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The year ahead –outlook for 2025
BY FRAZER BARTON
In my first month back as President I have been energised to get back to the business of advocating for lawyers and the legal profession in Aotearoa.
One of my first jobs was to welcome the Government’s indication that it will be reviewing the legal aid scheme.
The Law Society very much welcomes this announcement and looks forward to participating in this review – it is long overdue. The Commissioner of Legal Aid has worked hard to make improvements where possible within current parameters, but a broader review is required.
Let’s be under no illusion, the legal aid system is on its last legs. There are insufficient providers in some areas of the country, remuneration for lawyers remains an issue, and the nature of the cases is changing. We have also seen issues arising in legal aid systems across the globe. It is appropriate to take stock and identify how we ensure the sustainability of this critical service into the future. Each area of legal aid – civil, family and criminal – requires careful consideration.
Fundamentally, this cannot be a cost-cutting exercise – we would not want to see the range of eligible proceedings reduced, or eligibility
thresholds reduced – they are already very low.
Boiled down, we want a well-functioning and trusted justice system. This is important for everyone: defendants, victims, families, individuals facing legal issues across a broad range of areas and society more generally. We want a sustainable and fair legal aid system, which ensures that those who need a lawyer can access one, and that lawyers are appropriately remunerated.
Legal aid isn’t the only thing the Law Society has been working tirelessly behind the scenes to advocate on, and I would like to personally thank the Vice Presidents Ataga’i Esera, Jesse Savage, David Campbell and Taryn Gudmanz who stood in for me to continue our good work.
It may feel like a while ago now, but a year ago, the Chief Executive Katie Rusbatch and I were getting ready for a nationwide roadshow of hui to lay out how the Law Society’s paid membership model would work and detailing just how our offering to lawyers of support would be strengthened.
While we are pleased that this has been successful, there is still more work to be done. We have maintained a strong national presence while also upping our local
education and engagement. We have retained all the great services we offered previously but are also finding new ways to engage with lawyers on the ground. We are still advocating to improve safety in our courthouses, hosting events that foster collegiality and cover topics most relevant to the profession. We are spending more time helping and supporting our New Lawyers, Sole Practitioners and our members in the regions, and support for mental health has continued.
In terms of Mental Health, the Law Society was delighted to partner with Life Squared Trust, a charity focused on lawyers’ mental health, and to hold an event at Parliament in early March to foster a kōrero amongst the legal profession about the role of employers in supporting mental health in a challenging and demanding profession.
The event was hosted by Minister for Mental Health Hon. Matt Doocey and Life Squared Trust, in association with the Law Society. I attended the event with Law Society Chief
Executive Katie Rusbatch, who took part in a panel discussion about improving mental health in New Zealand’s legal profession.
In addition to discussing the challenges, the event highlighted the work already underway and shared examples of successful outcomes. We need to speak about and do more for mental health.
In this edition of LawTalk, as well as an update on what’s happening in the membership space, we’ll also be outlining the advocacy taking place in Law Reform.
Law reform and advocacy are an important part of the Law Society’s work, ensuring the legal profession’s voice is heard on key legislative changes. In this issue, we provide an update on recent submissions, from the Principles of the Treaty of Waitangi Bill to the Mental Health Bill, and we highlight the first in a new series of ‘Advocacy in Action’ webinars. With further consultations on AML/CFT reform and digital case
management for courts, the coming months will be just as busy.
As we step into 2025, the legal profession finds itself at a crossroads facing significant legislative changes, increasing workloads, and a rapidly evolving practice landscape. Across all areas of law, from family and employment to environmental and criminal practice, there is a shared sense of challenge but also determination.
Lawyers are navigating reform fatigue, shifting regulatory frameworks, and growing pressures on access to justice, all while striving to deliver fair and lasting outcomes for their clients. Yet, amidst this uncertainty, there is a resilient optimism. Practitioners continue to adapt, problem-solve, and support both their clients and each other. To showcase this, in this edition of LawTalk we’ll hear from six leaders of the profession and understand more about their priorities for the rest of 2025.
“One of my first jobs was to welcome the Government’s indication that it will be reviewing the legal aid scheme”
Also, in this LawTalk, is a piece on Elder Law. This article will explore the growing importance of Elder Law in Aotearoa New Zealand, with a focus on enduring powers of attorney (EPAs) and other legal issues affecting older New Zealanders. The article is centered around the upcoming CLE Elder Law Conference in May 2025, using insights from legal experts to explain why this field is becoming increasingly relevant across multiple practice areas, including property, estate planning, and family law.
With attendance numbers up at events and CLE sessions, our delivery of services continues in a cohesive fashion right across our sections, branches, and of course our regulatory work. I for one am proud to be a part of the Law Society as it moves forward.
I hope you enjoy this edition of LawTalk and are having a safe and prosperous first half of the year. ▪
The issues that matter most
Six areas of the profession share their thoughts on the year ahead
With a flurry of legislative change underway and AI transforming the world, the legal profession is navigating a period of rapid evolution. In this issue of LawTalk, we speak with six professionals across different areas of law to hear their perspectives on the challenges and opportunities ahead. From shifting regulations to the pressures of increasing workloads, they share their insights on what matters most in their fields, how they’re adapting, and what gives them optimism as they look ahead.
Chris Macklin
Barrister and Convenor of Law Society Criminal Law Committee
What is your key focus for 2025 professionally?
I’m a relatively recent addition to the independent bar, having spent the majority of my career in law firms. One of my key motivations for making this move was to take on a greater variety of work, and I’ve certainly achieved that. Now, my challenge is balancing a steady stream of quality work while ensuring it remains diverse and engaging.
It’s a bit of a tightrope – taking on enough work to stay busy and stimulated while maintaining the
capacity to give each client and file the time and attention they deserve. In 2025, my focus is on refining that balance and staying sharp in my practice.
What do you consider to be the issues that matter the most in your area of practice?
I think the biggest issue is time and resourcing for the court system. The impact this has on our profession is difficult to overstate. Litigators, particularly criminal lawyers, are constantly being asked to provide a Maserati-level service on a Suzuki Swift budget. Something that often gets lost in political discussions and media
LEFT: Chris Macklin
coverage is that the justice system is, in fact, a system. Like any system, even small changes in one part affect the whole. We hear a lot about different interest groups and their priorities, but the justice system is supposed to be balancing rights and interests and preserving the Rule of Law. Right now, it’s running at or beyond its limits on almost every front I deal with.
I’m fortunate that my work takes me to courts across the country, both District and High Court. What I see everywhere is that delays are a concern, and it can be quite soul-destroying – especially for those in the criminal system who deal with people on a very personal level. The impact of these delays on people’s lives can be significant.
What are you most optimistic about professionally in 2025?
I think there’s cause for optimism in the legal profession, particularly in the continued improvement of firm culture and professional relationships.
For a long time, law was a “work hard, play hard” profession, and some of the negative publicity we’ve seen in recent years has reflected that culture. But I think we’re seeing real change – not just in how we engage with clients but also in how we interact with each other and, for litigators, with the Court. That shift is fostering greater respect for professional boundaries, which is something to be optimistic about.
I’m not saying things will change overnight, and yet I don’t want to pull a Rachel Hunter and say, “It won’t happen overnight, but it will happen”. So, without losing a sense of the fun collegiality that lawyers love, I see opportunities for the profession to prove its value and also take better care of its people in the year ahead.
Are there any legislative changes that you see coming to the fore that will have an impact on your area of practice?
For criminal lawyers, there’s no shortage of changes. It would be unfair to single out just one and say, this is the change that will have the biggest impact. This government has taken an expressly “tough on crime” approach from day one, with a suite of policy announcements reflecting that stance. Clearly, there’s a public mandate for change in the criminal justice process.
I understand toughness as a response, but it needs to be balanced with fairness and, just as importantly, effectiveness. New Zealand needs a much more nuanced conversation about the legislative direction of our justice system. That’s not a criticism of any single government’s approach; it’s simply an acknowledgment that, as a developed nation, we should be stepping back and asking: Where do we want our justice system to go? How do we achieve fair, timely, and effective processes with the system we’ve inherited?
If you had one piece of advice for 2025 to share with other practitioners in your area of practice, what would it be?
The best piece of advice I can offer generally for lawyers, and particularly for litigators, is to make a conscious effort to take other lawyers as you find them.
Every lawyer approaches a case with their own perspective, background, and experience. At the end of the day, we all do our best work for our clients when we move past reputations or personal tensions and focus on what we can achieve within the rules, ethical obligations, and constraints of our profession.
Being genuinely kind and respectful makes a real difference. It reduces stress and makes day-to-day interactions smoother. It benefits not just individual lawyers but all of those involved, including clients.
Maria Dew KC
Britomart Chambers, Auckland
What is your key focus for 2025 professionally?
At this stage in my career, my focus is less on setting any goals and more on enjoying practice and seeing how it evolves. Employment law shifts every few years, keeping things interesting, and I expect my work will shift with the times.
I am currently seeing a lot of mediation and facilitation happening,
because the economy and organisations are in a difficult space. I think the work of employment lawyers now is focused on helping with restructuring and reengineered organisations. This comes with conflicts which organisations often want to get resolved quickly.
So, I think that’s going to be an area of focus over the next year, possibly two years, as the employment market is in a difficult recession. The challenge for organisations when they’re making these big changes is, while people are departing, how do they retain momentum and the essence of the organisation, for those that are left?
Otherwise, my focus remains on running cases in court, investigations and reviews, wherever I can offer my skills.
What do you consider to be the issues
that matter the most in your area of practice?
The new government is proposing some significant changes to the Employment Relations Act, including an income threshold where employees earning over $180,000 will lose the right to bring unjustified dismissal personal grievances. This aligns with Australian law, so we are not unique, but it will reshape employment disputes, particularly at the executive level. While aimed at increasing flexibility for businesses, it will also lead to a period of uncertainty, renegotiating employment agreements for higher
RIGHT: Maria Dew KC
earners and inevitably some testing of the new laws in the courts.
Another major change is a proposed “gateway test” for employee status, that is in addition to the current definition of employee in the Act. The new test will restrict claims by those who have signed contractor agreements. This will particularly impact those who work in more modern flexi work situations “gig economy” or “platform workers”, like Uber drivers. Under the new test, if a worker signs a contract stating they are a contractor, they will likely be classified as such. This change aims to provide clarity but will, at least, initially spark legal challenges over its scope.
A growing concern for employment lawyers is the recent cuts to MBIE services, making access to employment mediation harder. Delays are pushing some organisations toward private mediation, raising access to justice issues for those that can’t
“What I appreciate about employment law, is that lawyers in this space genuinely want to help people – whether it’s businesses or individuals – through difficult situations”
afford this option. Mediation has historically resolved around 75 per cent of employment disputes –without it, unresolved cases may rise, affecting business productivity.
What are you most optimistic about professionally in 2025?
I’m very optimistic about the quality of employment lawyers I see in practice. I’ve worked in employment law for over 25 years, and by and large, employment lawyers are
solutions-focused, emotionally intelligent, and attuned to what their clients need.
Employment disputes are high stakes for both sides. For small and medium-sized employers –the majority in New Zealand – a personal grievance can be a major risk to their business. For employees, their job is one of the most important aspects of their life, next to family. Navigating these challenges requires not just legal expertise but also an understanding of the personal and commercial pressures at play.
What I appreciate about employment law, is that lawyers in this space genuinely want to help people – whether it’s businesses or individuals – through difficult situations. The profession is collegial, and we focus on outcomes rather than competing with each other. Unlike large-scale commercial litigation, employment cases aren’t
worth millions, so we have to be strategic and efficient in how we achieve results.
Are there any legislative changes that you see coming to the fore that will have an impact on your area of practice?
The proposed gateway test for determining employee/contractor status, the income threshold limiting personal grievances for high earners, and the restrictions on personal grievance remedies will all reshape how employment disputes are handled.
These changes, both legislative and systemic, will significantly shape employment law in the coming years, creating some degree of uncertainty and fresh challenges for lawyers navigating this space.
If you had one piece of advice for 2025, to share with other practitioners in your area of practice, what would it be?
Look after your mental health. To provide the best advice, we need to be mentally and physically fit. Prioritising our own wellbeing is essential in this demanding field.
Professionally, I’d also say maintain an interest in other areas of law. Having knowledge beyond employment law, in other areas of civil, commercial, health law or human rights litigation, helps broaden your perspective.
It allows you to see how different legal principles intersect and influence employment law’s development. Recent discussions on tikanga and employment law or the impact of International Labour Organisation conventions are just examples which highlight how broader legal frameworks can shape our practice. So, don’t just focus on the Employment
Relations Act – stay curious, look at the bigger picture, and keep learning.
Felicity Monteiro
Partner,
Wilson Harle
and member of the
Law
Society's Civil Litigation and Tribunals Committee
What is your key focus for 2025 professionally?
Having had more private client disputes in my caseload over the past few years has given me a new perspective on the personal impact of
LEFT: Felicity Monteiro
“My takeaway? Be respectful of, and reasonable with, your colleagues. Treat other lawyers as humans, not just opponents”
litigation. For individuals, the stakes are immediate, and the processes are confusing and, at times, seem absurd. So, my key focus this year will be on client experience and ensuring each step is managed with the goal of resolving disputes in mind.
Working with private clients has reminded me that, of course, people don’t inherently understand legal procedures like discovery or interlocutory steps. Being forced to explain these things has made me reflect on why we do them this way in the first place. Are these processes really the best way to handle litigation or disputes?
At the end of the day, no one wants to have to hire litigators to act for them. No one wants a dispute or expensive court proceedings. So, everything we do as litigation lawyers should be focused on eliminating our clients’ problems – not just moving them through the system.
What do you consider to be the issues that matter the most in your area of practice?
Two major changes are expected to reshape civil litigation in the High Court this year.
First, a major overhaul of the High Court Rules will require significantly more front-loaded work. Instead of the current process, where claims progress quite gradually with costs accumulating closer to trial, lawyers will need to have key documents ready, witnesses briefed, and groundwork laid before filing new claims. This shift will make litigation more demanding at the outset and may reduce claims being filed solely to create leverage for settlement.
Second, the proposed trial of a new procedural track for commercial cases in the Auckland High Court aims to fast-track qualifying claims, ensuring quicker resolutions and preventing claims from being held up at the interlocutory stage. While beneficial for clients, this acceleration may increase pressure on lawyers, compressing workloads and limiting the number of cases they can manage. Navigating these shifts will be a key challenge for the profession, particularly in Auckland.
What are you most optimistic about professionally in 2025?
I’m most optimistic about our team at the firm now. We’ve got a strong
team of lawyers at all levels so I’m looking forward to watching them develop and knowing that they’re going to do great work. I think we’ve managed to get the great lawyers we have because of the work that the firm attracts and our firm’s culture. The work is diverse which keeps everyone interested and challenged. The culture is collaborative and the structure is pretty flat – it isn’t as hierarchical as other firms might be with a partner at the top and work trickling down through seniors, intermediates and juniors. We try to work with everyone directly, and to resource files as efficiently as possible.
Are there any legislative changes that you see coming to the fore that will have an impact on your area of practice?
The High Court Rules changes are the biggest shift for us, but there are plenty of other legal changes that could significantly impact on our practice.
Whenever a new statute is introduced or amended, there’s a dearth of case law to guide its application to circumstances as they crop up. Judges haven’t seen the new provisions before, and they haven’t interpreted the particular words in whatever the legal context is. That can result in a wave of litigation as the courts work through where the boundaries of where these new or amended laws lie.
Right now, we’re seeing changes in the Overseas Investment Act, employment law, and directors’ and officers’ liability. Any legislative change creates uncertainty – laws that haven’t yet been tested in court provide opportunities for litigants and litigators to shape how they’re applied through the cases that arise.
If you had one piece of advice for 2025 to share with other practitioners in your area of practice, what would it be?
I’ve had two very different experiences with lawyers on “the other side” so far this year. In one, the opposing lawyer was polite, reasonable, and cooperative. As a result, we’re resolving the dispute efficiently and in a way that serves both of our clients’ best interests. In the other, the lawyer has been unapproachable, unreasonable and combative, leading to higher costs, delays, and stress for both clients. My takeaway? Be respectful of, and reasonable with, your colleagues. Treat other lawyers as humans, not just opponents. Don’t put perceived procedural “wins” and point-scoring above working towards the resolution of disputes in the best interests of your clients. As workloads increase with upcoming changes, fostering a culture of professionalism and respect will benefit everyone.
Richard Smith
Barrister and Family Law
Section Executive
What is your key focus for 2025 professionally?
So far 2025 has been like I have just woken up from a Saturday afternoon nap on the couch, wondering where I am and what day it is, having a mild panic it's Monday morning and I’m late to the office and trying to shake the fog of waking. My focus for this year is to employ a new grad lawyer so I can do my bit to bring more lawyers into doing family and criminal law.
What do you consider to be the issues that matter the most in your area of practice?
There are some big legislative changes on the horizon, such as the new Mental Health Bill, the Improving Arrangements for Surrogacy Bill, and the extension of the powers of the Family Court Associates. In addition, there are numerous amendments to the Family Court Rules coming to implement Te Au Reka (the digitalisation of the Family Court) so there are lots of changes for family lawyers to get their heads around.
The issues of the lack of family lawyers, especially those providing representation for children, those who have lost capacity and also
those who provide legal aid services, continues to be a major concern.
Security in courtrooms and the increase of self-represented parties is also of concern, not only to family lawyers but the profession as a whole.
While I try to ignore the doomsday AI news, the advent of AI will continue to be a complicating factor for lawyers, both harnessing it to enhance their practice and managing interacting with those using it.
When it comes to lawyers’ workloads I don’t see any light at the end of the tunnel; it’s busy. Every lawyer
I talk to, not only in family law but most other areas, are flat out and doing all they can to manage.
What are you most optimistic about professionally in 2025?
I discovered the benefit of professional supervision about eight years ago when becoming a lawyer for children. It is one of the most important self-care things I do. It helps me manage my professional life but also my personal life. It gives me someone independent to talk through difficult cases and get guidance from.
“When it comes to lawyers’ workloads I don’t see any light at the end of the tunnel: it’s busy”
I am most optimistic about the Family Law Section continuing to increase its membership, offering more practical education and providing additional services for the benefit of its members. Every lawyer who practises in family law should be a member of the Family Law Section.
Personally, my goal this year (after an ambush intervention by my wife) is to eat better. I normally run on coffee and anxiety, but apparently that’s not overly healthy for me.
I am always optimistic about family law. Lawyers who practise in this area don’t generally do it for the money. They do it to make a difference, to help vulnerable clients and to ensure everyone gets the best legal representation they can. No matter what headwinds there are, family lawyers navigate them and always find a way. This year will be no different.
LEFT: Richard Smith
Are there any legislative changes that you see coming to the fore that will have an impact on your area of practice?
The Mental Health Bill which if enacted will repeal and replace the Mental Health (Compulsory Assessment and Treatment) Act 1992, creating huge changes which will affect patients, whānau, mental health professionals and lawyers who are all going to have to get to grips with the changes.
As mentioned above the Improving Arrangements for Surrogacy Bill again introduces significant changes to this area of practice and Te Au Reka will be a steep learning curve for not just the lawyers but for the judiciary, court staff and court users.
If you had one piece of advice for 2025 to share with other practitioners in your area of practice, what would it be?
Be kind. It doesn’t cost you anything.
Vicki Morrison-Shaw
Rōia Tūtahi | Kaikōmihana | Barrister | Commissioner and Convenor of the Law Society’s Environmental Law Committee
What is your key focus for 2025 professionally?
The first is to continue embedding te reo Māori into my everyday practice as an environmental barrister and
commissioner. In hearings, there are many moments where greetings, karakia, and other formalities are used, and having an understanding of te reo Māori not only helps with those aspects but also enhances my ability to engage with and understand the evidence presented by tangata whenua. Ko te reo Māori he matapihi ki te ao Māori.
Another key focus is continuing to deliver sustainable outcomes for my clients – outcomes that stand the test of time – aren’t overturned on appeal, and provide lasting benefits both for my clients and the environment. Manaaki whenua, manaaki tangata, haere whakamua.
Finally, I want to make space for new opportunities as they arise. It’s too easy to get buried in the work directly in front of us. Ka whati te tai, ka pao te tōrea!
What do you consider to be the issues that matter the most in your area of practice?
There have been significant legislative changes in the environmental and resource management law fields, creating a sense of ‘reform fatigue’ for many. Lawyers are spending considerable time reviewing and commenting on reforms, only to see them change again, requiring continuous reassessment.
One current reform is the proposed Resource Management (Consenting and Other System Changes)
Amendment Bill, which is currently before the Environment Select Committee and expected to be passed mid-year. One particularly important but perhaps less-publicised change relates to hearings. Under the current system, public participation is a cornerstone, with hearings being a default option. The proposed change flips this, banning hearings except where a hearing panel determines it does not have sufficient information. While there will be differing views on the value of hearings, limiting hearings solely to when there is insufficient
LEFT: Vicki Morrison-Shaw
information fails to recognise that hearings can also be useful to test evidence, workshop conditions, respond to submitter concerns, and ensure robust decision-making.
What are you most optimistic about professionally in 2025?
One positive outcome of all the recent legislative changes is the increased public engagement in the lawmaking process. Rather than just getting to grips with the law once it has passed, people are becoming more aware of the opportunity they have to influence the law, and the importance of having their voices heard. He mana tō te kupu. A great example is the Treaty Principles Bill, which received the highest number of submissions in New Zealand’s legislative history.
Workshops on how to make submissions are becoming more common, and I think that’s a really positive development. Regardless of where people stand on an issue, knowing how to participate and have their say is valuable. More public engagement means greater scrutiny of legislation, which can lead to better outcomes.
Are there any legislative changes that you see coming to the fore that will have an impact on your area of practice?
In terms of the environmental law field, in addition to the Resource Management (Consenting and Other System Changes) Amendment Bill I mentioned earlier, the Government
“It’s easy to feel like submissions won’t make a difference, but using your legal skills to highlight issues and suggest potential solutions is always worthwhile”
has also recently signalled an upcoming review of the Conservation Act, the Public Works Act, and various national policy statements that form a key part of the resource management regulatory framework. Further details of these changes are expected to be released later this year.
More broadly, there are also the current Treaty of Waitangi Principles Bill and the Regulatory Standards Bill. While it may be that these Bills do not achieve sufficient parliamentary support to proceed, if they did, their effects could be significant in terms of the approach to Te Tiriti and its principles, as well as how other legislation is focused and the degree of consideration it gives to property rights as opposed to social and environmental matters.
In short, this last year has been one of change and the amount and pace of legislative change shows no signs of slowing down. E noho mata hī taua.
If you had one piece of advice for 2025 to share with other practitioners in your area of practice, what would it be?
Unsurprisingly, my advice is to stay on top of law changes and take the opportunity to have your voice heard.
It’s easy to feel like submissions won’t make a difference, but using your legal skills to highlight issues and suggest potential solutions is always worthwhile. Engaging with the Select Committee process is a way to influence outcomes, even if it doesn’t always feel that way.
A second piece of advice: take care of yourself. With so much change and a heavy workload, it’s important to look after your Whare Tapa Whā –your mental, physical, and spiritual well-being – as well as staying connected to whānau and community. You can’t effectively support clients or colleagues if you’re running on empty. He aroha whakatō, he aroha puta mai.
Mark Sherry
Partner at Harmans Lawyers and Chair of the Law Society's Property Law Section
What is your key focus for 2025 professionally?
Essentially the key focus is looking after clients and managing my team. For me this year will be heavily technology focused as our firm is undertaking quite a big transition of our practice management system. We’re moving to a new system from one we have been using for quite a long time and which is reaching the end of its shelf life. I understand the new one has an AI component to it and it will be interesting to see what that is like.
I know that quite a few of the legal providers are about to release AI products into the market as well. I am looking forward to giving them a go and seeing how useful they might be. One of our biggest concerns using generative AI is that you don’t know where the information’s going and you’ve got no control over what people might upload, whereas some of these other products are quite tailored to the legal profession and should be a lot safer for us to use.
What do you consider to be the issues that matter the most in your area of practice?
Technology is certainly an opportunity, and it’s something that will continue to evolve. But I don’t want
to focus solely on technology – there are also significant legislative changes coming.
Another issue I’m seeing, both within our firm and more broadly, is that many senior practitioners are approaching retirement. Over the next few years, a number of experienced lawyers who have shaped the profession for decades will be retiring or scaling back. That creates a challenge for firms in terms of succession – bringing through new lawyers to replace those who have been integral to law firms for so long. With that, we’ll see cultural shifts in workplaces.
At my stage in my career, I find myself in the middle – between the younger lawyers coming through and
the older generation preparing to step back. There’s quite a generational divide. You really notice it when sitting in a room listening to different interactions and points of view. It definitely keeps things interesting.
What are you most optimistic about professionally in 2025?
I’m sensing the beginning of a brighter commercial sentiment in the community. Clients who had put projects on hold are now restarting them as interest rates have come down. There’s a renewed interest in development, construction, and the market in general. From where I sit, the economy is starting to improve, and that always leads to more work and opportunities.
I heard on the radio this morning that house prices are still a bit down in Wellington and Auckland, but here in Christchurch, they’ve risen by close to 5 per cent. Our property team is quite busy, and from what I understand, the market is even stronger further south, in Otago and Southland.
Are there any legislative changes that you see coming to the fore that will have an impact on your area of practice?
There constantly seems to be things happening that we need to stay on top of. One area we’re watching with interest is the legislative review around enduring powers of attorney.
The current process can be cumbersome, especially when people are appointing family members that the firm acts for too, so we’re hopeful there will be some positive changes there.
There’s also a change coming to the relationship between lawyers and licensed conveyancers regarding how undertakings are given and received. That should help streamline processes in some property transactions.
Another change coming relates to LIM reports, specifically around the disclosure of natural hazard information. If you’re in a low-lying area or near the beach, there could suddenly be a lot more detail on your LIM around matters like flood risk. The key will be ensuring the right level of disclosure for buyers moving forward.
On top of that, the government is reviewing trusts and anti-money laundering measures, including a proposal to create a register of all
trust beneficiaries. We see this as a really fraught area, so we’ll be keeping a close eye on it and provide input where we can.
If you had one piece of advice for 2025 to share with other practitioners in your area of practice, what would it be?
It would be to stay on top of technology changes – because if you don’t, you’ll get left behind. I know it can be intimidating. I’m one of those people who, when sitting down with an IT expert, often struggles to understand what they’re saying. But you have to put your pride aside, ask questions – even the ones that might feel dumb – and really get to the bottom of it.
Taking advice, learning, and adapting is key. If you want to keep your firm relevant and at the forefront, you need to embrace change, because technology will evolve rapidly over the next few years. ▪
NOTE TO SELF - ADJOURN
LEFT: Mark Sherry
HOUSEOFPANIA COM NAPIER
Representative Services and the value of Law Society membership
Since introducing a paid membership subscription from 1 July, GM Representative Services Amanda Woodbridge says the New Zealand Law Society Te Kahui Ture o Aotearoa is just at the start of a much bigger journey for its members with much to be proud of.
“The 10,000 lawyers who have chosen to become Law Society members is an endorsement of the support and value that we provide through our branch network and sections. We are listening closely to their needs and interests and responding with events that are highly relevant, making CPD accessible, and supporting the advocacy, collegiality and connection that enables the profession to thrive.
“Members can expect to hear more from us on the big issues of the day. We are particularly proud of the Te Tiriti panel discussion and presentation by authors Dr Carwyn Jones and Dr Damen Ward, which we co-hosted with Te Hunga Rōia Māori o Aotearoa, in November. It was well received with nearly 500 attendees, and we are planning a follow-up session later this year.
“Our branches continue to do an outstanding job with offering collegial and relevant events including securing interesting guest speakers.
One example was our Waikato branch organising for Justice Susan Glazebrook DNZM to speak on her involvement in rescuing women judges from Afghanistan. Her talk covered the Taliban takeover in 2021 and paid tribute to the courage and dignity of the Afghan women judges, six of whom have resettled in New Zealand.
"We also partnered with NZ Asian Lawyers for the inaugural NZ Asian Lawyers Awards in November to recognise Asian lawyers who are making a significant contribution in their communities and areas of practice. Russell McVeagh hosted the event with Attorney General, the Hon Judith Collins KC presenting the awards.
Sections delivering great value for our members
“Our sections deliver highly sought-after technical guidance, advocacy, wellbeing and collegial events. More than 60 per cent of our members have chosen to belong to a section.
“In terms of technical guidance, a stand-out was the Property Law Section’s (PLS) webinar with Toitū Te Whenua Land Information New Zealand and Rāngai Hāpai Ture o Aotearoa Legal Executives New
Zealand. This practical, interactive session was a sellout. Facilitated by PLS deputy chair Kristine King and presented by Robert Metcalf, Deputy Registrar-General of Land, this was for lawyers, registered legal executives and staff at the coalface of property transactions. It was followed up with a webinar on the “how tos” of digital signing on 26 March.
“ILANZ has run 24 events for section members since July with excellent attendance. Webinars with Dentons about privacy breaches and procurement attracted 500 and almost 470 participants, respectively. A webinar with the Commerce Commission about collaboration and sustainability saw close to 400 attend. Work is underway for our annual ILANZ conference in Tamaki Makaurau Auckland from 7-9 May. The conference theme is “Ignite, Taku ahi tūtata!” (the fires that are close, sharpen my blade) with attendance going some way towards fulfilling CPD requirements.
ABOVE: Canterbury Westland Gala Dinner 2024
ABOVE RIGHT: Amanda Woodbridge, GM Representative Services and Strategy, New Zealand Law Society
Advocating for the profession
“We take a keen interest in the Law Society’s law reform and advocacy work. Our Family Law Section (FLS) regularly meets with the Law Reform and Advocacy Team and the Ministry of Justice to work through courthouse safety and security concerns raised by the profession. Our branches are also interested in courthouse rebuilds and repairs, with the Law Society advocating for increased investment and the involvement of local lawyers in new builds.
“In July, FLS, together with the Law Reform and Advocacy team, together held a series of workshops with the Legal Services Commissioner and legal aid providers to discuss proposals from the Commissioner to simplify obtaining approval to
provide legal aid, and to assist with getting juniors on serious sexual violence cases, as well as to identify administrative improvements.
“Recent wins for FLS include the government fully funding Family Disputes Resolution mediation for both parties from July 2025 and the Ministry of Justice establishing a process to enable the regular review of court-appointed counsel remuneration.
“PLS has worked closely with Toitū Te Whenua Land Information New Zealand (LINZ) on a six-year project to modernise the online portal Landonline. The project reached a significant milestone in March, with LINZ switching off legacy Landonline for law firm users.
Registrar-General of Land Robbie Muir has acknowledged the efforts of PLS and members who participated in numerous customer days
and provided feedback that has shaped the new Landonline.
“In the last quarter of 2024, PLS provided feedback on draft regulations which will implement recent changes to the Local Government Official Information and Meetings Act 1987, requiring natural hazard information to be included in Land Information Memoranda.
Increasing support for sole practitioners and small firms
“We are particularly interested in sole practitioners and small firms and expanding our offerings to these groups to reduce the costs and efforts associated with running a small business. The Legal Technology webinar offered by Resolute Lawyers Director and Auckland Branch Council VicePresident Anitesh Govind in June provided an abundance of practical tips to work smarter with technology, and we ran a follow up webinar in February.
“From August to September, we held cybersecurity seminars with our partner ANZ in Auckland, Hamilton, Wellington, Christchurch and Dunedin. We were delighted with the high engagement of attendees. Given the importance of this topic, we offered this seminar nationwide online in March, and we will soon have an affordable cybersecurity training programme that small businesses and sole practitioners can subscribe to on an ongoing basis.
Ensuring
our smaller centres are well served
“We have been engaging with our smaller communities including Northland, South Auckland, the West Coast and Timaru and we are forming stronger connections and discussing the different issues many of our lawyers in smaller centres face.
“When we held our hui roadshow a year ago, we heard that lawyers in our smaller centres didn’t have the same opportunity as other lawyers to have CPD in person. We want to address that. We ran a half day seminar in Taranaki in October with another seminar planned for May. Created for lawyers by lawyers, the October seminar included cybersecurity, drug and alcohol monitoring devices, the impact of traumatic brain injuries, and the relationship between in-house and external lawyers.
Supporting wellbeing through collegiality and more formal mechanisms
“The wellbeing of members and the profession is of the utmost importance and collegiality remains an important part of the work our
branches undertake. I am delighted that we now have Jake Bergstrom leading the Wellbeing Programme, confirming our commitment to this important work. From July to December, we have had more than 780 lawyers participating in our Mentoring Programme and provided over 370 counselling sessions.
“In addition to our bar dinners, which continue to be popular events on the branch calendar, the Auckland branch has introduced running events for lawyers who are keen on getting outside, is reintroducing the annual church service as ways to create connection and held their annual music event in March. The Auckland branch also secured Sir John Kirwan and former lawyer Dr Fiona Crichton for the third annual wellbeing webinar in the same month, with other branches having access too.
“In terms of our sections, the FLS Immediate Issues Response Team is available for members affected by trauma or significant pressure from carrying out their professional duties. Many of the FLS team have experienced difficult situations over their years of practice so are able to offer practical advice. A protocol with the judiciary enables the FLS to contact members to offer support and access to professional services if required when a party or child involved in a Family Court proceeding has died, usually from suicide or homicide.
Nurturing our newest lawyers for the benefit of the profession
“We want the profession to thrive, and having quality graduates entering our profession is essential to
this. Of particular focus are our new lawyers and we are pleased to have made membership complimentary for the first two years of practice.
“It was rewarding to launch the National New Lawyers Guide in September. Developed by the National New Lawyers Group, this guide has been months in the making. We are now developing similar resources for law students and lawyers in years three to seven of practice and working closely with law schools and the National New Lawyers Group in these endeavours. We are excited to announce the inaugural National New Lawyers Conference on 22 August in Christchurch and look forward to this becoming a regular fixture on our calendar.
Choosing to be a member supports the profession to thrive
“I wish to acknowledge those in the profession who have chosen to become paying members of the Law Society. Your membership supports the profession to thrive, enabling Representative Services to continue to offer the services and products through our branches and sections, and providing you with a way to stay connected, keep learning and give back.
Members enjoy discounted education and learning through the Law Society branches, sections and CLE. We look forward to you renewing your membership for 2025/26 and we look forward to welcoming new members too. Join today. ▪
1. Robbie Muir, “Landonline: then and now”, The Property Lawyer (vol 25-3, March 2025).
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14 May PRA - Keeping Ahead of the Pack 2025, Auckland / Live stream
19 May Considering possible settlement: Asian parties in court, Conference Auckland / In-person
23 May Te Tai Tokerau Family Law Intensive, Whangārei
28 May Elder Law Conference, Wellington / Live stream
29 May Thinking Property, Auckland
9-10 June Trusts Conference, Wellington
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Law Reform and Advocacy update
The last quarter was a busy period for law reform and advocacy, even with the intervening summer holidays. From December through to February, the Law Society made 21 submissions on Bills, and 23 submissions on a range of discussion documents released by government agencies.
On 19 February, the Law Society held the first in a new series of biannual ‘Advocacy in Action’ webinars. These webinars are designed to share greater detail on the range of submissions the Law Society has been working on, as well as upcoming law reform that may be of interest to the profession. The next webinar will be held on 20 August.
Recent law reform submissions include:
· A submission on the Principles of the Treaty of Waitangi Bill. Key areas of comment in the submission included the inadequate process followed to initiate such significant constitutional change, lack of consultation with Māori,
and the likelihood that the Bill will undermine settled law in favour of greater uncertainty. The Law Society appeared before the Justice Select Committee, where the submission was presented by Nick Whittington and Rachael Jones, of the Law Reform Committee.
· Consultation on the proposed Regulatory Standards Bill. The Law Society’s submission follows submissions made on similar initiatives in 2010 and 2011: it identifies a lack of clarity around the problem the Bill seeks to address, highlights the selective inclusion of certain principles, and notes the Bill as proposed is unlikely to improve regulation. The Law Society recommends first considering non-legislative mechanisms such as greater adherence to proper policy development processes, improved Regulatory Impact Statement performance, and implementation of processes for post-legislative scrutiny.
· An extensive submission on the Mental Health Bill, prepared
with the Law Society’s Family Law Section and the Health and Disability Law Committee. The Law Society’s submission supports the repeal and replacement of the current Mental Health (Compulsory Assessment and Treatment) Act 1992, and welcomes the shift towards a more rights-consistent legislative regime. The submission scrutinises the Bill carefully and offers recommendations to improve drafting.
· Further consultation on the Sexual Violence (Strengthening Legal Protections) Legislation Bill, following the introduction of Amendment Paper 216, which proposes to amend name suppression settings in sexual violence cases to require a victim’s consent before an offender can be granted permanent name suppression. The Law Society’s submission expresses concern that the proposal will undermine established sentencing principles and individualised justice, while also raising the prospect of similar
offenders being treated markedly differently. The submission also notes that the proposal risks harms to connected individuals, as well as other victims associated with the same offending or the same defendant.
· The Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill, which proposes to introduce a Young Serious Offender declaration, as well as Military Style Academy orders. The Law Society’s submission emphasises that the policy work done to develop the Bill was constrained, and there is no evidence to support the need for – or likely efficacy of – the Bill’s proposals.
· The Social Security Amendment Bill, which introduces additional sanctions into the social security regime, and expands the permitted use of automated decision-making (ADM). The Law Society’s submission recommends that the clauses expanding the use of ADM are removed, pending further analysis and the development of appropriate safeguarding measures.
· The Disputes Tribunal Amendment Bill, which will increase the financial jurisdiction of the Disputes Tribunal from
$30,000 to $60,000. This Bill responds to some of the recommendations arising from the Rules Committee’s Improving Access to Civil Justice report. The Law Society’s submission supports the increase to the jurisdiction of the Tribunal, but notes that a filing fee of $468 for claims of $30,001 or more may represent a substantial hurdle for users of the Tribunal, including those with more substantial claims.
All submissions on bills before Select Committee, as well as other public consultation items, are available on the Law Society’s website.
Te Au Reka – digital case management for
courts and tribunals
The Law Society continues to meet regularly with the Ministry of Justice to discuss progress on Te Au Reka and planning for Phase 1, which will implement Te Au Reka in the Family Court. The Law Society’s Family Law Section has provided feedback on proposed changes to the Family Court Rules, which aim to support the implementation of Te Au Reka. The Ministry is simultaneously designing Proof of Concepts for the District Court Criminal and the High Court Civil, to identify the
needs of these jurisdictions, and the Law Society will remain closely involved.
Upcoming AML/CFT reform
Recently released Cabinet material has provided additional detail on proposed changes to the Anti Money Laundering and Countering Financing of Terrorism (AML/CFT) regime. This includes a proposed move to a single supervisor – the Department of Internal Affairs –and the introduction of a levy on regulated entities to enable partial cost-recovery.
The Cabinet materials show that consultation with the regulated sectors is anticipated, and we also anticipate consultation during the select committee process, once legislative amendments are progressed. The Law Society will look to gather feedback from the profession as this work continues.
In the meantime, the Anti-Money Laundering and Countering Financing of Terrorism Amendment Bill is currently before the Justice Select Committee, and the Law Society is preparing a submission. Amongst other minor amendments, the Bill will reduce the requirement for enhanced customer due diligence on low-risk trusts. ▪
Confidentiality and talking about clients
Social and news media
“The life of the law has not been logic; it has been experience.”–Oliver Wendell Holmes.
Although Holmes’ famous quote was talking about systems issues and application of the law, it highlights the very human nature of legal practice. Most lawyers join the profession to help clients, who are often facing significant personal or life events.
Consequently, lawyers get a window into some truly remarkable events and meet a wide range of interesting and diverse people. The temptation to share these experiences is human nature. Expectations and pressures to communicate and engage with others are also more prevalent than ever before with the advent of social media and 24/7 online news media.
Most lawyers do enjoy sharing a good old ‘war story’. At other times, a client’s predicament may resonate with a lawyer and create a desire to speak out against an injustice. Real good can come from lawyers speaking publicly to highlight issues or share knowledge and information with colleagues and the community. In such cases, however, it is important that lawyers are aware of their confidentiality obligations and take precautions to avoid breaching these.
This article outlines the relevant obligations. It also highlights some examples of situations in which
obligations were breached and some take-away lessons from these cases.
Confidentiality obligationsscope and extent
Lawyers owe a duty of confidence to clients. Confidentiality obligations are set out in rule 8 of the Lawyers and Conveyancers (Lawyers: Conduct and Client) Rules 2008 (‘Rules’). Exceptions to the obligations of confidentiality are found in rules 8.2 and 8.4.
The obligation is clear. A lawyer must keep confidential all information about their client acquired in the course of the relationship. It is important to note that the obligation covers information that may be widely known or public knowledge which will nevertheless be considered ‘confidential information’ in the context of professional obligations. A high-profile example of the implications of this constraint is the striking-off of Schapelle Corby’s lawyer for disclosing and commenting on the Corby family’s criminal convictions in a television interview.1
For the purposes of this article, the most relevant exception is found in r 8.4(a) “A lawyer may disclose confidential information relating to the business or affairs of a client to a third party where the client expressly or impliedly authorises the disclosure (and where the information is confidential to more than 1
client, all clients have authorised the disclosure)”.
New Zealand examples
Recent and past cases in New Zealand also highlight confidentiality obligations and the risks of talking publicly about clients. As the cases reveal, speaking publicly can result in attendant breaches of other obligations depending on the individual circumstances (such as obligations of respect and courtesy or upholding the rule of law and facilitating the administration of justice).
In National Standards Committee 1 v Peters a lawyer was found guilty of recklessly breaching his duty of confidentiality to a client he represented as duty solicitor. This was in addition to a breach of a lawyer's obligations to uphold the rule of law and facilitate the administration of justice and to act in accordance with fiduciary obligations owed to clients.2
Mr Peters briefly represented the suspect arrested for the Christchurch Mosque attacks as duty solicitor. Following this, he gave two media interviews and shared his impressions of the client. He did not have instructions or authorisation from the client to do so.
The Tribunal said that in speaking about the matter at all, Mr Peters may have damaged the confidence of clients in lawyers generally and risked the reputation of the legal
“Consequently, lawyers get a window into some truly remarkable events and meet a wide range of interesting and diverse people. The temptation to share these experiences is human nature”
profession in the eyes of the public. The Tribunal formally censured Mr Peters and ordered him to pay costs to the Tribunal and reimburse the Law Society’s costs.
In censuring Mr Peters for misconduct, the Tribunal said “Members of the public must be able to speak with their lawyers with complete confidence and trust that their communications and presentation will remain private. Lawyers must be able to hold to their obligations of confidentiality even in stressful and difficult circumstances.”
In National Standard Committee 1 v Grey a lawyer accepted that she had breached a suppression order in place to protect the identity of an infant in a case of high public interest. Ms Grey had assumed the role of spokesperson for her client (with their consent) and gave two interviews in which she breached the orders. The first interview took place late at night and Ms Grey
acknowledged that she was very tired at the time of the interview. The Tribunal accepted that the breaches were unintentional, but that “Ms Grey’s enthusiasm about the issue clouded her judgement, and that she did not consider carefully enough the prohibition of identifying particulars”. The Tribunal noted that any deliberate breach of a suppression order would be misconduct, but that Ms Grey’s conduct was not deliberate or reckless and was properly characterised as “mistake, nothing more”. The Tribunal found that Ms Grey had engaged in unsatisfactory conduct and that “she needed to take greater care than she did”.
The Tribunal also considered whether Ms Grey had an obligation to respond to the breaches of the suppression order by the interviewer. It recognised that lawyers should be permitted or even encouraged to speak publicly on important issues (with client instructions) and that holding them responsible for the
breaches of others may dampen their involvement in media interviews and be an unreasonable imposition on their freedom of speech.
The Tribunal commented that it would urge any lawyer who found themselves participating in an interview where someone else was breaching a suppression order to end the interview. In responding in this way, it noted that the lawyer would be upholding the rule of law.
In Auckland Standards Committee 1 v Chambers a lawyer accepted that he had engaged in misconduct by discussing a criminal case in which he acted for the defendant 19 years prior with a news reporter. Mr Chambers made a number of uncomplimentary comments about his former client who was still serving a term of imprisonment at the time. The Tribunal held that Mr Chambers should have known that the duty to uphold client confidentiality continues indefinitely and cautioned the profession to keep in mind that the professional obligation to hold client information in strict confidence endures forever unless the client instructs otherwise. The Tribunal also noted that Mr Chambers’ comments fell short of the respect and courtesy he owed his former client. Mr Chambers was ordered to pay compensation to his former client and a fine. He was also ordered to pay costs.
In Auckland Standards Committee 3 v Woodroffe the Tribunal made a finding of low-level misconduct for a number of conduct issues including breaching client confidentiality
during a radio broadcast and failing to treat a client with respect.
Mrs Woodroffe acted for a client whose case concerned family land interests overseas and a dispute relating to the use of that land. Mrs Woodroffe spoke on a community radio programme about the case and her client in derogatory terms. She partially disclosed details of her advice, instructions and the fact she proposed to sue her client. Although she did not name the client, people who knew of the case were able to recognise the references.
In determining liability, the Tribunal held that Mrs Woodroffe was reckless in broadcasting these details which were identifiable and thereby breached her duty of confidentiality. It concluded that the conduct amounted to a breach even if the identification of the client and their case was limited to a small circle and that the duty of confidentiality continues even after the lawyer-client matter is concluded. Moreover, by speaking so disrespectfully of her client, Mrs Woodroffe failed to treat him client with respect and courtesy.
The Tribunal rejected the submission that the lawyer had a right to say what she did because her freedom of expression is protected under the New Zealand Bill of Rights Act, and at para [35] noted “Although lawyers have the same rights of freedom of expression, generally, as others, those rights are circumscribed where required to comply with the Lawyers and Conveyancers Act 2006 and Rules made under it. This is part of the price lawyers pay for the
considerable privileges of their role. Her rights under the New Zealand Bill of Rights Act do not protect Mrs Woodroffe from professional discipline for such breaches.” This decision is subject to an appeal.
Talking about clients –factors to
consider
The cases referred to in this article highlight that in appropriate situations lawyers can and should speak to the media or publicly, but they need to be careful they comply with their professional obligations while doing so. As a minimum, lawyers should:
· Be aware that the duty of confidentiality applies indefinitely and encompasses matters that may be publicly known.
· Recognise that anonymising the client or case may not be enough to satisfy confidentiality requirements given that other people in ‘the know’ may be able to identify the client.
· Before agreeing to speak to the media or publicly about a matter, always speak with their client
or former client to confirm they have the client or former client’s authorisation to do so.
· As part of preparation for any interview, the lawyer should carefully consider their professional obligations in the context of the interview, and, if possible, discuss these with the interviewer. This will ensure that the interviewer is aware of the limits of what can be discussed.
· Lawyers should also avoid giving interviews when physically or mentally stressed if possible as this can affect their ability to ensure that the interview proceeds in a manner that accords with their professional obligations.
· If in doubt, seek advice or guidance from a trusted senior colleague or the Law Society's National Friends Panel. ▪
1. See: Legal Services Commissioner v Tampoe [2009] LPT cited in Professional Responsibility in New Zealand Matthew Palmer **
2. Lawyers and Conveyancers Act 2006 s4
Confidentiality: safety concerns for clients and other people
This article deals with the topic of when a lawyer might be required to, or may choose to, disclose confidential client information because a client has indicated a risk to the safety of themselves or other people.
Every lawyer is keenly aware of their professional obligations of confidentiality to clients. These are set out in Rule 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (‘Rules’) and also as an implied term of retainer and an incidence of the fiduciary relationship between lawyer and client. A lawyer must hold all information about the affairs of clients in confidence indefinitely (subject to limited exceptions).
There will be times, however, when a lawyer’s strict professional duties may appear to conflict with wider safety or wellbeing concerns for a client or others. A recent referral by the Coroner to New Zealand Law Society Te Kāhui Ture o Aotearoa highlights the ethical dilemma a lawyer can be faced with when this happens.
The Coroner referred their findings to the Law Society to enable any relevant lessons to be shared with the legal profession. This was a situation in which the deceased person had
visited their lawyer the day prior to their death. The Coroner did not find in the particular circumstances that alerting someone else to the risk would have necessarily averted the death. However, the Coroner confirmed that the lawyer, if concerned about a serious risk to the health and safety of their client, could have shared those concerns with others, regardless of a client’s instruction not to do so. As emphasised by the Coroner, the basis for this type of disclosure is grounded in one of the exceptions to confidentiality obligations found in the Rules.
When a client’s behaviour or words indicate a potential risk to themselves or others, their lawyer is faced with making a decision about whether to disclose this. This can be a very challenging and distressing situation for any lawyer to find themselves in. The purpose of this article is to outline relevant considerations a lawyer may wish to consider and some practical suggestions to assist.
Exceptions to confidentiality
Confidentiality is a cornerstone of the lawyer-client relationship. The Rules, however, make provision for circumstances where a lawyer must or may disclose confidential
information. Both categories of exceptions capture circumstances where a client has disclosed an intention to harm themselves or has made threats to others. For a full list of the exceptions refer to rules 8.2 and 8.3.1
Mandatory disclosure
There are some situations in which a lawyer must disclose confidential client information, notwithstanding obligations of confidentiality.
These situations will likely be rare and are set out in r 8.2 including where:
The information relates to the anticipated or proposed commission of a crime that is punishable by imprisonment for 3 years or more (r 8.2(a)); or
The lawyer reasonably believes that the disclosure is necessary to prevent a serious risk to the health or safety of any person (r 8.2(b))
The exceptions inherently recognise that in some situations the public interest in protecting the client, another person, or the wider community from serious potential harm, overrides justifications for maintaining confidentiality.
Permitted disclosure
In addition, the Rules reflect that there will be instances in which a lawyer may wish to exercise their own personal judgment in favour of disclosing information that would otherwise be confidential.
A lawyer may disclose confidential information where:
· The client expressly or impliedly consents to the disclosure;
· The information relates to the anticipated commission of a crime or fraud (being an offence that doesn’t fall within the category that must be disclosed under r8.2);
· It is necessary to protect the
interests of the client in circumstances where, due to incapacity the client is unable to effectively protect their own interests; or
· Disclosure is necessary for the lawyer to seek guidance from another lawyer in respect of the proper course of professional conduct (in such case that other lawyer is bound to maintain the confidence of the client).
How the exceptions might apply
Because of the nature of a lawyer’s work, they often are trusted with highly personal information about clients. This can inevitably lead to situations when a client shares information that raises concerns either for the client themselves or third parties. For example, a client might make threatening comments about someone they are in a heated dispute with or might disclose an intention to commit self-harm or
“There will be times, however, when a lawyer’s strict professional duties may appear to conflict with wider safety or wellbeing concerns for a client or others”
express suicidal thoughts. When a client shares information of this type, the lawyer will need to assess the situation and make a judgment call about whether and who to disclose the risk to. Depending on the individual circumstances, the lawyer may be required to disclose information about their client or may make a personal decision to do so.
The first step will be for the lawyer to assess the information before them and decide whether any of the exceptions to confidentiality apply. The lawyer may ultimately decide that it is a case where they must disclose. Alternatively, the lawyer might conclude they are not required to disclose but it is a situation where they feel they should and the circumstances fall within the categories of permitted disclosure.
In cases where a lawyer may disclose, this will be a personal decision informed by the lawyer’s own professional judgment and personal
“To determine whether mandatory disclosure is required, the lawyer must consider whether the disclosure is necessary to prevent a serious risk to the health or safety of any person”
views about where the balance lies between competing interests and obligations.
Assessing the situation –“serious risk” and “necessity”
To determine whether mandatory disclosure is required, the lawyer must consider whether the disclosure is necessary to prevent a serious risk to the health or safety of any person.
This analysis requires the lawyer to consider a number of questions (many of which will overlap). It may be helpful for the lawyer to ask themselves:
1. What is the specific risk here? – what is the information in front of me indicating that risk (including what are the specific words used by the client, what is their demeanour, what do I know about their personal circumstances and past actions)?
2. What is the nature of the risk? – has an intention to commit a future criminal offence imprisonable by 3 years or more been clearly indicated? – on the information I have, would other lawyers consider this a ‘serious risk’?
3. Who is the risk to (e.g. is there an identified person subject to the risk or are the threats vague or general in nature)?
4. Is the contemplated disclosure “necessary” to lessen the risk? – what could happen if I don’t disclose? Who should I disclose to and how would disclosure to them lessen the identified risk?
Some assistance can be gained from considering how concepts such as ‘serious’ and ‘necessary’ have been approached in the context of disclosure under privacy legislation.2
For example, the Human Rights Review Tribunal has said that something is “necessary” if it was “needed or required in the circumstances, rather than merely desirable or expedient".3
To assist with assessing “seriousness” relevant factors will be:
· the likelihood of the risk or threat eventuating; and
· the severity of the consequences if it eventuates;
· the time at which the risk may be realised.4
Asking the questions at 1-4 above will help with assessing these factors to determine the seriousness of the risk.
Extent of disclosure
If a decision is made to disclose, it is important to identify the right person or agency to disclose to. This will be informed by considerations of necessity, as above – i.e. who is in the best position to assist with defusing or lessening the risk? This requirement is based in the Rules which provide that any disclosure “must only be to an appropriate person and only to the extent reasonably necessary for the required purpose” (r 8.3).
This means that in relation to anticipated criminal offending the disclosure should likely only be directed to the Police (or other responsible law enforcement agency, if applicable). However, the circumstances might be such that in an urgent situation the lawyer may be justified in disclosing to a person who is clearly in danger as the potential victim of offending.5
In relation to the risk of self-harm to a client, identifying to whom and what information to disclose can
be more difficult. It will depend on the particular situation and include considerations as to the immediacy of the risk. The question to ask is who is in the best position to minimise the risk. In a crisis situation, the Police or Mental Health Crisis team would be the relevant persons to disclose to. In relation to concerns about clients on remand, the General Manager of the particular site or remand facility may be the first port of call to direct immediate concerns to or to ascertain who is best to speak to. In less ‘immediate’ but still serious situations, a GP, treating health professional or potentially a family member may be the relevant person. In the Coroner’s case referred to above, a family member fully apprised of the self-harm risk and who lived with the client was identified as a person to whom the lawyer might have disclosed to.
Situations when a lawyer may disclose confidential information
After making an initial assessment, a lawyer may determine they are not required to disclose but they
may form the view that disclosure should be considered. In this case, the lawyer will need to carefully assess whether any of the exceptions in r 8.4 apply.
One of the relevant exceptions relates to anticipated or proposed criminal offending that does not fall within the more ‘serious’ category identified in the mandatory exception (i.e. is not punishable by three or more years imprisonment). It is important to note that in New Zealand there is no exception enabling or requiring a lawyer to disclose past criminal behaviour.
Again, if disclosing confidential information, the lawyer must identify who the appropriate person or agency to disclose to is, and only disclose information necessary for the purpose of defusing or minimising the risk.
Checklist if considering making a disclosure:
· Be clear about what the risk is. It can be useful to repeat back to the client what the lawyer
understands they have been told – ask them directly for specifics, if possible. This will help the lawyer assess whether the risk is real and serious. It will also help to identify whether the risk is immediate e.g. if they have a specific plan, the lawyer may need to get immediate help).
· Consider whether in the circumstances it is appropriate to seek the client’s consent to specific disclosure and to get agreement on practical steps to lessen harm.
· Consider whether you need to seek support or advice on a confidential basis from another lawyer about what to do (see: r 8.4 (e)).
· Consider who the most appropriate person to disclose to is –depending on the circumstances, is it a close family member, GP, social worker, mental health crisis team or authority such as the Police?
· Limit the disclosure and information shared to what is strictly necessary to get help or prevent harm.
· Consider whether or when to advise the client that a disclosure has been made. There may be cases where this could in fact exacerbate the risk to the client or third party.
· Keep a clear file note/record of what the client said, what was discussed with the client, why the lawyer decided to take a particular course of action, and what specific disclosure was made, when and to whom.
This will assist if later there is a complaint about disclosure or if the potential harm eventuates.
· Make sure to keep safe and look after personal wellbeing. Dealing with this type of situation can be distressing and take an emotional toll – getting support from colleagues or a counsellor can be of real benefit.
Useful resources
Here are some useful resources for people supporting others in a crisis situation:
Suicide: worried about someone? | Mental Health Foundation
The Law Society’s website also contains a list of helplines that can be of assistance to clients in crisis
or lawyers seeking support or guidance: NZLS | Helplines
If you need confidential professional guidance or support, a member of the Law Society’s National Friends Panel may be able to assist: NZLS | National Friends Panel. Alternatively, talking to a trusted senior colleague may assist and the Rules provide for this under the exception at r 8.4(e).
Looking after yourself is crucial and dealing with clients in distress can have a significant impact on our own wellbeing. Talking to a trained professional to get an independent perspective and support can be really helpful. The Law Society has partnered with Vitae to offer a free and confidential counselling service NZLS | Free Counselling Service . ▪
1. See also: Webb, Dalziel and Cook Ethics, Professional Responsibility and the Lawyer, (3rd ed, LexisNexis 2016) at ch 8 and Matthew Palmer (ed) Professional Responsibility in New Zealand (online looseleaf ed, LexisNexis) at ch 21.1.
2. The Privacy Act 2020 contains an exception for disclosure of personal information where there is a serious threat of harm to public health or safety or the life or health of the individual concerned or another. Note however, the scope and threshold are different to the wording of the Rules.
3. See the Privacy Act decision Tan v Police [2016] NZHRRT 32, at [77], citing Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 57, at [18], the Tribunal stated that something was “necessary” if it was “needed or required in the circumstances, rather than merely desirable or expedient.
4. See by analogy in a privacy context: Case Note 279251 [2017] NZPrivCmr 4 (May 2017), The Privacy Commissioner has noted in looking at the “serious threat” exception in IPP 11(f)(ii) that agencies that rely on this exception must consider these factors.
5. See: Dal Pont Lawyers’ Professional Responsibility (5th ed) (2013, Thompson Reuters) at 347.
Criminal Practice Update: Making Children Visible in the Court Process
BY HON JUSTICE SUSAN THOMAS
Overview
In November 2021, 5-year-old Malachi Subecz was brutally beaten and murdered by his caregiver, a young woman ill-equipped to deal with the demands suddenly placed on her of caring for a young child. Malachi’s mother was refused bail after pleading guilty to drugs charges.
Many defendants, primarily women, are caregivers of dependent children. Women are in prison on remand at a higher rate than men (currently 55 per cent compared to 42 per cent). Nineteen per cent of women in prison are sentenced to time served. As at December 2024, 79 per cent of women who were sentenced prisoners were starting a short sentence of imprisonment. The statistics are particularly striking for Māori women, who currently make up 67 per cent of women prisoners. One recent study found that 82 per cent of wāhine Māori leaving prison have children, with an average of 2.9 children per prisoner. Historically, these children have often been overlooked by the court process. That can have tragic consequences, as Malachi’s death illustrates.
Malachi’s death led to Dame Karen Poutasi’s Independent Review of the Children’s Sector’s Response to Abuse. Dame Karen found that Malachi might still be alive today if the justice system had not allowed Malachi to be invisible at a moment when he needed to be visible.
In a parallel process, in late 2022 Judge John Walker convened a cross-agency working group to investigate operational changes to improve the information available to the criminal courts about the existence of dependent children when a primary caregiver is made subject to a custodial remand or sentence. The group included representatives of the Judiciary, Department of Corrections, New Zealand Police, Oranga Tamariki, Crown Law, New Zealand Law Society, Public Defence Service and the Ministry of Justice.
As a result of the group’s recommendations, from 3 March 2025, various forms have been modified to prompt judges, prosecutors, public defence lawyers and Corrections staff to inquire and record whether a defendant has dependent children.
By ensuring courts are aware that a defendant has dependent children,
those children’s interests can be taken into account in bail and sentencing decisions. Even when a custodial remand or sentence is unavoidable, the inquiries will serve as an important prompt to ensure appropriate care arrangements are in place for any children in the defendant’s care.
For defence counsel
For defence counsel, the changes mean you can expect judges to ask questions about your clients’ parental responsibilities at an early stage. If your client is facing the prospect of a custodial remand or sentence, you should enquire well in advance whether they have any dependent children and, if so, what arrangements have been made for those children’s care should your client be placed in custody. If your client consents, you should disclose that information to the court.
Counsel should tell their clients that Corrections will file a “Report of Concern” to Oranga Tamariki if a person entering or about to enter custody has significant childcare responsibilities.
We know that defendants are often reluctant to face reality and make alternative childcare arrangements on their own initiative. If appropriate arrangements are put in place for the care of children prior to a parent entering custody, the negative impact on their children will be reduced and it might well avoid the need for state involvement in the arrangements.
It is worth emphasising sentencing law in this area. The court should consider the impact on a child when sentencing a parent. Under s 8(i) of the Sentencing Act 2002, the offender’s personal, family and whānau background must be taken into account. Section 8(h) requires the court to consider any particular circumstances of the offender that would mean an otherwise appropriate sentence would be disproportionately severe. Lastly, under s 9(4)(a), the court can take into account any other mitigating factor, enabling consideration of the impact of imprisonment on both parent and child.
In Philip v R [2022] NZSC 149, the Supreme Court confirmed the Sentencing Act allows for recognition of the impact imprisonment has on an offender’s dependent children. The Court said:
We do not find it helpful to characterise such discounts as “rare” or to emphasise, to the exclusion of other factors, whether the defendant is the primary caregiver or the seriousness of the offending. What is required is a consideration of all of the relevant circumstances which must include the child’s interests. (at [56])
These considerations are not only relevant at sentencing. Bail decisions can result in an unexpected and unplanned for remand in custody, with considerable impact on a child of a defendant.
Section 8(1)(b) of the Bail Act makes it mandatory for the court to take into account any matter that would make it unjust to detain the defendant and s 8(2)(h) permits consideration of any other special matter that is relevant. The presumption in s 13 that a defendant found guilty or who has pleaded guilty will not be granted bail yields to the interests of justice and s 13(3)(c) allows the court to take into account the personal circumstances of the defendant and the defendant’s immediate family.
Counsel should ensure that the court receives all relevant information so that impacts on children can be taken into account. In Malachi’s case for example, it does not appear the Court was told about his developmental difficulties and that his proposed caregiver had no experience caring for children and no stable accommodation.
Bringing your client’s dependent children to the court’s attention might well make a critical difference. However, it would be naive not to recognise the challenges associated with obtaining better information about defendants’ dependent children. The Royal Commission’s Report on Abuse In State and Faithbased Care is a stark reminder of why defendants might be reluctant to provide information about their dependent children. Some defendants will have themselves been in state care and will not want their children exposed to that risk.
It is acknowledged that the changes should be coupled with a wider justice system response in future, such as the introduction of more community-based support services.
For other participants in the court process
The changes have implications for other participants in the court process too, such as judges, prosecutors, probation officers and Bail Support Services. In general, the court should be informed when a defendant has dependent children. That information should also be recorded to ensure those children’s interests are considered throughout the court process. Role-specific guidance has been issued to those affected.
Further resources
The changes reflect international recognition of the specific needs of women prisoners and the impact of parental incarceration on children. Practitioners should familiarise themselves with recent developments in this area. Key resources include:
· Impact of Parental Incarceration on Children, October 2023 Webinar: https://www. lawyerseducation.co.nz/ Free+Resources/24IPIW.html
· Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
· C (CA153/2023) v Police [2024] NZCA 136.
· United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) GA Res 65/229 (2011). ▪
ILANZ –
who we are and what we do
BY BEN JACOBS
President ILANZ and General Manager Legal - Strategic Growth and Development at Xero.
ILANZ was established in 1987 to connect, support and lead New Zealand’s in-house lawyers. Originally operating as the Corporate Law Association of New Zealand we became ILANZ to recognise the broader appeal of the organisation and became a section of the Law Society in the late 2000s. Being part of something bigger matters, and we have worked closely with the Representative side including the Family Law and Property Law sections, ever since.
We were delighted by the huge show of confidence in us by our members when the Law Society introduced a fee in July 2024 and are committed to finding new and
different ways to better serve our community.
Nearly 40 years after our formation, that community now comprises 30 per cent of the profession and is the fastest growing legal sector. With over 5,000 in-house lawyers working in a range of organisations such as central government and crown entities, local government, commercial organisations and not-for-profits, ILANZ’s remit remains to connect, support and lead the group across Aotearoa New Zealand.
We have a range of satellite groups including NAVIGATE, for those who work cross border, a General Counsel network, new to in-house lawyer
ABOVE: ILANZ Conference 2024
and Sole Counsel groups, to name a few. These role- and function-specific satellite groups are complemented by dedicated regional champions around the motu who organise regular social and CPD events for in-house lawyers in their area through our many regional satellite groupings.
We are also privileged to be supported by a range of Valued Partners who assist us with events and webinars throughout the year, enabling us to provide high quality and pertinent professional development to our members and subscribers. Our Dentons black letter law webinars regularly attract between 500-700 registrations and receive excellent feedback.
“Alongside the conference, the team has been working on a Career Development Framework to provide relevant advice and direction to inhouse lawyers at all levels”
Our Bell Gully GC Forums are tailored to meet the demands of the busy and varied General Counsel’s role, and the Deloitte Know Your Numbers workshops, designed to increase financial literacy, are always in demand as is the insightful bi-annual survey they conduct for us. The all-important MAS connection events are a welcome break to the pace of an in-house legal role.
Of all our many activities, the ILANZ Conference is often what people know us for and has become a well-loved and attended fixture in the annual CPD calendar. Our 2025 conference (7-9 May) is being held in Auckland for the first time in 37 years and is shaping up to be an
exciting event with a wide range of topics from Te ao Māori and Law Reform to Boosting Productivity with CoPilot, and a Dentons session on Whistleblowing.
Alongside the conference, the team has been working on a Career Development Framework to provide relevant advice and direction to in-house lawyers at all levels. We aim to support everyone from new to in-house to those aspiring to become (or who already are) General Counsel and all career stages in between. ILANZ’s offerings will be interconnected with the framework to ensure continued targeted support for our members as their careers go from strength to strength. ▪
ABOVE: Event speakers (L-R) Katie Rusbatch, Law Society Chief Executive, Sean O’Sullivan, Partner Wotton Kearney, Jacqui Macguire, clinical psychologist Life Flight Trust, Susan Rowe, Partner Buddle Findlay, Lynell Tuffery Huria, Partner Kāhui Legal.
Mental health event a success
In March Law Society Chief Executive Katie Rusbatch joined a panel discussion on mental health in New Zealand’s legal profession. Hosted by Minister for Mental Health Hon. Matt Doocey and Life Squared Trust, in association with the New Zealand Law Society Te Kāhui Ture o Aotearoa, the event brought together attendees for a discussion on improving mental health in the legal profession.
Ms Rusbatch was joined by clinical psychologist Jacqui Maguire, Buddle Findlay partner Susan Rowe, and partner at Kāhui Legal, Lynell Tuffery Huria.
Ms Rusbatch emphasised that lawyer wellbeing is a priority for the Law Society and highlighted the need for better tools to support mental health in the profession. Discussions covered regulatory challenges, the
impact of organisational culture, and the importance of early intervention.
With positive engagement and valuable insights shared, the event reinforced the importance of supporting mental health in the legal community. The Law Society continues to encourage lawyers to use its Practising Well initiatives and other support services.
Read more at https://bit.ly/42a9Pld ▪
Ko Aotearoa tēnei? Personal attacks on judiciary out of order
Te Hunga Rōia Māori o Aotearoa
BY PARANIHIA WALKER (NGĀTI RAUKAWA KI TE TONGA) , HORIANA
Engā mema o te rangapū ture, tēnā rawa atu tātou me ō tātou tini aituā, kua tanuku ngā maunga whakahī o te motu i ēnei marama tata nei. Waiho mai mātou te hunga ora e tangi tonu nei.
As we reflect on the recent losses among te ao Māori, we gain strength from the leadership provided by those such as Dame Iritana Tawhiwhirangi, a Māori language champion instrumental in the establishment of kōhanga reo, and Dame Tariana Tūria, who bravely lead the resistance to the confiscation of Māori rights in the foreshore and seabed. E ngā rangatira, haere, okioki atu rā.
Aotearoa, this beautiful whenua that we all call home, is currently being tested by challenging tides of discourse, that are also lapping on shores around the globe. The legal fraternity here in Aotearoa is no exception. Perhaps, as we continue to mature as a nation, this is no surprise. However, the manner in which we navigate our growing pains is critical.
He iti hau marangai, e tū te pāhokahoka.
A small storm, then a rainbow appears.
Recently we have noticed an unwelcome trend of increasing personal attacks on members of the judiciary by members of the legal profession. We are not accustomed to seeing such brazen attacks. Of note, many of the recent attacks appear to be directed at Māori members of the judiciary, despite the small proportion of the judiciary that they comprise.
This is problematic on a number of fronts.
First, judges in our legal system are not able to speak publicly to defend themselves or the claims made against them.
Second, such actions undermine trust and confidence in the judiciary, a critical pillar of our constitutional foundations. As the late Honourable Justice Tompkins said 30 years ago “… a general attack on the judiciary as a whole strikes at the very root of that public confidence that is so essential to the judicial system”. 1 While discussion and debate about the merits of particular cases is a part of healthy democratic discourse, the recent commentary is certainly not that.
Third, these opinion pieces are often misinformed, accompanied by a degree of hysteria and, often, plainly incorrect commentary.
Do we call this out for what it is – seemingly a dog whistle of sorts seeking to scaremonger and misinform – or do we seek to educate through dialogue and discussion? Perhaps a mix of both is required.
He hanga nā te waha o te ngutu nō mua iho anō.
A proverb highlighting the importance of ancient sayings, customs and knowledge, which provide wisdom and precepts for modern times.
Some of this misinformation centres on the nature of tikanga and Māori society in general. Most people will hopefully be able to see through the tired tropes and cynical references to tikanga practices, that died out hundreds of years ago, as evidence of the “problem” of tikanga as law (ignoring that similar (or worse) historical practices existed in societies all over the world, including England). But that does not excuse the misinformation spread by writers, particularly when it is deliberate
and designed to alienate and strike fear into hearts and minds.
One of the other specious assertions that tends to feature in these articles is the characterisation of the common law as being entirely written down and knowable in advance, apparently in contrast to the uncertain beast that is tikanga Māori. This misunderstands both. The stated uncertainty of tikanga reflects a lack of knowledge of its nature and norms, rather than an inherent quality of tikanga. Further, on the common law, in contrast, Lord Walker described the lofty aspirations of finality and certainty within the common law as a high, and even insurmountable, threshold in a system which rests on incremental development – the “antithesis of finality and certainty”.2
One therefore wonders what opportunities these writers have taken to engage with te ao Māori, to visit, to learn, to know, to understand, before putting words to paper. Who knows what enlightenment might emerge if they did? People have shared stories with us of emerging from a visit to their hitherto unknown local marae feeling welcomed, enriched and woven into the fabric of their community, or feeling uplifted and inspired by a visit to a kōhanga reo or kura kaupapa Māori, seeing how tamariki learn and grow in those uniquely Māori spaces. Sadly, it appears a proportion of our society is determined to ignore and undermine that rich tapestry.
As we debate and collectively chart the direction of our nation, in our wee patch of Te Moana-nui-a-Kiwa, we might do well to pause, listen and reflect.
We might pause to consider that all law of peoples is a product of the society to which it belongs. It reflects the unique history and composition of those communities. The common law in all jurisdictions, including ours, has from the very beginning always had a place for the recognition of laws pre-existing the common law, such as tikanga Māori. There is nothing new or radical to see here. It is orthodox. And why wouldn’t we, in Aotearoa, want to have our own bespoke laws? Like the late, great, Miria Simpson reminded us, we are New Zealanders, not “little Englanders”.3
We might seek out and listen to those who can share their knowledge and understanding of te ao Māori, including tikanga Māori – enquiring with an open mind to better understand. We might also listen to the reflections and experiences of our neighbours in Te Moana-nui-a-Kiwa, who have all grappled with the intersection of two or more legal systems at some point, and continue to do so. Of course, multiple intersecting legal layers is the norm, not the exception, around the world. There are many states and systems around the world that grapple with and reflect this intersection – Singapore, India, Bolivia, Scotland, and Canada to name a few. Fear not, we are not alone.
We might then reflect on what it means to be a Pacific nation, founded on Te Tiriti o Waitangi, a solemn compact between the Crown and Māori. A nation whose common law has always had space for tikanga Māori and the pre-existing norms
and values of Māori people. This is a foundation for the enrichment of our law.
We consider it would help immeasurably if our future discourse was underpinned by a willingness to learn and to be informed. A discourse grounded in respect, aroha and empathy. As a part of that journey, we could also all do our part by refraining from personal attacks on those who are not able to defend themselves – in true Aotearoa lingo, play the ball, not the person.
We remain genuinely hopeful of our journey as a nation – that it will be one of informed dialogue and debate. We acknowledge the weariness (some exhausted and / or losing faith in a number of our long standing constitutional conventions). But we return to hope, and the words of Kīngi Tawhiao, as a final reflection; words of strength in unity (perhaps one of our nation’s not yet fully realised strengths).
Ki te kotahi te kākaho ka whati, ki te kāpuia e kore e whati
When reeds stand alone they are vulnerable, but together they are unbreakable.
—Kīngi Tawhiao ▪
1. We are grateful to the President of the New Zealand Law Society for also reiterating these remarks in April last year (see https://www.lawsociety.org.nz/ news/newsroom/advocacy-in-action/attacks-on-judgesrisk-weakening-the-justice-system/).
2. The Rt Hon the Lord Walker of Gestingthorpe PC QC “How Far Should Judges Develop the Common Law?” (2012-2013) 4 The UK Supreme Court Yearbook 121 at 126.
3. Miria Simpson made this comment in a TVNZ interview, alongside Haami Piripi (then Chief Executive of the Te Taura Whiri i te reo Māori (the Māori Language Commission), in the early 2000s.
FAR
RIGHT: Vicki Ammundsen, Director, Trust Law
CENTRE RIGHT: Jane Wrightson, New Zealand Retirement Commissioner
RIGHT: Kristine King, deputy chair of the Law Society's Property Law Section
Elder law in a changing New Zealand
Why every lawyer needs to pay attention
If only age was just a number. Alas, as young as we feel, things do change as we get older and retirement is increasingly spanning decades rather than years. As New Zealand’s population ages and life expectancy increases, legal practitioners are encountering new challenges in advising older clients. The legal landscape is evolving rapidly, with more people living longer, managing complex asset structures, and requiring legal protections that were not considered essential a generation ago.
Elder law is no niche area of law. In fact, with demographic change it is expanding, and it cuts across almost every aspect of legal practice, says Vicki Ammundsen, Chair of the upcoming Elder Law Conference.
“Elder law is almost a misnomer. Apart from child-focused matters, this area of law touches on nearly everything, from property, trusts, financial planning, estate law, family law. Any lawyer advising clients of different ages is, in some way, practising elder law.”
With new models of homeownership, shifting family dynamics, and a legal system still catching up to the realities of an ageing population, the
need for legal expertise in this area has never been greater.
This year’s Elder Law Conference, presented by Continuing Legal Education (CLE), aims to provide lawyers with up-to-date, practical advice on key issues affecting older clients. Lawyers today must be aware of the legal requirements and complexities unique to this demographic, whether advising on wills, property transactions, retirement village agreements, enduring powers of attorney, estate planning or financial protections.
A population living longer – and differently
New Zealand’s ageing population is reshaping what we consider retirement and later life look like. Where past generations may have retired at 65 and often lived for only a decade or so afterward, today’s retirees are increasingly living well into their 90s. Some are continuing to work, while others are finding new ways to structure their housing and assets, while getting on with life.
New Zealand’s Retirement Commissioner Jane Wrightson says this shift has significant financial and legal implications.
“New Zealand’s Super is designed around the idea that retirees either own a mortgage-free home or live in affordable social housing. But this assumption is now under considerable threat. More retirees are still paying off mortgages or renting, meaning they need to keep working longer.”
This raises critical legal questions for practitioners advising older clients. How can assets be structured to support a longer retirement? What protections are in place for those renting in later life? And how can families balance financial security with the increasing costs of care?
Kristine King, deputy chair of the Law Society’s Property Law Section, says these challenges require a longterm, strategic approach. “You may end up retired longer than you ever worked productively.”
Retirement is no longer just a short phase of life before death, and that changes everything, says King, like how they manage assets, plan for care, and structure their estate.
“It’s not just retire and plan for death. We’re now retiring and planning long-term for life.” But that requires strategic long-term thinking,
“Retirement is no longer just a short phase of life before death, and that changes everything”
because people need to potentially plan for decades without income.
This extended retirement period means lawyers may need to change their mindset around retirement and be prepared to assist clients with ongoing financial decisions, potential incapacity issues and family disputes over property and inheritance.
This is not to mention the challenges of practising law in an increasingly digital world. Sixty five years ago, there was no such thing as a personal computer, cell phone, Wi-Fi. And while they are technological feats, many people struggle with technology.
“We’ve seen law changes that allow for transactions to be completed entirely online,” King says. “That’s
great for younger people, but how do you explain biometric ID verification to an 85-year-old who doesn’t even have an email address?”
As always, lawyers must be adaptable to their clients’ needs.
Retirement villages and the need for legal protections
One of the most pressing issues in elder law today is the ongoing review of the Retirement Villages Act, which is now over 20 years old. Currently, retirement village residents exist in a legal grey area, not quite homeowners, not quite tenants, leading to power imbalances between residents and operators.
Wrightson, has been pushing for an update to the legislation, recognising that current laws do not adequately protect residents. “Consumer protection in this space is weak. Operators have far more power than residents, and the complaints process is inadequate. We need better dispute resolution mechanisms and more transparency around costs.”
With over 11,000 submissions on the proposed legislative changes, this
is an area where lawyers must stay informed. Those advising clients moving into retirement villages will need to understand the latest legal developments and the potential risks their clients face.
In a media release last October, Associate Minister of Housing Tama Potaka said he expects to seek Cabinet sign-off on the review in 2026, and any amendment bill will likely be introduced in the next Parliamentary term.
Retirement village agreements are increasingly complex, says Ammundsen. Different clients require different levels of care, refundable accommodation deposits and blended family considerations. Lawyers must ensure that clients fully understand the financial and legal implications before signing.
“Clients must be aware of what they’re entering into,” says Ammundsen. “Are they getting an occupation right agreement? Are they paying for additional care services? If they’re in a blended family, how does that impact inheritance? These are all key legal considerations.”
For lawyers, staying up to date on the latest retirement village regulations is not just best practice, it is an ethical obligation to ensure their clients are making informed decisions.
Capacity and elder abuse: recognising the warning signs
One of the most critical responsibilities lawyers have when working with older clients is assessing mental capacity. With increasing life expectancy, more clients are experiencing cognitive decline, raising complex legal questions about decision-making and financial control.
Ammundsen warns that many lawyers may not realise they are already performing informal capacity assessments every day.
“Every time you interact with a client, you’re assessing their capacity, whether consciously or not. You look for cues, inconsistencies, or signs that they may not fully understand the transaction, or the matter being instructed on. Recognising when formal assessments are necessary is a key skill for any lawyer.”
Beyond capacity, another major risk facing older clients is financial elder abuse. This can range from coercion by family members to outright financial exploitation. Wrightson believes lawyers are in a prime position to recognise and prevent abuse.
“Financial service providers and lawyers can monitor for signs of abuse. Often, victims feel too
embarrassed or powerless to speak up. Lawyers should be proactive in ensuring their clients’ interests are being protected.”
The Elder Law Conference will include a session specifically on elder abuse detection and response, helping lawyers develop skills to identify and intervene in cases of financial or emotional abuse.
Estate planning, elder abuse and enduring powers of attorney
Lawyers play a crucial role in helping clients prepare for retirement, not just through estate planning but also in financial protection and preventing elder abuse. Wrightson sees an opportunity for legal professionals to better integrate financial discussions into their client interactions.
“There’s a tendency for lawyers to say, ‘I’m not a financial advisor,’” Wrightson says. “But they’re often in the best position to raise awareness about financial planning and asset protection.” For example, when drafting wills or enduring powers of attorney (EPAs), lawyers can encourage clients to think about their long-term financial security and seek professional financial advice.
King says why proper EPAs are becoming increasingly crucial. “A well-drafted EPA ensures that if someone loses capacity, the right people are making decisions for them. Without it, families can face costly and stressful legal battles.”
At the Elder Law Conference, sessions will explore best practices for EPAs, estate planning in later
life, and how to handle disputes when they arise.
Why lawyers should attend the Elder Law Conference
For lawyers who advise older clients in any capacity, this year’s Elder Law Conference by CLE is an invaluable opportunity to stay informed on recent developments, refine key legal skills, and gain practical strategies for managing complex elder law issues.
“Any lawyer with ageing clients will encounter elder law issues,” says Ammundsen. “Whether it’s property transactions, financial management, or estate disputes, these cases require specialist knowledge. The more we understand, the better we can serve our clients.”
With longer retirements, evolving legal protections, and increasing risks of financial abuse, elder law is a growing and essential part of modern legal practice. By attending this conference, lawyers can ensure they are equipped to navigate the complexities of advising older clients – now and in the future. ▪
The Elder Law Conference
Date: 28 May, 9.00am – 5.00pm
CPD hours: 6.5
Format: In-Person & Online
Fee: $755 – $1,205 (Law Society Members receive 30% off)
Register online at www.lawyerseducation.co.nz
UPCOMING CLE EVENTS
– KEEPING AHEAD OF THE PACK 2025
When: 14 May 2025
Chair: Isaac Hikaka
When: 28 May 2025
Chair: Vicki Ammundsen
When: 9-10 June 2025
When: 23-24 June 2025
Chair: Greg Kelly
SKILLS PROGRAMME
When: 24-30 August 2025
Director: Bob Hollyman KC
When: 1-2 September 2025
Chair: Carmen Franich
When: 4 September 2025
Chair: Helen Johnson
When: 15-17 October 2025
Chair: Stephen McCarthy KC
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