LawTalk Issue 804 by New Zealand Law Society

LAWTALK

DIVERSITY IN THE PROFESSION – PAGE 4.

14 SEPT 2012 / 804

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INSIDE

THE MAGAZINE

FEATURE: DIVERSITY IN THE PROFESSION

“The amount of money spent deciding whether legal aid should be granted would be better spent on legal representation.” p. 13

“The pace of change outside your business is happening so quickly. If the pace of change within your business isn’t keeping up, then you are soon going to be struggling to stay in business.”p. 5

Justice Potter to serve Pacific Islands

Litigation Skills course has massive impact

By ELLIOT SIM

Justice Judith Potter has stepped down as High Court Judge after 15 years of service...

11 New Zealand influence important in Pacific Islands By ELLIOT SIM

New Zealand judges and lawyers have a very important role to play in Pacific Island courts, according to Sir Ian Barker QC...

13 Top judge calls for re-examination of legal aid New Zealand needs to re-examine how legal aid should be delivered, former Supreme Court Judge Sir Andrew Tipping said at his final sitting on 17 August...

14 New Practising Well initiative A new relationship between the New Zealand Law Society and Lifeline Aotearoa...

By ELLIOT SIM

The highly regarded Litigation Skills course held at Lincoln University in Christchurch...

6 The elusive kiwi experience

By RACHAEL BRECKON

Independent educational review tribunal needed

William Culas knew it wouldn’t be easy to get a job when he migrated to New Zealand from Malaysia in February...

An independent education review tribunal should be established, YouthLaw says...

Māori and Pacific legal issues week Te Roopu Whai Putake (Māori Law Students’ Association) and the Pacific Islands Law Students Association...

Ethnicity statistics

Changing stereotypes – the future lawyer

Check your bias

By RACHAEL BRECKON

There’s an elephant in the room when workplace ethnic diversity is discussed. It begins with “R” and makes everyone a little uncomfortable...

It is not easy to realise if you have an unconscious bias... Gender statistics

REGULARS Victoria shines in student competitions Victoria University students dominated this year’s national competitions...

People in the law

Professional Development

In-House

Branch News

Bookshelf

CLE

Lawyers complaints Service

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

LAWTALK 804 / 14 SEPTEMBER 2012

FROM THE LAW SOCIET Y CH RISTIN E G RICE

n the early 1980s, Sue Ritchie and I were young lawyers practising in provincial New Zealand. Our first bar dinner was limited to pre-dinner drinks. The bar dinner was at the gentlemen’s club so the dining room was out of bounds for us. But we had the good fortune to work for enlightened lawyers who were determined that we would have every opportunity that our male colleagues had. At that time, starting out in such a male-dominated profession, I did not contemplate the level of success women would achieve in the law over the next three decades. Presently, the positions of Minister of Justice, Chief Justice, Chief High Court Judge and Chief District Court Judge are all held by women.

This issue of LawTalk includes a profile on the first female President of the New Zealand Law Society, Justice Judith Potter, who recently retired from the High Court. It is important to reflect on the progress the profession has made in the last 30 years in encouraging diversity, but there is still a long way to go. Women make up 62% of law graduates, account for 44% of practising lawyers but make up 26% of the judiciary, 21.5% of partners and only 12% of Queens Counsel/ Senior Counsel. It is vital not only for the profession but the wider community that this imbalance is remedied. The legal profession is the career path to positions of leadership and influence on boards, in government, in business and in the judiciary. Currently women hold only 28% of senior management positions in New Zealand and this reduces to 5% at chief executive level. Of 622 board positions in the top 100 companies listed

LAWTALK 804 / 14 SEPTEMBER 2012

on the New Zealand Stock Exchange (NZX), only 54 are held by women. The NZX has recently announced the introduction of the Diversity Listing Rule that requires listed issuers to provide a breakdown of gender composition at executive management and board level in annual reports and compare it with the previous year. The New Zealand Law Society supported this initiative and in its submission said: “These issues … cannot, in our view, be dismissed by the simple argument that appointments should be on merit and merit only. Rather the system should give confidence that by its robustness and transparency it is able, adequately, to deliver a diversity of meritorious appointments.” The importance of greater diversity in leadership roles is not just about fairness but about creating more effective leadership and governance. Research shows there is a direct correlation between profitability and gender diversity on boards in Fortune 500 companies. In London in 2009, deputy Labour leader and Equality Minister Harriet Harman went as far as to claim the credit crisis could have been prevented if more women had been present on bank boards – the so-called “Lehman Sisters Effect”. The economic benefits of diversity are internationally recognised and inequality is constantly being challenged but there is still a way to go until a balance is achieved. However, with determination, time and strong female role models, it is likely up-and-coming generations of female lawyers will find our present as bizarre as the past, when women couldn’t attend Law Society bar dinners ‒ less than 30 years ago.

Christine Grice New Zealand Law Society Executive Director

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

STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz Elliot Sim Ph +64 4 463 2902 elliot.sim@lawsociety.org.nz Advertising: Christine Wilson Ph +64 4 463 2905 christine.wilson@lawsociety.org.nz Inquiries about subscriptions to: subscriptions@lawsociety.org.nz DESIGN: Jesse Cogswell Ph +64 4 463 2981 jesse.cogswell@lawsociety.org.nz Printing: Lithoprint, Wellington ISSN 0114-989X

Coming up … Harnessing human rights expertise in Wellington

has been involved for many years with the Restorative Justice movement, will talk on Restorative Justice: lessons from the past, pointers for the future.

The Young Lawyers Committee Wellington, with the support of DLA Phillips Fox, is hosting an information evening for lawyers (both senior and junior) and law students with expertise or interest in human rights on the Aotearoa New Zealand Human Rights Lawyers Association (HRLA).

RSVP by 20 September to Janine Pickering at janinep@waikato. ac.nz or telephone 07 838 4466, ext 6477, providing names of those wishing to attend.

The event will be held on 25 September at 5:30pm for a 6pm start at DLA Phillips Fox, Level 5, 50-64 Customhouse Quay. Attendance is free and refreshments will be provided. To RSVP, visit www. younglawyers.co.nz. For more information email membership@ hrla.org.nz.

Taking cases to UN Human Rights Committee Barristers Tony Ellis and Deborah Manning and solicitor Jenny Ryan will speak at an Auckland seminar on taking cases to the UN Human Rights Committee. The seminar will be held from 3-5pm on 19 September at Auckland University’s Algie Lecture Theatre, Eden Crescent. RSVP lawevents@ auckland.ac.nz.

Harkness Henry lecture Former Chief District Court Judge Sir David Carruthers will deliver this year’s Harkness Henry lecture. The lecture will be presented on 25 September at Waikato University’s Dr John Gallagher Concert Chamber, Knighton Road, Hamilton. Sir David, who chairs the Independent Police Conduct Authority (IPCA) and

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

ACC DISPUTES? JOHN MILLER LAW

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

St Thomas More dinner Internationally renowned lay Anglican theologian and Dean/Ahorangi of Te Rau Kahikatea, College of St John the Evangelist, Auckland, Dr Jenny Plane Te Paa, will deliver the address at this year’s St Thomas More dinner. This year’s dinner will be held at the Northern Club, Auckland on 26 September. Pre-dinner drinks will be served from 7:15pm for dinner at 7:45pm. Mass will precede the dinner. It will be celebrated in Auckland University’s Maclaurin Chapel at 6:30pm. RSVP to Mary Beacham, mary@casey.co.nz.

Mergers and acquisitions The Asia-Pacific Mergers and Acquisitions Conference will be held in Hong Kong on 5 and 6 November. This event is presented by the International Bar Association (IBA) Corporate and M&A Committee, supported by the IBA Asia Pacific Forum. The topics will include a review of general M&A outlook and recent trends, insight from the regulators, current public M&A issues, private equity and private M&A today, acquisition finance, top M&A issues for the general counsel, Asia outbound: case studies, financial due diligence and anti-bribery laws and joint venture transactions in Asia. See www.ibanet.org/Conferences/ conferences_home.aspx.

• Wish to refer them to a specialist ACC law firm? • With nationwide coverage? • We deal with ACC matters only and will not represent your clients in other areas.

LAWTALK 804 / 14 SEPTEMBER 2012

Changing stereotypes – the future lawyer BY rachael breckon There’s an elephant in the room when workplace ethnic diversity is discussed. It begins with “R” and makes everyone a little uncomfortable. Thankfully, that word is uncooperative and unnecessary. And that’s according to Office of Ethnic Affairs director Mervin Singham. “For too long political correctness and sensitivity impedes rational debate in this area,” Mr Singham says. “The first thing people say about [ethnic] barriers to entry to the workforce is: ‘there’s rampant racism in Australia and New Zealand’, that kind of thing. It’s really not helpful.” Emotionally laden debates, fuelled by guilt and anger on both sides, do not help the issue, and what’s more, research is frequently giving justification (not excuse) to ethnic barriers in the workforce. “There are some rational explanations. I am not saying they are acceptable, but they certainly warrant a different type of attention,” he says. “The evidence demonstrates, and when I talk about evidence I am not just looking at social and anthropological type evidence, I am also talking in the area of brain science and all that, we are getting a much more complex picture about why these things occur. “Research demonstrates that our brains are wired to respond to people that are different to us in a different way. In other words, [all people] have a preference for people who are similar to us.” For most, a racial prejudice is unconscious, and that is problematic.

LAWTALK 804 / 14 SEPTEMBER 2012

An awareness of bias makes it easier to manage a personal ethnic perception, Mr Singham says. Unconscious racial bias may not be pleasant to acknowledge, but it is something those committed to a life in

For most, a racial prejudice is unconscious and that is problematic. An awareness of bias makes it easier to manage a personal ethnic perception. MERVIN SINGHAM New Zealand need to consider doing. The country’s demographics are rapidly changing. Statistics New Zealand estimates Auckland’s population will be around 50% Māori, Pacific peoples and Asian by 2021, and nationally by 2012, 25% of New Zealand’s workforce will have been born overseas. This demographic change is already evident in law school graduates. In 2011, more than a third of New Zealand

law graduates identified with at least one non-European/Pākehā ethnicity. Justin Treagus, chief executive of Omega, a not-for-profit organisation which works to improve Auckland’s prosperity through utilising skilled immigrants, says businesses that don’t work to improve diversity now could find themselves regretting it in the future. “The pace of change outside your business is happening so quickly. If the pace of change within your business isn’t keeping up, then you are soon going to be struggling to stay in business,” Mr Treagus says. “We are globally connected. If you look at labour demographics, the workforce in Europe in the next decade is going to shrink by 20 million, the workforce in India and China is going to increase by 150 million. “I know we are in a financial crisis at the moment, but when the market picks up the talent that will be available to hire will look and sound a lot different than what we have now, and diversity isn’t a tap that you can just turn on. “Businesses need to be making decisions now that will future-proof themselves for the talent crisis that is 10 to 15 years down the line, and those that are the ones that are the fastest in terms of employing diverse talent will emerge the winners.” Many Western cities globally are undergoing similar demographic trends. In Toronto, Canada, it is expected visible minorities will comprise 63% of the population by 2013. New Zealand’s legal profession has comparable levels of diversity to its

diversit y in the profession

“The pace of change outside your business is happening so quickly. if the pace of change within your business isn’t keeping up, then you are soon going to be struggling to stay in business.” JUSTIN TREAGUS Canadian colleagues when it comes to ethnic diversity. Comparing statistics, the Toronto 2006 census had 14.4% of the practising legal profession identifying as South Asian, Chinese, Black, Filipino or Latin American. The New Zealand census statistics from the same period had around 13% of New Zealand’s legal professionals identify as being Asian, Pacific, Māori, Middle Eastern/Latin American/African, or not specified other. The DiverseCity: The Greater Toronto Leadership Project’s third annual research report measuring diversity among leaders has focused particularly on increasing visible ethnic minority representation in the legal sector. The rationale is that the influence of legal professionals extends beyond the legal sector to the broader society. Political agendas, policies, law reform and the judiciary are dependent on legal counsel making the legal sector and its leaders key influencers in society. The report lists a business case for increasing diverse leadership in the sector. The benefits of this include competitive advantage and new market opportunities, such as emerging markets within South Asia, China and Latin America. In New Zealand, employers’ preference for someone from a “kiwi” background could mean they are missing experience-rich migrant candidates. Refugee Services pathways manager Judi McCallum works with professionals from diverse ethnic backgrounds at the Victoria University Workplace Communication for Skilled Migrants programme. Ms McCallum says employers need to make use of the extraordinary skills of migrants, who are also highly committed to the country and its way of life.

Recruitment agent for the Johnson Group, who place candidates for the Workplace Communication for Skilled Migrants internships, Philip Hughes speaks along similar lines to Ms McCallum. “You just know these [skilled migrants] are so committed to their careers. It’s everything to them. That’s because of the commitment they have to their families, because, in general, of what they go through to get to this country. It’s a bloody hard road,” he says. “Hardly any [migrant employees] would come here and get a better job than they had. They all have to take a lesser role. Unless they have a speciality, they all will be on the back foot.” Senior associate (employee relations) for Transfield Services, Charlotte Hatlauf mentors migrant lawyers for Omega. A New Zealand legal graduate, she found no problem finding work here despite her German ethnic background, but as a migrant to New Zealand she can relate to the six people she has mentored so far through Omega. Her mentees have been lawyers from diverse ethnic backgrounds including the Philippines, South Africa, Brazil and Malaysia. Despite the difference in their country of origin, Ms Hatlauf says the themes are generally the same and it is all about getting that “first chance”. She admits this could be due to the fact that migrants often face problems not only of ethnicity, but also of age, and over-qualification. It can be a concern that the candidate will flee once they have the experience, and there is also a fear that older migrants with substantial experience may be stuck in already formed habits and be difficult to mould or will object to doing mundane tasks such as photocopying, Ms Hatlauf says.

Diversity in the workplace – points to consider •

Be clear about the value of diversity to your organisation.

•

Encourage employees to get to know each other.

•

Appoint a diversity officer or team or council.

•

Set a strategy.

•

Research and explain diversity management to your team.

•

Avoid a “quota system”: skillsbased employment is vital.

•

Assure staff that diversity will not threaten career advancement.

•

Empower employees.

•

Ask new staff about their cultural/religious needs.

Recruitment advice •

Select a diverse panel of people for recruiting.

•

Tell applicants what you expect on their CV.

•

Unpick skills and experience and relate to the job at hand.

The Office of Ethnic Affairs has produced Riding the Wave, a guide to workplace diversity. To request a hard copy email ethnic.affairs@ dia.govt.nz or download from www.ethnicaffairs. govt.nz/oeawebsite.nsf/ wpg_URL/ResourcesInformation-for-BusinessesIndex?OpenDocument. LT

LAWTALK 804 / 14 SEPTEMBER 2012

diversit y in the profession

Migrant and experienced lawyer William Culas from Malaysia (front) struggled to find work in New Zealand. (Behind) Judi McCallum, pathways manager at Refugee Services, works with skilled migrants so they can find work in their professions.

The elusive Kiwi experience By Rachael Breckon William Culas knew it wouldn’t be easy to get a job when he migrated to New Zealand from Malaysia in February. However, with 15 years’ general experience as well as specialising in negligence motor insurance claims, and an LLB (Hons) from the University of London, the difficulty finding work was a “jolt”. Mr Culas and his wife spent around six years planning the move to New Zealand, primarily seeking a politically and religiously stable life for their children. Their “plan for migration” was that one of them would have a job here. The opportunity to transfer to New Zealand was presented to his wife, who works as an accountant for a multinational organisation. With the security of his wife’s employment, Mr Culas started to apply for jobs when he arrived in New Zealand.

LAWTALK 804 / 14 SEPTEMBER 2012

After around 10 applications, which failed to get any traction at all, he was led to the Workplace Communication for Skilled Migrants Programme at Victoria University.

in January 2009.

The course aims to give skilled migrants the soft communication skills expected in the New Zealand workplace, as well as advice on preparing a CV, and interview techniques.

“Unfortunately, I could not even get an interview,” Ms Peart says.

The second part of the course places migrants in a carefully monitored professional internship. The programme is highly successful, with 85% of participants in work in their profession within six months of completing the course. Mr Culas is likely to become one of the 85%. Through the skilled migrants programme he has secured a six week internship at Russell McVeagh. South African migrant Sue Peart had 16 years of law firm experience (specialising in employment and public law) when she arrived in New Zealand

She had worked her way from article clerk right up to directorship – equity director as an employment and public lawyer in top South African firms.

She then decided to go through the process of re-qualification and was admitted as a barrister and solicitor, but again was not granted an interview from a law firm here. “I didn’t take it personally, in the sense that I didn’t actually get an interview,” she says. During her first year and a half in New Zealand, Ms Peart kept an eye out for work, while she re-qualified and worked part-time doing legal research and writing work for Brookers. Unable to find anything in employment law, she decided to take a side step and now uses the public side of her legal training as a compliance analyst for a major bank. LT

diversit y in the profession

Ethnicity of 2011 New Zealand legal graduates African

Australian

British/Irish

Cambodian

Chinese

Cook Island Māori

Fijian

Greek

Indian

Japanese

Korean

New Zealand Māori

115

NZ European/Pākehā

802

Other

Other Asian

Other European

Other Pacific Peoples

Other Southeast Asian

Polish

Samoan

Tongan

Sri Lankan

Vietnamese

Middle Eastern

Niuean

Latin American

South Slav

Filipino

Note: the data is of ethnicities (not persons). People can list up to three ethnic backgrounds.

Ethnicity legal professionals – 2006 census

ETHNICITY NOT SPECIFIED 0.4% MIDDLE EASTERN / LATIN / AFRICAN 0.4%

PACIFIC PEOPLES 1.7% MAORI 5.1% ASIAN 5.2%

European & other (generally New Zealander/Pākehā)

8778

Māori

516

Pacific peoples

177

Asian

525

Middle Eastern/Latin American/African

Ethnicity not elsewhere included

EUROPEAN / NEW ZEALANDER / PAKEHA 87%

Note: the data is of ethnicities (not persons). People can list up to three ethnicities.

LAWTALK 804 / 14 SEPTEMBER 2012

diversit y in the profession

Women in law firms

Check your bias It is not easy to realise if you have an unconscious bias, whether ethnic or gender, which could be jeopardising your business success. An diverse workforce is important in discovering new national and international markets, questioning systems and creating innovation, according to Mervin Singham director, the Office of Ethnic Affairs.

Women make up 41% of lawyers working in New Zealand law firms, but only comprise 24% of principals, Law Society information shows. “Principals” are lawyers who are qualified to practise on own account – and therefore to be partners or directors of a firm. The table at the bottom of the page consolidates branches.

One of the ways you can discover this is to evaluate the ethnicities and genders of candidates that get to the interview stage. As highlighted in the tables on page 7, more than a third of the nation’s legal graduates are of another ethnicity than European/Pākehā background.

Men and women principals (%)

OVER 20

80.7% Men / 19.3% WOMen

11 - 19

81.8% Men / 18.2% WOMen

6 - 10

81.6% Men / 18.4% WOMen

2-5

76.3% Men / 23.7% WOMen

72.5% Men / 27.5% WOMen

The country’s demographics (and subsequently client base) is also rapidly changing. Statistics New Zealand estimates Auckland’s population will be around 50% Māori, Pacific peoples and Asian by 2021, and nationally by 2012 25% of New Zealand’s workforce will have been born overseas. If your recruitment process results in a mono-cultural group or a clear gender imbalance in the candidates getting to the interview stage, and this is not reflective of the community, it may be time to re-evaluate your process, as you may not be employing the best person for the job. LT

Number of principals

The tables on this page highlight the make-up of men and women both in practice and in a principal role.

Law firms at 1 August 2012 (PCs = Practising Certificates) Number of principals

Number of Firms

Total principals

Women principals

% Women principals

Total PCs

Women

% Women

Over 20

414

19.3%

1612

772

47.9%

11 to 19

203

18.2%

517

226

43.7%

6 to 10

386

18.4%

835

334

40.0%

2 to 5

476

1269

301

23.7%

2428

978

40.3%

1267

348

27.5%

1831

671

36.6%

TOTAL

1823

3539

837

23.7%

7223

2981

41.3%

LAWTALK 804 / 14 SEPTEMBER 2012

Justice Potter to serve Pacific Islands BY ELLIOT SIM Justice Judith Potter has stepped down as High Court Judge after 15 years of service. She spoke to LawTalk about her career and future endeavours. Justice Potter is taking her vast experience to the High Court of the Cook Islands as well as the Pitcairn Islands Court of Appeal. “I’m looking forward to it, it will be different. I’m also on a very interesting commission set up by the Anglican Synod to look at the ordination and blessing of people who live in same gender relationships, which is a very challenging pursuit.” Retirement from the High Court has also freed up time to conduct interviews for the oral histories of women judges, a project of the New Zealand Association of Women Judges funded by the New Zealand Law Foundation and the Ministry for Arts and Culture. “I will miss the collegiality of the judges with whom I have worked. They were very supportive and it has been very pleasurable working in the High Court. I’ll miss the cases and variety of work that they bring,” says Justice Potter. Born and bred in Auckland, Justice Potter attended Auckland University in 1960 when she was 17 years old. She qualified in 1964 with an LLB and was one of just two women who graduated law school in that year. Justice Potter fondly attributes her initial interest in law to a fleeting moment in a fifth form school class when a teacher peered over her shoulder while writing an essay. “She said, ‘Judith Potter, you have a remarkable ability to sort the wood from the trees. You should be a lawyer’. “There was a bit of a chance and a bit of luck really. I knew I wanted to go to university. I thought at that time I certainly didn’t want to be a teacher and the options were extremely limited.” A year later, when seriously considering a career, she spoke to her father who said she could do it if she wanted to work really hard for a living. “I loved the law from the word go.”

Justice Judith Potter

At 18 years of age, Justice Potter got her first job in the Companies Office after being told a woman wouldn’t be wanted in a law office. She was there for a year and liked the people but couldn’t see it as a career. The budding young lawyer was later interviewed by Sir John Wallace, who was the junior partner at Wallace McLean and Bawden, now Kensington Swan. Sir John was later a High Court Judge and Human Rights Commissioner. “He was a man well ahead of his time and a man for whom discrimination and inequity were unthinkable,” says Justice Potter. Justice Potter began litigation after working as a junior for the firm, did probate and administration of estates as well as property work, then moved into commercial work. “It was pre-ACC days and we did a lot of personal injury work. “Even that short experience in litigation would be very important to me once I became a judge in 1997 because really at the time I came back from England until the time I became a judge I wasn’t

involved directly with litigation. “I was very fortunate because the partners in that firm were all very able lawyers and they were really good at what they did so they didn’t need to feel threatened by this young woman. They would encourage me, introduce me to clients, they would pave the way for me and ensure I got interesting work. They were wonderful.” She continued to work there while completing her degree then travelled to London, working as a legal executive for two years. “It was great fun and I really enjoyed it. It was a different ball game altogether.” In 1972 Justice Potter returned to New Zealand and continued to work for Wallace McLean Bawden and Partners. Despite the offer of a partnership she didn’t want to be “tied down”. But a compromise was reached and she became a partner in that year. “The flexibility the partners showed was pretty exceptional.” Before becoming a judge, Justice Potter became the first woman president of both the Auckland District Law Society in 1988 and the New Zealand Law

LAWTALK 804 / 14 SEPTEMBER 2012

Society, serving as its president from 1991 to 1994. “It was a terrific experience. A number of doors opened for me.” Her resume boasts a long list of achievements including: member of the Securities Commission for eight years, chair of the Broadcasting Standards Authority, director of Electricity Corporation (ECNZ) and chair of the New Zealand Guardian Trust Company Limited. “My life became very varied. I was still practising in the firm but because 1991 to 1994 turned out to be such a fulltime occupation, I had to adjust my practice to enable me to be away from it quite a bit.” Justice Potter says the indiscretions of Upper Hutt lawyers Patrick Renshaw and Keith Edwards created a terrible time for the profession but believes it contributed considerably to her wide personal experience that prepared her for her judicial career. “That was without doubt a very demanding period of my life. I hadn’t been the Law Society President for that long and, of course, anyone getting the opportunity to do such an important job has some ideas about what you might achieve in your presidency, but mine was really overtaken by Renshaw and Edwards. She recalls one Sunday evening when Peter Connor, Wellington District Law Society President, called her at her Auckland home. “He said, ‘Judy, it’s not just Pat Renshaw but Edwards has been stealing money as well. Wellington District Law Society can’t handle it, it’s too big. New Zealand will have to step in.’” Justice Potter presided over the council meeting that determined that all practitioners must contribute $10,000 to cover a deficit of about $26 million in the fidelity fund. Then Executive Director Alan Ritchie said the levy on firms was not popular but was necessary to get the profession through a “low period in the legal profession”. “In the end Judith gained a lot of credit for getting us through that period. The thing about Judith has always been and still is, it’s the graciousness with which she addresses anything she does, whether it was the presidency or the judiciary,” says Mr Ritchie. In 1997 Justice Potter began her

LAWTALK 804 / 14 SEPTEMBER 2012

judicial career in the High Court in Auckland. She also sat for a number of years in Divisional Courts of the Court of Appeal, both criminal and civil. Justice Potter said she was warmly welcomed to the High Court. “One of the things which made that easier was the time spent at the Law Society. “As a member of the Law Society for many years and then as President, I had met practitioners throughout New Zealand and in many cases I got to know them well. I found that when I first started to sit in Auckland we did circuit work and covered Whangarei, Hamilton, Rotorua, Gisborne, Napier, wherever I went I would know at least some of the practitioners appearing before me.”

“

tHE THING ABOUT jUDITH HAS ALWAYS BEEN AND STLL IS, IT’S THE GRACIOUSNESS WITH WHICH SHE ADDRESSES ANYTHING SHE DOES.

”

ALAN RITCHIE The “enormously wide jurisdiction” of the High Court reinforced Justice Potter’s passion in the law. “It’s a very challenging and interesting jurisdiction and it’s one of the aspects of being a High Court judge that I most enjoyed that you could be doing a murder trial one week and next week be involved in an intricate argument about the interpretation of a trust deed or a highly geared commercial dispute. The range of work is captivating and I enjoyed it enormously.” Presiding over the RSA murder trial in 2001, where William Bell murdered three people at the Panmure RSA and left a fourth (Susan Couch) for dead, has left a lasting impression in Ms Potter’s mind. So, too, have other trials, including Antonie Ronnie Dixon in 2003, the case of three-year-old Nia Glassie in 2008, and the Clayton Weatherston trial in Christchurch,

which led to the defence of provocation being removed by legislation in 2008. “Those are the sorts of trials that stick out perhaps in the public consciousness and they were all very interesting trials, but many trials are.” She cites less public cases such as three men who murdered another in Paremoremo Prison, as well as the “falling out” of owners of the Vector Arena in Auckland. “One went into liquidation which precipitated pre-emptive rights and the shares had to be valued. It was a very interesting and demanding undertaking. “The most recent high-profile case concerned Mr Dotcom’s restraining orders, registering foreign restraining orders and dealing with application to release assets so that he and his family can get on with their lives.” Looking back on such a varied and successful judicial career, Justice Potter is in admiration of those who worked alongside her. “I have loved working with juries. I admire the people who come to court to give evidence, from the lay people who come in to tell you what they saw to the forensic experts explaining DNA to us or blood spatter. “The whole range of people who bring their skills to the courtroom and give us the benefit of either what they’ve seen or what they know, I will miss the opportunity to learn from those people and to see their skills in action in the court environment.” She says there have been many changes in the courtroom during her career. “Life has changed enormously and, of course, the law changes. The law reflects the way we live in society but fundamental principles underlying the law do not change and the necessary attributes for all legal practitioners to be skilled in what you do, have complete integrity, to work hard and to work in the interest of your clients.” Justice Potter says she is pleased to have been able to make a contribution to the law profession and the community. “I think I can say I have been able to make a reasonable fist of being a judge and perhaps to confirm that judges can successfully be appointed from a wide range of practising lawyers, not necessarily those who spend their careers practising before the courts.” LT

The view from the Chief Justice's chambers of the courthouse in the Cook Islands

New Zealand influence important in Pacific Islands BY ELLIOT SIM New Zealand judges and lawyers have a very important role to play in Pacific Island courts, according to Sir Ian Barker QC. Sir Ian has been involved with Pacific Island courts for 15 years and served on the bench in Fiji for 11 years before being forced to resign during the last coup. He is currently President of the Cook Islands Court of Appeal and a member of the Kiribati equivalent. Sir Ian says there are many New Zealanders serving as judges in the Cook Islands, including David Williams QC, Barry Paterson QC, Sir Hugh Williams QC, Tom Weston QC, (Chief Justice of the Cook Islands), Judge Colin Doherty, Chief Judge Wilson Isaac (Māori Land Court and Waitangi Tribunal), Judge Pat Savage (Māori Land Court) and Christine Grice. Sir David Baragwanath QC and Bob Fisher QC both serve in Samoa, Peter Salmon QC serves in Tonga and Sir Bruce Robertson QC serves in Vanuatu. Others who served but are now retired include Sir Michael Hardie Boys, Sir David Tompkins and Sir John Henry.

“Many judges see work in the Pacific as interesting and different. Kiwis are not good on altruistic expression but there is a bit of wanting to ensure that our Pacific neighbours develop a sound legal system. Nobody does it for the money,” says Sir Ian. New Zealand Law Society executive director Christine Grice was the first woman to be appointed as a judge in the Cook Islands and agrees that the New Zealand profession has a special relationship with and obligation to support the Pacific legal systems. “It’s certainly not one-way traffic and we have learned a lot about dealing with conflict and dispute resolution from the traditional processes used for centuries in the Cook Islands. Many of those ideas are now used in approaches to disputes in New Zealand.” Ms Grice says it is important that the judiciary is independent and of a high standard to support continued development of the Cook Island economy. “There are many overseas commercial activities, including banking and trusts, which are based in the Cook Islands. It’s

important that business and commercial parties working in the Cook Islands can rely on a good legal framework and robust system which will properly enforce the law and commercials deals. “Personally, it’s very rewarding, although it can be challenging as well. There is nowhere else, as Chief Justice Tom Weston once said, that a judge can sit and look out of the courtroom to see a whale going past on the horizon. Ms Grice says it is “no sinecure and usually hard work when the court is sitting”. “It’s busy from the moment you arrive to the moment you leave but it is a delightful country and we are supported by hard-working colleagues in the court and justice sector.” Under the Cook Islands Constitution, judges are appointed by the Queen’s Representative acting on the advice of the Executive Council tendered by the Chief Justice and Minister of Justice when a particular vacancy arises. The judges rotate on a roster of one- to two-week sessions. LT

LAWTALK 804 / 14 SEPTEMBER 2012

PEOPLE IN THE LAW ON THE MOVE Will Martin has been appointed legal advisor to Otago University, based in the research and enterprise office. He will be dealing mainly with contractual matters in research funding as well as some initial issues arising from potential commercialisation of research outcomes. Before this, Will was both a lawyer and business manager at the Otago Southland Employers’ Association. Hayley Buckley has joined Wynn Williams as a senior associate from London firm Paul Hastings LLP. Hayley will join the Auckland-based commercial team and specialise in corporate transactional and general commercial work. Ross Keenan returns to the firm from Duncan Cotterill. Ross started as a senior associate in the Christchurch-based commercial team in August specialising in construction, contracting and general commercial work. Jeremy Johnson returns to the firm from a year-long sabbatical during which he attained an LLM (Hons) from Cambridge University. Jeremy has also been promoted to senior associate within the Christchurch-based civil litigation team.

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

Jeremy Steel has joined Aucklandbased specialist firm Dawson Harford & Partners as a partner in the corporate and commercial team. Jeremy practises corporate, financing and securities law and has acted for banks, finance companies, major corporates and local authorities in various domestic and cross-border transactions. Commercial lawyer James Grover, of Duncan Cotterill, has transferred to Christchurch from the Nelson office as the firm expands its commercial and property operation to meet the increasing needs of clients involved in the rebuild. James specialises in commercial leasing, construction (acting for both developers and anchor tenants in new builds) and the sale of commercial property. He also practises in mergers and acquisitions, company formation, joint ventures, and the sale and purchase of assets. James joined Duncan Cotterill in 2009, having previously worked for an international firm in London and Moscow. Sang-Ick Han (Ike) has been appointed a legal advisor for The Federation of Korean Societies of Oceania Incorporated, which is composed of Australia, New Zealand, Fiji, Micronesia, Vanuatu, American Samoa, Solomon Islands and Papua New Guinea. Mr Han was a staff lawyer for O’Sheas in Hamilton and is an

in-house lawyer for Cornell Institute. He has been president of Waikato Korean Society, a board member of New Zealand-Korea Friendship Society and vice-principal for Waikato Korean School. Kelly Seabourne has been appointed an associate of Jackson Russell in Auckland. Kelly specialises in property law, including leasing, subdivisions and development project work. Kelly also advises SMEs on business law and private clients on trusts. Nicole Duncan has joined Davenports Harbour Lawyers as a solicitor working with both their employment and franchising/ intellectual property teams.

PEOPLE Two lawyers have been appointed as new members of the Employment Relations Authority (ERA), each for a three-year term. Kerikeri lawyer Tania Tetitaha has been appointed to the Auckland office and Wellington lawyer Patricia MacKinnon to the Wellington office. The ERA has a statutory function to investigate and determine employment relations problems. LT

Top judge calls for re-examination of legal aid New Zealand needs to reexamine how legal aid should be delivered, former Supreme Court Judge Sir Andrew Tipping said at his final sitting on 17 August.

“If legal aid is granted, counsel’s ethical duties to the court should, in most cases, lead to the isolation of such points as can responsibly be argued. This results in a great deal of saving of time and cost in the processing, hearing and determination of appeals.

And he gave a pointer to major matters that should be considered in such a reexamination.

“If counsel do not perform their role responsibly, it should not be beyond the scope of the legal aid authorities to take appropriate action.

“What we need is a proper recognition of the fundamental rights and values that are at stake,” he said. “We can do this without sacrificing the need for efficiency and economy.”

“In respect of legal aid and access to justice generally I notice that the Chief Justice of Canada has very recently expressed similar concerns at a meeting of the Canadian Bar Association. It seems to be an issue that is causing difficulties in most modern democracies.

There was no doubt, he said, that there were some features of the legal aid system in New Zealand that needed the recent attention given. “My concern is that the solution those genuine problems received resembled the use of a sledgehammer to crack a nut. “The scope of legal aid and the rates of remuneration are now, according to the information I have received, at a level that seriously risks compromising the delivery of justice, at least in some fields. “Is the [New Zealand] Bill of Rights [Act 1990] to be viewed simply as formulaic window-dressing? For example, s24(d) gives everyone charged with an offence the right to adequate facilities to prepare a defence. By necessary extension that must encompass adequate facilities to prepare a plea in mitigation. “I question whether our current legal aid system is consistent with the observance of these fundamental rights. “In similar vein s25(h) gives convicted persons the right to appeal against conviction, sentence or both. At least at the level of indictable crime, where the appeal lies to the Court of Appeal, it is difficult to see how that right can effectively be exercised without legal representation. “The amount of money spent deciding whether legal aid should be granted would be better spent on legal representation. “The irony is that the money saved by not granting legal aid is very often overtaken by corresponding, if not

Sir Andrew Tipping

“

The amount of money spent deciding whether legal aid should be granted would be better spent on legal representation.

”

JUSTICE TIPPING greater costs being incurred elsewhere. I refer to the extra work needed by the registry staff and the judges themselves when an appellant is unrepresented. It is a false economy that we seem to be pursuing.

“I suggest we should lead the way by re-examining how legal aid should be delivered,” Sir Andrew said. In his address, available at my.lawsociety.org.nz/news/ justice_andrew_tippings_final_ sitting_-_speech/Final_Sitting_ Address_-_17_August_2012. pdf, Sir Andrew commented on major developments in the content of the law during his 50 years as a law student, practitioner and judge. He then reflected on issues which are important as the legal system and its administration moves forward into the future.

The third branch He ranked legal aid as having greatest significance. Second in that ranking was the status of higher courts as the third branch of government. In his time as a judge, Justice Tipping said, he had noticed an increasing lack of understanding and appreciation of that role. This can be an “insidious thing” with a series of little steps, seemingly innocent in themselves, leading to a “substantial impact” on the separation and balance of powers. “The judges and the profession must be vigilant to arrest and reverse this unconstitutional tendency,” he said. LT

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New Practising Well initiative A new relationship between the New Zealand Law Society and Lifeline Aotearoa was formalised via Skype on Friday 31 August at 3pm. Lifeline CEO Jo Denvir signed the Memorandum of Understanding (MoU) online in Auckland, while Law Society President Jonathan Temm signed it in the Law Society’s national office in Wellington. The MoU is part of the Law Society’s Practising Well initiative, which recognises the need for Law Society members to have access to practical support, information, guidance and education for their personal and professional well-being. The MoU seeks to establish a mutually beneficial relationship between the Law Society and Lifeline Aotearoa, where members of the Law Society and members’ families can have ready access to Lifeline Aotearoa’s free telephone services and also have face-

to-face counselling, either in person or via Skype. Mr Temm said those working in the legal profession were often under intense pressure when practising law and that it was paramount to provide an accessible counselling service for individual well-being as well as maintaining high quality legal services. “As the regulator of the law profession, the Law Society wants to ensure lawyers have the tools to access help if they experience hardship in their work or personal lives,” Mr Temm said. Ms Denvir said Lifeline was looking forward to providing support for members of the Law Society through the 24/7 helpline at Lifeline Aotearoa and its Lifeline Counselling service. “These are challenging times for many New Zealanders so talking through feelings of stress, worry or depression can make a huge difference.

Software patents back again By CLIVE ELLIOTT* The Patents Bill, which has had the run around in the corridors of power in Wellington for the past three plus years, is finally nearing the finish line, rising to number seven on Parliament’s 30 August order paper. Having said on a number of occasions that if it got into the top 10 on the order paper, I would start to get excited, it looks like it is finally there. Not only has the government given this matter the priority it needs, it has also adopted a common sense approach and treated computer programs/software just like any other field of scientific and commercial endeavour. This is a welcome development. In short, the proposed exclusion of computer programs from the definition of invention has been scrapped. A new clause 10A has been added. It reads: “10A Computer programs (1) A computer program is not an invention for the purposes of this Act. (2) Subsection (1) prevents anything from being an invention for the purposes of this Act only to the extent

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that a patent or an application relates to a computer program as such.” The explanatory note confirms that a computer program is not an invention for the purposes of the bill and that this prevents anything from being an invention only to the extent that a patent or an application relates to a computer program as such – the last two (italicised) words being important. Commerce Minister Craig Foss’s Supplementary Order Paper is available at www.legislation.govt.nz/sop/ government/2012/0120/latest/ DLM4688702.html. This will bring New Zealand more into line with the approach adopted by our major trading partners and our international obligations under the TRIPS agreement. This announcement will no doubt be a major relief for most, the open source movement of course excepted. In July 2009, the Law Society made a submission on the Patents Bill, available at www.lawsociety. org.nz/__data/assets/pdf_ file/0014/12416/Patents_Bill.pdf.

Jonathan Temm sigining the Memorandum of Understanding.

“Our helpline counsellors are here 24 hours a day, and our service is confidential, anonymous and nonjudgemental. We’re simply here to help,” Ms Denvir said. Lifeline Aotearoa is a leading provider of dedicated community help services and face-to-face counselling for those in need. It deals with psychological and emotional distress, financial and work issues, marriage and family problems and those who are lonely, ill, depressed or victims of violence or abuse. LT A number of the Law Society’s recommendations were incorporated into the proposed legislation. However, the question of computer programs was not given any prominence in the various discussion papers and arose, rather unexpectedly, in late submissions from the open source movement. Consequently, the Law Society made a subsequent submission raising concerns about the workability of the Select Committee’s suggestion that while computer programs in general should not be patentable, inventions involving “embedded” computer programs should continue to be patentable. The submission is at www. lawsociety.org.nz/__data/assets/ pdf_file/0005/35447/iponzguidelines-180311.pdf. Essentially, the Supplementary Order Paper restores the status quo as it existed before the last round of select committee hearings on the bill. *Clive Elliott is the convenor of the Law Society’s Intellectual Property Committee and a member of the management board of the Intellectual Property Society of Australia and New Zealand. A registered patent attorney, barrister and arbitrator, he is a past co-chair of the International Bar Association’s Intellectual Property and Entertainment Law Committee and a past council member of the IBA’s Legal Practice Division.

PROFESSIONAL DEVELOPMENT

Litigation Skills course has massive impact By ELLIOT SIM The highly regarded Litigation Skills course held at Lincoln University in Christchurch has had a massive impact on participants who were lucky enough to gain a spot. The week-long course provides those with about five years of practice experience with in-depth and handson training in the skills required for successful courtroom advocacy. Course Director Jonathan Krebs said there was a huge amount of interest in this year’s course. “There are 96 places available for participants and as usual the course was oversubscribed this year. “The course has always been of high importance to the profession but in the current climate of accountability and with the focus of quality and efficiency the course is more relevant than ever,” Mr Krebs said. He said the course progresses through the standard advocacy skills of examination-in-chief, crossexamination, expert witnesses, opening and closing addresses and then finishes with mini trials as well as a full mock trial before real judges, held at the Christchurch Courthouse. “There is an emphasis throughout on the theory of the case so that participants are drilled on ensuring that every step they take is related back to their particular case theory,” Mr Krebs said. IRD Auckland branch litigation solicitor Mary Nelson said she was extremely impressed with the course. “It was unbelievably amazing. I came away almost feeling like a different person. It was a hugely intense course. It was flawless in its organisation. We received the course material two weeks before the course started so there was plenty of time to familiarise yourself with the material.”

Course Director Jonathan Krebs with participants from the course.

Ms Nelson said she hadn’t yet had the opportunity to practise a full trial. She said formulating a succinct theory and sticking to it during a trial was drummed into the participants throughout the course as well as techniques in oral delivery. “It’s not just what you say; it’s also your vocal expression and body language.” “The mock trials were quite nerveracking. You know you are being critiqued by really experienced litigation solicitors. “In examination-in-chief, you know the answer that you want. It is an absolute skill to ask questions and get the answer that you want without obviously prompting the witness to give it. It was a lot more difficult than I thought.” Ms Nelson said cross-examination was also a challenge.

and blocking off all of those rabbit burrows until they are stuck in one spot and give you the answer that you want, there’s a real art to doing that.” Ms Nelson said she would highly recommend the course to anyone thinking of participating next year. “The skills that we have been taught in one week and the faculty were world class. Because of the course my role at work is about to change and will have a significant impact on the sort of work which I am now taking on. It’s given me the skills to go further and given my employers the trust in me that I can.” LT

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CONTACT CHRISTINE WILSON christine.wilson @lawsociety.org.nz

“Managing to get them into a corner

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Independent educational review tribunal needed An independent education review tribunal should be established, YouthLaw says. This is the major recommendation in YouthLaw’s recently released report Out of School, Out of Sight. “We believe that an independent tribunal should be set up so the school students and their parents can have an independent body to appeal decisions to suspend, exclude and expel students from school,” YouthLaw says. YouthLaw provides advice on a daily basis to young people and their parents about a number of education-related issues, the majority of which concern decisions by schools to stand down, suspend, exclude or expel students. Despite the gravity of the issues at stake, the current disciplinary regime affords students and parents very few opportunities for recourse. A decision

by a principal to stand down or suspend, or a board of trustees to exclude or expel, is effectively final, with no direct right of appeal or challenge. To attain even a modicum of justice, parents and students must rely upon a patchwork of legal and quasi-legal mechanisms which can be timeconsuming, costly, and provide little in the way of actual remedy. The process differs markedly from that seen in England where, following an adverse determination from a school board, parents and students have the right to take the matter further to an independent appeal panel. “The implementation of a similar panel in New Zealand would, we believe, preserve the flexibility of a broad discretionary power held by principals under the current disciplinary regime, whilst also ensuring that students in

Maori and Pacific legal issues week Te Roopu Whai Putake (Māori Law Students’ Association) and the Pacific Islands Law Students Association pooled their resources to host a combined week addressing Māori and Pacific Legal issues in Dunedin recently. The overall theme was Looking to the future, Māori and Pacific Legal Issues in the 21st Century. Metiria Turei, the opening speaker, addressed issues of sovereignty, natural resources and issues between the individual and the state. The force of her message was highlighted in an article by John Gibbs in the Otago Daily Times the following day. He reiterated Ms Turei’s point on avoiding the “divide and conquer” pitfalls that often occur between Māori leadership groups.

Family Law Day two of the week saw a team of local practitioners speak about their experiences working in family law. Rochelle Crossman brought along a team of volunteers (Chanel Gardner, Claire Elder and Ben Nevell). A common theme was the positive remarks made towards organisations that assist families, especially women in times of need, that recurred throughout the session.

LAWTALK 804 / 14 SEPTEMBER 2012

Guest lecture Judge Craig Coxhead gave the guest lecture on the Tuesday evening. He outlined the struggles that Māori inevitably face within a legal system that is, at its core, inherently nonMāori.

Sir Tipene O’Regan Sir Tipene O’Regan presented on Wednesday. His topic related to his position as the current co-chair of the Constitutional Advisory Panel. In this role, Sir Tipene is charged with considering the place of the Treaty of Waitangi within New Zealand’s constitutional arrangements. A key element of his discussion was the substantial changes in demography that New Zealand will experience over the next 50 years. He argued that “by 2060 there will be twice as many New Zealanders as there are now. The ethnic and age mix is going to be completely different. How do we want New Zealand to be at that time? How do we want our future to look?” He maintained throughout that there are serious constitutional questions which are yet to be discussed by mainstream New Zealand, and that the Treaty is at the forefront of such issues. LT

the most serious of cases will be able to fully realise their right to natural justice,” Youthlaw says. “It is our view that the current disciplinary regime under s14 of the Education Act 1989 needs to be supplemented with the creation of a uniform, impartial appeals tribunal which is capable of ensuring that the suspension, exclusion or expulsion of any student is both necessary and justifiable under the law,” YouthLaw says. “The independent appeal panel would, we believe, act as a sound basis for any future implementation of an education tribunal in New Zealand. “The panel provides a clearly delineated process of appeal, guaranteed to students as of right after a permanent exclusion and, unlike other mechanisms of accountability, has the power to take direct action by ordering reinstatement. “Most of all, it is wholly independent and impartial, free from any prejudices and institutional pressures which may currently inhibit the decision-making powers of principals and boards of trustees,” Youthlaw says. LT

Women in law New Zealand lawyers and law firms featured among the winners of the inaugural Australasian Women in Business Law Awards, announced at a function in Sydney on 16 August. Minter Ellison Rudd Watts won the best New Zealand firm for women in business law award. Three New Zealanders were among the practice area winners. Phillipa Muir, of Simpson Grierson, won the workplace relations, employment and safety award. Pip Greenwood, of Russell McVeagh, won the mergers and acquisitions and private equity award. Mei Fern Johnson, of Russell McVeagh, won the rising star award. Minter Ellison Rudd Watts won two “city winners” awards – for Auckland and Wellington, while Buddle Findlay won the award for Christchurch. LT

IN-HOUSE Leadership lights executive path By RACHAEL BRECKON If your goal is to sit at the executive table, it’s vital you hone your leadership skills. The spots at the top are reserved for managers and the in-house lawyers who sit there are generally present for their abilities of persuasion, rather than their ability to give legal advice. This is according to both Department of Internal Affairs chief executive Colin MacDonald and Powerco chief executive Nigel Barbour. “I certainly don’t think an in-house counsel should sit at the top table in the normal course of business,” Mr MacDonald says. “That is reserved for the folks that are leading and driving an organisation.” However, he doesn’t devalue the inhouse legal role. “That’s not to say [inhouse roles] are not important roles or influential roles,” he says. Mr MacDonald, who runs a 2,000-person organisation, with only six at the top table, points out there is an argument from all functional roles within an organisation that they should be at the executive table. “You can have the same discussion with your IT director, your Finance Director, your HR manager,” he says. A company’s need for an in-house lawyer to sit at the top table “very much depends,” Mr Barbour says. If your organisation is going through significant structural change, for instance a merger or structural separation with associated regulatory undertakings, an in-house lawyer may need to be present at the top table. Otherwise, in the normal course of business, a good in-house team should ensure legal issues don’t get anywhere near the executive level. “In a lot of business you’ll find that the legal issues, if they come up, are more efficiently and effectively dealt with at an early point,” Mr Barbour says.

If an unresolved “deal breaker” legal issue gets as far as the executive table, as CEO you will be asking what process failure let a new product or efficiency improvement be developed without the deal breaker being identified and addressed early on and whether individual business unit goals have been put before the broader company objectives and the company’s values.

Lawyers as leaders “I think a lot of lawyers are very good at the law, but as you get higher up the managerial food chain it is all about leading people to achieve operational and financial results that no one individual could achieve on their own and very much less hands on,” Mr Barbour says. “A lot of people struggle with that. I think (crudely) a typical lawyer’s mind set, based on the adversarial system, is very much critique and attack. A manager or leader’s mind set is commend, recommend, commend, which is quite different.” The role of a company executive does not entail brazenly throwing out commands to the lower ranks of the organisation. It is rather a job of achieving operational and financial results through teams of people, which includes selling the company’s direction to managers and staff and being seen to put the company’s objectives ahead of their own business units plus model the company’s values.

‘no’ to a proposal developed inline with the company’s strategies, priorities, processes the more they can disempower people further down the chain.” “It’s not a body that sits together that makes decisions on everything when most of those are actually delegated to the business units themselves. Rather it is body that leads across the company.” He explains this is because every decision that gets to the executive table has gone through many staff members, who have worked hard based on their managers’ directions.

Getting to the top As a chief executive, what you are looking for in your executive team is a group of people who buy into the direction that you and the board want to take the company, are advocates for it and have the skills and capabilities to lead people to achieve results, according to Mr Barbour. For in-house lawyers who want to be at this table, it could be a matter of side-stepping from law and going into a commercial role or operational role. To be on the executive table “you have got to manage really large teams of people. [You need to] manage managers that manage people,” he says. “You get your influence from good relationships, from being focused on solutions and from providing top quality reliable advice,” Mr MacDonald says.

To explain the power conundrum of having the top spot in a company, Mr Barbour quotes a scene from the King’s Speech.

His advice for those who desire an executive position is to “get involved in activities that are wider than just your particular professional suite of interest”.

King Edward VIII: Don’t I have any rights?

“Get involved in a project that lets you use not just your professional skills but your transferable skills. Run a team in the customer-facing part of the business and show your wider skills.

King George VI: Many privileges. King Edward VIII: Not the same thing. “This colloquially sums up the executive table,” Mr Barbour says. “The more any member of the exec says

“Try and get the right training and right development, and have really good selfknowledge about where you have skills and where you don’t have skills.” LT LAWTALK 804 / 14 SEPTEMBER 2012

LE T TERS TO THE EDITOR

More of the story I refer to an article in LawTalk 802 (17 August 2012) entitled From one bar to another, which concerned the career of barrister David Bleier. The article mentioned a dispute concerning an incorporated society in the Wairarapa in which Mr Bleier acted. According to the article, when Mr Bleier’s client, who had “stepped out of the society for a year for personal reasons … tried to return as President, the new council tried to obtain a court order preventing him from doing so”. I was counsel for the society which took that action. The description of the matter in the article, though understandably truncated, tells only half the story. In fairness to the members of the council which authorised the proceeding, it needs to be mentioned that the High Court, though it declined to make the orders sought, explicitly made the finding that “a material and on-going conflict of interest [was] very likely to arise for [Mr Bleier’s client], if he were elected as President of the Society and attempted to fulfil all parts of what goes with that office”. That Mr Bleier’s client would have such a conflict of interest was the basis of the orders sought but of course whether the court intervened was something entirely within its discretion. Anyone interested in the case and/or who wishes to verify my account may find the decision Phoenix Astronomical Society Inc v Hall CIV 2011-435-96 13 July 2011 Dobson J on Judicial Decisions Online. Or I am happy to email anyone a copy. Pam Davidson Barrister, Wellington

Sentencing advocacy contest Elisabeth Perham emerged the winner from a field of 16 Victoria University law students selected for this year’s sentencing advocacy competition held at the Wellington High Court. The competition is in its fifth year and is run by judges’ clerks, with support from the Ministry of Justice and the New Zealand Bar Association. Each contestant received a mock sentencing file, including a summary of facts and pre-sentence report, for which they had to file written submissions

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Holding their four trophies, the Victoria University team that dominated this year’s national law student competitions.

Victoria shines in student competitions Victoria University students dominated this year’s national competitions, held during the New Zealand Law Students’ Association Conference in Auckland from 28 August to 1 September. With victories in three of the five competitions, Victoria claimed a fourth trophy, the Anderson Lloyd President’s Trophy for the best performed university overall. This followed Victoria’s outstanding showing in the Australian Law Students’ Association (ALSA) competitions held in Melbourne in July. Two of the three members of Victoria’s successful ALSA moot team, Alexander Sinclair and Campbell Herbert won the Bell Gully Senior Mooting Competition at the New Zealand event. David Hills was the other member of the team that won in Australia.

Victoria also won the Bell Gully Junior Mooting Competition, with Aric Shakur and Duncan McLachlan emerging the victors. The other successful Victoria University team was Adele Taylor and Elisabeth Perham, who won the Russell McVeagh Client Interviewing Competition. This was a second major victory for the team this year, as they also won the client interviewing contest at the ALSA competitions. Timothy Conder, of Auckland University, won the Minter Ellison Rudd Watts Witness Examination Competition. The other competition was won by the Waikato University team of Darren Adams and Rob Davies, who took out the Buddle Findlay Negotiation Competition. LT

for either the prosecution or defence. They then presented oral submissions at a mock setting in a High Court courtroom before a judge. Elisabeth and Daniel Mazengarb contested the final before Justices Dobson and Clifford on 14 August. They confronted the case of a young woman who had admitted attempting to procure the murder of a sporting rival. Each had 20 minutes in which to present their submissions. Elisabeth, who had appeared for the prosecution, received a $700 prize from the New Zealand Bar Association. LT

Kim Castle from the NZ Bar Association presenting Daniel Mazengarb his runner-up award, watched by competition winner Elisabeth Perham.

Developing law is everyone’s business One problem with judicial review is that it tends to encourage the belief among legislators – and, worse still, among citizens more broadly – that the constitutionality of proposed legislation is not the concern of the people’s elected representatives. “But this is a travesty,” said Professor Robert George when delivering the 2012 Sir John Graham lecture in Auckland on 8 August. “For structural constraints to accomplish what they are meant to accomplish, for them to constrain the power of government as they are meant to do, the question of the constitutionality of legislation in light of those constraints is everybody’s business – judges exercising judicial review, yes, but also legislators, executives, and the people themselves.” The McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law, Professor George looked at an example from the United States. “A large and consistent majority of US people tell pollsters they dislike the Affordable Care Act, desire its repeal, and regard its individual mandate as an unconstitutional trespass upon their liberty. “They may yet act to dismantle it. “Together with the general poor performance of the economy, the demand for repeal of the act is a major issue in the presidential campaign and in contests for seats in the United States House of Representatives and Senate across the country.” The Tea Party movement in the United States – much maligned by the elite print and broadcast media – has, to its credit, succeeded in getting people to think about the mandate not merely as a “policy issue” but as a constitutional question about the scope and limits of federal power. “And so for the first time in my lifetime, the debate about the applicability of the doctrine of delegated and enumerated powers has spilled out of the courtrooms and into the streets, as it were. “We are having a political debate about the meaning of a fundamental constitutional structural constraint

– and thus a debate about limited government. “I can’t tell you how it will come out. (You can ask me again on the morning of 7 November.) “But I’m glad we’re having it. And if I tell you why in particular I’m glad we’re having it, it will bring me … to the profoundly important subject on which Professor Waldron concluded his excellent Sir John Graham Lecture in 2008. “That subject is political culture. The Waldron lecture concerned the quality of parliamentary debate. “The bulk of the lecture is devoted to a careful analysis and penetrating critique of a range of factors leading to the impoverishment of legislative deliberation in New Zealand warranting, in Professor Waldron’s view, the stinging title he assigned to his lecture: Parliamentary Recklessness. “Its penultimate section is entitled Parliamentary Debate and offers a thoroughly gloomy appraisal. “But instead of ending there, offering no grounds for hope, he concludes with a section entitled The Quality of Public Debate.” In that, Professor Waldron pointed to the possibility that the deficiencies of parliamentary debate may be at least partially compensated for by a higher quality of public debate. He even hints that “a higher quality of public debate could prompt the reforms necessary to at least begin restoring the integrity of parliamentary debate. “But he warns that things could also go the other way. The corruption of parliamentary debate could ‘infect … the political culture at large’, driving public debate down to the condition of parliamentary debate.” It is up to the people to decide whether they will “rise above the corruption that has demeaned parliamentary politics” or permit it to infect the political culture at large. “But ‘the people’ are not some undifferentiated mass. They are people, you and me, individuals. “Of course, considered as isolated actors there is not a lot that individuals can do to affect the political culture. But individuals can co-operate for greater effectiveness in prosecuting an agenda

Professor Robert George

of conservation or reform, and they can create associations and institutions that are capable of making a difference.” In his lecture, Professor Waldron meant what he said about the “big contribution” that organisations can make by “constructing debate in the society at large that at its best will put to shame the shabby and peremptory proceedings in Parliament.” Constitutional structural constraints are important, but they will be effective only where they are effectually supported by the political culture. “The people need to understand them and value them – value them enough to resist usurpations by their rulers even when the unconstitutional big government programmes offer immediate gratifications or the relief of urgent problems. “This, in turn, requires certain virtues – strengths of character – among the people. “But these virtues do not just fall down on people from the heavens. They have to be transmitted through the generations and nurtured by each generation. “Madison said that ‘only a well-educated people can be permanently a free people.’ And that is true. “It points to the fact that even the best constitutional structures, even the strongest structural constraints on governmental power, aren’t worth the paper they are printed on if people do not understand them, value them, and have the will to resist the blandishments of those offering something tempting in return for giving them up or letting violations of them occur without swift and certain political retaliation.” LT

LAWTALK 804 / 14 SEPTEMBER 2012

BRANCH NEWS

At this year’s Shirley Smith address (from left) Lynda Hagen, executive director of the Law Foundation, Professor Hilary Charlesworth, Helen Sutch and Ruth Nicols.

WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869

Women’s rights and culture in international law Women’s rights and the question of where culture sits in international law were discussed in Professor Hilary Charlesworth’s 2012 Shirley Smith address on 21 August. The professor and director of the Centre for International Governance and Justice in the Regulatory Institutions Network at the Australian National University, Professor Charlesworth considered how arguments based on culture have been deployed in international institutions to challenge claims of women’s rights.

LAWTALK 804 / 14 SEPTEMBER 2012

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), often described as the international bill of rights for women, has been enshrined in domestic law. Many nation states, however, have clauses based on assertions of national or religious culture which allow them to ignore parts of this convention. Professor Charlesworth examined the negative and positive aspects of protection of cultures at the international level, and whether international law and human rights promoted a “universality of culture”. Declining birth rates and high divorce rates in Russia are being blamed on the women’s and gay rights movements, and consequently there has been a movement from the Eastern European nations to have traditional values endorsed by international law.

Russia has rallied the support of Islamic, African and Asian countries, although it has been robustly resisted by the Western group of nations. However, while there are tensions between culture, tradition and women’s rights, all is not lost, Professor Charlesworth said. She cited examples of how feminist groups in Egypt and India have reached for international law and treaties to empower grass roots feminist campaigns. The Wellington branch of the Law Society Women in Law Committee holds the annual event in honour of pioneering female lawyer the late Shirley Smith. Around 170 members of the legal profession attended this year’s address, entitled Keeping Women in their Place – Women’s rights and the question of ‘Culture’ in International Law.

BR ANCH NEWS

Jock Kershaw, Bruce Logan and Chris Hodson QC.

Jennifer George, Debbie Van Zyl and Leah Kershaw.

60th Wairarapa bar dinner

Around 70 lawyers made up of local lawyers, Law Society staff and Wellington branch council members attended the enjoyable event.

Lawyers gathered to celebrate the 60th anniversary Wairarapa Bar Dinner at the Carterton Events Centre in August.

WAIKATO BAY OF PLENTY NEW ZEALAND LAW SOCIETY

NZLS EST 1869

Justice Joe Williams was the guest speaker on the night. The challenge includes a 5km walk or run and is held at 5:30pm on Wednesday 21 November. Runners and walkers who would like to take part, please contact Benedict Ryan benedict.ryan@lawsociety.org. nz.

AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869

Auckland Young Lawyers inaugural midwinter dinner Thirty-five Auckland Young Lawyers and their partners dined in superb style at District Dining in Auckland Britomart in August. Jess Gilby-Todd, Nicole Carsen and Andrew Thomson.

The young lawyers shared a delicious two-course meal with matching wine, while socialising and networking.

Effective networking seminar

A wonderful evening was had by all.

Waikato Bay of Plenty Young Lawyers were taught how to network effectively at a well-attended presentation at the Harkness Henry boardroom in August. Presenter Laurie Sharp gave the young lawyers some good pointers and networking tools to think about. The seminar attendees boast at becoming experts at elevator speech â&#x20AC;&#x201C; no more awkward silences.

Running lawyers wanted The Waikato Bay of Plenty branch is hoping to get together a team of walkers and runners who are keen to take on other professional groups at this yearâ&#x20AC;&#x2122;s Corporate Challenge at the Auckland Domain.

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

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

www.laneneave.co.nz

LAWTALK 804 / 14 SEPTEMBER 2012

THE BOOKSHELF applicability in common law jurisdictions. Matters considered include the nature of assignment, requirements, voluntary assignment and equitable assignment, plus analysis of problems with priority, assignment of obligations as well as a review of available defences and the key case law. (Sweet & Maxwell, August 2012, 978-0414024-64-9, hardback, £175).

BOOK OF THE MONTH

REPUTATION MATTERS: A Practical Legal Guide to Managing Reputation Risk By Tracey Walker TRUTH-FOCUSED INTERVIEWING FOR INVESTIGATORS KEVIN BYRNES

Effective interviewing skills are an essential part of any investigation. Truth-Focused Interviewing offers step-by-step guidance on the communication skills that will help you get the truth from victims, witnesses or suspects. This how-to guide offers practical tips on every stage of the interview process – from preparing for the interview and getting your subject talking, to verifying a statement and ensuring its admissibility in court. Author Kevin Byrnes shows you how to identify and overcome the barriers that impede truth-telling. You’ll learn to recognize and interpret verbal and nonverbal behaviors of deceptive and truthful people. You’ll also learn how to connect with people, make them comfortable, and uncover the truth. Real-world examples gleaned from Byrnes’ 28 year career as a police officer show you exactly which techniques work and why. ABOUT THE AUTHOR

Kevin Byrnes is a member of the Human Potential Consultants Inc. (HPCI) and is a designated Child Abuse and Sexual Assault investigator for York Regional Police. As a member of the HCPI, Kevin has trained a variety of investigators including police officers, security officers and supervisors, and University police. In addition, he has taught Police Foundations at Centennial College in Toronto.

ansfer Regulations 2002

es Regulations 2011

Series include:

aw Legislation, 14th edition Adviser’s Legislation

tion Legislation

Butterworths Legislation Series

PLS

PROPERTY LAW STATUTES, 7TH EDITION

This collection of essential New Zealand property law legislation is consolidated to include amendments as at 15 June 2012. The collection includes nine acts and amendment acts and two regulations. (LexisNexis NZ Ltd, August 2012, 978-1-927183-33-5, 834 pages, paperback, $59.80 (GST incl, p&h excl)). Butterworths Legislation Series

Property Law Statutes 7TH EDITION

GUEST ON THE LAW OF ASSIGNMENT By Anthony Guest QC This provides comprehensive coverage of the law relating to assignment in the United Kingdom, with obvious

LAWTALK 804 / 14 SEPTEMBER 2012

CANADA LAW BOOK

tial Tenancies Amendment Act

Property Law Statutes

tial Tenancies Act 1986

es Act 2010

7TH EDITION

ansfer (Computer Registers ctronic Lodgement) ment Act 2002

BYRNES

Kevin has been a police officer for 28 years. Currently, he is assigned to the Integrated Domestic Violence Unit. He has worked as an investigator in the Drug, Sexual Assault and Homicide Units as well as the general investigative office. He continues to study in the areas of Neuro-Linguistic Programming (N.L.P.) and Psychology. His main work interests include criminal investigations, interview techniques and courtroom testimony.

TRUTH-FOCUSED INTERVIEWING FOR INVESTIGATORS

Simpson Grierson partner Tracey Walker has created a fascinating guide to managing and understanding the legal aspects of corporate communications in New Zealand. Areas covered include defamation, privacy, confidential information, copyright, publication restrictions, court reporting, consumer law and social media legal issues. Case studies are used to illustrate how the law is applied in practice. Tips are given on how to avoid communication pitfalls to minimise legal risk. (CCH New Zealand Ltd, August 2012, 978-0864759-91-7, 234 pages, paperback, $110 (GST and p&h excl)).

TRUTH-FOCUSED INTERVIEWING FOR INVESTIGATORS KEVIN BYRNES

TRUTH-FOCUSED INTERVIEWING FOR INVESTIGATORS By Kevin Byrnes

The author, who has been a police officer for 28 years, is a designated child abuse and sexual assault investigator for the York Regional Police in Canada. His book describes how to use interview techniques to get the truth in any investigation. It includes tips on building rapport, detecting deception, getting a subject talking, verifying the story and ensuring the admissibility of statements in court. (Carswell, July 2012, 978-0-888045-92-8, 150 pages, paperback, C$75).

Kindle useful for legal books after all The popular Kindle has been missing in action for legal texts published by the big multinational publishers. No more. Reed Elsevier has announced that a large number of (mainly American) LexisNexis titles have now been added to the Amazon bookstore, meaning they can be purchased and used on Kindle e-Readers or a Kindle Fire Tablet. In New Zealand, LexisNexis and CCH have both gone for the free Adobe Digital Editions application or Bluefire reader for their e-books. Thomson Reuters appears to be still working on bringing its “ProView e-Reader app” to our country. Even though the big legal publishers have been absent, Kindle’s “Law” section now contains around 15,000 books from a wide variety of other publishers. These include classics such

as Richard Susskind’s The End of Lawyers? Rethinking the Nature of Legal Services (yours in an instant for US$15) or Oliver Wendell Holmes’ The Common Law (US$1.99). As might be expected, the quality and range of books under “Law” is diverse. If all else fails, there’s always Law for Dummies (US$12.99) or the intriguingly-named Never Buy a Condo and Other Things I have learned from the Practice of Law (US$4.99).

Hardcopy legislation hangs on The days of hardcopy publication of legislation appear to be dwindling. The Legislation Bill received its second reading in Parliament on 29 August after a long period of dormancy. This will be one of the biggest nails in the hardcopy legislation coffin. Shortly before the bill reappeared before the House, the Parliamentary Counsel Office reported that it is receiving an ever decreasing number of responses to its annual survey of legislation that people would like reprinted. It says there has been a corresponding increase in the use of, “and compliments on”, its legislation website (www.legislation.govt.nz). This year there were only 30 responses to the reprint survey. The PCO says sales of hardcopy legislation have also reduced. The Legislation Bill will turn the legislation website into an official source. Two years passed between its first reading on 3 August 2010 and its second reading. Interestingly AttorneyGeneral Christopher Finlayson was reported by Parliament’s Justice and Electoral Committee as saying he was considering withdrawing the Legislation Bill and combining it with ACT’s Regulatory Standards Bill. Maybe this was enough to remove whatever blockage was in the way. In its report on the reprint survey, the PCO says it is now investigating moving to the model of print on demand at full cost. LT

WHAT’S NEW? New tech upstart to be launched in October By ELLIOT SIM A Dunedin-based technology upstart is set to take on the world with a new product which aims to completely digitise commercial lease files in law firms. “The ultimate goal is to improve the legal profession. The first way of doing that is through commercial release software and where we go from there, it just depends. It will grow pretty organically,” says Nomos Ltd founder and managing director Jonathan Mirkin. Mr Mirkin, 26, says his Cloud-based file management and transfer system is the first of its kind in the world and will be officially launched in October. He and his small team, which operates from the Air New Zealand building in the Octagon, are finishing the final version of the software. “We hope that every law firm in New Zealand and Australia will eventually use Nomos.” While working as a commercial lawyer for Wilkinson Adams Lawyers, Mr Mirkin saw significant room in the ways law firms operated and returned to university to complete an MBA. Following that, he promptly formed Nomos Ltd. “When I was at Wilkinson and Adams, the partners were saying they were missing a lot of lease events and that

there must have been another way than trying to diary ahead in Microsoft Outlook and managing all that chaos. “From the law firms that I’ve interviewed the most complex system they’ve had is using Affinity, having a document management system where they have a scan of the deed. But that’s not really helpful to them because that’s not useable information. They go and convert the information whereas Nomos will store the pdf deed as well as actually collecting the information.” Nomos, he says, has been built to complement existing products in the market and he believes the system will dramatically simplify the processes of creating and filing commercial leases. A law firm enters a new lease into the system by either uploading a pdf file of the completed lease or typing it into the system. Nomos will then calculate the lease renewal and rent review dates as well as the details of the parties involved. It is saved into the system and is then automated. “A certain time before a new lease event is coming up it will automatically email the client and warn them of when the lease runs out and suggest they get in touch with their lawyers. It then emails the lawyer and says the same thing and says the client has been notified,” says

Mr Mirkin. In the case of a commercial sale, Mr Mirkin says it typically takes hours to collate files but with Nomos, all the details, such as a full list of every lease, past tenants, rent and the number of car parks the property has, are already saved under the client or property name. A client can also view every lease they are attached to through multiple entities, using their iPhone. Mr Mirkin says the information transfer system is the most exciting feature. “We’ve built a transfer feature which effectively creates a 10 second information drop. If two different firms are acting for the seller and purchaser, as long as they are both using Nomos, when they settle, those firms can send the file to each other.” When the property is sold, all of the lease information is automatically drawn from the vendor’s firm and dropped into the Nomos system of the firm acting for the purchaser. Mr Mirkins says his passion for local business, as well as a desire to improve information filing in law firms, will help make his company a success. “Every time there’s an e-dealing, I want there to be a Nomos file.” LT

LAWTALK 804 / 14 SEPTEMBER 2012

UPCOMING PROGRAMMES Programme

Presenters

Content

Where

When

Introduction to High Court Civil Litigation Skills

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

Junior practitioners should not miss this opportunity to develop practical litigation Wellington skills in an intensive, small-group workshop which will take you through a summary Auckland judgement claim in the High Court to demonstrate how to handle a ﬁle from beginning Christchurch to end, how to draft pleadings, evidence and submissions, how to present an argument – and much more. Skills taught in this two-day workshop are transferrable to the District Court and other High Court cases.

Evidence Act for Civil Litigators

Andrew Beck

This seminar will take a close look at a number of thorny issues raised in recent cases, including the ongoing concern in respect of the relationship between the common law and the Evidence Act - in particular, whether the common law continues in relation to events that occurred before the Act; the extent of without prejudice privilege; the scope of other privileges and their exceptions; the role of experts, and the limits of expert evidence; and the admissibility of briefs and what to do with inadmissible evidence.

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

Dunedin Christchurch Wellington Hamilton Auckland

5 Nov 6 Nov 7 Nov 12 Nov 13 Nov

Dunedin Christchurch Wellington Hamilton Auckland

12 Nov 13 Nov 14 Nov 19 Nov 20 Nov 14 Nov

COMMERICAL/COMPANY Practical Enforcements of Judgments

Bob Hollyman

Working through several common scenarios, this practical seminar will consider step-by-step the various enforcement mechanisms available to creditors once they have a judgment in hand, including: identifying the assets, the nature of the different options, assessing their merits and when to apply, pitfalls and problems, difﬁculties that arise, and how the court ofﬁcers and bailiffs work. Webinar for smaller centres

Webinar

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

Wellington Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

Intro

Asssessment

Practice Court

3 Aug 3 Aug 3 Aug 3 Aug 3 Aug 21 Sep 21 Sep

14 Sep 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 26 Oct 26 Oct (in Man)

15 Sep 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 27 Oct 27 Oct (in Man)

EMPLOYMENT Employment Law Conference – Good Faith

Chair: Peter Chemis

This “must-go” conference, noted as much for its enthusiastic collegiality as for the Auckland high quality of the business sessions, will once again provide practitioners at all levels of experience an unmissable opportunity for two days of stimulating engagement on topics of essential importance and interest in the employment law ﬁeld.

8-9 Nov

FAMILY Care and Protection Orders and CYFS

Dr Nicola Atwool Tracey Gunn

Understanding Mediation – mediation for lawyers Part A

Care and protection cases can be problematical and lawyers need a good understanding of how the statute works and how it interlinks with the moving goalposts of CYFS’ policy. Lawyers need to understand the reality of issues for children in care and what happens when CYFS intervenes and why they intervene. This seminar will provide you with practical hands-on advice for dealing with care and protection cases. Webinar for smaller centres

Dunedin Christchurch Wellington Auckland

17 Oct 18 Oct 25 Oct 26 Oct

Webinar

25 Oct

Dunedin Christchurch Wellington Hamilton Auckland

19 Nov 20 Nov 21 Nov 26 Nov 27 Nov 21 Nov

See listing in General section on the next page.

PROPERTY Trusts for Property Lawyers

Andrew Watkins Simon Weil

A practical seminar focussing on what property lawyers need to know about trusts and the use of trusts. To include; why a trust? – their various uses – their set up, drafting, and legislative requirements, trust busting – inherent weaknesses – what to look for – how to make trusts stronger – the bundle of rights as it affects property lawyers. Webinar for smaller centres

Webinar

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

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

Programme

Presenters

Content

Where

When

Dunedin Christchurch Wellington Auckland

1 Oct 2 Oct 8 Oct 9 Oct

Webinar

8 Oct

GENERAL Statutory Interpretation – a 2012 guide

Ross Carter Jason McHerron

Last covered in 2008, this seminar will take a fresh look at this topic, which is central to all law practice. Presenters Ross Carter and Jason McHerron will use recent case law to illustrate and analyse key principles and developments in statutory interpretation using text, purpose, context, and values. Webinar for smaller centres

Logic for Lawyers

Prof Douglas Lind

Most lawyers’ logical intuitions are strong enough to permit smooth navigation most Wellington Webinar of the time through webs of complex legal arguments without error. Still, unfamiliarity Auckland with logic and argument form limits a lawyer’s analytical oversight. This makes him or her vulnerable to committing or overlooking mistakes of reasoning that can affect the outcome of cases. Attend this workshop to learn a practical framework and gain speciﬁc analytical tools for working with legal arguments.

23 Oct 25 Oct

Stepping Up foundation for practising on own account

Director: John Mackintosh

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

8-10 Nov

Trust Account Supervisor Training Programme

Mark Anderson, John Hicks or David Littlefair, and David Chapman, Bob Eades or Lindsay Lloyd

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

14 Nov 21 Nov

Writing Persuasive Opinions

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

Consultation Requirements

Lisa Hansen

Consultation is usually required by common law to ensure a decision is procedurally Your computer 27 Sep fair. It may now be seen to be a stand-alone principle of law. Consultation enables Webinar decision-makers to base their decisions on up-to-date information and to ensure that implications are understood. All practitioners who act for, or make submissions to, decision-makers at all levels should attend to gain a better understanding of how you can more effectively use the consultation process.

Lawyer as Negotiator

Jane Chart

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

30-31 Oct (full) 7-8 Nov

Understanding Mediation – mediation for lawyers Part A

Virginia Goldblatt Geoff Sharp

Mediation knowledge and skills are an increasingly important adjunct to legal practice. Wellington Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition practice as a mediator extends the service that lawyers can offer the public.

16-18 Nov

Reading Accounts and Balance Sheets

Lloyd Austin

While it is not necessary for you to have the financial insight that might be expected of an accountant, you should know how financial statements are put together and know how to ask the right questions and identify warning signs, discuss financial statements intelligently with a client, and know when to call in specialist assistance. This workshop will enable you to unlock the mysteries of financial documents.

Practical Enforcements of Judgments

Webinar

Auckland Hamilton Wellington Christchurch

26 Sep (full) 28 Sep (full)

13-14 Nov 19-20 Nov 26-27 Nov 28-29 Nov

See listing in Commerical/Company section on the previous page.

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

OVERSEAS Rule of law in Burma

Law firms’ cash flow woes

An International Bar Association’s Human Rights Institute (IBAHRI) delegation spent a week in Myanmar/Burma last month, investigating alleged abuses of human rights, violations of international humanitarian law, and violations of civil and political rights.

Cash flow problems are worsening for law firms, according to results from the Law Society’s Law Management Section (LMS) financial benchmarking quarterly, reports The Gazette, journal of the Law Society of England and Wales.

The mission took place from 13 to 19 August and was mandated to examine the state of the rule of law, particularly with respect to access to justice before the courts, and to assess the genuineness of the Myanmar/Burmese authorities’ commitment to engage in serious law reform and respect for human rights.

The survey, the first results of which were published on 22 August, found that 40% of firms were experiencing more cash flow pressures than in the previous quarter.

The delegation held 21 meetings with more than 100 people, including lawyers, judicial officials, parliamentarians of the majority and the opposition, the newly established National Human Rights Commission, and a wide range of civil society stakeholders. A report detailing the findings and conclusions of the mission, including recommendations, will be published before the end of the year.

Advancing pro bono The International Bar Association’s (IBA) Pro Bono and Access to Justice Committee recently established an African Working Group. “This is intended to be the first of a small number of regional working groups to be created,” the committee’s deputy chair Tim Soutar says. The aim of the initiative is “to assist the committee to communicate more directly and effectively with its constituency and generally to further its work. “By raising awareness locally and acting as a conduit for the transmission of information on access to justice and pro bono in their respective regions, it is hoped that the regional working groups will cause a broader spectrum of the IBA membership and of the global profession to become engaged in the work of the committee and in the direct provision of pro bono services.”

LAWTALK 804 / 14 SEPTEMBER 2012

Firms’ responses to increased pressures varied considerably. One in eight of the firms surveyed had introduced new capital to ease cash flow and a similar percentage had restricted partner drawings. A third of practices reported operating within 25% of their overdraft limit, while one in six were operating within 10% of their overdraft limit on a regular basis. Of the 51 participating firms, one-third of practices said they were considering a merger with another practice. While fee income was down compared to the previous quarter, it was slightly up on the same quarter last year.

Independent bar a top priority Independence of the bar, access to justice and leadership are the priorities for new Canadian Bar Association (CBA) president, Robert Brun QC. Mr Brun whose seven-member boutique firm Harris & Brun focuses on civil litigation, primarily in the insurance field, began his one-year term on 14 August. “Adequate protection of human rights and fundamental freedoms requires that legal counsel and representation be provided by a fully independent legal profession,” he says. Mr Brun says he will rely on team work and outreach to members across the country to further the goals and objectives of the CBA. As Mr Brun takes the helm, the 37,000-member CBA is launching a trio of initiatives, one of which aims to improve access to justice and another

at helping the legal profession prepare for the future. The third is an online guide that will assist firms in measuring diversity to enhance their inclusiveness. “Looked at together, the projects will help shape the future of the justice system and the legal profession,” Mr Brun says.

Asylum seeker’s report ‘disappointing’ The Law Council of Australia has expressed disappointment at a number of the recommendations contained in the recent Expert Panel on Asylum Seeker’s report to the Government, particularly those allowing offshore processing in Nauru and Papua New Guinea (PNG). In a release issued on 15 August, Law Council of Australia President Catherine Gale said that, while the council was pleased with recommendations relating to a significant increase in Australia’s humanitarian intake and enhancing protections for refugees around the region, some recommendations reflected a “punitive approach” to asylum seeker policy, including possibly turning boats back in the future. “For many years the Law Council has opposed offshore processing, mandatory detention and other policies aimed at punishing those seeking protection in Australia and the Law Council is disappointed the Expert Panel has made a number of recommendations to establish a system of offshore processing, initially in Nauru and PNG.” Despite being proposed as a short-term solution by the Expert Panel, there is a very real risk that the laws giving effect to these recommendations result in a new form of ‘Pacific Solution’. The previous ‘Pacific Solution’ resulted in many individuals suffering harsh conditions and significant mental harm in offshore detention centres while later being found to be genuine refugees. “To mitigate against this outcome, the Law Council urges the Parliament to ensure that any legislative instruments authorising a location for offshore processing are subject to regular Parliamentary review.” LT

LAWYERS COMPLAINTS SERVICE Lawyer fined for stating she had PI cover when she did not An Auckland lawyer, C, was censured and fined $5,000 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal for making a written statement to a lending institution that she had professional indemnity insurance when she had no such cover. C accepted that she had been negligent or incompetent to such a degree as to bring the profession into disrepute and pleaded guilty. In submissions on penalty, C suggested that the value of her assets meant that she was “self-insured” if there was an issue with a transaction. “We did not treat ‘self-insurance’ as providing any element of mitigation,” the tribunal said. “We note the matter now only because we wish to record that we consider there are some issues which need to be addressed if a practitioner suggests reliance on ‘self-insurance’ in place of professional indemnity insurance.”

The facts In 2010, C had been acting for a longstanding client on the acquisition of a property. The acquisition was to be facilitated by funding from a bank. Shortly before settlement, and after a solicitor’s certificate had been lodged with the bank concerned in anticipation of draw-down of funds, a last minute change of circumstances resulted in C’s client obtaining loan funding from an alternative bank. C received instructions from the alternative bank to act for it in funding the property acquisition with a first mortgage advance. The second bank had a specific requirement that a solicitor acting for it hold professional indemnity insurance at a level sufficient to cover the transaction. That had not been a requirement of the first bank. C signed the second bank’s solicitor’s certificate.

The issue of C having no professional indemnity insurance, but signing a certificate that stated she did have such insurance, came to the attention of the Law Society not as a result of any complaint, but as a result of it being noticed during the course of a normal Law Society practice audit about a year later. When the matter was drawn to her attention, C promptly acknowledged her error and immediately sought and obtained professional indemnity cover to avoid such a situation in the future. C said (and this was accepted by the Lawyers Standards Committee) that she did not notice the additional requirement for professional indemnity insurance.

Name suppression Permanent name suppression was granted, with the tribunal noting that whether or not to grant permanent suppression had been “a finely balanced exercise”. The tribunal noted that this case had some unique characteristics which differentiated it from many other matters where suppression had been sought and declined. “Our view was that there was no prejudice to the purposes of the [Lawyers and Conveyancers] Act [2006] by suppressing the practitioner’s name in the circumstances of this matter, and that the public interest did not require the usual publication of name when weighed against: (a) the medical evidence and matters related thereto that we have outlined; (b) there being little risk of the practitioner making a similar mistake again after the experience of this case, and as signalled by her acceptance of error and apology; (c) the nature of the error not reflecting serious matters regarding the integrity and probity of the practitioner, in the sense that it was an oneoff honest mistake made in the

normal course of practice, with no person suffering loss. By its nature, of course, it was a matter which could adversely affect the profession’s reputation, but in the circumstances of this particular case we have taken the view that does not outweigh the circumstances of this practitioner; and (d) the fact that the practitioner had a good record and standing in the profession over 30 plus years, apart from this blemish (together with some other relatively minor trust account process matters arising at the same time), indicating that there is no real risk to the public interest in the event of suppression, and also to give her some credit for that record in considering the effect on her of publication of her name.” C was ordered to pay $14,450 standards committee costs and $6,800 costs to the Law Society. LT

Tribunal commentary on LCA s24 Two charges brought against Hamilton barrister Cheryl Simes were dismissed by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on 16 February. In dismissing one of the charges, the tribunal commented on the operation of s24 of the Lawyers and Conveyancers Act 2006. Section 24 makes it an offence for non-lawyers to carry out work of a type known as “reserved areas of work”. “The allegation against Ms Simes in respect of being a party to a breach of s24 was that some of her non-lawyer staff had, under her direction and authority, undertaken legal work in the reserved areas of work, pertaining to the direction and management of proceedings before a court,” the tribunal said.

LAWTALK 804 / 14 SEPTEMBER 2012

L AW YERS COMPL AINTS SERVICE “That work was said to be the giving of legal advice in relation to protection orders, preparing without notice applications to the Family Court, and preparing affidavits for court proceedings.” Ms Simes’ counsel submitted that s24 did not, in any event, prevent a nonlawyer who was employed by a lawyer from providing legal advice within the context of their legal employment. He noted that an incorporated law firm, in addition to an individual lawyer, was able to give legal advice regarding the direction or management of proceedings that were reserved areas of work. In the case of an incorporated law firm, employees would have to be involved in giving the advice (a company operates through its human employees) and there is no requirement that such employees be lawyers. The requirement is only that the incorporated law firm be controlled by a lawyer. “While we do not consider that we have to make a formal finding on the operation of s24, because our finding in this matter is that there was no evidence to show that any of Ms Simes’ non-lawyer employees had committed an actual offence, we record that we agree the submission has some merit. “In such case, the legal advice regarding direction and management is effectively provided by the lawyer in whose name it is provided. That lawyer is responsible for the work, and takes continuing responsibility, notwithstanding that the work might actually have been undertaken within the lawyer’s organisation, and under that lawyer’s supervision and control, by a non-lawyer employee. “Indeed, provided there is appropriate supervision and control of delegated work, D’Allessandro (D’Allessandro & D’Angelo v Bouloudas and Another [1992] 10 WAR 191) suggests there is a public interest in efficient delegation. Of course, complete delegation, meaning there was no appropriate supervision and control of the non-lawyer concerned, would not be acceptable as, without those protections, public interest issues arise, as noted in D’Allessandro. “It is the fact that the work is recognised as that of the lawyer, being provided in the name and under the control and supervision of the lawyer

LAWTALK 804 / 14 SEPTEMBER 2012

which is critical,” the tribunal said. “A non-lawyer undertaking such work is not, in those circumstances, ‘giving legal advice to any other person’. The employing lawyer is giving that advice, even if not directly involved.” The tribunal also noted that “nonlawyer employees are expressly brought within the professional controls of the Lawyers and Conveyancers Act 2006 and associated rules and regulations. That supports the proposition that such non-lawyers employed by a lawyer, and under that lawyer’s required control and supervision, should be able to engage in what, for any other non-lawyer, would be an offence”. The other charge against Ms Simes, which the tribunal dismissed, arose from a complaint the Legal Services Agency (LSA) lodged with the New Zealand Law Society in November 2009. The LSA said it had become aware that Ms Simes, who was listed as a lead provider, had been overseas for a period of three weeks from 29 May 2009 until 22 June 2009. It was concerned that during her absence her practice had continued to be operated by “three junior legal practitioners”, and some non-qualified legal executives, with Ms Simes providing supervision by email, telephone and facsimile during that period. The three legal practitioners were barristers employed in Ms Simes’ practice who had been listed with the LSA as secondary providers, and at the time had not demonstrated that they met the minimum competence and experience standards required to be listed as a lead provider. The LSA’s concern was that Ms Simes did not adequately supervise her staff while she was absent overseas. The LSA also raised the issue of whether Ms Simes could adequately provide competent supervision and management of some 12 staff members, considering her own high volume caseload, noting the supervision requirements imposed on one practitioner by 12 staff members. In addition, the complaint noted the LSA’s concern about non-lawyers in Ms Simes’ practice providing legal advice. For Ms Simes, it was submitted that

she was defending this charge because she had approached her obligations conscientiously and comprehensively. The question raised by the charge seemed to be whether she managed her practice sufficiently, not whether her management of the practice resulted in an actual breach of the rules, her counsel said. There was no evidence of any particular breach. He noted that the various rules applicable to barristers did not themselves require that Ms Simes operate and structure her practice in any way significantly different to other lawyers, whether barristers sole or not. The tribunal’s view of the evidence regarding the alleged contravention of Rule 11 of the Rules of Conduct and Client Care while overseas was that it showed “Ms Simes had been conscientious in establishing systems and procedures to ensure proper administration of her practice having regard to her duties as a lawyer. “She was out of office for a mere 14 days, and it is only during that limited period that it is alleged she was not administering her practice in a manner that ensured compliance with her duties to the court and to her clients. “Ms Simes had extensive in-house precedents and guides, linked into her office computer systems. She maintained an overview when overseas via a variety of methods, including linkage to her office computer system, with its client information, work product information, and communication ability. She also had contact via telephone and facsimile and spent so much time liaising with her office while overseas that her prime purpose for travel (holidaying with her husband) was put at risk of becoming secondary.” To find against Ms Simes, the tribunal would need “a clear example of an actual breach of duty that occurred as a result of her being overseas. It would also need some clear evidence that such breach occurred as a result of the way Ms Simes administered her practice not being reasonably adequate for the purposes of Rule 11 during her 14-day absence overseas. There was no such evidence.” The supervision she undertook while overseas “was sufficient in our view, and did not fall short of reasonable requirements,” the tribunal said. LT

L AW YERS COMPL AINTS SERVICE

Struck off for forgery

was “signed by myself”, knowing this statement was untrue.

Gisborne barrister Atareta Poananga was struck off the roll of barristers and solicitors by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after she admitted four charges that included 20 separate incidents of forgery.

Ms Poananga also signed three Authority to Act documents and 17 legal aid applications. She said she received instructions to do so for the legal aid applications.

The facts A 2006 amendment to the Treaty of Waitangi Act imposed a limitation on the filing of historical Treaty claims. That meant no Māori could submit a new claim to the Waitangi Tribunal after 1 September 2008. In the chambers where Ms Poananga practised, active Treaty claims increased from 80 to 350 in the 2008 year. As part of arranging instructions and filing a claim, claimants signed documents, including authorities to act and legal aid applications. Ms Poananga prepared and filed a memorandum stating that at Whangarei Mr A confirmed she acted for him in the [WAI (1)] claim. Ms Poananga had not met with Mr A in Whangarei, but she said he did express a wish to her that she represent him. She then filed a document titled “Memorandum of Counsel”, containing what was represented as the signature of Mr A. At the time, she was not authorised to represent Mr A, she had not met with Mr A and her personal assistant had placed Mr A’s electronic signature where Mr A should have signed. Ms Poananga said that was done despite her telling her personal assistant not to. Ms Poananga acknowledged that she placed in her own hand the signature of another client, Mr B, on a legal aid application. She subsequently prepared and filed an affidavit containing a statement from Mr B his application

Mitigating features The tribunal said it considered relevant mitigating features included good character, reputation, absence of prior transgressions, and eventual acceptance of facts and indication at a relatively early stage of a guilty plea. Ms Poananga’s counsel said she had always intended to return her practising certificate and that she had not worked in the 18 months since her contract with the Legal Services Agency had been cancelled and the charges subsequently laid. She felt under extreme pressure as the deadline for filing Treaty of Waitangi claims approached and indicated that the two-year lead in period was not long enough. Because of the isolated location of most of her clients, she was required to travel to them to take instructions and have forms completed, and they would not come to her. Ms Poananga and her supporters told the tribunal that the clients whose names had been forged would be “horrified” at how the practitioner was being treated as a result of her actions.

Medical certificate A medical certificate was provided by her counsel. “Due to privacy considerations, we do not propose to go into the details of that certificate save as to comment that it was equivocal in its expression, that it raised questions about her capacity to instruct her counsel, and may have had some implications concerning the offending itself,” the tribunal said.

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A second opinion was required and a full neurosurgical assessment was prepared, which also included cognitive functioning tests. The experienced neuro-psychologist who carried out the report said that the practitioner’s reasoning abilities on clinical presentation suggested no cognitive impairment that would preclude her from engaging in legal or disciplinary activities. A rigorous peer review endorsed the report. “Put in lay terms, the practitioner attempted to skew the results of her tests in order to assist her in these disciplinary proceedings,” the tribunal said.

Finding “We consider the lack of integrity demonstrated by the misconduct in this matter, particularly when accompanied by failure to recognise it as such, means that strike off is the only proper response in order to protect the public and the reputation of the profession. We reach this view unanimously as a tribunal of five members. “Unfortunately, the practitioner’s behaviour around the medical assessment did not reflect well on her fitness to be a legal practitioner. We find that she is not a fit and proper person to be a practitioner and make an order striking her off.” The tribunal made an order for costs of $7,910 for the tribunal hearing against the New Zealand Law Society. It reserved its decision as to any contribution to those costs by Ms Poananga. LT

Barrister censured for overcharging After pleading guilty to overcharging the Legal Services Agency (LSA) and Ministry of Justice, Auckland barrister Robyn Fendall was censured for professional misconduct by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.

The facts The charges arose following investigations by the LSA into invoices for attendances as duty solicitor and as youth advocate and for legal aid. Initial investigations began in 2006 and two further investigations were carried out, examining a 31-month billing period.

LAWTALK 804 / 14 SEPTEMBER 2012

L AW YERS COMPL AINTS SERVICE The investigations showed that during that time, Ms Fendall overcharged $17,366 out of a total of $1,210,000 invoiced. Following the first investigation, the LSA cancelled her duty solicitor listing for three months, and the further investigations led to further cancellation of her provider listing. When the investigations uncovered the overcharging, Ms Fendall fully repaid the amounts overcharged.

“While it does not excuse the breach of duty which Ms Fendall has acknowledged, it has been accepted by all concerned that the overcharging arose inadvertently, as a result of billing error. There was no deliberate systematic overcharging,” the tribunal said. Ms Fendall was contrite about her negligence, co-operated with both the LSA in its audit and the New Zealand Law Society in its investigation and has apologised for the errors that led to the overcharging.

The tribunal noted that Ms Fendall was a “diligent and competent” lawyer, and that the errors “fell on comparatively few days compared with the number of days examined in the 31-month billing period”.

Also, “Ms Fendall has taken steps to ensure there will be no repeat and we consider it unlikely that she will again make such a series of billing errors.”

The LSA investigation found that the overcharging appeared to arise principally out of Ms Fendall’s failing to sign-off the duty solicitor attendance sheet when she switched roles during the course of a day and made appearances either on legal aid assignments or as a youth advocate in the Youth Court.

The appeal

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

Admission under Part 3 of the Lawyers and Conveyancers Act 2006

Canterbury Westland Branch COTTER Laura Elizabeth Leonie TRELOAR Joshua William Hawkes Bay Branch BOSTOCK Edward Anthony Otago Branch DICKSON Georgina Sanae Begg

WATT Nathan James WHITE Brooke Elizabeth Waikato Bay of Plenty Branch BARRY Kelsey Ella BIELBY Laura Elizabeth Joan KHONG Zhi Jian NAYLOR Alexander Graham John WILLIAMS Hohipere Tihema

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

Auckland Branch MILLER Hayley Claire MOYES Michael Gregory POPE Sarah Polly TAYLOR Cameron Phillip URLICH Roko Marijan Jujaj

Otago Branch BURKE Christopher Paul COWAN Maree Rita Waikato Bay of Plenty Branch BADCOCK Kevin Andrew

The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/ for_lawyers/registry/applications_for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 20 September 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate. Lisa Attrill, Registry Manager Email: lisa.attrill@lawsociety.org.nz, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989

LAWTALK 804 / 14 SEPTEMBER 2012

As well as censuring her, the tribunal ordered Ms Fendall to pay standards committee costs of $5,000 and $5,000 costs to the Law Society.

The High Court upheld the tribunal’s decision, which the New Zealand Law Society appealed on penalty (Auckland Standards Committee 1 v Fendall [2012] NZHC 1825 (2 August 2012)). “There is considerable uncertainty as to the appropriate approach to appeals in respect of penalty decisions,” Justice Wylie said in his judgment. “Unfortunately, this judgment will not end that uncertainty. “In my view, the appeal was properly brought, and the concerns raised by the [standards] committee were raised in the interests of the profession as a whole.” However, he was not persuaded that the tribunal’s decision was plainly wrong. “In my view, the respondent was singularly fortunate not to be suspended from practice. A differently constituted tribunal may well have legitimately concluded that suspension was the correct penalty. “Indeed, had I been dealing with the matter afresh, it is probable that I would have concluded that a period of suspension was appropriate, notwithstanding the mitigating factors,” Justice Wylie said. The tribunal’s decision on costs was also upheld by Justice Wylie. LT

Boundaries of duty lawyer’s role A Lawyers Standards Committee decided to take no further action on a complaint against a duty lawyer, A, after finding the complaint was based on a defendant’s misunderstanding about the lawyer’s role. In its decision, the committee discussed the extent of a duty lawyer’s obligations.

The complaint The complainant claimed that A hadn’t returned his messages, had failed to turn up to court to appear for him and hadn’t complied with his instructions when she made bail submissions for him. A had been the complainant’s legal aid lawyer on previous charges, but she explained to the committee that on the current charges she had appeared for him only as duty lawyer. She said that on the dates when she had allegedly failed to appear for him she had not in fact been rostered on as duty lawyer. Further, for one of those court dates she had phoned

L AW YERS COMPL AINTS SERVICE the rostered lawyer beforehand to brief him about the complainant’s case. On the issue of bail, A told the committee she could not recall what submissions she had made.

The decision After investigating the complaint, the standards committee found that A had not been guilty of unsatisfactory conduct and it decided to take no further action. Its investigation had confirmed her explanation that she had acted only as duty lawyer. It said it had been appropriate for her to brief the rostered duty lawyer as she had done, given she knew more about the complainant’s matters than a duty lawyer normally would. However, the standards committee found there had been scope for the complainant’s confusion about A’s role, given she had previously been his legal aid lawyer. It said that in such a case a lawyer had an obligation to explain to the client that the “preferred lawyer” option was no longer available under the amended legal aid scheme. A lawyer needed to make clear that his or her role was now strictly limited to appearing for the client only when rostered on as duty lawyer.

Submissions in ‘hopeless’ cases After examining the transcript of A’s bail submissions and the judge’s notes, the standards committee said bail had been unlikely in this case but that nevertheless the submissions had been superficial and had not followed the complainant’s instructions. The committee said that here A had come close to the threshold for unsatisfactory conduct. The standards committee’s view was that where a lawyer is instructed by their client to make “what may appear a hopeless submission”, that in order

to meet their obligations to carry out a client’s instructions, it is preferable that the lawyer advises the court that they have been expressly instructed, while also recognising that the client faces a number of obstacles in attempting to gain the outcome sought.

Assisting with legal aid applications It was unclear in this case whether A had offered to forward the complainant’s legal aid application and whether it had, in fact, been forwarded. The committee said that if a defendant needed to come back to court, the duty lawyer had an obligation to advise them whether they may be eligible for legal aid and to help them apply. It added that although a duty lawyer may not be obliged to follow up on an application and on the assignment of a legal aid lawyer, it would have been reasonable for A to have done so in this case.

Costs The standards committee considered whether to order A to pay costs despite its decision to take no further action. It said that the complaint had been justified by A’s actions and that her conduct had been “close to the mark of unsatisfactory”. She had also been uncooperative and sometimes even obstructive in her responses to the committee, resulting in greater expense. In the end, however, the committee decided not to order costs against her. LT

Terms of engagement should include hourly rate or estimate A Lawyers Standards Committee has stated best practice for providing clients with the fees information required by the Conduct and Client Care Rules.

The committee had decided to investigate the terms of a lawyer’s letter of engagement while dealing with a complaint of overcharging against her. The committee was concerned that the letter was insufficient to enable the client to know “the basis on which the fees will be charged”, as required by Rule 3.4(a).

The facts The letter of engagement stated that the hourly rate would vary between partners and staff members. It also set out the factors listed in Rule 9.1 that are relevant to whether a reasonable fee has been charged – for example, the time and labour expended, and the skill, specialised knowledge and responsibility required to perform the services properly. The committee noted, however, that the letter did not contain any information, such as an estimate or the actual hourly rates to be used, which would have enabled the clients to have some idea of the amount of their fee. The lawyer told the committee that she had informed the clients verbally of her hourly rate, that a discount had been allowed in her fee, and that her firm’s letter of engagement now specified the actual hourly rate. The complaint of overcharging had also not been upheld. For those reasons the committee decided to take no further action on the issue.

Best practice However, the committee wanted to place on record that best practice requires that the fees information required by Rule 3.4(a) should include the hourly rates at which time would be recorded by people working on the file, or an estimate of the fee. The committee said that giving the hourly rate in writing would avoid the need to resolve any conflict about what a client may have been told verbally. LT

WILLS NEIL GEORGE PETRIE

Would any lawyer holding a will for the above-named, late of 98 Charlotte Street, Balclutha, aged 63, unemployed, who died on 17 May 2012 in Dunedin, please contact Public Trust Central Service Centre, PO Box 31446, Lower Hutt 5040, DX RP42084, ph 0800 371 471, fax 04 978 4931, email newestate@publictrust. co.nz.

JOSEPH SYKES WEBB

Would any lawyer holding a will for, or having knowledge of a surviving successor of the above-named, late of Dunedin, born 1832, died 1896, merchant, who owned land at Kensington, Dunedin, please contact Ashley Macfarlane, The Property Group Limited, PO Box 7240, Christchurch 8240, ph 03 363 5908, email amacfarlane@ propertygroup.co.nz.

CAROL ANNE DORAN

Would any lawyer holding a will for the above-named, late of Hornsby NSW, formerly of Mt Smart Road, Auckland, previously Christchurch, aged 66 years, who died on 13 August 2012, please contact Gavin Boot Law, Solicitors, PO Box 19043, Hamilton 3244, DX GP 20006, ph 07 839 5632, fax 07 839 5639, email gavin.boot.law@ xtra.co.nz.

LAWTALK 804 / 14 SEPTEMBER 2012

WILLS DARYL WAYNE BRYENTON

Would any lawyer holding a will for the above-named, late of Katikati, Warehouse Manager, who died on 10 August 2012, aged 48, please contact Sue Adams, c\- Kaimai Law Katikati, PO Box 56, Katikati 3166, ph 07 549 4890, email sue@kaimailaw.co.nz.

WILLIAM BAINBRIDGE

Would any lawyer holding a will for the above-named, late of 2/9 Moana Avenue, Belmont, Auckland, who died on 15 July 2012, please contact Merv Crosby of Crosby & Associates, PO Box 33 825, Takapuna 0740, ph 09 486 1754, fax 09 486 7049, email ca@crosbylaw. co.nz.

ELAINE MARGARET HOWE

Would any lawyer holding a will for the above-named, late of Auckland, who died on 8 April 2012, please contact Andrew Kennedy, Prudentia Law, PO Box 340, Shortland Street, Auckland 1140, ph 09 912 1985, fax 09 912 1982, email andrew@prudentia.co.nz.

BARBARA JANE GAWN

Would any lawyer holding a will for the above-named, late of Dannevirke, formerly of Taita, Waitakere City, who died on 13 August 2012, please contact Glenys Brown, Opie & Dron, PO Box 315, Palmerston North, ph 06 358 7970, fax 06 356 9421, email opieanddron@xtra.co.nz.

PATRICIA ADA DAWSON

Would any lawyer holding a will for the above-named, late of Christchurch, Temuka, Invercargill and Geraldine, who died on 28 May 2012, please contact Dalziel Strauss, PO Box 40, Temuka 7948, DX WA30504, ph 03 615 9580, fax 03 615 7559, email dalstra@ ihug.co.nz.

SESILIA SUEINA SAKALIA TUESE

Would any lawyer holding a will for the above-named, late of Upper Hutt, beneficiary, who died on 9 August 2012, please contact Annette Gray, Buchanan Gray, PO Box 24057, Wellington 6142, ph 04 472 8269, fax 04 472 8270, email annette@ buchanangray.co.nz.

SITUATION VACANT

BARRY FRASER MCPIKE

Would any lawyer holding a will for the above-named, late of North Shore, aged 81 years, farmer, who died on 14 July 2012, please contact Peter J Tatham, Franklin Law Limited, Solicitors, PO Box 43, Pukekohe 2340, DX EP 77029, ph 09 2370 226, fax 09 238 714, email petert@franklinlaw.co.nz.

FREDA ELIZABETH HAWORTH

Would any lawyer holding a will for the above-named, late of St James Rest Home, Christchurch, who died at Christchurch on 26 June 2012, please contact Kenneth G Marshall, Barrister & Solicitor, PO Box 30012, Christchurch 8246, ph 03 332 6533, fax 03 332 6552, email office@kgmarshall.co.nz.

HELENA MANASIADIS

Would any lawyer holding a will for the above-named, also known as Eleni Manasiadis or Helena Middlemiss, late of Wellington and Attiki, Greece, who died on 19 June 2012, please contact Paula Powlesland, Maude & Miller, PO Box 5259, Wellington, 6145, ph 04 473 7121, email paulap@mmiller. co.nz.

MOYNA KATHLEEN PICKUP

Criminal Lawyers – Christchurch Region Senior (Vacancy 23344) Intermediate (Vacancy 23347) Junior Criminal Lawyers (Vacancy 23348) The Public Defence Service has a commitment to providing independent, high quality and timely legal advice and representation in a full range of criminal cases, including providing professional leadership of the duty lawyer service. Reporting to the Deputy Public Defender - Christchurch, your enthusiasm and skills will contribute to the delivery of high quality public defence services in the summary and trial jurisdiction within the Christchurch Courts. We are seeking senior lawyers, intermediate lawyers and junior lawyers. These positions present an opportunity to contribute to a significant development in criminal defence services in New Zealand. You will have strong advocacy skills, will be able to work in a team, relate well to people from diverse backgrounds and to manage a high caseload. • As a senior lawyer, you will have category 3 or 4 approval rating or the ability to gain this. • As an intermediate lawyer, you will have completed the duty solicitor training and have category 2 approval or the ability to gain this. • As a junior lawyer, you will have completed the duty solicitor training and have category 1 approval or the ability to gain this.

Would any lawyer holding a will for the above-named, late of New Lynn, Auckland, retired, born on 13 December 1923, who died on 28 August 2012, please contact Gaileen McGivern of Wynyard Wood, PO Box 204 231, Highbrook 2161, ph 09 969 1777, fax 09 309 1044, email Gaileen@ wynyardwood.co.nz.

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SITUATIONS VACANT

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Modern building recently refurbished High Profile location Handy to motorway Approximately 100m2 all on one level plus outdoor deck Reasonable rental 25 carparks

Telephone: Kevin Pollock 027 445 0410 or email: kevinpollock@xtra.co.nz

A new role has arisen for an intermediate solicitor to join the Wellington office, dealing with local and central government and commercial clients. If you have three or more years’ post admission experience with Property work, then this could be your chance to further your career in the specialised public sector area. Experience in public sector property work would be an advantage and this role may suit someone with inhouse experience at a central or local government organisation. You will need to have excellent written and oral skills, good judgement and a genuine interest in the area. You will need to be a self starter, who is confident to work directly with our clients. Part-time arrangements will be considered. For further information in strict confidence contact Ben Traynor or Clare Savali on 04 471 1423 or email admin@ nicherecruitment.co.nz Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz

TO LET

ROOMS FOR RENT Halcyon Chambers at 82 Jervois Road, Ponsonby, Auckland has two rooms available for rent.

Please contact Helen Athy for more details on:

09 376 3949 or admin@halcyonchambers.co.nz

Duty Lawyer Supervisor Based in Christchurch Full-time or part-time With the expansion of the Public Defence Service to Christchurch, this is an exciting opportunity to contribute to a significant development in criminal defence services in Christchurch. The Public Defence Service has a commitment to providing independent, high quality and timely legal advice and representation in a full range of criminal cases, including providing professional leadership of the duty lawyer service. Reporting to the Senior Duty Lawyer Supervisor for the southern region, you will oversee the duty lawyer service at the Christchurch District Court. You will be committed to providing high quality duty lawyer services to clients and be involved in the further development of an effective and efficient duty lawyer service. As well as leadership skills, we are seeking criminal lawyers with recent duty lawyer experience who have credibility with judges, peers and others working in the criminal courts and an interest in training and mentoring. You will also have strong organisational and administrative skills and the ability to work well within a team environment. Although this is a full time position combining duty lawyer supervision and criminal casework, there may be the flexibility to accommodate applicants who are seeking a part time/job share role.

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To apply, please visit http://careers.justice.govt.nz In your covering letter, please indicate whether you are seeking a full or part time position. If you would like more information about the role please contact Richard McGuire richard.mcguire@justice.govt.nz Applications close Friday, 5 October 2012.

LAWTALK 804 / 14 SEPTEMBER 2012

SITUATION VACANT

Calls for Expressions of Interest

Crown SolICItor’S warrant at tImaru The position of Crown Solicitor at timaru will shortly become vacant when the current Crown Solicitor, mr tim Gresson, will retire from that position and surrender his warrant. accordingly, the Solicitor-General invites applications from suitably qualified law practitioners who wish to be considered for appointment to the office of Crown Solicitor at timaru. The person appointed will have the responsibility for and oversight of, the prosecution of trials on indictment of crimes committed in the area covered by the warrant. The warrant holder will also be expected to have the capacity to give legal advice as to prosecution issues to the Police and government agencies as well as an ability to appear in public law litigation relevant to the conduct of criminal prosecutions.

Solicitors We are a specialist commercial law firm serving the public and private sectors out of our state-of-the-art Wellington office. We are looking for specialist lawyers with 2-5 years experience who have property, financing and commercial/corporate expertise. We offer a vibrant yet relaxed working environment, and the opportunity to work on cutting edge projects for government and quality corporate clients. We will offer outstanding remuneration packages to the successful applicants.

Criteria for appointment include: • Excellence as a lawyer demonstrated from relevant legal experience. • The legal and administrative structure (such as a legal partnership) within which the warrant will be administered. • Excellence as a senior advocate in the courts. Senior Crown prosecution experience is desirable but not essential. • awareness and acceptance of the role and responsibilities of Crown prosecutors. • Competence to discharge a public office in a principled way that from time to time is subjected to public scrutiny. • Personal qualities such as honesty, integrity, good judgment and the ability to apply oneself with commitment. • management and professional leadership skills. • oral and written communication skills. • awareness of the position of victims of crime, equal employment opportunities and the diversity of modern new Zealand society. • awareness of the principles of the treaty of waitangi. It is a requirement that applicants have held a new Zealand practising certificate for at least seven years. appointment to the position will be based on merit. Those interested in being considered for appointment as Crown Solicitor at timaru, should forward their application to the Solicitor-General by 30 September 2012. Further information is available from Jan Fulstow at Crown law – 04-494-5552 or email jan.fulstow@crownlaw.govt.nz applications, marked Private and Confidential, should be addressed to: Solicitor-General, Crown law, Po Box 2858, wellington 6140.

For further information, please contact Bob Roche on (04) 494 8504 and view our website on www.grclegal.com To apply, please email your CV to bob@grclegal.com by 5pm 21 September 2012. www.grclegal.com SCL/GRC8237

READY TO ‘SPRING’ INTO A NEW JOB? Competition/Regulatory Solicitor: Senior position in leading firm for solicitor with 6-10 years’ PQE. Ideal applicants would have a strong competition/regulatory background, possibly with litigation experience (although this is not essential). Experience in supervising and mentoring other solicitors would be desirable. Great opportunity to work with two leading practitioners who work for some of New Zealand’s top network industry clients as well as an impressive range of other blue chip private sector companies. Ref: CW31291 Civil Litigator: Located in a major residential/retail hub, this well positioned Christchurch firm offers the full spectrum of legal work. Due to the increasing workflow across family law, relationship property and civil disputes, this non-legal aid practice requires an energetic civil litigator to complement the property/commercial team. While not essential to the role some experience in property transactions would be useful. This role will suit a personable self-starter with 3+ years post qualification litigation experience. Working autonomously, you will be the direct point of contact with clients. Ref: JL31039 To apply, please send your CV to wellingtonjobs@momentum.co.nz quoting the relevant reference number. For a confidential chat, please contact Carla Wellington (CW31291) or Jennifer Little (JL31039) on 04 499 6161. 191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

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