LawNews- Issue 7

A watershed moment for the legal PROFESSION

Contents

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Editor: Jenni McManus

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Reweti Kohere 022 882 2499 Reweti.Kohere@adls.org.nz

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Independent panel report throws up ‘significant and complex’ implications for lawyers

Reweti Kohere

A once-in-a-generation review of how New Zealand’s lawyers are regulated and represented has proven a watershed for the profession as it grapples with a key finding – that a “strong case” exists for a new, independent watchdog.

That’s just one recommendation from an independent review panel the New Zealand Law Society (NZLS) commissioned a year ago to analyse the statutory framework for legal services in Aotearoa New Zealand.

With a new regulator likely, NZLS will lose its regulatory function, instead continuing to act as a national representative body with a new single governance layer. But the recommendation flies in the face of calls, including from ADLS’ committees, for the profession to maintain the ability to regulate itself.

The panel has also recommended including Te Tiriti of Waitangi in an improved regulatory framework, specifying regulatory objectives to guide the regulator and empowering it to oversee law firms as well as individual lawyers, reform the “slow, adversarial” complaints process, give lawyers and non-lawyers footholds in new business arrangements and encourage more progress on diversity and inclusion.

The profession has until the end of May to provide constructive feedback on the panel’s recommendations. So far, responses shared with LawNews have been mixed, from lamenting that the panel hasn’t gone far enough on certain matters to expressing disappointment that the trend towards a

“corporatised” legal profession is being embraced. And concern remains that any reforms must not undermine the fundamental obligation of lawyers to uphold the rule of law.

“When we are acting for clients or for public interest causes, we may be involved in challenging a government policy or decision on behalf of a client or in the public interest,” says New Zealand Bar Association President Maria Dew KC.

“So the public also has an interest in ensuring that we remain a strong and independent voice for the public, and regulation of the profession is free from the risk of political influence.”

Rule of law

Dew says the report gives NZLS a valuable resource of recommendations for change, including the streamlining of the organisation’s governance structure, an overhaul of the complaints and disciplinary process, the removal of the pro bono services hurdles for in-house lawyers and the focus on promoting a more diverse culture within the profession.

The Bar Association’s main concern is that changes to the way lawyers are regulated don’t undermine the practice of law as a profession, “which at its heart is charged with upholding the rule of law”, she says.

The association will keep pushing for the regulation

Continued on page 04

Concern remains that any reforms must not undermine the fundamental obligation of lawyers to uphold the rule of law

The public also has an interest in ensuring that we remain a strong and independent voice for the public and regulation of the profession is free from the risk of political influence

Continued from page 03

lobbyists with very particular agendas,” he said.

of non-lawyers, including employment and ACC advocates, as barristers have serious concerns about whether the public is sufficiently protected.

As things stand, non-lawyers lack oversight; the public has no professional body to complain to should they provide inadequate representation. The review panel has recommend not extending regulation to other unregulated legal service providers.

The panel has also parked the issue of how barristers are appointed to the rank of King’s Counsel, although it acknowledges the appointment process warrants reconsideration at some point in the future.

Some submitters criticised the process for lacking transparency, which reinforced the perception of an old boys’ club, with an element of shoulder-tapping and rewards for those who are well-connected, the panel said.

Dew explains senior Bar members are appointed to the Bar Association Panel, which considers each application and accompanying references carefully, as does NZLS and the judiciary. Their considerations are collated and referred to the solicitor-general, chief justice and attorney-general.

“This is a rigorous process of consideration and it is very far removed from any ‘boys’ club’ process, which might have been a concern in past generations,” she says. “However, the Bar Association does believe it is time to reconsider the format and possible adoption of a joint selection panel to enhance transparency and uniformity of the process.”

‘If it’s

not broken, don’t fix it’

Gibbs Mills Livingstone Lawyers partner Sam Khalesi says the report is “disappointing but not at all unexpected”.

In an earlier LawNews article, Khalesi cautioned against the profession’s increasing “corporatisation”, saying opening it up to non-lawyers was “little more than propaganda created by overseas lobbyists to open our profession to private money”.

“We must at all costs resist the urge to blindly follow international trends. Larger jurisdictions that have relaxed their rules have done so at the behest of

The report noted international studies supported the view that business restrictions were motivated less by a desire to protect clients than to protect lawyers from competition. Such protectionism raised the cost of legal services while reducing their availability, stifled new start-ups and constrained competition. The panel referred to reforms in Victoria, New South Wales and Western Australia, as well as England and Wales which it said were at the forefront of how corporate form was regulated.

This overseas experience, on which the report relies heavily, is “premature”, Khalesi says. “The effects of consolidation, which can hinder competition, increase prices and decrease service quality, are significant issues that may take up to 20 years to manifest, as seen in the medical industry in the United States.

“It is unreasonable to assume that our industry will be exempt from the potential consequences of consolidation and we should allow for more time to pass before evaluating the overseas experience as a success or failure.”

The panel’s focus on investment in the industry is “misplaced”. Khalesi says the “magic circle firms”, a term describing the five most prestigious London-headquartered multinational law firms, aren’t struggling for cash and don’t require external investors.

“The top five law firms worldwide have revenues exceeding US$20 billion. What kind of investment do these firms need that they can’t finance themselves? If it’s not broken, don’t fix it,” he says.

Not far enough

Te Hunga Rōia Māori co-presidents Renika Siciliano (Waikato, Ngāti Maniapoto) and Baden Vertongen (Ngāti Raukawa) agree that fundamental change is needed as the profession’s current model of regulation and representation is fundamentally flawed. “The report shows that we are not alone in this, and that the current system is outdated, unrepresentative, and unresponsive.”

The Māori Law Society welcomes the

Continued on page 05

The review panel has recommended not extending regulation to other unregulated legal service providers

It’s envisaged non-lawyers will be allowed to have ownership interests in law firms and lawyers will be permitted to formally team up with non-lawyers

Continued from page 04

recommendation that an independent regulator should include Māori representation, that Te Tiriti be incorporated in any new statutory framework and that cultural competence should form part of lawyers’ ethical and professional competence.

However, the co-presidents would’ve gone further than the majority of the panel in a number of areas, including whether to add regulatory objectives covering the use of te reo Māori and the preservation of tikanga, and including Te Tiriti in the fundamental obligation to uphold the rule of law.

The report noted that panel chair Professor Ron Paterson and member Jane Meares believed a less expansive list of regulatory objectives was better, in contrast to member Professor Jacinta Ruru (Ngāti Raukawa, Ngāti Ranginui, Ngāti Maniapoto) who advocated for specific references.

“The report is silent on key structural issues relating to the representative function of NZLS in any new model,” the co-presidents say. “We encourage NZLS, and the profession as a whole, to move towards the type of model suggested by the panel in order to best support all members of the profession and the clients who depend on us.”

Not going soft

Among the key submissions made by ADLS committees to the independent panel: lawyers don’t want or need an independent regulator. NZLS should continue to act as the regulator, but it must first relinquish its advocacy function to avoid actual and perceived conflicts of interest. Triage is needed for the complaints process, which is broken and not fit for purpose. And any move to incorporate Te Tiriti into the Lawyers and Conveyancers Act is likely to be divisive and have unintended consequences.

The committees’ biggest concern on regulation was the potential for conflicts of interest between the regulatory and membership representative functions of NZLS. The committees were unanimous on this issue: confusion existed as to whether the law society was the police or an advocate. There was a perception the model skewed disproportionately toward the

regulator role, reducing the law society’s ability to make submissions to Parliament on bills and to other government agencies on relevant matters.

Most committee members agreed, however, that there was no need to establish a new, independent regulator.

“Having a new, independent regulator, likely with members appointed by the government of the day, may impede the ability for lawyers to fearlessly uphold the rule of law, challenge the government and as a result diminish access to justice. Indeed, any arrangement other than the legal profession selfregulating may lead to such an unintended perceived and/or actual outcome.” Self-regulation did not mean going soft on practitioners, the submission said.

No longer tenable

In recommending a new, independent regulator without direct ties to the government, Paterson says it is no longer tenable for NZLS to be both regulating the profession and representing lawyers’ interests.

“The conflict between these two competing functions is undermining the efficiency and effectiveness of the law society as a regulator and eroding the trust of lawyers in their membership body.”

The proposed governance structure – four lawyer members, four public members, with one of the public members as chair – will “clearly signal a clean break with the past and a shift to regulation in the public interest”. Paterson says the law society will continue to serve as a national representative body for lawyers.

The panel heard more concerns about the current complaints system than any other topics and “wholesale” reform has been recommended, Paterson says.

The highly prescriptive system of using volunteer Standards Committees would be replaced with a professional in-house model focused on low-level resolution. Formal disciplinary procedures would be reserved for only the most serious of complaints.

Meares says the recommendations on business arrangements will protect consumers, ensure fair competition and enable innovation.

It’s envisaged non-lawyers will be allowed to have ownership interests in law firms and lawyers will be permitted to formally team up with non-lawyers. A “compelling” case exists for freeing up the profession

to embrace such arrangements, Meares says. “Both consumers and lawyers will benefit if lawyers can partner with non-lawyers, such as accountants, to provide a broader range of services to the public.

Ruru says there’s much more work to do to improve the profession’s culture. “There is a lack of gender equality in many senior positions, a striking lack of ethnic diversity across the profession and barriers for lawyers with disabilities. Coupled with the welldocumented issues of harassment and bullying, it is no surprise we heard from many lawyers about the urgent need for change.”

Law Society

The NZLS board and council are reviewing the report ahead of preparing a response by the end of July for the Minister of Justice, Kiritapu Allan, to consider.

An NZLS spokesperson confirms the response will be passed on to the government to facilitate the shape any future legislative reforms might take.

The panel is undertaking a series of information sessions with the profession in the next month and practitioners can still provide feedback on the review until the end of May, the spokesperson confirms. “Submissions from the profession would also form part of any legislative reform.”

NZLS President Frazer Barton says the “very substantial” report had given the profession a lot to consider and “significant and complex implications” flow from the recommendations.

“Any legislative change wouldn’t happen quickly. We will work with government to understand the likelihood of legislative change as we strive towards our commitment to being a best-practice, modern regulator and peak national representative body for the legal profession.”

Barton says progress has already been made in line with the panel’s conclusions and the law society will continue to make headway.

“This independent review is an important step forward to outlining the potential changes that are needed for the legal profession in the future, but it is going to take all of us working together to achieve the differences that are needed.” ■

See also page 06

The fine print: what the Independent Review Panel has recommended

Reweti Kohere

■ Establishing a new, independent regulator that isn’t a Crown entity or subject to ministerial direction

■ New governance structure of eight board members, with four lawyer members and four public members, and with at least two members having strong te ao Māori insights. A public member will chair the new board.

■ The Minister of Justice will appoint the board on advice from a nominations panel made up of consumer representatives, governance experts and members of the legal profession.

■ NZLS continues as a national representative body, having a single governance layer with a board comprising eight to 10 members, including from the public.

■ Incorporating Te Tiriti o Waitangi and regulatory objectives into a new regulatory framework and updating lawyers’ fundamental obligations

■ Those exercising powers and performing functions and duties must give effect to the principles of Te Tiriti.

■ New regulatory objectives will be set out, including the overarching objective to protect and promote the public interest.

■ Requiring lawyers to promote and protect their clients’ interests and adding a new obligation to maintain their competence and fitness to practise.

■ Reforming the scope of regulation

■ Regulatory focus remains on lawyers and conveyancers, rather than extending it to unregulated legal service providers.

■ A new “freelance” practising model will be introduced, allowing lawyers to provide services to the public in non-reserved areas without needing the regulator’s prior approval.

■ Employed lawyers can provide pro bono services to the public in

non-reserved areas.

■ Accepting new business structures where non-lawyers can have ownership stakes in law firms and lawyers can enter legal partnerships with non-lawyers.

■ Directly regulating law firms, with new firm-level obligations.

■ Enabling the regulator to better protect consumers, support practitioners and assure competence through new tools and powers, including suspending practising certificates.

■ Reforming the complaints system

■ In-house specialist staff will assess and determine complaints, rather than Standards Committees volunteers.

■ Formal investigative and disciplinary processes will be reserved for matters requiring a disciplinary response from the regulator.

■ Complaints about fees, delay, poor communication and other “consumer matters” will go through a dispute resolution process.

■ The identities of lawyers who engage in “unsatisfactory conduct” will not be publicly disclosed other than in exceptional circumstances, with naming reserved for cases where lawyers are found guilty of “misconduct”.

■ A small review committee will replace the independent Legal Complaints Review Officer.

■ Lawyers will be subject to a new duty to ensure complaints are dealt with promptly, fairly and free of charge.

■ Encouraging diversity and inclusion

■ The regulator must encourage “an independent, strong, diverse and effective legal profession” and have a competence-based board reflecting diversity.

■ Removing regulatory barriers that are having a discriminatory effect.

■ The regulator will have new powers to collect data on diversity from law firms, with aggregate data published on trends within the profession. ■

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The NZLS Review Report: time for robust and open debate

The review report titled Regulating Lawyers in Aotearoa New Zealand, Te Pae Whiritahi i te Korowai Rato Ture o Aotearoa represents a watershed moment for the legal profession.

It foreshadows the loss of self-regulation, which the profession fought hard to retain before the 2006 reform was enacted. The momentum this is likely to achieve within and outside of the legal profession makes loss of self-regulation almost inevitable. But it need not. It is a change that ought to give lawyers pause for considerable thought. In this piece, I discuss certain important aspects of the review only, space being too limited for comprehensive comment.

It was inevitable from the terms of reference and the proposals floated by the reviewers last year that the commissioning of this report was an act of self-immolation by the New Zealand Law Society (NZLS). The recommendation to end self-regulation was an inevitable result if one took a casual glance at the backgrounds of the review panel members.

My comments are informed by experience with law society governance, as a former Waikato BOP District President and former New Zealand Vice President and board member at, and following, the time of the last reform. I have also acted as an NZLS prosecutor and as intervening counsel for the NZLS; I now act for many lawyers before the Disciplinary Tribunal and the High Court, and before Standards Committees and the LCRO. I see how the regulatory system works up close. It has faults, but it also has a lot going for it. The review report lacks balance in my opinion and it fails to count the cost of a loss of self-regulation, both to lawyers and the public.

A rising tide of dissatisfaction?

There is no doubt the complaints service has problems. It is not alone. Try making a complaint to the Health and Disability Commission, previously chaired by one of the report writers. The law society’s complaints service in my experience is more

responsive to public complaints than many ‘independent’ regulators.

Complainants and lawyers are written to, assisted and engaged by staff and actively included in the process. More trained staff and a power to weed out trivial, meritless or pointless complaints will help: such a power may not be perceived to be “consumer-friendly” but it will get rid of time-wasting complaints that should not make their way to standards committees.

Consumers’ perceptions of lawyers looking after their own were rejected by the authors, and rightly so. Yet, incoherently, the authors conclude that consumer perception was enough to constitute a “fundamental flaw” requiring change (p 152).

The authors would appear to agree with philosopher Francis Bradley: “And reality without appearance would be nothing, for there is nothing outside appearances.” (Francis Bradley Appearance and Reality, George Allen and Unwin Ltd, London, 1893).

Standards committees in my experience hold lawyers’ feet to the fire when it comes to regulatory compliance. They bring to their functions independence, considerable pooled experience, analytical power and good judgment. I reject the proposal that another deliberative body would do a better job. Voluntary service on such committees increases the depth of knowledge and experience available to the regulator. Standards committees should be preserved rather than cast aside in favour of employed specialists, who will have to function and be accountable within a bureaucratic hierarchy (the type that Sir Bob Jones has described as ‘box tickers’).

The report’s authors observe a lack of diversity on the committees. I agree this ought to be addressed because other cultural perspectives can and ought to add to the committees’ pool of experience and wisdom. The solution is to actively recruit a broader range of competent members.

Continued on page 08

Warren Pyke

The proposal to separate the functions is more about finding an excuse for wresting the regulatory function away from the control of the legal profession.

A new ‘independent’ regulator will be unrepresentative of, and unaccountable to, the profession

We should also ask what the regulator embracing tikanga as the ‘first law’ actually means, particularly in the context of a proposal to enact an ‘overarching Te Tiriti clause’

Continued from page 07

The staff of NZLS and committee members require to be lifted up, rather than crushed by facing another massive restructuring. As the authors of the report observe, the success of the law society has, over many decades, benefited from a team of highly professional and dedicated staff. Its executive leadership is committed to ensuring NZLS operates as a modern, responsive regulator (p 46 of the report): in my experience, this commitment is long-standing and has not been sufficiently recognised by the profession. There is an incoherence in the report’s recommendations which, on the one hand, recognise this quality of leadership and staffing, yet also recommend they be dismissed from their regulatory role.

The report’s authors say about their recommended new model (p 77):

“Under this model staff are appointed with skills in complaints resolution and adjudication, and many also have legal qualifications and backgrounds. The complaints body would seek external advice from lawyers on professional standards and technical matters as required. A similar model operates effectively with the independent, lay Health and Disability Commissioner in New Zealand, handling complaints against health professionals and seeking expert advice when necessary.”

But in 2021 it was reported that the percentage of complaints investigated by the Health and Disability Commission dropped from 40% in 2001 to 4% in 2019 (The NZ Herald, 15 December 2021).

This year, a woman whose father spent his last days in an aged care facility said communication with the Office of the Health and Disability Commissioner was confusing, slow and arduous (RNZ, 12 March 2023). This is the model being offered to us by Professor Ron Paterson, a former Health and Disability Commissioner and author of the 2009 review of the Health and Disability Commissioner Act and Code of Rights (a report which recommended “recognition of the Treaty of Waitangi in all roles, functions and activities of HDC” and recognition of the Treaty of Waitangi in the code, see report to the Minister of Health, June 2009 at p 43).

Regulatory and representative functions – a conflict or not?

The case for separating the regulatory from representative functions has not been made out in the report.

NZLS is not a union. It may appear to be so doctrinally, or at the surface, but where is the evidence that the NZLS’

performance of certain representative functions is doing any harm?

I can see no evidence in the report that the regulatory functions have been compromised by the advocacy functions of the NZLS; often they are complementary (such as law reform submissions to government, CLE and law libraries). The NZLS branches promote collegiality, which in turn enhances professional compliance. Those who want a more racy representative body or something different have plenty of other options. Moreover, membership is voluntary and free.

The proposal to separate the functions is more about finding an excuse for wresting the regulatory function away from the control of the legal profession. A new ‘independent’ regulator will be unrepresentative of, and unaccountable to, the profession.

Counting the cost

A new state regulator will likely be more bureaucratic and costly to administer. No financial modelling is given by the authors of the report. No future costings are given against historic and current costs. The report mentions alleged “systematic underfunding” (pp 53 and 54) but even if there has been a recent trend to underfund the complaints service, it has not always been so and it need not continue. Capable leadership can solve this problem.

When I was District President, the district law society ran a year-on-year surplus from which it drew when major complaints and inquiries emerged. There was a major inquiry in my first year, so we increased the levy later that year. Contrary to what the authors opine about law society politics, I got re-elected

Continued on page 09

It is naive to think any regulator is insulated from political pressures, however notionally independent it may be

Continued from page 08

notwithstanding an annual levy increase. This was because members were effectively communicated with, and they could see the funds were wisely and necessarily spent and that worse troubles were being averted. This issue is about sound management, not the governance structure per se

As noted in the case of the Health and Disability Commission, other ‘independent’ regulators in New Zealand and abroad are afflicted by escalating costs and inefficiencies. Public sector bureaucracies are hard to cost-control, particularly when they have political causes to promote (it is naive to think any regulator is insulated from political pressures, however notionally independent it may be). Levies on a captive profession by a new regulator may make the current moaners’ eyes water.

Legal Complaints Review Officer

The Legal Complaints Review Officer should be retained. I have not been happy with some decisions from this officer in cases in which I have appeared for clients, but on the other hand I observe some very good work has been done by the review officer.

The review officer plays a very important role by bringing independence and objectivity to matters where standards committees may have become blinkered or applied rules too rigidly. The review officer needs to be properly funded and recruitment needs to be improved, without meaning any criticism of the current LCRO and delegates. A lot of contested matters are resolved by the review officer that otherwise might find their way into another forum, particularly the High Court on judicial review. Squeezing that work out of the review office and into the High Court would not be a welcome addition to that court’s workload.

The power of summary suspension

The authors report:

“Our discussions with Law Society staff highlighted that, even in instances where a lawyer has been convicted of fraud or become bankrupt, the Law Society has no power to act promptly to protect the public. As with all cases the Law Society must either initiate disciplinary proceedings and apply for a suspension or wait until the lawyer seeks to renew their practising certificate.”

NZLS and before it district law societies have been able to access the High Court’s inherent jurisdiction to suspend lawyers where the circumstances warrant it (see this jurisdiction discussed in New Zealand Law Society v Deliu [2014] NZHC 2467; [2015] 2 NZLR 224). This jurisdiction is mentioned only

briefly in a footnote in the report (footnote 275 on p 144). The above passage conveys an alarmist and misleading impression, of which the report’s authors appear to be unaware.

It is not correct that the law society has no power to act promptly to protect the public where necessary. Had the report authors conferred more extensively with those involved in past governance of law societies, they would have learned that resort to the High Court’s jurisdiction has occurred from time to time to address this very problem.

Swift steps to suspend such practitioners by applying to the High Court can be taken. It is not a complicated or timeconsuming procedure. My district council took proceedings to suspend a number of solicitors over a week when I first assumed office as a District President 20 years ago.

While it was a distressing thing to have to do, and it needed careful handling, the public was protected from further fraudulent dealings, trust accounts were frozen and documents seized (the process was accompanied by search warrants issued by a High Court judge: I was present with an NZLS inspector when these were executed). I was relieved that a High Court judge had the last say. This should not change. The tribunal is accessible when charges are laid and there is less urgency; the High Court can be resorted to if the regulator thinks suspension from practice is an urgent necessity.

The regulator should not have summary powers to suspend practising certificates. Having to make a case to an independent judicial authority lends discipline and restraint to the use of this draconian power which when exercised can be life- and careerdestroying. The need for resort to such a power is, and should, remain relatively rare.

Te Tiriti o Waitangi as a legal lodestone

I have previously written about incorporation of te Tiriti o Waitangi into our regulatory legislation (in LawNews issue 43, 2022): I will not repeat those arguments here. The authors recommend as follows (p 9):

“A new statute for the regulation of lawyers should include a stand-alone, overarching Te Tiriti clause: ‘All persons exercising powers and performing functions and duties under this Act must give effect to the principles of Te Tiriti o Waitangi.’ This will signal the importance of Te Tiriti to New Zealand’s constitution and legal system and guide how the regulator engages with the profession and the public and fulfils its functions.”

We should also ask what the regulator embracing tikanga as the

Continued on page 21

The regulator should not have summary powers to suspend practising certificates.

Having to make a case to an independent judicial authority lends discipline and restraint to the use of this draconian power

Why we have both barristers and solicitors

Training programs

The training of barristers has changed significantly over the centuries. Historically, the Inns of Court were responsible. Until the 18th century, the Universities of Oxford and Cambridge did not teach English common law; they taught only civil law, that is Roman law.

Barristers received their legal training at the inns, where they observed proceedings in court and took notes, practised in moots and, by the 15th and 16th centuries, attended readings and lectures. However, by the 17th century this system of legal education had decayed, and all students had to do to be called to the Bar was to eat the required number of dinners at their Inn of Court.

We’ve already touched on the history of barristers as a profession, but let’s look at that in more detail.

As I said earlier, originally the leaders of the profession were the serjeants. The serjeants had their own inn, Serjeant’s Inn, and ranked higher than ordinary barristers. Judges were drawn from the ranks of serjeants. Over time, however, the serjeants declined and after the 1873 Act no more were appointed. The title survives only in the title of Common Serjeant of London, a senior judge at the Old Bailey.

Meanwhile, the offices of Attorney-General and SolicitorGeneral developed as the King’s representatives in the courts. Confusingly, in modern times these offices have almost always been held by barristers, not solicitors. With the development of the modern system of cabinet government, the AttorneyGeneral and Solicitor-General became government ministers, and they still are today.

From the reign of Elizabeth I onwards, there was a body of barristers retained by the Crown called King’s Counsel. In 1603, James I appointed Francis Bacon as “one of our counsel learned in the law”. This was the origin of the modern rank of King’s Counsel, or KC.

Originally King’s Counsel were appointed to advise the King and his law officers. However, over time, it became a title of honour that was conferred on professionally eminent or politically influential barristers. Historically, King’s Counsel could not appear against the Crown except by special licence, but this rule was abolished in 1920.

As most people know, we still have the title of King’s Counsel today. Until relatively recently, it was the Lord Chancellor, a Cabinet minister, who appointed King’s Counsel after confidential consultation with senior judges and senior barristers.

The process was completely lacking in transparency, like the old judicial appointments process. However, in 2005 an independent appointments panel was introduced and the process today is much more transparent and less political.

The 19th century saw significant improvements. A parliamentary select committee in 1846 harshly criticised the system of legal education. The four inns created the Council of Legal Education in the 1850s, and in 1872 it became compulsory for an examination to be passed before Call to the Bar.

English law degrees were established at the Universities of Oxford, Cambridge and Durham in the 1850s, and later in the 19th century the new civic universities also began to offer law degrees. In 1959 it became compulsory to complete a period of 12 months’ pupillage in chambers after Call to the Bar, and from 1965 pupils were prohibited from taking cases during their first six months of practice.

There were further changes in the late 20th century. The Bar first required barristers to have a university degree in 1975. In 1967 the Inns of Court established the Inns of Court School of Law, with a permanent teaching staff.

In 1989 the Bar Finals, the required examinations for Call to the Bar, were replaced with the Bar Vocational Course (BVC). The Inns of Court School of Law had a monopoly on the BVC until 1997, when it was opened up to universities. The BVC has since been renamed the Bar Professional Training Course (BPTC).

Social status

It's important to understand that there has historically been a strong class divide between barristers on the one hand, and attorneys and solicitors on the other.

Due to the expense of education at the Inns of Court, barristers were generally drawn from wealthier families and were of higher social status, while attorneys and solicitors were of lower social status. The barristers themselves looked down on attorneys and solicitors.

In 1614 the Benchers of the Inns of Court described

Continued on page 11

Professor Leslie Thomas KC

It’s important to understand that there has historically been a strong class divide between barristers on the one hand, and attorneys and solicitors on the other ….The barristers looked down on attorneys and solicitors

In the second of a three-part series examining whether a split legal profession still makes sense, British KC Professor Leslie Thomas explains how barristers and solicitors came into being and the historical differences in their social status

Continued from page 10

attorneys and solicitors as “ministerial persons of an inferior nature”. In 1666 they were described, even more harshly, as “immaterial persons of an inferior nature”.

This snobbery remained the case two centuries later. In the debate in Parliament on the County Courts Act 1846, which allowed attorneys a right of audience in the county courts, the Attorney-General said the following in opposing the Bill: “…the business of the advocate in all our courts, superior or inferior, should be conducted by men of trained education as advocates, of established position as gentlemen, as men of honour. …. if any monopoly at all were allowed to exist, it would surely be better to place it in the hands of a highly-educated class of men, rather than in those of an inferior class.”

That tells you a great deal about the prevailing attitude of barristers towards attorneys and solicitors in the 19th century.

Of course, this is not to deny that some attorneys achieved wealth, fame and distinction or that some barristers made little money. The operettas of Gilbert and Sullivan are an interesting insight into the legal profession of the 19th century, since Gilbert himself was a barrister who had been unsuccessful in the profession.

In Trial by Jury, the judge sings about his time as an impoverished young barrister who did not get sufficient work until he promised to marry the daughter of a rich attorney. He sings, “I grew tired of third-class journeys and dinners of bread and water…” Conversely, in HMS Pinafore, Sir Joseph Porter sings about his own rise from office-boy to an attorney’s firm, to junior clerk, to articled clerk, to partner and ultimately to Member of Parliament and First Lord of the Admiralty.

But the structure of the profession of the Bar, where barristers had to pay their own way until they could attract sufficient work to make money, typically meant that the Bar was closed to people who were not from moneyed backgrounds.

To an extent, this problem survived into modern times. When I came to the Bar, it was still the case that many pupil barristers were unpaid during their training as was I.

In Edmonds v Lawson [2000] QB 501 an unpaid pupil barrister sued, claiming she was a worker who was entitled to the minimum wage. She won at first instance but lost in the Court of Appeal.

Nowadays, chambers are required to pay their pupils but this rule was introduced only in 2003. And it remains the case that many barristers who do primarily legal aid work suffer financial hardship in their early years of practice and need financial help from their family. This continues to make the Bar less accessible to people from poorer backgrounds.

And although the class divide between barristers and solicitors is much less strong today, some vestiges of it remain. In my experience, the title of barrister still attracts a certain amount of social distinction and deference. And the Bar is still very much part of the establishment. It maintains much of its traditional pomp and ceremony, from wearing wigs and gowns to eating dinners at the inns.

Another important factor in the prestige of barristers is that traditionally, appointments to the senior judiciary – the High Court, the Court of Appeal and the Supreme Court – have been reserved for barristers. This is no longer the case and it is now possible for solicitors to be appointed to the senior judiciary. But overwhelmingly, most senior judges still come from the Bar.

Regulation

Finally, let’s look at who regulates barristers. The four Inns of Court, as the professional societies for barristers, survive to the present day. Everyone who wants to be called to the Bar still has to join an Inn of Court first.

In 1895 the General Council of the Bar, or Bar Council, was created as an overarching professional body for the Bar. The inns and the Bar Council regulated barristers until 2006, when the Bar Standards Board was created as a separate regulatory body. Technically speaking, the Bar Standards Board is a committee of the Bar Council, but it operates autonomously in regulating barristers. ■

Next week: The advantages of a split profession – and the counter-arguments

Professor Leslie Thomas KC is a lecturer at Gresham College in central London

The operettas of Gilbert and Sullivan are an interesting insight into the legal profession of the 19th century, since Gilbert himself was a barrister who had been unsuccessful in the profession

FMA hammers Du Val Group, investors leak to media

Sally Lindsay

Reprimands from the Financial Markets Authority (FMA) are piling up against Du Val Group, while the embattled property developer scrambles to block disaffected investors from leaking to the media.

The regulator issued Du Val Capital Partners (DVCP), the general partner of the Du Val Mortgage Fund and Du Val Group, a formal warning last week for misleading investors about its suspension of cash distributions from the mortgage fund in January. In the FMA’s view, Du Val breached s 19 of the Financial Markets Conduct Act 2013.

Complaints were made to the FMA after the suspension. Investors had been told the fund would be wound up and the cash distributions converted into units at a 25% premium to be placed in a new company, pending a potential public listing on the NZ Stock Exchange or an alternate.

FMA executive director (response and enforcement) Paul Gregory says this was misleading as the payments were suspended because Du Val’s board could not approve cash distributions as it would leave the company unable to meet its other obligations.

And, Gregory says, the proposal to convert cash distributions into units in the fund is not permitted under the terms of the limited partnership agreement governing the investment and investors were not obliged to accept that decision.

Du Val Capital Partners, in a brief statement, says it is disappointed the FMA has issued a public warning against the company for a direct communication made to a small group of investors.

“The fund is closed and the communications have no relevance to the New Zealand public. Investors have received further communication to clarify statements that may have been misunderstood,” the

statement said.

DVCP sold units under its mortgage fund to wholesale investors over the past two years at a minimum buy-in of $250,000. The units are backed by a portfolio of nine South Auckland apartment developments valued by Du Val at $750 million.

The investment offered a fixed return of 10% per year, paid quarterly, equating to cash distributions of $2.5 million per quarter or $10 million per year.

Most of the investors relied on the fund’s interest payments.

One elderly investor, who has $800,000 in the mortgage fund and leaked information to BusinessDesk, was this week reminded of his obligations by Du Val’s senior legal counsel Matthew Hawkes, who advised the investor to “keep all information relating to the business” confidential under the terms of the limited partnership agreement. Du Val says all investors are bound by non-disclosure agreements.

Hawkes told the investor the company required him to remedy the ‘breach’ immediately by, amongst other things, destroying confidential information leaked to BusinessDesk

Requests to exit the fund have got investors nowhere.

In further leaked information to BusinessDesk, Du Val general manager of investor relations Glen Williams told investors the company continues to priortise funds for the completion of projects and the protection of investor funds.

“Redemptions will be considered as part of the upcoming liquidity events on the terms of the limited partnership agreement,” he said. No details of the liquidity events have been given.

Last month, DVCP chairman Owen Culliney said a listing wasn’t certain, given there had been no formal engagement with either the stock exchange or the

FMA to date.

In an update, Williams told investors the company has now pushed out the likely timeframe for using an information memorandum in relation to the stock exchange listing due to delays onsite following the weather events in Auckland.

Gregory says the FMA is satisfied that Du Val, by making statements about the mortgage fund conversion of cash distributions into units, may have constituted conduct that is likely to mislead or deceive because investors were not informed of the underlying reason for the board’s resolution to suspend and capitalise distributions, or of their rights relating to the suspension.

“We consider the conduct has actively prevented or has not enabled investors to make a properly informed decision about dealing in financial products.

“The warning means Du Val investors have more accurate information on the public record about the proposal which, if they wish, means they can better engage with Du Val and/or seek advice about their options,” Gregory says. “Du Val should now reflect on its fair-dealing obligations and whether it has provided accurate information to its investors. For the FMA’s part, we reserve the right to take further action in the matter.”

This latest reprimand comes on top of a warning in October last year to it and six other property funds over dodgy wholesale investor certificates.

Du Val Group also lost a High Court appeal in the middle of last year against the FMA’s directions to withdraw a promotional video from an advertising campaign and remove claims about an investment offering that the FMA considered likely to be deceptive and misleading to potential investors. Du Val was at the time running its campaign to raise $100 million for the mortgage fund. ■

We consider the conduct has actively prevented or has not enabled investors to make a properly informed decision about dealing in financial products

Briefs

AFL sued

Australian lawyer Michel Margalit has lodged a class action at the Supreme Court of Victoria against the AFL on behalf of 60 footballers, including men in their 30s, for brain injuries allegedly caused by the game.

The Australian reports that the lead plaintiff is premiership player Max Rooke who played 135 AFL games. The lawsuit alleges Rooke has suffered permanent, life-altering injuries as a result of concussionrelated injuries and due to the negligence of AFL.

Margalit, managing principal of Margalit Injuries Lawyers, has previously said she thinks players should be awarded more than A$2 million each, plus medical expenses. Similar class actions in the US brought by former NFL players resulted in initial pay-outs of more than US$1 billion.

Bank warning

KPMG’s annual Financial Institutions Performance Survey reveals that banks in New Zealand increased their net profit after tax (NPAT) to more than $7 billion in 2022, a rise of $1.06 billion on the previous year.

However, John Kensington, KPMG’s Head of Banking and Finance, says banks’ return on equity (ROE) is lower than the Top 50 average on the NZ Stock Exchange. Average ROE for banks was 13.4% compared with the NZX average of 15%.

The rise in NPAT was dominated by the four big banks: ANZ (a 19.8% rise to $2.3b); Westpac (a 22.9% rise to $1.3b; ASB ( a rise of 15.6% to $1.4b) and BNZ ( a 7% rise to $1.4b).

But Kensington warned the next couple of years would likely be rougher, with flatter earnings and a higher rate of growth in impaired loans than had been seen for some time.

Clarification

After the publication of a profile on new ADLS president Tony Herring in last week’s LawNews, some members questioned the suggestion that Herring is the first-ever president to reside outside Auckland and that he was, six years ago, the first non-Aucklander to be elected to the ADLS Council.

It’s understood Herring is the first non-Aucklander to be elected president since ADLS was incorporated in 2009 but another council member was the first non-Auckland councillor to be elected. ■

JUDGE OF THE EMPLOYMENT COURT

The Attorney-General wishes to hear from suitably qualified persons who would like to be considered for appointment as a Judge of the Employment Court, based in Auckland or Wellington. Persons appointed to the Employment Court must have held a practising certificate as a barrister or solicitor for at least seven years or otherwise as set out in section 200 of the Employment Relations Act 2000.

The position will suit someone with a particular interest in, and knowledge of, New Zealand’s employment law. The criteria for judicial appointment includes:

• sound knowledge of the law and experience of its application

• qualities of character such as personal honesty and integrity, impartiality, good judgment, and independence

• awareness of, and sensitivity to, the diversity of modern New Zealand society

• ability to assist persons to resolve litigation other than by judgment

• effective oral and written communication skills

• ability to absorb and analyse complex and competing factual and legal material

• ability to work hard, efficiently and under pressure

• awareness of the special characteristics of employment relationships.

A copy of the document setting out the process and criteria for appointment and a copy of the Expression of Interest form are available here

Persons interested in appointment are asked to complete an Expression of Interest form and provide a curriculum vitae and submit them to the Judicial Appointments Unit by 28 March 2023.

All expressions of interest will be handled with the highest degree of confidentiality.

Similar class actions in the US brought by former NFL players resulted in initial payouts of more than US$1 billion

ESTATES & RP

The value of an actuary: estate and RP assets

In Person | Livestream

1.5 CPD hours

Tuesday 21 March

4.30pm – 6pm

Understand the actuarial valuation process for relationship property and estate assets, along with the potential variables and complexities that often arise.

Price from $110 + GST

Presenters Bernie Higgins, consulting actuary, Bernie Higgins & Associates Limited and Peter Davies, consulting actuary, Davies Financial & Actuarial Limited

Stress management strategies

GENERAL ALL LEVELS WEBINAR

Webinar 1.5 CPD hours

Wednesday 22 March 1pm – 2.30pm

Price from $110 + GST

Presenters Georgina Patel, lead researcher, Law in Distress project and research associate AUT and Katie Gray, executive coach, co-founder and director of Coaching Advocates

RMA emergency powers and defences

Chair Judge Andrea Manuel ENVIRONMENT

ALL LEVELS

WEBINAR

Webinar 1 CPD hour

Tuesday 28 March 1pm – 2pm

Price from $80 +GST

Presenters Alex Cumming, senior solicitor, regulatory and enforcement, legal services, Auckland Council and Stuart Ryan, barrister

This webinar aims to raise awareness of stress-related issues in the profession, as well as providing strategies for managing and reducing these stressors.

Chair Joanna Trezise, senior associate, Russell McVeagh

Extreme weather events can require immediate and urgent responses to make property and infrastructure safe. Under the Resource Management Act, what can people do in an emergency? This webinar, offering council and counsel perspectives, will provide timely insights and helpful practical learnings for taking action during an emergency.

Chair Patrick Senior, senior associate, Russell McVeagh

Cultural reports and sentencing

CRIMINAL ALL LEVELS WEBINAR

Webinar 1.5 CPD hours

Wednesday 29 March 1pm – 2.30pm

Price from $110 + GST

Presenter David Harvey, retired District Court judge

Chair Jo Murdoch, assistant public defender, Public Defence Service

This webinar will examine the history and development of s 27 reports and analyse key case law, culminating in the Court of Appeal’s 2020 decision in Carr and Anderson v R and the Supreme Court’s 2022 decision in R v Berkland. It will give an overview of the range of discounts applied by courts in sentencing and offer tips for lawyers for obtaining and using such reports when making submissions about discounts.

Putting the ‘commercial’ into commercial mediation

COMMERCIAL ALL LEVELS WEBINAR

Webinar 1.5 CPD hours

Thursday 30 March 1pm – 2.30pm

Price from $110 + GST

Presenter Mark Kelly, barrister and commercial mediator, Bankside Chambers

Engaging with the media

ALL AREAS ALL LEVELS SEMINAR

What is the business case for mediation in commercial disputes? Why might it be better value than other forms of dispute resolution? How do you get the best result for a business at a mediation? In this webinar, experienced commercial mediator Mark Kelly will speak to these questions and discuss how practitioners can put the ‘commercial’ into commercial mediation.

In Person | Livestream

Tuesday 4 April 4pm – 6.15pm

Price from $140 + GST Presenters

Justice Simon Moore; Julie-Anne Kincade KC, Blackstone Chambers; Edward Gay, reporter, Stuff and Hannah Norton, journalist, NZ Lawyer and HRD Singapore

What role do the media play in legal cases? How should lawyers engage with journalists? How do the courts balance and manage competing interests? This seminar will offer some clarity around such questions with perspectives from media, counsel and the bench.

Chair Marie Dyhrberg KC

Events

Auckland Newly Suited Fiesta

Sarah Flett

Samantha Hiew and Sarah Courtney

Dominic Cornfield, Mathew Harty and Alphonso Sales

Kiera Quinn, Nick Williams, Janice Lamont and Alicia McCabe

Theo Ewart and Ella Morrison

Molly O’Brien-Gortner and Laurel Sheppard

Featured events

Connecting New Zealand lawyers

Rotorua Lawyers’ Lunch

Thursday 30 March 12 – 2pm

The Regent Room, Ground Floor/1191 Pukaki Street, Regent of Rotorua, Rotorua

West Auckland Lawyers’ Lunch

Wednesday 5 April 12 – 2pm

The Falls Bistro, 22 Alderman Drive, Henderson, Auckland

Hamilton Express Lawyers’ Lunch

Wednesday 19 April 12.30 – 2pm

The Bank Bar & Brasserie (Garden Bar), 117 Victoria Street, Hamilton Central

Upcoming

May

Wellington Express Lawyers’ Lunch

ADLS Annual Employment Law Dinner

June

North Auckland Lawyers’ Lunch

Tauranga Lawyers’ Lunch

events@adls.org.nz adls.org.nz

Alex Sheehan and Kiri Petrie

Alphonso Sales and Melissa Castelino

Futurists predict a point where humans and machines become one. But will we see it coming?

Surveys show AI researchers overwhelmingly agree AI will achieve human-level “thinking” within this century

John Kendall Hawkins & Sandy Boucher

Most people are familiar with the deluge of artificial intelligence (AI) apps that seem designed to make us more efficient and creative. We’ve got apps that take text prompts and generate art, and the controversial ChatGPT, which raises serious questions about originality, misinformation and plagiarism.

Despite these concerns, AI is becoming ever more pervasive and intrusive. It’s the latest technology that will irreversibly change our lives

The internet and smartphones were other examples. But unlike those technologies, many philosophers and scientists think AI could one day reach or even go beyond human-style “thinking”. This possibility, coupled with our increasing dependence on AI, is at the root of a concept in futurism called “technological singularity”.

This term has been around for a while, having been popularised by the US science fiction writer Vernor Vinge a few decades ago.

Today, the “singularity” refers to a hypothetical point in time at which the development of artificial general intelligence (AGI) – that is, AI with human-level abilities – becomes so advanced that it will irreversibly change human civilisation. It would mark the dawn of our inseparability from machines. From that moment on, we won’t be able to live without them without ceasing to function as human beings. But if the singularity comes, will we even notice it?

Brain implants

To understand why this isn’t the stuff of fairy tales, we need only look as far as recent developments in brain-computer interfaces (BCIs). BCIs are a natural beginning to the singularity in the eyes of many futurists, because they meld mind and machine in a way no other technology so far can.

Elon Musk’s company Neuralink is seeking permission from the US Food and Drug Administration to begin human trials for its BCI technology. This would involve implanting neural connectors into volunteers’ brains so they can communicate instructions by thinking them. Neuralink hopes to help paraplegic people walk and blind people see again. But beyond these goals are other ambitions.

Musk has long said he believes brain implants will allow telepathic

communication, and lead to the co-evolution of humans and machines. He argues that unless we use such technology to augment our intellects, we risk being wiped out by super-intelligent AI.

Musk is understandably not everyone’s go-to for tech expertise

But he’s not alone in predicting a massive growth in AI’s capabilities. Surveys show AI researchers overwhelmingly agree AI will achieve human-level “thinking” within this century. What they don’t agree on is whether this implies consciousness or not, or whether this necessarily means AI will do us harm once it reaches this level.

Another BCI technology company, Synchron, has created a minimally invasive implant that allowed a patient with amyotrophic lateral sclerosis (ALS) to send emails and browse the internet using his thoughts.

Synchron chief executive Tom Oxley believes brain implants could ultimately go beyond prosthetic rehabilitation and completely transform how humans communicate. Speaking to a TED audience, he said they may one day allow users to “throw” their emotions so others can feel what they’re feeling and “the full potential of the brain would then be unlocked”.

Early achievements in BCIs could arguably be considered the first stages of a tumbling towards the postulated singularity, in which human and machine become one. This need not imply machines will become “sentient” or control us. But the integration itself, and our ensuing dependency on it, could change us irrevocably.

It’s also worth mentioning that the start-up funding for Synchron  partly came from DARPA, the research and development arm of the US Department of Defense that helped gift the world the internet. It’s probably wise to be concerned about where DARPA places its investment monies.

Friend or foe?

According to Ray Kurzweil, a futurist and former Google innovations engineer, humans with AI-augmented minds could be thrown onto the autobahn of evolution – hurtling forward without speed limits.

Continued on page 19

Continued from page 18

In his 2012 book How to Create a Mind, Kurzweil theorises the neocortex – the part of the brain thought to be responsible for “higher functions” such as sensory perception, emotion and cognition – is a hierarchical system of pattern recognisers which, if emulated in a machine, could lead to artificial superintelligence.

He predicts the singularity will be with us by 2045, and thinks it might bring about a world of superintelligent humans, perhaps even the Nietzschean “Übermensch” – someone who surpasses all worldly constraints to realise their full potential.

But not everyone sees AGI as a good thing. The late, great theoretical physicist Stephen Hawking warned super-intelligent AI could result in the apocalypse. In 2014, Hawking told the BBC, “the development of full artificial intelligence could spell the end of the human race. […] It would take off on its own and redesign itself at an ever-increasing rate. Humans, who are limited by slow biological evolution, couldn’t compete, and would be superseded.”

Hawking was, however, an advocate for BCIs

‘Hive mind’

Another idea that relates to the singularity is that of the AI-enabled “hive mind”.

Merriam-Webster defines a hive mind as “the collective mental activity expressed in the complex, coordinated behaviour of a colony of social insects (such as bees or ants) regarded as comparable to a single mind controlling the behaviour of an individual organism”.

A theory has been developed by neuroscientist Giulio Tononi around this phenomenon, called  Integrated Information Theory (IIT). It suggests we are all heading toward a merger of all minds and all data.

Philosopher Philip Goff does a good job of explaining the implications of Tononi’s concept in his book Galileo’s Error:

“IIT predicts that if the growth of internet-based connectivity ever resulted in the amount of integrated information in society surpassing the amount of integrated information in a human brain, then not only would society become conscious but human brains would be ‘absorbed’ into that higher form of consciousness. Brains would cease to be conscious in their own right and would instead become mere cogs in the mega-conscious entity that is the society including its internet-based connectivity.”

It’s worth noting there’s little evidence such a thing could ever come to fruition. But the theory raises important ideas about not only the rapid acceleration of technology (not to mention how quantum computing might propel this) – but about the nature of consciousness itself.

Hypothetically, if a hive mind were to emerge, one could imagine it would mark the end of individuality and the institutions that rely on it, including democracy.

The final frontier

Recently OpenAI, the company that developed ChatGPT, released a blog post reaffirming its commitment to achieving AGI. Others will doubtless follow.

Our lives are becoming algorithmically driven in ways we often can’t discern and therefore can’t avoid. Many features of a technological singularity promise amazing enhancements to our lives, but it’s a worry these AIs are the products of private industry.

They are virtually unregulated, and largely at the whims of impulsive “technopreneurs” with more money than than most of us combined. Regardless of whether we consider them crazy, naïve, or visionaries, we have a right to know their plans and be able to rebut them. If the past few decades are anything to go by, where new technologies are concerned, we will all be affected. ■

John Kendall Hawkins is a philosopher at the University of New England and Sandy Boucher is a lecturer in the philosophy of science at the University of New England ■

The above first appeared in The Conversation and is republished with permission

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included)

reception@adls.org.nz ADLS, PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax: (09) 309 3726 (09) 303 5270

GIBB

Ian Angus McLean

• Late of Hetherington House, Waihi

• Widower

• Retired psychiatrist

• Aged 89 / Died 22’10’22

HOARE

Gay Joan

• Late of Glendowie, Auckland

• Widow

• Retired

• Aged 79 / Died 27’01’23

LEVERNO Jade Joanne (formerly

STEDMANCES)

• Late of 17A Buckleys Track, Paremoremo, Auckland

• Separated

• Sales Manager

• Aged 45 / Died 20’01’23

YEARDLEY Benjamin

• Late of 47 Tainui Road, Titirangi, Auckland

• Married

• Retired

• Aged 80 / Died between 11’02’23 and 12’02’23

Offices Available

Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

Commercial and Property

Solicitor +- 3 years PQE

We are a boutique commercial and property specialist firm based in Howick, but with a commercial law focus and client base only normally found in larger firms. The firm has an exciting new opportunity for a solicitor looking to grow their experience in commercial law.

You will:

• Be working with the firm’s experienced commercial lawyers on a range of commercial and some property matters, including business sales and purchases, asset structuring advice, drafting commercial agreements and providing advice on property law.

• Be able to work efficiently and deliver expedient legal services, in an understandable and efficient manner.

• Have a highly pragmatic and flexible approach and be able to meet deadlines.

• Have some experience in conveyancing.

We have an internal culture that is inclusive and driven by a passion to deliver efficiency and value, together with a strong foundation for building long-lasting relationships and consistently delivering outstanding results for our clients. We have adopted modern practice methods and are committed to continuous improvement initiatives.

If you believe that this role will suit you, please send your application including cover letter and CV to alistair@ascolegal.co.nz and phone 09 308 8071 for more information.

Continued from page 09

“first law” actually means (report p 83), particularly in the context of a proposal to enact an “overarching Te Tiriti clause”.

By “overarching” one can infer the authors mean this clause will trump other powers and fundamental principles (including the duty to promote the rule of law and the administration of justice?). Is this notion premised on Ma Te Ture te Ture e Patu (only the law can defeat the law)? If it is, will it work? And does the profession want it to work in this way?

As the minority in Ellis pointed out (see my article in LawNews issue 36, 2022), enfolding tikanga into new areas of law must be carefully and sensitively managed. All law must be coherent, understandable and accessible to everyone, not just a minority (here, a minority of a minority). These principles are central to the rule of law in an open society.

Will aspirational statements achieve meaningful change for Māori lawyers and Māori clients? Based on past experience, I doubt it. How long ago did we see Te Urupare Rangapu: Partnership Response? (the answer is 1988 and yet we still see over-the-top rates of incarceration of young Māori, increasingly more female Māori in jail and too many young Māori failing in life).

Mantra about ‘partnership’ and ‘partnership principles’ do not cut it in the real world. While in legal doctrine, in an open society, all are notionally equal before the law, regrettably all are not in fact equal before the law, as all are not equal in life. Access to resources, money, smarts, connections – all of these human realities enter into the equation.

Such fine-sounding proposals are redolent of what Paterson recommended in his review of the Health and Disability Commissioners Act in 2009. Where have they got us? It would be interesting to see evidence.

I can add my own experience to those who have recently complained about the Health and Disability Commission’s services. A couple of years ago, I took a young Māori to a medical clinic; she was doubled over with severe pain. There were colourfully illustrated posters splashed about the walls of the clinic saying how the management respected tikanga and were sensitive to the principles of te Tiriti o Waitangi. But they left a young Māori woman writhing in pain for 40 minutes, and ignored my pleas for assistance (I did not feel moved to point out that I was also Māori, as it is uncomfortable to be seen to be given a race preference). It was “take a number and wait your turn”, notwithstanding that those in the front of the box tickers’ queue did not appear to be in any discomfort. We eventually left and we went to a public hospital, where similar signs were splashed about and a similar wait ensued, until an experienced nurse observed us and took us up to an empty ward, where the patient spent four days under care. Virtue signalling achieved nothing; nor did a complaint to the Health and Disability Commission: no doubt my complaint was ‘triaged’.

This is the brave new world of state regulation which awaits

the legal profession if we are foolish and gullible enough to swallow it.

Healthy debate

The report could and should ignite an open debate across the profession. Law change in a democracy works best when it is subject to a process of robust democratic disputation, rather than supine obedience to a party line.

For example, it is not sufficient for Paterson and his co-authors to merely pronounce that te Tiriti o Waitangi shall be overarching of the regulatory regime when the profession at large not only has not embraced such a thing, but won’t understand what it entails.

Some may see this proposal as a radical departure from orthodoxy and become alarmed. It requires a sensitive and complex conversation, including how tikanga might fit in a meaningful way into a lawyers’ regulatory regime.

Pronouncing it as eminently desirable in the modern era is not sufficient. Issues of history, meaning and mana must first be understood (for insight into such issues see Margaret Mutu and Moana Jackson, Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation, the result of 252 hui between 2012 and 2015).

It should be borne in mind that the reform that culminated in the 2006 Act was the result of a long process of consultation and engagement across the profession. Only in this way was buy-in achieved.

So, what is truly fundamental for the legal profession? Sir Stephen Sedley has summed up what is required of the legal profession. Lawyers must be knowledgeable about the law, competent in giving legal advice and in arguing the law, loyal to clients, and honest with clients and courts (Stephen Sedley Ashes and Sparks, Cambridge University Press, Cambridge, 2011, at 148). We must have a corps of lawyers who are well-trained and knowledgeable, and who can be trusted to the ends of the earth (Bolton v Law Society [1994] 1 WLR 512 (CA), at 492, per Sir Thomas Bingham MR). These are the overarching principles of regulation of the legal profession.

In an open society it is not only government power that matters: consent is maintained by available resort to an accessible and impartial legal system supported by lawyers who are independent of the state and influential political or other powers within civil society. The law is a uniquely important profession, and its status is reflected by the enactment of the fundamental obligations in s 4 of the Lawyers and Conveyances Act 2006. Lawyers take this oath at admission:

“Ladies and gentlemen, do each of you swear by Almighty God or solemnly, sincerely and truly declare and affirm that you will truly and honestly conduct yourself in the practice of a Barrister and Solicitor according to the best of your knowledge and ability.”

Honesty, knowledge and ability: these must remain our regulatory focus. ■

Warren Pyke is an Auckland barrister ■

Consumers’ perceptions of lawyers looking after their own were rejected by the authors, and rightly so. Yet, incoherently, the authors conclude that consumer perception was enough to constitute a “fundamental flaw” requiring change