be swept along, or you can get involved, and help shape it. www.lawsociety.org.nz/about-nzls/law-reform/get-involved For more information on the committees, role descriptions, or to download an application form

路 LawTalk 822 路 5 July 2013

Law Reform

Opportunity to get involved in law reform Lawyers who who are enthusiastic about making a real contribution to law reform in New Zealand have an opportunity to get involved.

he New Zealand Law Society plays an active and important role in the reform of law in New Zealand. The Law Society has a reputation for producing high quality, impartial and considered submissions on a wide range of legal issues, on behalf of the legal profession and in the public interest. It is thanks to the dedication and hard work of the members of the profession who volunteer their time and expertise to serve on the various Law Society committees that this is possible. The Law Society is now calling for applications from members and associate members interested in serving as convenors and members of the Law Society’s Law Reform Committee or one of its 15 specialist committees. Law Society committee membership is a great way of getting involved and having your say on law reform issues. It is also an excellent basis for professional development as well as collegiality

With seven international offices, we are your global career strategists.

Legal Recruitment & Placement Solutions Locally, Globally

With offices all over the world, our client base and candidate reach is both extensive and impressive. We recruit lawyers at all levels for leading firms both in New Zealand and overseas. If you would like to partner with us as a client or candidate, we look forward to speaking to you. Contact Damian Hanna at damian.hanna@jlegal.com www.jlegal.com find jlegal on new zealand level 1, 124 willis street, wellington t | +64 4 499 5949

and networking. Additionally, from 1 October 2013 your contribution to NZLS law reform may count towards your Continuing Professional Development (CPD).

15 Specialist Committees • • • • • • • • • • • • • • •

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

The Law Society wants to hear from lawyers who are: • passionate about law reform; • enthusiastic about, and hold specific skills and expertise in a relevant area of law; • available to respond to consultation on law reform when required; • willing to volunteer time and expertise for the benefit of the profession and the wider community; and • keen to meet other practitioners, improve collegiality and share knowledge. Go to www.lawsociety.org.nz/about-nzls/law-reform/get-involved for information on the committees, role descriptions for the Law Reform Committee convenor and members, and specialist committee convenors and members, or to download an application form. Application forms and information packs are also available via email from bridget.grace@lawsociety.org.nz. Committee conveners will be appointed by the Board at its meeting on 30 August. Committee members will be appointed by the Law Society President. Appointments will be for a two-year term from September.

Applications close at 5pm on Monday 29 July LawTalk 822 · 5 July 2013 ·

Moving Towards CPD

ll New Zealand lawyers in full time practice who provide regulated services will be required to complete an annual minimum of 10 hours of continuing professional development (CPD) from 1 April 2014. Details of how this initiative will work are contained in the Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education – Continuing Professional Development) Rules 2013, awaiting approval from the Minister of Justice. The Rules, along with Guidelines for their interpretation, are available on the New Zealand Law Society’s website (www.lawsociety.org.nz) in the “Continuing Professional Development” section.

What activities come within the CPD initiative?

As a reminder (see LawTalk 821, 21 June 2013) CPD activities refer to learning which: • is planned and structured with a purpose and outcomes; • provides for interaction/feedback; • is related to your identified learning needs; and • is not part of your day-to-day work. Activities either provide you with an opportunity for interaction and feedback and are verifiable, or they do not. You must use your professional judgement to decide if an activity appears to align with you CPDPR (see box) and deliver appropriate outcomes for you. The Law Society will not accredit activities – this is because what is relevant and worthwhile for one lawyer may not be for another. The Law Society also will not accredit providers of CPD activities.

Who can provide CPD?

Providers will not be accredited. The following list is indicative only and is intended to give an idea of the types of organisations which could potentially be involved in providing CPD activities. As with all providers, the key is that a particular CPD activity is interactive and verifiable. • NZLS CLE Ltd and other professional providers of education and training. • Legal associations such as the New Zealand Bar Association, Auckland District Law Society Incorporated, Resource Management Law Association, Criminal Bar Association and other similar groups. • New Zealand Law Society branches and sections. • Other professional associations and organisations. • Universities and other teaching institutions. • Law firms.

· LawTalk 822 · 5 July 2013

• • • •

Barristers or barristers’ chambers. In-house organisers. Government legal services training. Individuals or small groups of lawyers and/or other professionals united by geography and/or professional interests. One-to-one training can take place within your organisation or outside it. The trainer can be a lawyer or a non-lawyer, depending on the activity. While CPD activities must not be part of your day-to-day activities or be file specific, some CPD could take place in the office alongside these activities.

Delivery methods

CPD can be delivered in person, online, via video or audio conferencing, webinars or other real-time communication technology as long as there is an opportunity for interaction and feedback (such as the ability to ask questions). A CPD activity could be sourced and/or delivered either in New Zealand or overseas. You can count only the actual time you engage in learning activities. This does not mean time spent in breaks, reading materials or other forms of preparation and follow-up activities.

Are there any activities I can’t count?

The following do not fall within the definition of CPD activities: Private Study: Reading textbooks, journals, course materials, LawTalk, digests and law reports. Listening to non-interactive audio broadcasts in whatever format. Viewing noninteractive audio visual materials in whatever format (including archived webinars). Of course, private study is an essential means of keeping up to date. As well as their 10 hours of interactive and verifiable CPD activities,

all lawyers are encouraged to complete a minimum of 50 hours of private study each year. Teaching: When it is part of your regular employment. Marking: This does not come within the definition of CPD activities. Career Talks: Delivering talks and advice on matters such as a career as a lawyer. Supervision: Day-to-day supervision of legal staff and attending meetings. Committee Membership: Being a member of a Law Society or other organisation’s committee, including membership of a Lawyers Standards Committee. Pro Bono: Assisting at community law centres or taking part in practice-related pro bono activities.

CPDPR Each lawyer must develop and maintain a written CPD plan, and record, document, reflect on and verify their CPD activities. These documents are known collectively as the “CPD Plan and Record” – the CPDPR. A CPDPR is developed by identifying and prioritising learning needs for the coming year. After completing that exercise you will be able to develop an action plan. The learning needs and action plan should be reviewed from time to time through the year as learning needs may change or an expected learning opportunity may arise. A copy of the CPDPR and verification of participation in CPD activities need to be kept for three years. An annual declaration of compliance with the CPD rules must also be filed.

Courtoom Practice

England pilots pre-recorded children’s crossexamination By Dr Emily Henderson The government in England and Wales announced last month that they will be piloting the pre-recording of children’s cross-examination in three criminal courts around the country. The announcement comes amid mounting pressure from the senior judiciary and from within Parliament, as well as from the media, children’s charities and academics. The Lord Chief Justice, England’s most senior judge, called openly for the pilot just before the announcement, as did a House of Commons Select Committee.1 England and Wales have the same provisions for alternative modes as does New Zealand, namely screens, CCTV and evidential video interviews, although they also use highly qualified “intermediaries” to advise the court and counsel on how to question young or communication-impaired adult witnesses. Pre-recorded cross-examination has been adopted in order to leap-frog over unacceptably long delays between committal and trial, which result in the erosion of vulnerable witnesses’ memories and in additional stress to children left “waiting around”. It is also anticipated that pre-recording will reduce the stress of the actual examination process, since it will take place in the absence of the jury with only a judge, the accused and counsel present, and the witness will still be able to use CCTV. Meanwhile, should new evidence emerge between the recording hearing and trial the witness can be recalled to answer questions on that issue. However, in Western Australia, where pre-recording children’s cross-examination has been routine practice since 1992, they report that it is extremely rare for children to be recalled. Western Australian counsel – defence and prosecution – report that they find the practice very helpful, since the quality of the key witnesses’ evidence is known

The issue becomes why aren't we doing it in New Zealand well in advance of trial, enabling informed decision-making by both sides. Almost all Australian states have since adopted prerecorded cross-examination as a result of the Western Australian experience.2 Even closer to home, a handful of cases of pre-recording ran in the Auckland courts in 2010,3 before the Court of Appeal called a halt, were declared a success by 21 of the 24 professionals (lawyers and witness support) interviewed afterwards.4 The question becomes why aren’t we doing it in New Zealand? While delays in England currently stand at 12-14 months, those in New Zealand were discovered to be 15 months in 2010 and are now reportedly reaching towards 24 months

in some areas. Further, in New Zealand, like the English, we already have the legislation to pre-record cross-examination, a fact confirmed by the Court of Appeal in late 2011.5 Unfortunately, in the same judgment the Court of Appeal slammed the use of pre-recording for all but the worst “emergency” cases, for reasons which the Chief Judge of Western Australia was later to say in a speech were quite unheard of in their 20-year experience. There is also a certain irony in the fact that we are quite prepared to pre-record the evidence of perfectly robust adults who happen to have overseas holidays scheduled for the date of trial, but we are not allowed to use the same sensible measure to protect the reliability of the evidence of a vulnerable child. Do we have to say that, when it comes to children’s evidence, England: one; NZ: nil? Dr Emily Henderson, is the New Zealand Law Foundation’s 2012 International Research Fellow. A former Crown prosecutor in Whangarei, she has also practised as a family lawyer. The reform of cross-examination is Dr Henderson’s primary research interest. Her 2001 PhD from Cambridge was awarded for her thesis on Cross-examination: A Critical Examination. As the International Research Fellow she will research the principled reform of crossexamination in the criminal trial, comparing more radical options under discussion in New Zealand recently with the situation evolving in the English criminal courts. 1

House of Commons Home Affairs Committee Child Sexual Exploitation and the Response to Localised Grooming10 June 2013, para.93-94.

Henderson E, Hanna K and Davies E Pre-recording Children’s Evidence: The Western Australian Experience [2012] Criminal Law Review 3-14.

The first was R v Sadlier (unreported, Auckland District Court, CRI-2010-044-4165, 7 December 2010)

Davies E & Hanna K “Pre-recording in New Zealand: Lawyers and Victim’s Advisors’ Experiences in Nine Cases” [2013] Australian and New Zealand Journal of Criminology (in press).

R v M (CA335/2011); R v E (CA339/2011) 30 June 2011.

LawTalk 822 · 5 July 2013 ·

Section News Property Law Section Land Information New Zealand has released an exposure draft Land Transfer Bill. The draft bill is an amended version of a 2010 bill prepared by the Law Commission in its report on the Land Transfer Act 1952. The Law Society, assisted by the Property Law Section, prepared and filed a submission on the draft bill. It is expected that following refinement, the bill will be put before Cabinet for approval for introduction to Parliament later this year. Commenting on the exposure draft is a good opportunity to provide real input and potentially make some changes to the draft legislation, PLS Manager Jennifer Chowaniec says. “The section will continue to work closely with LINZ on a number of clauses before the bill is introduced. There will be regulations associated with this piece of legislation but it will likely be 2014 before we see any regulations in draft form,” she says.

Family Law Section The main focus for the Family Law Section during the past few months has been the Family Court Proceedings Reform Bill. The bill was released by the Justice and Electoral Select Committee with a number of amendments, but the FLS is still concerned with a number of aspects of the bill. FLS chair Garry Collin says the changes will mean the pre-court Family Disputes Resolution (FDR) process and changes to the Family Court processes will create a more complex system than we currently have. He says if the changes are implemented, as proposed in the report, it would leave

· LawTalk 822 · 5 July 2013

vulnerable parties without support when they need it most. The Law Society also has concerns about the ability of court staff to provide services to the vast influx of self-represented litigants that the legislation will create. “The Law Society will continue to work with Ministry of Justice with the hope of creating an accessible family justice system, which is truly responsive to children and vulnerable people,” Mr Collin says. The main change relating to lawyers being able to represent parties appears to be that a lawyer will be able to act for a party to a proceeding under the Care of Children Act 2004 (COCA) where a settlement conference is convened, and if a judge directs that the parties may be represented at that conference. This direction can only be made if the judge considers that at least one of the parties needs representation, and that legal representation would be likely to facilitate settlement of the issues in dispute. The FLS remains concerned that despite the proposed changes, the bill still results in parties no longer being able to choose to be legally represented in all Family Court proceedings. Other changes are: • instead of the bill coming into force on 1 October 2013, it will come into effect on a date appointed by the Governor-General by Order in Council or 1 October 2014, whichever is earlier; • a settlement conference can be convened by a judge at any time before a proceeding is set down for a hearing; • a judge may direct parties to attend counselling when making a final order; • more detail is included in the bill on Family Dispute Resolution (FDR) providers and an FDR form will be valid for one year; • a judge will be able to refer parties to Parenting Through Separation (PTS) and FDR and to refer parties back to FDR; • the current ss59 to 61 are still repealed but an amendment to the new s5 is proposed, requiring the Court to consider whether a final protection order is still in force, the circumstances in which the protection order was made and any written reasons given by the judge who made the protection order for his or her decision; and • a registrar can request brief written advice from a social worker on the nature and extent of any involvement CYF has had

with the parties and allow the court to obtain a short-form psychological report on any matters specified in the definition of psychological report.

C LANZ The annual CLANZ conference in Napier has earned great feedback from delegates. “We surveyed the 315 delegates and 96% of respondents rated the event as excellent or very good and 99% said they would recommend the conference to others,” CLANZ Executive Officer Helen Mackay says. The conference also recognised outstanding in-house lawyers in the annual CLANZ awards, held at the Dinner and Awards Evening at the Napier War Memorial Conference Centre. The Auckland Council in-house team were stars on the night, taking out both the public sector and young lawyer categories. Wendy Brandon, General Counsel, Auckland Council was awarded the Chapman Tripp Public Sector In-House Lawyer of the Year and Richard Harker, Solicitor, Auckland Council was named MAS Young In-House Lawyer of the Year. Therese Singleton, Executive Legal Counsel, AMP Financial Services was named the Greenwood Roche Chisnall Private Sector In-House Lawyer of the Year and Nicholina Adjei, Senior Solicitor, Ministry of Social Development received the Wigley & Company Community Contribution Award for her work with Wellington Women’s Refuge. The CLANZ committee held a strategy day on 20 June to set priorities for the year ahead. Ms Mackay says the three priorities decided on are to prepare members for the introduction of Continuing Professional Development (CPD), progress the shared services legislative amendment and upgrade the CLANZ website. Two of its key CPD initiatives are to introduce study group networks, particularly in provincial areas, and to deliver a half-day in-house legal conference in Auckland and Wellington in October 2013.

In-House

Public sector in-house innovation By Rachael Breckon The Ministry for Primary Industries legal manager’s monthly meeting is held in the innovation room. The door, reminiscent of a shipping container, opens up to a brightly coloured space with bean bags and colourful stools the only seating on offer. The environment is a far cry from the stereotype once held of the public sector being dowdy and unimaginative. The Ministry for Primary Industries (MPI) was formed in 2012 following the merger of the Ministry of Agriculture and Forestry, the Ministry of Fisheries, and the New Zealand Food Safety Authority. After the restructure, teams made up of former staff from the three ministries were required to work across platforms. MPI acting chief legal advisor Aroha Beck says that now the department is over the “glum bit” and in a “functional zone”. With the restructure over and major problems fixed it is a good time to be at the ministry, with the emphasis now on the future and innovation. The ministry is the biggest regulator in the country and employs around 40 lawyers nationwide, with some based in major centres and others working individually in provincial areas. MPI came sixth in the most attractive employer category at this year’s Ranstad awards. In response to the question “Why do people want to work for MPI?” former chief legal advisor (now Primary Industries Minister Nathan Guy’s private secretary) Mark Patchett says: “Why wouldn’t they want to come and work here? Especially if you think about the possible opportunities that you can get – this is truly an all services in-house legal firm that does everything from assisting and developing the law, which is a uniquely government function through to prosecuting.” The legal teams which sit under the Corporate Services branch of the ministry

The MPI legal management team (from left) Rebecca Easterbrook, Kerry Jones, Mark Patchett, Gina de Graaf and Aroha Beck.

are divided into four teams: • legislation standards and international team; • operations and response team; • commercial, programmes and Māori and primary sector partnerships team; and • prosecutions team. One of the unique legal roles at MPI lies with the operations and response team, where legal advice needs to rapidly respond to a biological incursion, manager Rebecca Easterbrook says. The instance of the 2010 PSA outbreak, which has caused substantial financial harm to the country’s kiwifruit industry, illustrates the role an MPI lawyer in a response role could play. It is necessary to advise staff on what the statutory powers and limits are in their roles, for instance, the extent of a quarantined area, what sort of notice officers need to give and information regarding procedure. However, with this role, and all the in-house legal roles at the ministry, it is important to have a broader perspective than simply a legal one. Like all employees, the team has the overarching goals of the organisation in mind. MPI states its objectives as being: maximising export opportunities for the primary industries; improving sector productivity; increasing sustainable resource use; and protecting New Zealand from biological risk. Legal manager commercial, programmes and Māori partnerships Kerry Jones’ team

covers a wide range of legal matters from large commercial and funding agreements through to issues pertaining to the Emissions Trading Scheme, fisheries and aquaculture management, forestry, and Treaty settlements and Māori partnerships. Because of this range, while always being conscious of the big picture, Ms Jones’ staff specialise in different areas of the law, in order to ensure the needs of the business groups and stakeholders are met. “I saw it as not being realistic for lawyers to be just able to do everything. Because the work is deep, our people need to be subject matter experts otherwise the quality would suffer,” Ms Jones says. The department refers to its prosecutions team as a “power house”. It administers legislation, which ranges from forestry to animal welfare to fisheries, with the compliance prosecutions having a very active regional presence. Gina de Graaff, head of prosecutions, says one of the MPI legal team’s success stories has been building the confidence of former MAF in-house lawyers to run prosecution cases. While the former fisheries staff had been part of a full in-house prosecutions service, the MAF staff effectively ran a file review and briefing system. Lawyers who had operated under the MAF model had to diversify and have relished broadening their range of prosecution skills across the board, Ms de Graaff says. LawTalk 822 · 5 July 2013 ·

Technology

Document and data security By Brad Booysen It was early on a Tuesday afternoon. A few lawyers in Christchurch were enjoying an extended lunch with clients, discussing the ongoing strategy in their case. Some were headed back to the office so they could complete the projects that started before lunch. Some chose to stay at their desks, working through lunch so they could meet their client’s deadlines. It was a Tuesday afternoon like any other in Christchurch, on 22 February 2011. Then, at 12:51pm, the ground began to shake. We do not have reliable data as to how many practices were disrupted in the devastation caused by the quake. We do know that the damage was magnified by the type of ground that Christchurch was built upon, but also by the fact that it was a shallow quake which hit just at the busiest time of day.

Document fragility

What we also know is that along with the physical destruction that took place in the city, more than a few lawyers were scrambling to recover the data they needed to service their clients. On the surface, electronic data seems much more fragile than paper “hard copies” of documents. After all, a paper document is something that you can hold in your hand; it isn’t going anywhere. When a document is simply data displayed on a screen, we seem to have the feeling that one power-spike and Pffft – all the work we put into the document is gone. While few of us can imagine a completely paperless world, it is easy to see the advantages of electronic documents over paper. The computer allows us to instantly edit the documents as needed. There is no worry that the pages of a large electronic document will get out of order. An electronic document can be shared with a colleague, a client, or a consultant on the other side of the world with just a few clicks. If they are handled correctly, electronic documents are even safer than paper documents. Before we had electronic documents, everything had to be recorded on paper. Until the Xerox copier, there were few practical options for making copies of everyday

· LawTalk 822 · 5 July 2013

paperwork. Even if copies were made, all that paperwork had to be stored somewhere, either in bookshelves full of ledgers or in huge filing cabinets. Any law practice worth its salt has the potential to fill several filing cabinets. A disaster would not need to have the magnitude of the Christchurch earthquake, and suddenly Pffft – all the documents in the filing cabinet could be gone.

Digitally indestructible

The secret to making your electronic documents safe is to back them up. There Unfortunately, data security in the digital age is slightly more involved is more to it than clicking the “save” than locking everything up in a safe. button every few minutes while you are working. A computer backup strategy needs another one in a remote location. These three important attributes. It should be ruginclude Dropbox, SugarSync, and SpiderOak. ged. In other words, no matter what happens, A popular strategy is to keep an outdated your data will be safe and recoverable. The laptop at home and use an internet conbackup should be portable. The outdated nection to sync it with the office work. The strategy of keeping all of your work on a spare computer may not be as fast as the central hard drive is good, but what if the office machine, but having the data on a building where the drive is kept is destroyed? slow machine is preferable to not having Finally, an effective system will be simple and the data at all. nearly automatic. One of the most basic backup systems Cloud considerations is included in your computer’s operating One of the most exciting options in computing system. Windows Home Server or Time these days is cloud storage. In addition to Machine on the Mac automatically make syncing your data to a separate computer, you local backups of everything the computer is can simply store the data in the Cloud. There doing. These features run in the background, are security issues that need to be considered. and if there is ever a need for recovery, simply However it is worth considering that NASA select the last good time point and your was one of the pioneers in Cloud computing, data should be saved. As good as theses and if the Cloud’s security is good enough systems are, they are only a layer in an for NASA, it should be good enough for your effective backup strategy. They are not practice. Cloud storage can answer all of our particularly portable. backup requirements. Many services have Memory is cheap these days. Not very long automatic backup as long as the computer is ago we carried 3½ inch floppies everywhere hooked to the net. Cloud providers sell their we went. At the time they were sufficient, product on their reputation for reliability, and but now we realise how limited that storage you can access your data on any computer was. Today you can purchase a portable with an internet connection, including your hard drive, or even a thumb drive, which will smart phone! have the capacity to back up the entire hard drive of your office computer. This answers Brad Booysen is the founder of Storkk (www. the portability problem to an extent. These getstorkk.com) a New Zealand-based startup portable drives are rather robust, but they that’s helping lawyers move their practice to are subject to damage or loss. the cloud. He is passionate about technology Many Cloud storage providers have the and how it can transform the way we work ability to sync your office computer with and play.

Inspectors’ Briefcase

Financial Assurance Scheme Trust account operational issues

By Jeremy F Kennerley, Financial Assurance Manager In this article we share a variety of matters that have been the source of recent inquiries. We also explain some enhancements to the trust account review process.

Deduction of fees

Unsurprisingly the subject of when and how lawyers can deduct fees for work done from client trust accounts arises with regularity. The Law Society position is worth reiterating as there does appear to be some confusion. In part this may stem from the difference between interpretations of the minimal legislative requirements compared to recommended best practice. The Law Society’s recommendation to all lawyers remains: The prudent course for lawyers is to: • Advise the client in terms of rule 3.4(a) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 that fees may be deducted from funds held for the client and ensure that the client accepts in writing the terms of engagement; and • Comply with regulation 9 (10) (a) and (b) of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008. Please refer to LawTalk 736, September 2009 and/or the then President’s (John Marshall QC) letter to all members at that time, for fuller discussion if required.

Changes to trust account reviews

Following the implementation of the new underlying risk management framework, the opportunity has arisen to introduce some changes. Review Reports From 1 July 2013, upon the completion of a review or an investigation the inspectorate will issue a new standardised report to the firm, addressed to the trust account supervisor. The report will contain an overall assessment based on the review conducted, an explanation of the trust account review process performed, key findings (if any) that must be addressed, other important matters (if any) and, if necessary, details

regarding any further visits and/or charges. It is believed that the new format will assist with both an understanding of the review process and its outcomes as well as clarifying what further work needs to be undertaken and by when. Inspectorate Charges On the infrequent occasion when there is a need to charge a firm for work undertaken as part of a review, then from 1 July 2013 this will be at the rate of $160 per hour plus GST. Evaluation Forms Also from 1 July 2013, all law firms that are subject to a review by the Inspectorate will be provided with the opportunity to comment on the complete service received. A one page easy to complete evaluation form will be sent to the firm together with a copy of the final report (as described above). The evaluation form allows for your assessment of the service, the inspector, the review, the report and any findings. We ask that the form is signed by the firm’s Trust Account Supervisor and then sent or emailed to the Financial Assurance Manager for review and collation. We thank you in advance for your co-operation in this regard and for spending a few minutes to provide the inspectorate with valuable feedback.

Retention of trust account records

A common inquiry as practices regularly review their filing and archiving needs is how long and in what form do trust account records need to be kept. Regulation 11(5) Lawyers and Conveyancers Act (Trust Account) Regulations 2008 stipulates that trust accounts records relating to a client must be retained for a period of at least six years from the date of the last transaction. Further the regulation provides specifics as to what format the records may be held in. Some firms now store all files

electronically which enables them to be kept indefinitely at very little cost. The purpose of the regulation is to ensure that a practice retains trust account records in such a form that they can be easily, conveniently and properly reviewed by the inspectorate at any time. Anecdotally, it seems that many firms retain their records for closer to 10 years. In addition it is good practice to retain certain files, such as will instructions and relationship property files indefinitely. Given that most information on a file belongs to a client, consent may be required before destruction. This might be something that is included in the client care information that a firm must provide in advance to work being carried out. There is an opinion on the Law Society’s website which may be useful about retention of records: http://www.lawsociety.org.nz/__data/ assets/pdf_file/0020/2882/guidelines-retentionof-records.pdf.

Underlying accounting records

Following on from the above, a few pointers by way of words of caution: If transferring ledger records from a manual system to a computer program then retain, as required, the records detailing the manual based information loaded at the point of transfer. All transfers between accounts and ledgers within the system should still be supported by all information available, ie the prime record. If using computer generated receipts there is still a need to keep an adequate record. In this case a simple transaction report should suffice. Similarly, firms should retain all reports detailing electronic bank transfers. If anyone has further questions or requires any assistance please contact the Law Society’s Inspectorate through the Financial Assurance Manager jeremy.kennerley@ lawsociety.org.nz, phone (04) 463 2936. LawTalk 822 · 5 July 2013 ·

Anti Money Laundering

Is your PI cover compromised? By Ashley Balls The exemption provisions in the AntiMoney Laundering and Countering financing of Terrorism Act 2009 (AML/CFT) may give a false sense of security. There can be no doubt that the exemption provisions apply in terms of the day-to-day activities of lawyers but that presumes they are acting solely in the capacity of provider of legal services through their normal business operations. This will include most of the services lawyers deliver whether they are partner, barrister sole or director of an incorporated legal practice. What is not clear is whether the exemption extends to perfectly legitimate activities delivered through a limited company which may be a wholly owned subsidiary of the legal practice. While there do not appear to be many left, a number of law firms still have contributory or nominee mortgage companies. In addition, there are practices which provide trust administration services through trust companies. A further quirk arises and that concerns whether the activities of solicitor owned and managed mortgage and trust limited companies would have professional indemnity (PI) cover in the event of a claim for any losses incurred. Does standard PI cover, sold to a law firm, ordinarily extend to the activities of subsidiary companies in these circumstances or is separate cover required? This may not have mattered much in the past, as these activities were considered to be an inherent part of the services delivered by a lawyer/law firm. Now that the Act has come into force, the situation may be rather different as the separation of exempt from non-exempt services may become a factor. It is worth considering the purpose and function of insurance in all this. Insurance is there to cover anticipated and identified losses from funds aggregated from premiums paid by a range of others seeking similar cover. Put bluntly, insurers are not in the business of settling claims; they are there to sell premium. The situation becomes

murkier still when considering the activities of the solicitor-owned mortgage and trust businesses, which may not be exempt from the AML/CFT legislation. Should these businesses not be exempt then separate cover may be required as insurers may claim the cover to be valid only if those businesses have fully complied with the Act. If the new law applies to the subsidiary operations, the insurer might assert non-

Should these businesses not

retrospective compliance; non-compliant businesses would simply have to cease trading or run the risk of criminal conviction with all the ramifications that has for continuity of maintaining a valid practising certificate. It may also expose partners in a legal services entity who do not practise in the areas of property or trust to significant financial risk were a claim for professional negligence to occur and be upheld. The principle of joint and several liability invariably sees those partners who are most able to settle a claim to be in the sights of any claimant. Finding a definitive opinion on these issues is not straightforward. Law firms I have personally spoken with have told me they consider all their activities are exempt but when questioned in detail express doubts and volunteer the view that the position is vague and fraught with risk. Legal practitioners are risk averse and will rightly be concerned that merely continuing to practise normally could result in a “technical breach” let alone a potential criminal conviction. Inadvertent and unintentional acts are no defence to prosecutions under the AML/CFT or existing proceeds of crime legislation. Discussion with the insurance industry is revealing and confirms the potential for confusion is very real. Another anomaly concerns the client care provisions of the Lawyers and Conveyancers Act 2006. For some firms, until the issue is sorted out one way or the other, client engagement letters may need to set out those services where there is PI cover and those where there may be none. This may not play out well with clients who may be concerned at buying services where only partial PI cover is available.

be exempt then separate cover

may be required as insurers may claim the cover to be valid only

· LawTalk 822 · 5 July 2013

if those businesses have fully complied with the Act compliance, invalidating cover in the event of a claim. Non-exempt subsidiary businesses cannot be brought into line with the Act by the simple expedient of completing a registration form and sending it off with the appropriate fee to the Department of Internal Affairs. It is, as Ron Pol explained in his article in LawTalk 821, a complex and exact procedure. Moreover, the Act has no provision for

Ashley Balls has been working as a management consultant for more than 20 years, specialising in work for the legal profession and financial services sector. He is the founding director of Legal Best Practice and a member of Law Management Group.

Women in the Law

Law firms called upon to publicly declare support for gender equality Law firms in New Zealand are being invited to publicly declare their support for gender equality by signing up to the Women’s Empowerment Principles. The Women’s Empowerment Principles were initiated by United Nations Women and the United Nations Global Compact office, and businesses and corporations around the world are being encouraged to sign up to them. This United Nations initiative has the support of the New Zealand Law Society’s Wellington branch Women in Law Committee. The annual Human Rights Commission survey of women’s participation has found that despite the increasing number of female law graduates, women make up only 18.2% of partners in the largest 28 law firms in

New Zealand. Signing up to the Women’s Empowerment Principles is a way for law firms to demonstrate their commitment to equality in the workplace, and empowering and advancing women in their organisation. Businesses sign up to seven principles, which include establishing high-level corporate leadership for gender equality; treating all women and men fairly at work; and promoting training and professional development for all women. So far, 26 New Zealand businesses have signed up to the Women’s Empowerment principles. This includes all the major banks, Westpac, BNZ, Kiwibank, ANZ, ASB, as well as companies like Deloittes, Vodafone and many others.

Three law firms, Bell Gully, DLA Phillips Fox and Lane Neave, have signed up. Awards are given to companies that are exemplary in their treatment and promotion of women. BNZ won an international UN Women award earlier this year, in recognition of their efforts in the Benchmarking for Change category. UN Women is hopeful that all the major law firms will sign up to the principles, as well as medium and smaller law firms. Many studies indicate that increasing the number of women in management can increase innovation in the workplace and enhance corporate governance. Organisations with women in senior management also tend to perform better financially.

Legal Research

Leave to appeal research Assistance from lawyers who have been involved in applications for leave to appeal to the Supreme Court is being sought for a new research project. The research is being undertaken by Dr Rhonda Evans Case, Interim Director, Edward A Clark Center for Australian & New Zealand Studies and Adjunct Associate Professor, Department of Government, at the University of Texas at Austin and graduate student, Sean Fern. They will be undertaking the research in New Zealand in August. The project examines the process through which the New Zealand Supreme Court (NZSC) considers applications for leave, evaluating the extent to which theories of agenda-setting that were developed in the North American context

apply to New Zealand. “We have read and coded all of the NZSC’s decisions denying applications for leave (at least all those that are available online). As programme visitors to Victoria University’s Faculty of Law, we will spend time at the court reviewing additional documents,” Dr Case says. “We have identified all lawyers who have appeared in applications for leave to appeal to the NZSC. We will contact a subset of these lawyers and request personal interviews so that we can learn more about the dynamics of the process. “Because we cannot possibly interview all of these lawyers in the short time that we will be in New Zealand, we will also contact lawyers via email with a request

that they participate in an online survey that asks questions about their professional experience, backgrounds, and appearances before the NZSC. “Scholars have administered similar surveys to American and Canadian lawyers. The survey will take approximately 20 minutes; personal interviews will take approximately 30 minutes.” “We are not seeking information that would abridge attorney-client privilege; nor are we seeking information about particular personalities on the court,” Dr Case says. Dr Case and Mr Fern are US-trained lawyers with practical experience in the profession.

LawTalk 822 · 5 July 2013 ·

From the Ministry

Criminal Procedure Act implementation in the District Court As a result of the NZLS CLE Limited intensives on the Criminal Procedure Act 2011 a number of queries from the legal profession have arisen. These have been considered by the Chief District Court Judge’s Advisory Group and the District Court Criminal Jury Trial Committee under the Chairmanship of Judge Bruce Davidson of Wellington. The responses set out below are in anticipation of the commencement of the Act and its bedding-in. They are not indicative of policy and must not be taken as constraining a particular judge in a particular case.

Crown prosecuted judge-alone category 3 cases

1. It is likely that judges will expect opening and closing statements, particularly in complex cases. Where possible an outline of critical issues would also be expected. 2. Because there will not be formal statements in such cases there will be obvious implications for the conduct of the hearing itself, both for counsel and for the presiding judge. The parties will be encouraged to settle agreed facts and admitted evidence in advance. At this stage it is unclear whether there is any power, legislative or ancillary, to direct formal statements. 3. These cases can be heard by non-jury warranted judges. Those that do not hold jury warrants will be designated accordingly by the Chief District Court Judge.

Case management meetings

4. While judges will preside over case review hearings the case management meetings and discussions take place directly between the parties. There will be different arrangements in different courts. Judges support the availability (but not the attendance) of registrars at such meetings, so any agreed arrangements can be put in place by a registrar.

Scheduling of judge-alone trials

5. The judges are acutely aware of the difficulties associated with over-booking of defended cases. There is a body of work nearing completion likely to result in a consistent national approach to capping daily workloads. 6. The unknown factor, however, is the approach of stakeholders. The judges are hopeful that the CMM process will lead to a far better control of scheduling.

Bail

7. In appropriate cases bail can be set until further order of the Court to avoid unnecessary attendances.

Amendment/joinder of charges

8. Amendment and joinder will continue to be dealt with on a case-by-case basis. 9. A defendant’s request under s133 for amendment will be dealt with on its merits.

Domestic Violence Courts

10. A separate practice note or protocol will be issued soon.

Costs

11. As was pointed out at the seminars a cautious approach to costs can be expected. Not only will the approach be cautious, but judges will be urged to adopt a consistent approach. 12. Procedural compliance and non-compliance can be reflected at sentencing in accordance with s4 Sentencing Amendment Act (No 2) 2011. 13. Whether counsel defending a costs application will require a waiver of client privilege must be left as a matter for counsel.

Deferring entry of plea

14. The requirement to plead is set out in s39. Judges have been urged to take a sensible approach on a case-by-case basis recognising however, that a plea can now be required if a defendant has had initial disclosure and an opportunity for legal advice.

Timelines in smaller courts

15. The judges recognise that the CPA and Rules timelines do not sit comfortably with rosters in some smaller courts. As a result the judges acknowledge that some flexibility will be required.

Proceeding in absence of defendant

16. There will be appropriate jury directions likely of the kind discussed in R v Kumar [2012] NZCA at 77.

JUSTITIA

@mylawsociety

· LawTalk 822 · 5 July 2013

Regulatory

Retaining files following termination of a retainer How long should a lawyer retain files following the termination of a retainer? This is a question the Law Society is asked on a reasonably frequent basis. The answer is not simple. Like so many things in life, considered judgement may well be required. The Trust Account Regulations require that records be retained for six years from the date of the last trust account transaction. Regulation 11(5) states: “Trust account records relating to a client must be retained for a period of at least 6 years from the date of the last transaction recorded in them, but (a) may be retained after the first three years, in the form of microfilm, imaging, or other similar technology; or (b) in the case of computer-generated trust account records originated by the practitioner, may be retained in the form of electronic storage, microfilm, imaging, or similar technology.” That does not imply, however, that documents can be destroyed with some confidence once six years have passed since the professional services were provided. For example, courts have held that a cause of action only accrues when damage is reasonably discoverable. There is always the

possibility of a professional negligence claim against a lawyer. In such an event, there is obvious wisdom in retaining records which may have a value in defeating such a claim. In addition, other rules may also apply, such as in the case of transfers of land. Authority and Instruction forms relating to e-dealing transactions must be retained for at least 10 years after the date of lodgement for registration. Lawyers may need to keep some files for even longer. For example, certain relationship property files may need to be retained indefinitely. Wills instructions would need to be kept until well after all the estate matters were finalised. In most cases, the 10-year period may well provide a good starting point for lawyers to consider. In a legal opinion prepared for the New Zealand Law Society in 2003, Andrew Beck said: “It is recommended … that records be retained for a period of 10 years after termination of the retainer. “Retained files should be reviewed after six years to determine whether there is any point in further retention,” Mr Beck added. This opinion is available at www.lawsociety.org.nz/__data/assets/pdf_file/0003/2883/ opinion-ownership-rention-of-records.pdf. While lawyers must retain trust account

records relating to a client and Authority and Instruction forms relating to e-dealing transactions, solicitors are not obliged to retain clients’ files. If they do so, they will be in the position of gratuitous bailees. This does not mean that lawyers can simply destroy client files, however, particularly files that could be held to belong to the client. “There is no legal right to destroy documents belonging to the client without the client’s permission. A solicitor who destroys a client’s documents could technically be held liable in conversion,” Mr Beck’s opinion states. It is important that lawyers and clients are both clear about and have agreed upon ownership and access to documents and what happens to them. This is something that it would be wise to include in the client care information that a firm or sole practitioner must provide to the client in advance of work being carried out. When barristers hold documents belonging to the instructing solicitor or client, these should be returned on completion of the brief. Counsel’s own records (copies of correspondence and opinions provided) should be retained, however, to provide protection in the event of a negligence claim.

Letters to the Editor QC appointment Thank you for publishing biographical details about me in LawTalk 820 on my appointment as Queen’s Counsel. Unfortunately, the details were not submitted to me for approval before publication and require correction in two respects. First, the Christchurch firm I joined after graduating from Canterbury University was

Kerr, Mackintosh & Co (now Mackintosh, Bradley and Price). Secondly, the details should have referred to my practice in Gisborne from 1977 to 1988 where I was a partner at Nolan & Skeet (now Nolans) and the Gisborne Crown Solicitor for most of that time. As my later work in Wellington would not have been possible without the earlier opportunities afforded to me at Kerr, Mackintosh & Co, Nolan & Skeet and the

Gisborne Bar, they are acknowledged with gratitude and respect. While it appears that LawTalk may have simply re-published the biographical details of all the appointees which were prepared by Crown Law for the Attorney-General’s media release, Crown Law did not submit my biographical details to me for approval before publication. Terrence Stapleton Barrister, Wellington LawTalk 822 · 5 July 2013 ·

Branch News Canterbury-Westland

Farewell dinner sold out

The 21 June bar dinner to mark the retirement of Justice Lester Chisholm proved a huge success. Held at The Shadow on the Park, the dinner was sold out. 200 attended the event and about 60 were still on the waiting list and unable to gain a seat. Chris McVeigh QC introduced the dinner. Justice Chisholm was a High Court judge for 17 years, and his final sitting was held in Dunedin on 14 June.

At the bar dinner to mark the retirement of Justice Chisholm (back row from left) Martin Boyce, Nigel Hampton QC, Rachel Dunningham, Justice Graham Panckhurst, Justice Christian Whata and Justice William Young (seated from left) Chris McVeigh QC, Justice Chisholm, Jo Chisholm and Peter Penlington QC.

Waikato Bay of Plenty

Legal executive graduation

Two legal executive graduation ceremonies were held in the Waikato Bay of Plenty branch region on 19 June. Four graduates were presented with their New Zealand Law Society Legal Executive Diplomas at the branch offices in Hamilton. Jenny Gilmore, former President of the New Zealand Institute of Legal Executives, was guest speaker at the event, held at 3:30pm. At the same time, 15 graduates were presented their diplomas at a ceremony in Tauranga.

Library returns to courts building

The Law Society’s Christchurch library has returned to its pre-earthquake home in the Law Courts building, 282 Durham Street. The library had been operating from a small unit in Burnside (downstairs from the branch offices in Homersham Place) since April 2011. The library relinquished a small amount of space (34m²) for Ministry of Justice use, leaving it with 391m² of floor space to house the collection and library staff and still provide a good study space for lawyers. Library staff have changed the shelving layout and managed to fit all the books, computers, study desks and themselves in quite comfortably.

· LawTalk 822 · 5 July 2013

Manawatu

The legal executives who were presented their diplomas in Tauranga (on s from left) Karen Scott, Kaylee Firmin and Amy Head; (bottom from left) Am Jane Jeffares, Donna Hale, Rowie Trinder, Addison Booth and Tereasa Pete

President re-elected

Chris Robertson was re-elected President of the Law Society’s Manawatu branch at its biennial meeting on 14 March. The following were elected to the branch Council: Mark Dobson, Richard Howie, Liam Hehir, Paul Murray, Bruce Stewart, Michelle Woods, Ursula Nichols and young lawyer representative Jessica Ellison.

Southland

Mid winter mingle

The Southland branch will celebrate mid winter with a Christmas mingle on 2 August. The event will be a dinner and trip

Waikato Bay of Plenty branch Council members Andrea Bather and Simon Scott with the Hamilton legal executive graduates (from left) Andrea Bather, Christine Gavin, Simon Scott, Alison Henry, Sinead Meehan, Natasha Fraser and Maree Robinson.

the light fantastic, and will be held at the White Heron at 6:30pm for 7:30pm.

Auckland

Great film night

The Auckland branch Film Club preview screening of The Great Gatsby attracted a fabulous crowd. 150 keen filmgoers attended the event at Bridgeway Cinema, with many making a real evening of it.

Tim Jones, Anne Neeham and Ian Jespersen with the Legal Executive Diploma graduates.

Legal executive graduation

Auckland branch President Tim Jones presented 27 graduates with their New Zealand Law Society Legal Executive Diplomas at a graduation ceremony hosted by the branch at the Northern Club on 19 June. The guest speaker was Anne Needham JP of Rennie Cox Lawyers, who is one of Auckland’s most respected and experienced legal executives. She spoke of her 30-plus years’ experience as a legal executive, speaking on what can be achieved through hard work, establishing great relationships with people (a core skill to succeed) and dedication to the profession. After the diplomas were presented, Ian Jespersen, a Fellow of the New Zealand Institute of Legal Executives (NZILE) and

Auckland Representative on the NZILE Council, welcomed the graduates to the legal profession, speaking about his life and work. He also spoke about key skills for a legal executive, including networking, relationship building, honesty, hard word and tenacity.

Twins Suzanne and Pamela Williams at The Great Gatsby.

AYL networking

The Auckland Young Lawyers (AYL) enjoyed a successful networking function at the Northern Club on Friday 14 June. The event, sponsored by recruitment agency Momentum, attracted over 80 young lawyers. Feedback from attendees has been extremely positive and AYL looks forward to similar events in the future.

stairs mandaerson.

Anya Reardon and Madeleine Newman at The Great Gatsby. David and Linda Brown at The Great Gatsby.

At the AYL networking meeting (from left) Amber Trebitsch from Momentum, Brandon Brown, Madeleine Flannagan and Meryn Hemmingson from Momentum.

LawTalk 822 · 5 July 2013 ·

CPD CalenDar Programme

Presenters

Content

Where

When

Criminal Judge Becroft The Youth Court Mark Lillico and the impact of the Criminal Procedure act 2011

The Children,Young Persons, and Their Families Act has been amended to incorporate some of the Criminal Procedure Act changes. It also makes other changes to Youth Court procedure. This webinar will cover both of these.

How to run a Jury Trial

Working in groups you will follow step-by-step the practical aspects of preparing for and Christchurch conducting a jury trial. You will be challenged to examine why, when and how you tackle Wellington the various stages involved. You will understand how to prepare for and conduct a jury Auckland trial. You will learn how to organise case materials, prepare for the different stages, and how to recognise and evaluate the various options available.

Philip Hall Craig Ruane

Duty lawyer 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)

Webinar

8 Jul

6 Aug 7 Aug 8 Aug

Centre

Intro

Asssessment

Practice Court

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

19 July 19 July 19 July (noon) 2 August 2 August 16 August 9 August 16 August 16 August 16 August 13 September 13 September

23 August 23 August (in Ham) 23 August (in Ham) 6 September 6 September (in Dun) 27 September 27 September (in Wgtn) 27 September (in Wgtn) 27 September (in Wgtn) 27 September (in Wgtn) 18 October 18 October (in Mnku)

24 August 24 August (in Ham) 24 August (in Ham) 7 September 7 September (in Dun) 28 September 28 September (in Wgtn) 28 September (in Wgtn) 28 September (in Wgtn) 28 September (in Wgtn) 19 October 19 October (in Mnku)

PrOPErTY residential Property Transactions

Dedra Dorrington This very popular two-day, limited-number workshop, for solicitors at the start of their Auckland property law career and legal executives with some experience, follows three files from Hamilton Simon Ellis client instructions to settlement and beyond. Nick Kerney Duncan Terris

lawyer as negotiator

Jane Chart

29-30 Jul 5-6 Aug

GEnEral Building on your own experience, this one and a half day workshop provides hands- Wellington 2 12-13 Nov on practice and feedback, as well as a conceptual framework for preparing for and Auckland 2 19-20 Nov undertaking negotiations. It examines different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, and for addressing specific issues which you might wish to raise.

Serects of Success Irene Joyce

Understand the factors which make small to medium size firms successful, analysis Wellington how well your firm measures up and how to start implementing changes to improve Hamilton Auckland your firms success.

25 Jun 27 Jun 2 Jul

Stepping Up – foundation for practising on own account

Director: John Mackintosh

All lawyers wishing to practise on their own account whether alone, in partnership, in an Auckland 2 incorporated practice or as a barrister, will be required to complete this course. (Note: Wellington From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up). Developed with the support of the New Zealand Law Foundation.

29-31 Aug 7-9 Nov

Technology law Conference

Chair: His Hon Judge David Harvey

New information and communications technologies intrude into almost every area of law Wellington and legal practice. This one-day conference will discuss recent changes in technology law and provide an insight on areas of concern, interest and possible future developments. The Technology Conference gives practitioners, law professionals and those in the ICT industry an opportunity to increase their awareness and understanding of the impact of IT on the law and legal practice.

16 Aug

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.

· LawTalk 822 · 5 July 2013

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

Programme

Presenters

Content

Where

When

Tax Conference

Chair: Neil Russ

The 2013 Conference will focus on topical issues delivered by an impressive line-up Auckland of speakers. Topics include an update on Sale and Purchase agreements, current GST issues, operating structures and tax avoidance. Attendance will help you keep up with the daily challenge of assisting clients to minimise tax risk against a backdrop of constant change.

5 Sep

Trust account Supervisor Training Programme

Mark Anderson David Littlefair and David Chapman Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, Wellington attend the assessment day and pass all assessments. make sure you register in time Auckland 2 Christchurch to do the preparatory work before the assessment day as listed on the right.

18 Sep 20 Nov 27 Nov

legal Executives Conference

NZILE President: Pam Harliwich

Legal executives – build on existing skills and knowledge and keep abreast of what is Wellington happening in other areas of practice – trusts, estate administration, unit titles, mortgagee sales, settlement issues, conflict of interest, Maori land, purchase of a business, LINZ update, LTA update, LinkedIn and Twitter for business development. And more!

19-20 Aug

GEnEral

2013 PUBliCaTiOnS Book Title

authors

introduction to Company law 2013

Various

Creditors’ remedies

David Friar and Rachel Pinny

Criminal Procedure act

Various

life after the Split – post-separation events

Prof Bill Atkin

Public Sector Governance

Various

Trust and relationship Property for Family lawyers

Vanessa Bruton and Isaac Hikaka

Children’s interests Under the Pra ra & s 182 FP FPa a

Prof Nicola Peart

Privacy law – where are we now?

John Edwards and Dr Paul Roth

Drafting Better Court Documents

David Goddard QC

Not-For-Profit – changes and challenges

Mark von Dadelszen

Trust account administrators manual

Various

Unit Titles

Various

Webinar

2013 arCHivED WEBinarS Webinar Title

Presenters

Current Tax issues in Property

Barney Cumberland

life after the Split – post-separation events

Prof Bill Atkin

Creditors’ remedies

David Friar, Jeremy Morley and Rachel Pinny

Trust and relationship Property for Family lawyers

Vanessa Bruton and Isaac Hikaka

Children’s interests Under the Pra ra & s 182 FP FPa a

Prof Nicola Peart

Booklet and Archived Webinar purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz LawTalk 822 · 5 July 2013 ·

Lawyers Complaints Service

Fined for failing to protect client’s interests Gisborne lawyer Dr John Bunbury has been censured and fined a total of $16,500 by the Legal Complaints Review Officer (LCRO 17/2012) for failing to protect a client’s interests. Mr E was a director of a company, E Ltd, which had operated a successful business for many years. Mr E and E Ltd had formed a working relationship with Mr G. Mr G held himself out to be an accountant with considerable business experience. In the early 2000s, the company began to experience financial difficulties and Mr E came to rely more and more on Mr G. In 2005, Mr G suggested that the company should instruct Dr Bunbury, who had acted for Mr G and his clients. Mr E agreed with this suggestion as well as with Mr G’s proposal that Mr G and the company’s financial and administration manager, Mr H, would provide any necessary instructions to Dr Bunbury. Dr Bunbury became in effect E Ltd’s lawyer, pursuant to a retainer. The LCRO said, however, that during the course of several transactions, Dr Bunbury appeared to lose sight of who his client was. Instructions from different individuals who purported to be authorised to give them resulted in increasingly significant conflicts of interest between E Ltd and those providing the instructions. Issues arose during times of financial stress which Dr Bunbury should have managed better than he did. The LCRO imposed three censures and fines on Dr Bunbury. The first censure and fine of $1,500 related to a refinancing transaction for E Ltd. Dr Bunbury failed to advise Mr E or E Ltd about the meaning or the content of the documents, and simply requested that the documents be signed. This was despite a clear obligation to ensure that Mr E, with whom Dr Bunbury was not well acquainted, had an appropriate understanding of what he was being asked to sign. Further, a certificate was required by the financing company’s lawyers and the undertaking that was provided by Dr Bunbury was, as a result, materially incorrect. “More importantly,” the LCRO wrote, “Dr Bunbury certified that [Mr E] has been

· LawTalk 822 · 5 July 2013

advised by him to obtain independent advice as to his obligations and liabilities under the guarantee prior to signing the securities, but that [Mr E] had declined to take such advice.” There was no such advice in Dr Bunbury’s letter. “In short [Dr Bunbury] failed absolutely to recognise or fulfil his obligations to [Mr E],” the LCRO wrote. Dr Bunbury was also censured and fined $2,000 in relation to the purchase of one of E Ltd’s franchises by a company, H Ltd. Dr Bunbury prepared, on instructions from Mr G, various documents and agreements for H Ltd (not a related company to E Ltd), to buy the business. Dr Bunbury acted for Mr H and H Ltd “without giving any thought as to who was protecting the interests of [E Ltd] and without any form of reporting or communication to [Mr E].” The LCRO concluded that this was unsatisfactory conduct. The third censure and fine of $13,000 related to the sale by E Ltd of a company it had owned to Mr G’s daughter and son-in-law, in a situation of significant conflict of interest. The LCRO reprimanded Dr Bunbury for his conduct in electing to act for all parties during the initial stages of negotiations. A clause of the sale and purchase agreement, which Dr Bunbury prepared on instructions from Mr G, provided for the purchaser to take over the vendor’s indebtedness that related to the business. “The arrangement contemplated by this clause is not straightforward as it requires creditors to consent to any such assignment,” the LCRO wrote. “Notwithstanding this, Dr Bunbury simply states in his response to the Law Society: ‘[w]e did not act on settlement of the transaction.’ By this statement it is apparent that Dr Bunbury had absolutely no regard for the fact that [E Ltd] may not have received any consideration for the purported sale of its business. “This is an extremely irresponsible approach to take in respect of his obligations to [E Ltd].” The LCRO considered seriously whether these matters should be referred to the

Disciplinary Tribunal. “However, I have determined in this case that the maximum fine permitted by the Law Practitioners Act 1982 should be imposed as Dr Bunbury’s failure to consider his obligations to E Ltd and Mr E in these matters is serious,” the LCRO said. The LCRO went on to say: “I discern that the failure to recognise his obligations arises from a lack of clear thinking and a conflation of instructions from Mr G, rather than any dishonest or fraudulent conduct by Dr Bunbury,” the LCRO said. Contrary to the complainant’s allegations, Dr Bunbury’s actions only contributed in a small way to the ultimate loss by Mr E of his company. The LCRO ordered publication of Dr Bunbury’s name and the facts of the case because of the seriousness of the breach of professional standards and because the LCRO considered the public and the profession were entitled to know about the findings.

Interim Suspension The NZ Lawyers and Conveyancers Disciplinary Tribunal issued an interim suspension order against Errol Hamilton Parsons of Christchurch on 21 June 2013, pursuant to s245 of the Lawyers and Conveyancers Act 2006. The interim suspension order was made because, in the tribunal’s view, there was an immediate need for protection of the public and other practitioners. This suspension is an interim measure, and further proceedings to determine whether the allegations are proved are still to be heard. Publication of this notice was ordered by the tribunal. The attorney for Mr Parsons is Stephen Kannangara.

Fined for not paying bills Struck-off former lawyer Barry Hart has been censured and fined $8,000 by a lawyers standards committee for failing to pay a forensic psychologist. Mr Hart instructed the psychologist to provide forensic report for four clients, but then failed to pay the fees, which ranged from $2,000 to $4,000. In two of the cases, Mr Hart received approved legal aid payments from the Legal Services Agency (LSA) but did not pay the forensic psychologist’s fee. In another case, Mr Hart told the forensic psychologist that legal aid had been granted. However, the psychologist was later told that Mr Hart’s staff had omitted to proceed with the application and that he would not be paid. Mr Hart did not make any submissions to the committee. The forensic psychologist then advised the committee that Mr Hart had signed a contract to repay the debt and said that he

did not wish to proceed with the complaint as long as Mr Hart completed payments according to the contract. “Notwithstanding this arrangement between the parties, the committee considers it appropriate to make a determination on the complaint in light of the serious conduct issues involved,” the committee said. “In particular, the committee notes that in two instances Mr Hart had received payment of [the registered psychologist’s] fees from the Legal Services Agency but had still failed to make payment.” Such conduct would be regarded by lawyers of good standing as being unacceptable and was at the higher end of unsatisfactory conduct. As well as the censure, fine and name publication order, Mr Hart was ordered to immediately pay all outstanding invoices to the registered psychologist and pay the Law Society $2,000 costs.

Lawyer fined after not explaining about affidavit Robert Renshaw has been censured and fined $1,000 by a lawyers standards committee after he took an affidavit from a teenage girl without explaining its meaning and effect, and that he had acted on the contents of the affidavit and approached the mother of the teenager without knowing all the facts. Mr Renshaw had been instructed by the teenager’s father to assist him to obtain more financial support from Work and Income New Zealand because his daughter had come to live with him. As part of the application, Mr Renshaw drafted an affidavit for the teenager to sign. The mother provided the standards committee with a statement from her teenage daughter in which she says Mr Renshaw did not tell the daughter what the affidavit was, what it would be used for and, when asked what an affidavit was, did not explain. Three days after the date on the affidavit, Mr Renshaw and a school teacher visited the mother at her home to discuss the girl’s situation. The visit was unannounced and uninvited. Despite being a public holiday, Mr Renshaw attended in a suit, and on arrival he introduced himself as “Bob Renshaw, Lawyer”. He also mentioned in the

conversation that he had been a police officer for a number of years. The mother indicated that if Mr Renshaw had just admitted that he had been wrong, she may not have made a complaint to the Law Society. When Mr Renshaw visited the mother’s house, introducing himself as a lawyer and mentioning he was a former police officer, she had found that intimidating, the committee said. “Whether or not Mr Renshaw intended that, the circumstances were such that it would not be an unforeseeable outcome.” The committee also said that Mr Renshaw had made disparaging comments about the mother and had released personal details about the daughter to the committee that were quite unnecessary for the committee’s inquiry. In its view, the committee said, Mr Renshaw had exhibited a marked lack of judgement and acted in a way that would be regarded by lawyers of good standing as unacceptable. The committee made a finding of unsatisfactory conduct against Mr Renshaw. As well as the censure and fine, it ordered him to pay $500 costs, and made an order that his name be published.

Firm failed to file permanent residence application Christchurch lawyer Errol Parsons has been censured and fined $1,500 by a lawyers standards committee after an employee of his firm, A, failed to file an application for permanent residence. The complainant had been a client of Mr Parsons and his firm for some years and the services were primarily provided by A. The client instructed the firm to file an application for permanent residence with Immigration New Zealand. The firm’s failure to prepare and lodge the application became evident when the client and her partner decided to book a trip to Thailand to visit her family. At that time, they asked for the client’s passport to be returned. A initially agreed. However, after a further delay of some weeks, it became clear that no application had been filed and the existing visa had expired over a year before. A acknowledged the facts in a letter and accepted that “due to unforeseen circumstances” A “completely forgot and did not put the application into Immigration”. A then returned the documentation to the clients, including cheques for the application fees paid by the client. The committee noted that A had unreservedly acknowledged responsibility and that Mr Parsons had expressed regret and tendered his apology to the client. “It is clear that Mr Parsons has full responsibility for the acts and omissions of his staff members,” the committee said. “The omission by [A] in this instance is clearly the responsibility of Mr Parsons, particularly given an evident lack of supervision and overview. The nature of the delay caused by the omission to file the applications, and the potentially serious consequences which the omission might entail for [the client], result in the conduct of Mr Parsons, as principal of the firm, being unsatisfactory conduct.” As well as the censure and fine, the standards committee ordered Mr Parsons to pay the Law Society $1,500 and $500 costs.

LawTalk 822 · 5 July 2013 ·

Coming Up

The Classifieds. WI LLS

Legal executive conference The New Zealand Institute of Legal Executives (NZILE) 2013 Conference will be held at Rydges Hotel in Wellington on 19 and 20 August. NZILE thanks the New Zealand Law Foundation for its support for this event. For more information, email enquiries@nzile.org.nz.

G E O F F R E Y PAU L RO D D E N Would any lawyer holding a will for the above-named, late of 5 Grove Street, Dunedin, who died on 5 June 2013 at Dunedin, please contact Sharon Lont, Sharon Stark Lont: sharon@sharonstarklont.co.nz | Ph 03 471 7580 | Fax 03 471 7582 PO Box 5138, Dunedin 9058

Writing award Applications are open for the Paul Trisley Award Competition 2013. This award is given the best paper on sports law submitted in accordance with the award guidelines. Administered by the Australian and New Zealand Sports Law Association (ANZSLA), the award is named in honour of highly regarded sports lawyer Paul Trisley, who died in 2001. Entrants must email their paper to ANZSLA’s executive manager, anzsla@anzsla.com by 6 September. See www.anzsla.com.

Scholarships and awards Three New Zealand Law Foundation scholarships and awards have upcoming deadlines for application. Applications for the International Research Fellowship close on 1 September. Nominations for the Cleary Memorial Prize close on 30 September. Applications for the Doctoral Scholarship should reach the Scholarships Manager of Universities New Zealand by 1 October.

WI L L S

PETER BLACK Would any lawyer holding a will for the above-named, late of Johnsonville, Wellington, welder, born 16 May 1968, who died at Wellington on 14 January 2012, please contact Letizea Ord of Ord Legal: letizea@ordlegal.co.nz | PO Box 10909, Wellington 6143

F O R SALE

LEGAL BEAGLE

Y office on top of the world. Your 31 floors up with harbour views that will impress. 67sqm of office space with more than affordable opex. Two car parks and two storage lockers complete the package. Stunning fit out and luxury kitchen/bathroom setup. Mixed used commercial and residential building with 24/7 reception. Happily used as barristers chambers for the last 14 years – vendor says it’s time to move on. Price indication: $650,000-750,000 plus GST Contact: Ryan Bridgman Apartment Broker – Licensed REAA Bus: +64 9 3030 601 Mobile: 021 0257 2294 Email: ryanb@citysales.co.nz

· LawTalk 822 · 5 July 2013

REGI STRY The following people have applied to the New Zealand Law Society for certificates or approvals A DM ISS ION

under Part 3 of the Lawyers and Conveyancers Act 2006 Agar Timothy Sydney Atama Aislabie Zaneta Maree (Previously Smith And Clark) Ardagh Rebecca Jane Bell-Connnell Jeremy Patrick Belton-Brown Gregory Stuart Blumenthal Laura Jane Blundell George Timothy John Bowman Emma Elizabeth Carbon Althea Bianca Baguion Childs Philippa Clare Christie Chanel Antonia Thomas Climo Chontelle Katlin Cockerell Malaika Odette Collins Richard Michael Brian Coombs Brett Peter Cox Adam David Davies Hamish Gordon Rees Dixon Rebekah Megan Dookia Laila Moonee Everitt Frances Margaret Findlay William Ian Foot Zachary Bailey Kedgley Garden Rebecca Deidre Le Fevre Geard Emma Clare Gerrard Sarah Jade Gibbs Michael Andrew

Gilbert Shelley Frances Gillan Troy James Gligorijevic Jelena Gordon Christina Margaret Gosset Luke Peter Grant Rhys Martin Green Samuel Richard Hagyard Marion Louise Harris Christian Latif Wilson Harris Zoe Elsie Hill Holly Elizabeth Hoffmann Joschka Hunter Catrina Marie Irwin Rachel Sarah (Nee Taylor) Jones Natalie Melanie Jury Christopher Mark Kalderimis Sophie Margaret King Andrew John Knowles James Elliott Leyser Sarah Elizabeth Ling Joanna Jen En Loughlin Cameron Joe Luck Andrew David Mccutcheon Sam Thomas Mcintosh Jared Robert Mckee Richard Kennedy Mckenzie Christopher Hugh Mein Rosemary Margaret Moriarty Emma Kate Neeson Heather Fergus Nicolle Jonathan William Cranford

Perham Elisabeth Rose Peter Irene Monica Pfeffer Katherine Leonie Ponnamperuma Wathsala Tahani Pring Jane Caroline Quirke Nicholas James Reid Catherine Lisa Ellen Riddle Rachel Elizabeth Rivers-Mccombs Stephen John Robinson Alexander James David Rouch Katherine Semoe Salmons Nigel Mark Sclater Andrew John Simpson Sarah Jane Smith Cindy Ann-Marie Smith Kimberlee Amber Gail Smith Nigel Jonathan Gardiner Snedden Stephanie Anne Swain Emma Siobhan Teesdale Lara Simone Tokmadzic Igor Tombleson Annika Jayne Turner Stephanie Anne Van Hove Marin Vincent Basile Venter Elmaret Wallens Joanna Eleanor Walsh Rachel Elizabeth Ward Oscar Joseph Watson Nadia Serena

A PPR OVA L TO PRACT IS E ON OWN ACCO UNT under s 30 of the Lawyers and Conveyancers Act 2006

AS BARRIST ER & SO LICITO R Bond Kevin Ian Milnes Aaron Joseph

Ng Chung Ping (Terence) AS BARRISTE R Rankin Alexandra Ananth Dave Margaret Namasivayam Tree Bianca Jane

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 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 11 July 2013. Any submissions should be given on the understanding that they may be disclosed to the candidate.

LI SA ATTRI LL, REGI STRY MANAGER lisa.attrill@lawsociety.org.nz 04 463 2916 04 463 2989

0800 22 30 30

WI L L S

TO L E T / LE AS E

ANNE RUAMAMAO BRETT Would any lawyer holding a will for the above-named, also known as ANI Ruamamao Brett, late of Hokianga, Northland, who died on 27 August 1993, please contact Annette Woodroffe, Woodroffe Lawyers: annette@woodroffe-law.co.nz Ph 09 366 6276 Unit 1F, 9 Upper Queen Street, Auckland 1010

P E T E R A L I STA I R D O N A L D WA R R E N Would any lawyer holding a will for the above-named, late of 15 Dissmeyer Drive, Clover Park, Auckland, truck driver, born on 16 May 1952, who died on 8 April 2013, please contact Frost & Sutcliffe, Barristers & Solicitors: terry@frostandsutcliffe.co.nz Ph 09 279 8351, Fax 09 277 6703 | DX EP74503

CENTRAL CITY OFFICE SUITE FOR LEASE

ROOM AVAILABLE IN PONSONBY Room available in newly established Chambers located in Ponsonby. Would suit a litigator. All enquiries will be treated in confidence. Please contact one of the existing barristers. www.jervoischambers.co.nz

Kingston Suites, 4 Kingston Street, Auckland CBD • Recently refurbished office suite. • Great location, opposite Auckland District Court. • 23m² @ $240.00p/w + GST (incl. opex). • Secure premises. • Flexible lease terms available. All enquiries phone Claire on 021 892 928

P H I L L I PA J A N E M E A D OWC RO F T Would any lawyer holding a will for the above-named, late of Apartment 74, 7 St Vincent Avenue, Remuera, Auckland, who died on 3 May 2013, aged 77, please contact Tony Ivanson, Gellert Ivanson:

SIT UAT IO N S VACA N T

tony.ivanson@gellertivanson.co.nz Ph 09 575 2330 | Fax 09 575 2337 PO Box 25239, St Heliers, Auckland 1041

HECTOR MAURICE BUSBY Would any lawyer holding a will for the above-named, late of Mount Wellington, Auckland, crane driver, who died on 28 March 2013, please contact Michelle Paul, North Harbour Law: michelle@nhlaw.co.nz Ph 09 427 0550 | Fax 09 426 3426 PO Box 104, Orewa 0946 or DX BP60001

TA N G A ROA T UA K A N A Would any lawyer holding a will for the above-named, late of 36 Crammond Street, Tokoroa, retired, who died on 15 November 2012, please contact John Gwilliam & Co Limited: Ph 04 527 9727 | Fax 04 527 9723 PO Box 40 457, Upper Hutt 5140 or DX RP44011

L E GAL SERV IC ES

ENGLISH LAW AGENCY SERVICES E ta Es t blis ish is shed 182 825 82 25

Fearon & Co specialise in acting fo f r non-residents in the f elds of Probate, Property fi t and Litigation. In particular:ty • Obtaining Grants of Re R presentat a ion fo at f r Estat a es in at Engl g and and Wa gl Wal ales, Channel Islands, Isle of Man and elsew ewh ew where and re r -seal a ing al n Au ng A str tra tr ral ali lian a an a d New e Zeal ew a an al a d Gra Gr ran ant nts of Re R pre r sent re n at nt ati tion • Ad A ministering English Estates • Buy uyi uy ying and selling homes and business premises • Re R cov ove ov vering compensation fo f r accident vi v ctims • Litigation including Debt Re R cov ove ov very r and Matrimonial Our off ffi ff fices ar a e wi w thin easy s reach of the London sy A rp Ai r ort r s and Central rt a London Stat al a ions at

VIS VI ISI SIT IT OUR U WE UR WEB EBSI SIT ITE TE ww www ww. w.fe f aronlaw aw. aw w.com W stminster House, 6 Faraday We a Ro ay R ad, Guildfo f rd, Surrey GU1 1EA fo E , United Ki EA K ngdom T l: 00 44 (0)1483 540840 Fax Te a : 00 44 (0)1483 540844 ax General Email: enquiries@fe f aronlaw fe aw. aw w.com

LITIGA GAT GA ATION

Martin Wi W lliams 00 44 (0 (0) 0)1483 540843

m @fe mw f ar fe aro ronl n aw aw. w.com

John Phillips

00 44 (0)1483 540841

a p@fe aj f ar fe aro ronl nla law awco aw. w co com om

Public Defence Service, Greater Auckland Area Vacancy 24449 The Public Defence Service has a commitment to providing independent, high quality, timely legal advice and representation in a full range of criminal cases including providing professional leadership of the duty lawyer service.

SOLICITORS

PROPERT RTY RT TY

Duty Lawyer Supervisor

PROBAT A E AT

Francesca Nash 00 44 (0 (0) 0)1483 540842

f @fe fn f ar fe aro ronlaw aw. aw w.com

The Public Defence Service is now seeking an experienced criminal lawyer with proven leadership skills to work as a Duty Lawyer Supervisor in District Courts in the Auckland area. A willingness and ability to travel in the greater Auckland area is therefore required. Reporting to the Senior Duty Lawyer Supervisor for the Northern Region, you will be part of a team of Duty Lawyer Supervisors overseeing the duty lawyer service in wider Auckland. You will be committed to providing high quality duty lawyer services to clients and will be involved in the further development of an effective and efficient duty lawyer service. While the supervisor position will be full-time, there may be flexibility to accommodate applicants who are seeking part-time work with the Public Defence Service. As well as leadership skills, we are seeking lawyers with recent duty lawyer experience who have expertise in training and mentoring, and credibility with judges, peers and others working in the criminal courts. You will also have strong organisational and administrative skills and the ability to work well in, and enjoy, a team environment. To apply, please go to the Ministry of Justice vacancies website http://careers.justice.govt.nz/Pages/Vacancies.aspx click on the position job title and follow the instructions. Applications close Monday, 15 July 2013.

Reg Re egula l te la t d by b th t e So S licito t rs to r Re Reg egula l tion Auth la t ority th t of ty o En Eng ngl gla land and Wa W le les es

LawTalk 822 · 5 July 2013 ·

WI L L S

S I T UAT I O N S VACA N T

LOIS ANNIS DUNCAN Would any lawyer holding a will for the above-named, late of Wellington and Palmerston North, Nurse, who died on 31 May 2013 at Wellington, please contact Glenys Brown, Registered Legal Executive, Opie & Dron: opieanddron@xtra.co.nz | Ph 06 358 7970, Fax 06 356 9421 PO Box 315, Palmerston North 4440

RICHARD JAMES KEHOE Would any lawyer holding a will for the above-named, late of Whangarei, born on 30 December 1980, who died on 6 or 7 June 2012 aged 31, who had four children, Janelle, Hayden, Chloe and Addison, please contact Vanassa McGoldrick, Henderson Reeves Solicitors: vmg@hendersonreeves.co.nz | Ph 09 430 4350 | Fax 09 438 6420 PO Box 11, Whangarei 0140

T H O M A S TA M O U K E R S H AW Would any lawyer holding a will for the above-named, late of 23 Cowley Drive, Templeview, Hamilton, company director, who died on 4 May 2013, please contact Debbie White, Fletcher Law Limited: debbie@fletcherlaw.co.nz | Ph 07 838 2900 | Fax 07 838 2902 PO Box 29, Hamilton 3240

PENELOPE ISAAKO Would any lawyer holding a will for the above-named, late of 24 Heyford Close, Mangere, Auckland, housewife, who died on 27 June 2009, please contact Sebastian Tolich of Richard Allen Law: sebastian@richardallenlaw.co.nz | Ph 09 361 0331 | Fax 09 486 5082 PO Box 78326, Grey Lynn, Auckland 1245

GEORGE ANDRE REREKURA Would any lawyer holding a will for the above-named, also known as George Andre Mcintyre and Andre Rerekua, late of 5 Hobson Street, Normanby, Hawera, who died at that address on 21 May 2013, please contact Jillene Peters at Harkness Henry, Lawyers: jillene.peters@harkness.co.nz | Ph 07 838 2399 | Fax 07 839 4043 Private Bag 3077, Hamilton 3240 or DX GP20015

Senior Practitioner We are a boutique firm based in Auckland, practising in corporate, commercial and private client law. We continue to experience significant growth and are looking for dynamic individuals who have particular experience in these areas. We offer a solid base to develop your already strong practice and allow you greater flexibility to focus on your practice within our supportive framework. You will enjoy the business development aspect of the role at this level and be backed by a firm that invests heavily in both professional and personal development. Inquiries from Senior Associate to Partner level practitioners with a strong background will be handled in complete confidence. Jo Davis Manager Wilson McKay DDI (09) 523 0753 JoDavis@WilsonMcKay.co.nz

SI TUATIONS VAC ANT

PLAN YOUR CAREER PRIVACY COMMISSIONER (Auckland or Wellington) Expressions of interest are invited from suitably qualified persons who would like to be considered for appointment as the Privacy Commissioner. The office of the Privacy Commissioner is an independent Crown entity. Its outputs cover work on privacy issues relating to the collection and disclosure of personal information and the privacy of individuals, including promotional educational and supervisory activities, as well as the investigation of complaints about breaches of privacy. Applicants must have an understanding of privacy principles and practices, relevant professional qualifications or comparable career experience, management experience and skills in relationship management, including the ability to promote awareness of privacy issues. A position description and application forms are available from the Ministry of Justice website www.justice.govt.nz. Expressions of interest are sought by 31 July 2013.

· LawTalk 822 · 5 July 2013

Senior Corporate Counsel – senior role in a forward looking national organisation with two direct reports. Leadership/management experienced required. Broad range of legal and governance matters, corporate legal advice, compliance, regulatory and quality assurance issues. Experience developing and implementing new processes desirable. Make the role your own. (8+ PQE). Auckland or Wellington based. AT 33427 Corporate Counsel - well known organisation needs an intermediate to senior solicitor to join their corporate legal team. Broad range including contracts, consumer law, privacy, company law, financial transactions and other commercial issues. Bring your solid foundation in corporate and commercial law (4+ PQE). Auckland or Wellington based. MH 33428 Commercial Lawyer 3 – 5 yrs - ideally from mid-sized firm. Mid sized city firm, high quality broad based commercial, in relaxed and sociable atmosphere with very approachable partners and a firm philosophy dedicated to your broader professional development. Broad based commercial work, offering pragmatic business solutions for public and private entities as well as high-net-worth individuals. MH 33722 Commercial Property Lawyer 2 – 4 yrs – well regarded national firm seeks junior/intermediate to join a busy team. Work for a partner with a great reputation. Full range of commercial property work. Solid experience, good grades and a willingness to get stuck in are essential. AT33641 For more information please contact Amber Trebitsch or Meryn Hemmingsen on 09 306 5500 or email your CV to aucklandjobs@momentum.co.nz quoting reference number. 191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

M O M E N T U M .C O. N Z

SI TUATIONS VAC ANT

Litigator 4-5 years PQE Manawatu

Not your typical regional practice, this vibrant firm is a leading full service law firm whose strategy, brand presence and enviable client work is competitive with many innovative city firms.

FA M I LY L A W Y E R An opportunity has arisen for a permanent full time ambitious competent family lawyer with a desire to manage an existing family practice and create further opportunities for career growth. As a district, North Canterbury is experiencing dynamic expansion and provides fabulous life style opportunities.

The successful applicant will ideally have · · · · ·

PQE minimum 2+ years An excellent knowledge of Family Law Legal Aid Provider status Excellent verbal and written communication skills The ability to work well both independently and within a team

All applications will be considered and treated with confidence. Applications close 5pm Friday 19th July 2013. Send your application and CV to:

This role provides support to the Litigation Partner across a variety of high-level complex litigation to include contentious and non-contentious employment law, local government prosecutions, civil litigation and resource management. The firm advises and represents local and national private clients, commercial businesses and presently acts for nine councils. The successful applicant will have 4-5 years broad litigation experience and they will approach their work with a PHD: passion, hunger and drive. They will have the ability to influence and negotiate good commercial outcomes and build trusted relationships. They will be capable of managing their own work responsibilities and will take an active role in mentoring more junior members of the team. In return, this opportunity promises excellent career development in a modern and forward thinking practice. The location is also attractive with ski-fields, hot-pools, vineyards, and music festivals all within one to two hours drive.

If you are interested in obtaining a great lifestyle without sacrificing quality clients, competitive work and remuneration please contact Jennifer Little at Jennifer@hrshop.co.nz for a confidential discussion. 0508 HR SHOP / Level 1 - 182 Vivian Street, P O Box 7031, Wellington South

www.hrshop.co.nz

The Partners Williams McKenzie PO Box 46, Rangiora 7440 tania@williamsmckenzie.co.nz

S e n i o r co m m e r c i a l p r o p e r t y l aw y e r

Property Lawyer 2-4 Years’ PQE We are a well regarded medium sized firm with substantial litigation, property and commercial practices. We enjoy a client base that belies our size and have a vacancy in our busy property team for a junior to intermediate solicitor. The position is predominately commercial property focused, including work for one of Auckland’s largest developers. We require someone who is well organised, has a keen eye for detail and the ability to manage client demands. In return, we offer competitive remuneration, a relaxed collegial environment, diverse work and the support of two approachable partners and a wider team with a wealth of experience. You will have substantial client contact and be expected to challenge yourself and develop your own skills within a supportive environment. Written applications must include a CV and references and should be forwarded to Sandra Griffiths, Practice Manager, Keegan Alexander, PO Box 999, Auckland 1140, email: sgriffiths@keegan.co.nz

· · · ·

Pre-eminent firm – experiencing strong growth Big firm quality work in a great culture Outstanding partnership opportunity Auckland CBD

This commercially oriented firm has a great reputation nationally. The firm’s Corporate / Business team acts for nationally and internationally recognized clients. It also acts for many Local Authorities in areas presently experiencing major infrastructural and population growth. The partners are excellent lawyers – particularly progressive, solutions oriented and committed to being trusted business advisors who want success for their clients. The size, profile and extraordinary growth of its client base would impress any national firm. A “culture of excellence” permeates the firm, which is also exceptionally friendly, open, informal and inclusive. The outcome is a great team dynamic. Because of its growth, the firm wishes to add a senior commercial property lawyer to the team.

You should have

The firm offers you

· 10+ years PQE · Technically strong background · Strong client following & client relationship focus · Team building & leadership qualities · Excellent interpersonal skills

· Partnership opportunity · Top quality work · An outstanding professional environment in which to develop expertise and advance your career

For a confidential discussion about this outstanding role, please contact: Gerald Lange (09) 358 2121, 027 243 1009 gerald.lange@careerprofessionals.co.nz www.careerprofessionals.co.nz

LawTalk 822 · 5 July 2013 ·

Lecturer/Senior Lecturer in Commercial Law The Department of Commercial Law is looking to offer a senior lecturer/lecturer a career researching and teaching in commercial law. The ideal candidate would have expertise in the field of corporate, securities or financial markets law and/or the interest and commitment to develop their expertise in the field. He or she would have the opportunity to teach advanced undergraduate and postgraduate courses on securities and financial markets law. A passion to share knowledge with students and with the profession and business community is critical. The Commercial Law Department looks to appoint people who see themselves as integral parts of a vibrant and collegial team of researchers. Successful applicants are given the opportunity to make a significant contribution to developing New Zealand’s future business and professional leaders and The Department has scholarly engagement with leading institutions at a national and international level. An academic career offers stable remuneration and the freedom to pursue research in relevant areas of interest with a view to making a significant contribution to the profession and the business and the wider community.

Your departmental colleagues The Department of Commercial Law is the leading centre of commercial law and taxation research and teaching in New Zealand, with one of the largest groups of commercial law academics in Australasia. Staff are involved in a wide range of teaching and research areas including corporate, finance, intellectual property and innovation, international trade and taxation. Members of the Department are highly-qualified and experienced academics or practitioners who have made important contributions to the discipline by writing books or publishing regularly in top-ranked international journals. The Department has New Zealand’s premier postgraduate degree in taxation law, the Master of Taxation Studies, and contributes to the teaching of the LLM at the Law School.

Your faculty colleagues The University of Auckland Business School (UABS) is one of the Asia Pacific’s foremost business schools, known for the relevance and impact of its research and scholarship and the quality of its people, programmes and partnerships. Located in the purpose-built Owen G Glenn Building, the School is a dynamic learning environment for academia, Government and industry influencing well over 12,000 individuals each year through its academic programmes and executive development courses. Based on the last Performance Based Research Assessment (PBRF) exercise in 2012, the School has the highest concentration of internationally ranked researchers in business and economics in New Zealand. It was the first business school in the country to win accreditation from the world’s top three business school’ accrediting bodies: (AACSB in the US, EQUIS in Europe and AMBA in the UK).

Your University The University of Auckland enjoys an outstanding reputation for its scholarship, teaching and research. It is ranked by the Times Higher Education QS World University Rankings 2012, as: the top ranked university in New Zealand in the top one percent of universities worldwide (ranked 84th in the world)

Your city Auckland offers an attractive lifestyle. The city is built on a narrow isthmus between two harbours the Manukau and the Waitemata and is surrounded by 11 dormant volcanoes and numerous picturesque islands. Auckland is nicknamed the ‘City of Sails’ because of the high number of yachts that sail in the harbours and the adjoining Hauraki Gulf. To the west of the city, the Waitakere Ranges rainforest forms a gateway to magnificent west coast surf beaches and an abundance of bush walks. Auckland is a city with a rich cosmopolitan mix of peoples.

Applications close Sunday, 14 July 2013 (NZ ST). For further information go to www.auckland.ac.nz/opportunities The University has an equity policy and welcomes applications from all qualified persons. The University is committed to meeting its obligations under the Treaty of Waitangi and achieving equity outcomes for staff and students.

· LawTalk 822 · 5 July 2013