Wellington Council Brief Advertising Council Brief · This edition of Council Brief provides ......
8
ed practical advice on how to avoid complaints and what to do when faced with one, such as the seminar run by the Wellington Branch Practising Well group and presented by Law Society complaints staff in March. Council has formed a Working Group to do more in this area – my thanks go to Rachael Dewar, David Dunbar, Annette Gray, Felix Geiringer, Julius Maskell, and Chris O’Connor. It is important to know where to go for support and help when facing a complaint. Many senior members of the profession generously provide their help to members facing com- plaints. In addition, Council members Vicky Anderson, Melanie Baker, Katie Elkin, Mary More, and Julia White form the Council Working Group on Member Welfare, and are available to have a coffee or chat to members of R eceiving a letter marked ‘private and confidential’ from the New Zealand Law Society can be a stressful event. Even the most highly regarded lawyers talk about how they, or one of their colleagues, received a letter from the NZLS, and of their nervousness in opening it. It is because of the possibility of the word: ‘complaint’. Colleagues have told of their fear in seeing that the letter does relate to a complaint, and the ensuing stress they endure going through the complaints system, even for complaints that are quickly dismissed. This edition of Council Brief provides some information on the complaints process. Over the years we have provid- Issue 446 May 2015 Council Brief The monthly newspaper of the Wellington Branch New Zealand Law Society Wellington ISSN 2382-2333(Print) ISSN 2423-0103 (Online) The longstanding Hutt Valley law firm of Grigg and le Page is no more, with the recent retirement of principals Penny le Page and John Grigg. The firm opened in 1981, though former Wellington Branch Council member Penny and John have worked together for over 40 years. When they arrived for their last day at the office on Friday 17 April they found their building swathed in shrink wrap and a sign saying it was under quarantine, causing consternation in some quarters. The pair have always enjoyed practical jokes and they suspect their friend Leo O’Sullivan, the owner of Pak’n’Save in Petone, was at least partially responsible. Santa’s legs were also sticking out of the chimney, a reminder of a Christmas tradition that started years ago to impress their own children. Grigg and le Page has been merged with Lower Hutt firm JAG Legal. Penny le Page and John Grigg are working with JAG Legal for a transitional period as their files are transferred. Photo: Hutt News The stress of receiving a complaint From the President Understanding the complaints process ❑ Continued on page 2 See page 3 for more on complaints A lawyer on the receiving end of a complaint may have a range of reactions, not all of them helpful. Surprise, shock and anger might be among the feelings that pass through the mind of the lawyer. Complaints Manager Paul Byers says everyone reacts differently. One reaction all too human is to feel vulnera- ble and wonder ‘what do I do now?’ Sometimes the temptation is to, ‘respond immediately’, but Mr Byers thinks the best course is not to ignore the complaint but think about it for a couple of days and then write a reasoned response. Check the response with a trusted colleague, to get some feedback. In particular, if you are a sole practi- tioner, it can be important to talk with others and get some perspective especially if the com- plaint is causing undue stress and anxiety. “Every law firm must have a mechanism for dealing with complaints. This is required by the rules of conduct and client care. In large firms they may be directed to a particular partner, in smaller firms particularly sole practitioners there may be an arrangement with someone outside the firm. “A practitioner’s own internal complaints procedure really is the first layer of the com- plaints process and an opportunity for the lawyer to try to resolve the issue. A good inter- nal process may resolve the matter so that Complaints Service never has to be involved. “The large proportion of complaints come from the trusts and estates, property and fam- ily areas and underlying many of these is lack of clear communication. Many of the minor complaints are essentially communication problems, and often these can be resolved with an apology or explanation. If you forget something, be proactive, sometimes an apol- ogy or acknowledgment and a correction will stop the matter needlessly escalating. “We use a triage system on receipt of a com- plaint: three staff do an initial triage, and the second triage is by one of the Early Resolution Service (ERS) Standards Committees. These assess whether a particular complaint is capa- ble of being dealt with by the ERS. Of course, if there is any suggestion of misconduct the complaint would not be suitable for the ERS.” Mr Byers said the Lawyers Complaints Service staff members are not focused on the merits of complaints as such, they are there to assist the Standards Committees; it is the committees which determine the merits. “Part of the focus of the ERS is on negotia- tion, whereas on the standard track process, the intention is to try to conclude the matter through a reasoned decision.” Mr Byers says Standards Committees are made up of experienced lawyers and lay peo- ple with wide life and practice experience. He says it is important sometimes to have larger committees in smaller centers so any conflicts of interest can be managed while retaining a quorum. “Members of committees work hard and try to turn their minds impartially to the interests of both the lawyer and the client. “The Lawyers Complaints Service is impar- tial, fair and accessible. Staff are not driven by the outcome – that is for the Standards Com- mittees. I have confidence that the service will impartially and transparently administer the complaint so that both sides can see the proc- ess, understand that certain actions have taken place, know that the decision maker has exam- ined the issues and the documents concerned, and has made an informed decision. We try and do this as expeditiously as possible.” Lawyers also make complaints, indeed un- der the rules they are required to report mis- conduct if they suspect it. Such reports may be made on a confidential basis and anonymity is preserved where possible in such cases, Mr Byers says. If it cannot be preserved the maker of the report will be consulted with before any action is taken. Some complainants become confused when lawyers do what they are supposed to do – rep- resent a side. Particularly in family and estates matters, complainants may see lawyers’ state- ments as personal attacks on them. “Lawyers have great respect for language and sometimes members of the public or clients think they are being attacked personally whereas the lawyer may just be ‘lawyering’. Lawyers also act on instructions which may lead the person on the other side to think the lawyer personally holds the views they are espousing. In fact, the lawyer is doing their best to professionally represent their client and follow their instructions and may have no personal view on the matter in which they are acting. The 0800 number (see article on page 3) is useful in these cases where such matters and misconceptions can be dis- cussed with the member of the public. “Another problem area is when complaints are so tied up with legal proceedings that a committee may decide it cannot move until the action works its way through the courts. These are reviewed regularly but committees are focused on the conduct of the lawyers – it is not another court. They cannot interfere in the legal process.” Paul Byers • Wait for a couple of days before responding, think about it, consult and then write a reasoned response. • Make sure you focus on the substance of the issues rather than the surrounding circumstances. • Include a time line; this is useful for the committee and helps to put things in perspective; don’t take important things for granted. • Be consistent in your response. • Attach all relevant documents. • Consider talking to another lawyer/colleague, ask for advice and feedback on a draft response. Paul Byers suggests a framework that may assist in responding to a complaint: WELLINGTON BRANCH AGM Wednesday 24 June, 4pm Level 8, NZLS Building 26 Waring Taylor Street Nominations close 4pm 22 May
Transcript of Wellington Council Brief Advertising Council Brief · This edition of Council Brief provides ......
ed practical advice on how to avoidcomplaints and what to do when facedwith one, such as the seminar run bythe Wellington Branch Practising Wellgroup and presented by Law Societycomplaints staff in March.
Council has formed a WorkingGroup to do more in this area – mythanks go to Rachael Dewar, DavidDunbar, Annette Gray, Felix Geiringer,Julius Maskell, and Chris O’Connor.
It is important to know where to gofor support and help when facing acomplaint. Many senior members ofthe profession generously providetheir help to members facing com-plaints. In addition, Council membersVicky Anderson, Melanie Baker, KatieElkin, Mary More, and Julia Whiteform the Council Working Group onMember Welfare, and are available tohave a coffee or chat to members of
Receiving a letter marked ‘privateand confidential’ from the New
Zealand Law Society can be a stressfulevent. Even the most highly regardedlawyers talk about how they, or one oftheir colleagues, received a letter fromthe NZLS, and of their nervousness inopening it. It is because of thepossibility of the word: ‘complaint’.
Colleagues have told of their fear inseeing that the letter does relate to acomplaint, and the ensuing stress theyendure going through the complaintssystem, even for complaints that arequickly dismissed.
This edition of Council Brief providessome information on the complaintsprocess. Over the years we have provid-
Issue 446 May 2015
Council BriefThe monthly newspaper of the Wellington Branch New Zealand Law Society
Wellington
ISSN 2382-2333(Print)ISSN 2423-0103 (Online)
The longstanding Hutt Valley law firm of Grigg and le Page is no more, with the recent retirementof principals Penny le Page and John Grigg. The firm opened in 1981, though former WellingtonBranch Council member Penny and John have worked together for over 40 years.
When they arrived for their last day at the office on Friday 17 April they found their buildingswathed in shrink wrap and a sign saying it was under quarantine, causing consternation in somequarters.
The pair have always enjoyed practical jokes and they suspect their friend Leo O’Sullivan, theowner of Pak’n’Save in Petone, was at least partially responsible.
Santa’s legs were also sticking out of the chimney, a reminder of a Christmas tradition that startedyears ago to impress their own children.
Grigg and le Page has been merged with Lower Hutt firm JAG Legal. Penny le Page and John Griggare working with JAG Legal for a transitional period as their files are transferred.
Photo: Hutt News
The stress of receiving a complaint
From the
President
Understanding thecomplaints process
❑ Continued on page 2See page 3 for more on complaints
A lawyer on the receiving end of acomplaint may have a range ofreactions, not all of them helpful.
Surprise, shock and anger might be amongthe feelings that pass through the mind of thelawyer.
Complaints Manager PaulByers says everyone reactsdifferently. One reaction alltoo human is to feel vulnera-ble and wonder ‘what do I donow?’
Sometimes the temptationis to, ‘respond immediately’,but Mr Byers thinks the bestcourse is not to ignore thecomplaint but think about it for a couple of daysand then write a reasoned response. Check theresponse with a trusted colleague, to get somefeedback. In particular, if you are a sole practi-tioner, it can be important to talk with othersand get some perspective especially if the com-plaint is causing undue stress and anxiety.
“Every law firm must have a mechanism fordealing with complaints. This is required bythe rules of conduct and client care. In largefirms they may be directed to a particularpartner, in smaller firms particularly solepractitioners there may be an arrangementwith someone outside the firm.
“A practitioner’s own internal complaintsprocedure really is the first layer of the com-plaints process and an opportunity for thelawyer to try to resolve the issue. A good inter-nal process may resolve the matter so thatComplaints Service never has to be involved.
“The large proportion of complaints comefrom the trusts and estates, property and fam-ily areas and underlying many of these is lackof clear communication. Many of the minorcomplaints are essentially communicationproblems, and often these can be resolvedwith an apology or explanation. If you forgetsomething, be proactive, sometimes an apol-ogy or acknowledgment and a correction willstop the matter needlessly escalating.
“We use a triage system on receipt of a com-plaint: three staff do an initial triage, and thesecond triage is by one of the Early ResolutionService (ERS) Standards Committees. Theseassess whether a particular complaint is capa-ble of being dealt with by the ERS. Of course, ifthere is any suggestion of misconduct thecomplaint would not be suitable for the ERS.”
Mr Byers said the Lawyers ComplaintsService staff members are not focused on themerits of complaints as such, they are there toassist the Standards Committees; it is thecommittees which determine the merits.
“Part of the focus of the ERS is on negotia-tion, whereas on the standard track process,the intention is to try to conclude the matterthrough a reasoned decision.”
Mr Byers says Standards Committees aremade up of experienced lawyers and lay peo-ple with wide life and practice experience. Hesays it is important sometimes to have largercommittees in smaller centers so any conflictsof interest can be managed while retaining aquorum. “Members of committees work hard
and try to turn their minds impartially to theinterests of both the lawyer and the client.
“The Lawyers Complaints Service is impar-tial, fair and accessible. Staff are not driven bythe outcome – that is for the Standards Com-mittees. I have confidence that the service willimpartially and transparently administer thecomplaint so that both sides can see the proc-ess, understand that certain actions have takenplace, know that the decision maker has exam-ined the issues and the documents concerned,and has made an informed decision. We tryand do this as expeditiously as possible.”
Lawyers also make complaints, indeed un-der the rules they are required to report mis-conduct if they suspect it. Such reports may bemade on a confidential basis and anonymity ispreserved where possible in such cases, MrByers says. If it cannot be preserved the makerof the report will be consulted with before anyaction is taken.
Some complainants become confused whenlawyers do what they are supposed to do – rep-resent a side. Particularly in family and estatesmatters, complainants may see lawyers’ state-ments as personal attacks on them. “Lawyershave great respect for language and sometimesmembers of the public or clients think they arebeing attacked personally whereas the lawyermay just be ‘lawyering’. Lawyers also act oninstructions which may lead the person on theother side to think the lawyer personally holdsthe views they are espousing. In fact, the lawyeris doing their best to professionally representtheir client and follow their instructions andmay have no personal view on the matter inwhich they are acting. The 0800 number (seearticle on page 3) is useful in these cases wheresuch matters and misconceptions can be dis-cussed with the member of the public.
“Another problem area is when complaintsare so tied up with legal proceedings that acommittee may decide it cannot move untilthe action works its way through the courts.These are reviewed regularly but committeesare focused on the conduct of the lawyers – itis not another court. They cannot interfere inthe legal process.”
Paul Byers
• Wait for a couple of days before responding,think about it, consult and then write areasoned response.
• Make sure you focus on the substance of theissues rather than the surroundingcircumstances.
• Include a time line; this is useful for thecommittee and helps to put things inperspective; don’t take important things forgranted.
• Be consistent in your response.
• Attach all relevant documents.
• Consider talking to another lawyer/colleague,ask for advice and feedback on a draftresponse.
Paul Byers suggests a framework thatmay assist in responding to a complaint:
Council Brief [email protected]
Reynolds Advertising
WELLINGTONBRANCH AGM
Wednesday 24 June, 4pmLevel 8, NZLS Building26 Waring Taylor Street
Nominations close 4pm 22 May
COUNCIL BRIEF, MAY 20152 Branch News
Deadline June Council Brief
Monday 8 June
June 10-11 2015 – Mastering Due Diligence,Auckland. www.conferenz.co.nzJune 17-18 2015 – Financial Markets Law,Auckland. www.conferenz.co.nzJune 25-26 2015 – Trusts Conference,Wellington. www.lawyerseducation.co.nzJune 25-28 2015 – Australasian Association ofBioethics and Health Law Conference,Wellington. www.events4you.co.nzJuly 13-14 2015 – Youth Advocates and LayAdvocates Conference, Auckland.www.lawyerseducation.co.nzJuly 23 2015 – AMINZ Conference 2015,Wellington. www.aminz.org.nzJuly 23-24 2015 – Competition Matters 2015;Competition & Regulation Conference,Te Papa. Commerce Commission.www.comcom.govt.nzJuly 28-29 2015 – 16th Annual Medical LawConference, Te Papa, Wellington.www.conferenz.co.nzAugust 17-18 2015 – Legal ExecutivesConference, InterContinental Hotel,Wellington. www.nzile.org.nzSeptember 3-4 2015 – Aotearoa Conferenceon Therapeutic Jurisrudence, University ofAuckland. http://tjaotearoa.org.nz
September 3-5 2015 – Banking & FinancialServices Law Association (BFSLA) Conference,Brisbane. http://bfsla.orgSeptember 6-9 2015 – Succession Law, MonashUniversity Campus, Prato (20 mins fromFlorence), Italy. European Legal Conferences.www.europeanlegalconferences.com.auSeptember 10-11 2015 – NZ Insurance LawAssn. Auckland www.nzila.org/conferenceSeptember 13-18 2015 – CommonwealthJudges’ and Magistrates’ Association (CMJA)Triennial Conference, ‘IndependentJudiciaries, Diverse Societies’, Wellington, NZ.www.cmja.orgSeptember 24-26 2015 – ResourceManagement Law Association (RMLA),Tauranga. www.rmla.org.nzOctober 9 2015 – Professional Women’sConference, Keynote speaker Rabia Siddique,Canterbury Women’s Legal Assn,Christchurch. www.lawfoundation.org.nzNovember 27 2015 – Third Biennial LabourLaw Conference: NZ Labour Law Society,VUW Law School, Wellington.www.victoria.ac.nzSeptember 18-23 2016 – IBA AnnualConference, Washington DC. www.ibanet.org
Conferences
THE Women in Law Committeeinvites all practitioners to jointhem for an evening at PeterMcLeavey Gallery with artistRichard Killeen; curator, writerand art collection manager JillTrevelyan; Greg Thomas,consultant partner in ThomasDewar Sziranyi Letts; JaneFletcher, senior justice advisor;and Corinne Cole, patentattorney and partner in AJ Park.
The Peter McLeavey Galleryhas championed New Zealandart and artists for over half a cen-tury, and been instrumental inthe development of New Zea-land art. The gallery at 147 CubaStreet is part of Wellington’ssocial fabric. Olivia McLeavey,Peter’s daughter, is now runningthe gallery, and is very generous-ly hosting this event. With a keeneye for up-and-coming artists,Olivia is continuing the tradi-tions of the gallery while puttingher own unique 21st centurystamp on it.
Leading New Zealand artistRichard Killeen is a significantpainter, sculptor and digital art-ist. He graduated in 1966 fromthe Elam School of Fine Arts,where his lecturers includedColin McCahon. He has won nu-merous awards and fellowshipsand his work is represented in allimportant national collections.Richard Killeen once describedhimself as a ‘miner’ of libraries;extracting images and shapes tocondense and manipulate. He isparticularly famous for his ar-ranged collections of ‘cut-outs’hung on walls. Since 2003 Rich-ard Killeen has focused on digitalimage-making, working on bothpaper and canvas.
Jill Trevelyan is a curator andwriter specialising in 20th centuryNew Zealand art. She was editor
Demystifying the art world – makingcontemporary art accessible
of Toss Woollas-ton: A Life in Let-ters; co-curator ofTe Papa’s exhibi-tion Rita Angus:Life & Vision; andauthor of Rita An-gus: An Artist’s Life
(Te Papa Press, 2008), winner ofthe 2009 Montana Medal for non-fiction. Jill lives in Wellington andmanages the art collection at theMinistry of Foreign Affairs andTrade. She wrote the first biogra-phy of Peter McLeavey whichwent on to win the 2014 New Zea-land Post Book Awards book ofthe year.
Greg Thomas will share hisinsights from the perspective ofan avid art collector. In additionto being a consultant partner inThomas Dewar Sziranyi Letts,Greg has been involved in com-munity organisations and ispresently chair of E Tu Awakai-rangi Hutt Public Art Trust andthe Katherine Mansfield Birth-place Society.
Jane Fletcher and CorinneCole established an art groupwith some friends and will talkon the ins and outs of collecting.Jane Fletcher is senior justiceadvisor (private secretary) at theOffice of Hon Amy Adams, Min-ister of Justice and Courts.Corinne Cole is a patent attor-ney and partner in AJ Park, spe-cialises in trade marks,branding, domain names, andcopyright.
Please join us on Wednesday 3June, 5.30pm, Peter McLeaveyGallery, 147 Cuba Street,Wellington. Refreshments arefrom 5.30pm and the paneldiscussion is from 6pm.
Bookings essential as seats arelimited. Cost $10.
Wellington Branch Diary May-JuneMonday 25 MayEvidence – Hostile & Difficult Witnesses, NZLS CLE Webinar, 11am-noon 1 CPD Hr
Wednesday 27 MayLegal Assistance CommitteeJudicial Review, NZLS CLE Seminar, Abel Tasman 1-5pm, 3.5 CPD Hrs(Webinar 9.30-11.30am 2 CPD Hrs)Elder Law Intensive, NZLS CLE, James Cook 9am-5.15pm 6.5 CPD Hrs
Thursday 28 MayHuman Rights Committee
Friday 29 MayWomen in Law Committee
Friday 5 JuneSection 21 Agreements, NZLS CLE Seminar 2-5pm NZICA 2.5 CPD Hours(Webinar 9.30-11.30am 2 CPD Hrs)
Monday 8 JuneThe New Intervention Rule, NZLS CLE Webinar, 1-2.30pm 1.5 CPD Hours
Wednesday 10 JuneHow to Run a Jury Trial, NZLS CLE Workshop, Terrace Convention Centre 7 CPD HrsThe Blurred Lines Between an Employee’s Work and Private Life, NZLS CLEWebinar, 11am-noon 1 CPD Hour
Thursday 11 JuneCourts Committee
Thurs-Fri 11-12 JuneIntroduction to Family Law Advocacy and Practice, NZLS CLE Entry Level,Terrace Convention Centre 13 CPD Hours
Sun-Thurs 14-18 JuneAdvanced Litigation Skills, NZLS CLE, Terrace Convention Centre32 CPD Hours
Tuesday 16 JuneFamily Law Committee
Wednesday 17 JuneWellington Branch Council meetingNew Family Justice System - 15 Months On, NZLS CLE Seminar, 1-5pmNZCIA 3.5 CPD Hours (Webinar 10am-noon 2 CPD Hrs)
Friday 19 JuneAdmission ceremoniesCriminal Law Committee
Tuesday 23 JuneHealth Law Committee
Wednesday 24 JuneLegal Assistance CommitteeWellington Branch AGM
Thursday 25 JuneImmigration Law Committee
Thurs-Fri 25-26 JuneTrusts Conference, NZLS CLE, Intercontinental 13 CPD Hrs(Also live Web Stream)
Friday 26 JuneWomen in Law Committee
Answers for puzzles from page 71 Once; after taking away one 6, you have
30 (no longer 36).2 Four ears of corn (rather than 12), as an
intact mouse has two ears on its head that need to be excluded from each day’s takings of ears: (4 x 3) – (4 x 2) = 12 – 8 = 4.
3 84 centimetres: (36 ÷ ½) + 12 = (36 x 2) + 12 = 72 + 12 = 84 (“divided by a half” means “÷ ½”)
4 1 Qxe5+ QxQe5 unpins white’s rook (if 1...Kg8 then 2 QxQd4 RxQd4 3 RxRf8#) 2 RxRf8+ RxRf8 3 RxRf8# [Short v Biyiasas Hastings 1979-1980]
MADESIGNm
Olivia McLeavey
our profession. The National Friends Panel offershelp in some areas, as does Julia Coleman the Wel-lington Branch Chaplain. Wellington Branch staffare also available to assist with any Practising Wellissues.
Collegiality is important for all of us, and partic-ularly those undergoing the stresses of the com-plaints system. In addition to the Branch eventsand seminars, during the winter months, we cus-tomarily gather together for social dinners. In thenext few months we will have:• Friday, 12 June – Porirua Bar dinner• Friday, 10 July – Wairarapa Bar dinner
New books at WellingtonBranch NZLS Library
Advocacy ethics : disqualifying conflictsWellington : New Zealand Law Society2015 KL82.L1 NEW
Business insolvency : key commercialissues and developments Wellington :New Zealand Law Society2015 KN312.L1 NEW
Emissions Trading Scheme - where arewe now? Auckland : Auckland DistrictLaw Society 2010 NZLSL WEL
Human Rights Acts: the mechanismscompared Oxford: Hart Publishing2015 KC200 GLE
Jervis on the office and duties ofcoroners : with forms and precedentsLondon : Sweet & Maxwell 13th ed2014 KL254.A1 JER
Open connectivity, open data : twodimmensions of the freedom to seek,receive and impart information[Wellington] : Victoria University ofWellington, Faculty of Law 2012KM209.I5.L1 PEN
Review of the Public Works Act : issuesand options : public discussion paper[Wellington]: Land Information NewZealand 2000 KN96.3.L1 NEW
Trusts for company and commerciallawyers Wellington : New Zealand LawSociety 2015 KN210.L1 NEWWinfield and Jolowicz on tort London :Sweet & Maxwell 19th ed 2014KN30.A1 WIN
By Robin Anderson Wellington Branch Librarian
Library News
ARE you interested in Maritime Law? Do you need to keep up to datewith what is happening in this area? The NZLS Library Wellingtonproduces a monthly bulletin of case law from New Zealand andother jurisdictions and we include contents pages and indexingfrom LINX for journal articles we receive too. [email protected] if you are interested in receiving asample copy. There is a charge for this service.
Canadian legal informationIn addition to the hard copy and online versions of Laws of New
Zealand, Halsbury’s Laws of Australia and Halsbury’s Laws ofEngland, the NZLS Library also subscribes to Halsbury’s Laws ofCanada in the online version only. This gives you a great entrance intoCanadian law in an authoritative version and you can also line up allfour encyclopedias to compare the law over these key jurisdictions.‘Bestcase’, which I mentioned in the previous Council Brief, is thesuite of Canadian databases we subscribe to which will enable you totake the information you have found in the Canadian Halsbury’s andbring it up to the latest cases too. All available in the NZLS Libraries inWellington, Auckland, Canterbury and Otago.
Maritime Law bulletin
• Wednesday 19 August – Hutt Valley Bar dinnerI’m sure these will again be excellent events.
Join a committee
The call for nominations for Council and com-mittees has gone out.
Please do consider putting your name forward forWellington Branch Council. I also highly commendgetting involved with one or more of our Branchcommittees. Our next month’s edition of CouncilBrief will profile the fascinating and interesting workof our committees.
❑ From front page
Crossword SolutionsFrom page 7
Across: 1 Logs; 3 Saw-bills; 9 Frisked; 10 Cubit; 11Overthrowing; 13 Extent; 15 Joiner; 17 Heart-disease;20 Baton; 21 Transit; 22 Dressers; 23 Stay.
Down: 1 Left-over; 2 Guide; 4 Adders; 5Backwoodsman; 6 Lebanon; 7 Site; 8 Skating-rinks;12 Priestly; 14 Trestle; 16 Editor; 18 Asset; 19 Abed.
Cryptic Solutions
Quick SolutionsAcross: 1 Pert; 3 Preserve; 9 Erasers; 10 Trite; 11Schoolmaster; 13 Raffle; 15 Falter; 17 Discourteous;20 Ennui; 21 Verbose; 22 Ordinary; 23 Grit.
Down: 1 Pleasure; 2 Reach; 4 Resume; 5 Satisfactory;6 Raiment; 7 Ewer; 8 Recollection; 12 Prospect; 14Feigned; 16 Quiver; 18 Odour; 19 Zero.
President’s Column
By Nerissa Barber
THE Law Society’s Early Resolution Service (ERS),run nation-wide since 1 February 2013, is providing areasoned and efficient conclusion of over a third ofall complaints.
The intention of the ERS is to winnow out thosecomplaints that are not serious and are capable oftimely solution either through negotiation or by wayof a prompt ‘no further action’ decision. This helps inreducing lawyers’ inevitable stress when a complaintis received and, where resolution is achieved, provides both com-plainants and lawyers with a satisfactory result. Serious complaints,such as those relating to dishonesty or a serious breach of trustaccount rules, are not suitable for the ERS.
All complaints must be in writing and are processed centrally.Experienced complaints staff – including Legal Standards OfficerAnn Rice, who together with Richard Moss, is one of the resolvers inthe ERS process — conduct a first “triage”, and assess complaints forsuitability for ERS.
Ann says that minor complaints such as those about delay ordiscourtesy, are likely to be suitable for ERS. “For instance, if a clientfeels a lawyer has been rude to them, a simple apology may resolvethe problem. In cases of delay, it may be possible to move the matteron or explain to the client the usual timelines for their particularcase.
“There are also cases where the complaint concerns the lawyeracting on the other side, or where court proceedings are ongoing orwhere a judge has made a ruling – a Standards Committee cannot ofcourse overrule what a judge has said – and a prompt no-further-action decision including a telephone call to both parties can some-times be made by an ERS Standards Committee on these types ofcomplaints.”
A second triage is conducted by one of the two ERS committeesconsisting of three or four lawyers and one lay person, each meetingfortnightly on alternate weeks. Members of the committees look atthe complaints again and decide if they are suitable for ERS orwhether they are more suited to the standard track process.
Where a file is accepted by an ERS Committee for early resolutionthe resolvers contact both parties, mostly by phone, and try to findcommon ground. Both parties must of course agree to the ERS proc-ess.
“It is important to have full documentation in support of a com-plaint,” Ann says. “In cost complaints, for instance, we ask complain-ants for details on the background to the matter, for any contact withthe lawyer about the fees, for invoices and any time records. Thisassists the Standards Committee with its consideration and can alsolead to a prompt decision by the Committee.
Ann notes that complaints often arise out of fraught situations,such as in family or estate disputes. ERS also deals with complaintsabout Lawyer for the Child “There is a protocol whereby Lawyer forthe Child complaints are directed to the Family Court. ERS deals withthese files so that the matter can be moved promptly to the FamilyCourt and the lawyer and the complainant updated on what is hap-pening.”
Initial inquiries may come in via the 0800 number (see separatearticle) or by the online “concerns form”, and both of these haveproven to be useful in resolving minor matters outside of the formalcomplaints process. With the concerns form, a resolver phones theenquirer within five working days to discuss the concern. About 800such matters have been dealt with since the service was made availa-ble. A very small proportion of concerns result in a formal complaint.
Lawyers themselves use the 0800 number and concerns form fromtime to time. “They may be young practitioners who are not surewhat to do or perhaps it is a practitioner looking for help.”
Ann says clear communication between lawyer and client is veryimportant and lack of it is often the basis of complaints. “It is essen-tial to give frequent updates of progress – we often speak to peoplewho haven’t been told the length of time a matter may take or whohave unrealistic ideas of how long their case or transaction may take.”
For complaints closed in the year to 30 June 2014, it took anaverage of 30 days to close a complaint accepted into the ERS, com-pared with 159 days for all complaints. Ann says feedback from cli-ents and lawyers is positive. “Even when an ERS Committee decidesthat no further action should be taken a week after they lodge theircomplaint, our formal feedback from complainants is more positivethan from those with complaints that have gone through the stand-ard process. I think this is due to the personal contact they getthrough the ERS process.”
COUNCIL BRIEF, MAY 2015 3Complaints
THE NZLS annual Report on the Exercise ofRegulatory Functions and Powers for the yearending 30 June 2014 indicates that 1498complaints were made against lawyers in the 12months concerned, out of a total of 1630, the restbeing complaints against law firms, formerlawyers, other legal employees and the like.
Complaints closed for the year numbered1747, a larger number than was received duringthe year because of cases hanging over from pre-vious years. Of those received, 73 percent result-ed in no further action, and when includingthose resolved by negotiation, conciliation ormediation and those withdrawn, discontinuedor settled the total was 87 percent.
Over 60 percent of all complaints concernedthree areas of legal work: Family, Trusts and Es-tates and Property. It is not difficult to see thatthe pressure and stress engendered in these are-as of the law might well lead to disappointment,anger, and the desire to right a perceived wrong.When criminal and civil litigation were addedfully 80 percent of complaints were covered.
A significant proportion of complaints –around 40 percent – were resolved through the
Early Resolution Service (ERS). (See separate ar-ticle)
In the year to 30 June 2014 774 complaintswere accepted for ERS; 476 complaints resultedin no further action being taken, 220 were re-solved and 82 returned to the standard trackprocess.
The use of the 0800 telephone line (see sepa-rate article) and the online concerns form haveproved effective and straightforward ways formembers of the public and at times lawyers toseek information and initiate complaints. Thenumber of calls to the 0800 number are runningat 50 to 60 a week; enquiries on the concernsform numbered 408 for the year to 30 June 2014,49 of these resulting in a complaint.
Lawyers Standards Committees, each ofwhich may have up to seven lawyers and two laypersons, operate in 12 regional areas. There isalso a National Standards Committee which maydeal with investigations that concern more thanone locality, or where the matter is of major pub-lic interest or importance to the legal profession.Training is provided to complaints staff andmembers of Standards Committees.
Three quarters complaints ‘no further action’ Early resolution of complaints, whereappropriate, reduces lawyers’ stress
Ann Rice
0800 line provides information, reassurance and resolutionTHE initial contact with theLawyers’ Complaints Service formany people is via the nation-wide 0800 line.
This service is required underSection 6(3) of the Lawyers andConveyancers Act (Lawyers:Complaints Serviceand Standards Com-mittees) Regulations2008. It is well adver-tised on the NZLSwebsite, and in a NZLaw Society brochureabout the LawyersComplaints Service,and may appear inlawyers’ client care in-formation.
For those dialing 0800 261 801,the most likely person to answerthe call is Zylpha Kovacs, an en-rolled barrister and solicitor,based at the offices of the Canter-bury-Westland Branch of theNZLS. Zylpha, whose work coversa number of roles including edit-ing Canterbury Tales, says thereare around 60 or 70 calls per week.
“Most are members of thepublic who have a query aboutmaking a complaint,” she says.“Some have not spoken about the
complaint with their lawyer,while others have done so buthave not been satisfied with theresponse. We explain the com-plaints process to them and talkthem through the issues.
“We try to steer them back to-wards talking with their lawyerwhere possible. All law firms, bigor small, must have their own in-house process for dealing withcomplaints and we suggest strate-gies and questions they can ask.Often that is all that is requiredbecause we do not hear fromthem again.”
If after the first call the com-plainant cannot resolve the com-plaint to their satisfaction, Zylphawill point them to the NZLS web
site from where they can down-load a complaint form; if that isnot possible, she will post them aform. Once a formal complaint ismade it is received centrallywhere it is triaged for suitabilityfor the Early Resolution Service.
Malcolm Ellis, who is the NZLSDeputy Complaints Manager andCanterbury Westland BranchManager and who works out of thesame office as Zylpha, says the0800 number was centralised toChristchurch from February 2014to ensure a consistent messageand to enable training and exper-tise to be built up in how to answerthe calls. “Previously calls went allover the country and were an-swered by local Legal StandardsOfficers. Often callers just need re-assurance and, as Zylpha has said,we reflect them back to the lawyerarmed with some questions whichoften seems to do the trick.”
Malcolm says that lawyers alsouse the 0800 service from time totime. “Sometimes they have seensomething they think is question-able, sometimes they are lookingfor help. If they are under stressand on the receiving end of acomplaint they may seek guid-ance. We try to help as best wecan, perhaps putting them intouch with the Panel of Friends.Receiving a complaint can be verystressful for a lawyer and this isacknowledged.”
Zylpha works four days a weekand takes most of the 0800 callswith back up during busy timesfrom Malcolm and other membersof the office, Valerie McTurk andSandy Hopkin. Between Sandy,Valerie and Malcolm they sharearound 70+ years of experiencedealing with Law Society matters.
Despite having to respond to theoccasional angry caller using in-temperate language Zylpha saysshe enjoys the work. “It feels like avery worthwhile thing to do – it’sgood to be able to help people.”
Sandy Hopkin, Zylpha Kovaks, Malcolm Ellis and Valerie McTurk,the NZLS team based in Christchurch which handles 0800 calls.
[email protected] Brief Advertising
COUNCIL BRIEF, MAY 20154 Employment Law Dinner
BETWEEN Dame Sian Elias’ 2010talk “Changing the World” andthe Human Rights Commission’s2012 Census of Women’sParticipation, the percentage ofwomen judges in New Zealandincreased from 26 percent to 27.8percent.
Progress might look very slow,but New Zealand’s figures com-pare favourably with those for theUSA state courts, the highercourts of Canada, and the courtsof the European Union. Courts inEastern Europe, Latin Americaand especially the Caribbean farebetter.
It was a matter for celebrationin 2012 when three of the ninejudges of the Supreme Court ofthe USA were women. (The Bel-gian Constitutional Court specifi-cally requires one-third of seniorjudges to be women, though theconstitutional court of a countrythat often manages well withouta government may not be an ide-al example.)
Domestically, the average pro-portion of women judges in the47 countries of the Council of Eu-rope is 48 percent, but the coun-try from which New Zealandoriginally took its current legalstructures scores very low indeed.There has only ever been onewoman Supreme Court (formerlyHouse of Lords) judge in the Unit-ed Kingdom, the former academ-ic Brenda Hale. Twenty onepercent of the Court of Appealjudges are women, and despitehalf the Family Division judges
being women, in the High Courtoverall the figure is 19.8 percent.Amongst Presiding Judges, theCommercial and Admiralty courtsand the Patents and Technologyand Construction courts, the fig-ures range lower unto zero. Bren-da Hale has mentioned that onlyAzerbaijan, Scotland and Armeniascore worse: in terms of achieve-ment in this field, the UK hasnothing to offer.
However, the approach todealing with the lack of appropri-ate representation of women inthe judiciary is a positive one, be-cause the lack of women judges isseen as damaging to the efficien-cy of the judiciary. Brenda Halehas talked of her conversion fromscepticism about the “businesscase of diversity”, and also aboutthe problem of “getting peoplewho have never suffered discrimi-nation simply on the grounds ofthe colour of their skin or the dif-ference in their chromosomes tounderstand what it is all about”.
The higher judiciary neverthe-less now generally not only dep-recates the lack of women judgesbut supports action to improvethe position. David Neuberger,the President of the SupremeCourt, has said: “The idea thatwomen are less good judges thanmen is fanciful,” and thereforethat: “purely on a statistical basis,… we do not have the best peoplebecause there must be somewomen out there who are betterthan the less good men who arejudges.”
The problems is therefore ad-dressed as one of recruitment.The difficulties cited are oftensimilar to those one hears aboutin New Zealand – unfriendlyworking practices for those withfamily responsibilities, and re-cruitment from commercially-focused environments with thesame issues. The circuit system,where judges travel round thecountry for weeks on end, is an-other specific difficulty for whichregional appointments are a sug-gested solution, though in NewZealand regional appointmentsare cited as difficult for womenbecause they are generally lessable than men to move their fam-ilies so as to work in another partof the country. A different ap-proach is however taken to thesocial aspects of women’s – andothers’ – disinclination to applyfor judicial posts.
A recent work-shadowingscheme designed to recruit Depu-ty High Court judges had selectioncriteria that favoured women, aca-demics, ethnic minorities, thosewho had been to state rather thanprivate schools, and those whowere the first in their family to go touniversity. Selected candidateshave the opportunity of mentoringand work-shadowing with currentjudges, before making a generalapplication for a post. On ap-proaches and solutions to theproblem, the UK’s example mightbe one to consider, even if NewZealand’s problem is less pressing.
By Caroline SawyerWomen in Law Committee
Greg Wood and guest speaker Judge Christina Inglis. Johanna Drayton and Geoff Davenport.
Chloe Luscombe, Blair Scotland and Andrew Scott-Howman.
Paul Stowers and barrister David Patten.
Caroline Rieger and Sara Bayly.
John Tannahill and Peter Cullen.
Karen Yates, Frances Lear and Steve Wragg.
Denis Asher, Ellen Tait and Renee Butler.
Sarah Cates, Tanya Kennedy and Ashley Shore.
Judicial appointments of women – a UK approach
Zoe Bowden, Verity Kemp, Mo Al Obaidi and Amy Webster.
Judge Graeme Colgan from the AucklandEmployment Court and Mike Feely.
The Wellington Employment Law Practitioners’ dinner washeld in Juniper restaurant on Wednesday 13 May 2015.
Annual General MeetingWellington Branch
will be held on Level 8, New Zealand Law Society Building, 26 WaringTaylor Street, Wellington on Wednesday 24 June 2015 at 4.00pm
Nominations : President (1)Vice President (2)Council member (up to 10)
must be received on the correct form in the Branch Officeby 4pm on Friday 22 May 2015
COUNCIL BRIEF, MAY 2015 5Our History
D ame Alison Quentin-Baxter’s career in thelaw has taken her far
beyond the conventional lawoffice and onto the world stage.Her fascination with policy-making, her skill in facilitating theconstitutional development ofsmall island states, and a talent forthe intelligent analysis of real-lifeproblems and looking for a way tobring law and policy together inorder to solve them, have beenhallmarks of her career.
Alison was born in 1929 andgrew up in Auckland. Her grand-parents on both sides of the fami-ly were farmers and she spentschool holidays on their proper-ties in the Waikato and the Kai-para. Neither of her parents hadbeen to university and both werevery encouraging of their daugh-ter’s progress. “My father was afarmer with good businessknowledge. He had no hang-upsabout what women could orcould not do. As he grew up sever-al women were positive rolemodels. As the oldest of four boyshe had watched his mother ontheir farm near Cambridge be theeyes of his father who had lost hissight.” Later on, when he waslearning farming, he worked forwhile on the Coates family farmin Northland. Gordon Coates wasprime minister, and while he wasbusy in Wellington his farm wasrun by his sister Miss Ada Coatesfor whom Alison’s father hadgreat respect.
“When I was about fourteenmy father told me he thoughtthat, as a woman, I would be ableto do anything I wanted to do,and said ‘How would you like todo law?’ I started telling peoplewho asked me what I was going tobe, ‘I might be a lawyer’, and Ienjoyed the surprise this caused!”
When Alison came to study atAuckland University College, shesays she had no sense that study-ing law was particularly noveleven though she knew there werefew women lawyers at the time.
“In one class, criminal law, Iwas the only woman and the lec-turer, who was a practitionerfrom downtown, would greet theclass with ‘Good morning gentle-men’. When we got to the part ofthe Crimes Act dealing with sexu-al offences he felt unable to talkabout those in my presence andtold us to read that chapter forourselves.
“But I had a lot of support fromthe Dean, Professor Davis, andfortunately the law and I hap-pened to click. I joined the lawstudents’ society, was later invit-ed to be a member of the commit-tee and became the chairman inmy final year.
“As a law clerk I did settle-ments around town and solicitorswho seemed old but were proba-bly about forty would say, ‘What’sa nice girl like you doing in a lawoffice?’ But invariably I found
they would be doubly helpful ifany problem arose.”
When she was near to qualify-ing in 1951 she was offered a jobas a solicitor in a good firm withpartnership prospects, but haddecided she did not want tospend all of her working life inAuckland. An interest in govern-ment and international affairsencouraged her to ask the depart-ment of external affairs whether ithad a job for a lawyer.
Work in External Affairs
“The first response was that if Ihad been a first-class shorthandtypist they would give me a job,but a woman lawyer? They werenot so sure.”
However, they agreed to thinkabout it. A few weeks later she wasasked back to meet the legal ad-viser, Colin Aikman, and was thenoffered a job. While she was in theinterview, there was a knock onthe door and a young man camein who was introduced as Mr.Quentin-Baxter. “I did not knowthen how fateful that meetingwould turn out to be, that my ca-reer and my personal life were tobe inextricably linked.”
Quentin Quentin-Baxter, whowould become an eminent inter-national and constitutional lawyer,was to be her future husband. Theywere to work together for someyears at external affairs, and later inmany other parts of the world.
Alison says they both under-stood that the personal had to bekept separate from the world ofwork. “That was fine between thetwo of us but after we married mygreatest difficulty was that we wereworking in the same field. We weremorbidly sensitive about any pos-sibility that I could be seen as get-ting jobs through my husband. Butwe did work very happily together,alone and with other people. If wewere in a work environment webehaved accordingly, but each val-ued the other’s constructive criti-cism and arguments about theissues were often vigorous. As afamily, we also learnt that we couldnot both have a major project onthe go at the same time. One of ushad to be free to do what the otherhad to leave undone.
“My first job in external affairsgave me a perspective that has re-mained with me all my life. I be-came very interested in policyissues, but it was made very clearto me that I must always make thedistinction between questions ofpolicy and questions of law. Thetwo were not to be confused. Partof the job of a lawyer at externalaffairs was to ensure that our lawconformed with New Zealand’streaty obligations, as well as gen-eral international law. Thatmeant monitoring all kinds of leg-islation put forward by other de-partments – a never-ending task.
“The practice in external affairswas for all incoming mail andcables to be given first to a junior
member of the relevant division.You then had to draft a reply orpropose some other appropriateaction. I was quite good at this, al-though Quentin, who became myimmediate boss for a while, re-wrote everything I drafted! But Icould see why he had done so – andin due course I meted out similartreatment to more junior staff ”
Head of legal division
Alison was so successful in factthat she was made head of thelegal division in 1956. By then shehad twice spent several months inNew York representing New Zea-land in the Legal Committee ofthe UN General Assembly, andwould later be a member of theNew Zealand delegation to theearly conferences in Geneva onthe law of the sea. She remainedhead of the legal division until late1960 when she was posted toWashington DC as first secretaryin the New Zealand Embassy.
Fate intervened at this junc-ture. It was around this time thatQuentin, then in New York, wasposted to Tokyo. “We announcedour engagement to be married. AsI was in Washington, I applied forleave without pay from the publicservice, so that after our marriage Icould go with him to Tokyo, with-out having to resign. In those daysthe public service was somethingof a ‘closed shop’ that it was diffi-cult to rejoin. But the Public Serv-
ice Commission refused my appli-cation on the ground that therewas no provision in the PublicService regulations for leave with-out pay in such a circumstance.
“I had to make a choice be-tween staying at my post in Wash-ington or resigning. So I put in myresignation. We returned to NewZealand, where we were marriedin August 1961, and then threeweeks later, we left for Tokyo. Iwas the victim of a mind-set thatdid not then contemplate thepossibility that a woman mightwant to carry on her career afterher marriage to a husband whowould be happy to see her do so.This has changed of course. I wasjust caught at a particular time ina period of social change.”
Back in Wellington after twopleasant years in Tokyo, Alisonlooked around for work and ap-plied for a position teaching legalsubjects at Wellington Polytech-nic. These were mostly in the com-mercial law area, which she knewlittle about, but the old axiom thatteaching a subject is the best wayto learn it certainly applied here.
Teaching at Victoria
In 1967 Alison was asked by Co-lin Aikman, her former boss at ex-ternal affairs and now dean of theVictoria University faculty of law,to teach in the faculty which shedid until the end of 1969. In 1968her husband also appeared in thelaw faculty, having been appoint-ed to a chair in jurisprudence andconstitutional law; “… so there wewere side by side again”.
“The university was quite hap-py to have us both but we seemedto have the university for break-fast, lunch and dinner! I decidedthat I did not want a career inteaching, particularly in the sameareas of law as my husband.”
Niue constitutional work
Life was to change after 1970when Alison accompanied herhusband to Niue, then a colony ofNew Zealand, where he had beenappointed as constitutional ad-viser to the Niue Island Assembly.This was the start of what was to
become a theme of Alison’s ca-reer – an affinity and concern forthe people of small island states,and of their ability to become selfgoverning, despite the fact that itwould be difficult, if not impossi-ble, to develop their economies tothe point of self-sufficiency. Shehas published a number of paperson the subject and worked in sev-eral islands and island groups asan invited constitutional adviser.
“When I went to Niue withQuentin that first time, my farewas paid and it was understoodthat I would help with the work.That became something of a pat-tern whenever Quentin had theresponsibility for a major NewZealand government initiativesomewhere overseas. My role wasaccepted by officials and Minis-ters, most of whom knew me frommy days in external affairs, but itwas never suggested that I shouldbe paid for any professional workI did in support of the current en-terprise. I accepted that my rolewas an extension of the unpaidbut nevertheless considerablecontributions to international di-plomacy made by diplomaticwives. Nowadays, that concept isitself problematic, as wives – orhusbands and partners of eithergender – are increasingly com-mitted to maintaining their owncareers when their spouses orpartners are posted overseas.
“In the case of Niue, I was fullyinvolved from the beginning. Un-like the Cook Islands, which hadbecome self-governing in 1965,Niue had refused even to considerself-government, fearing the lossof New Zealand government sup-port, even though it had beenmade clear that Niueans wouldcontinue to be New Zealand citi-zens.”
Professor Quentin-Baxter wasable to reassure the people thatthey could proceed to self-gov-ernment without losing the sup-port on which they depended.Some four years later he and Ali-son moved to draft a constitutionfor a self-governing Niue. TheNiue Constitution Act of 1974 and
Dame Alison Quentin-Baxter – a career in constitutional law
Alison Quentin-Baxter, fourth from right, on arrival in Niue in 1970 with Professor Quentin-Baxter to her left and island territoriesminister Duncan McIntyre to her right. Others are, from left, Mrs McIntyre, Assemblyman Sipoli, Jock McEwen, secretary for Maori
and Island Affairs, Mrs Sipoli, Mr Ngata, the minister’s private secretary, Robert Rex and Selwyn Wilson, resident commissioner.
Dame Alison Quentin-Baxter.
❑ Continued on page 6
Photo: Courtesy Selwyn Wilson; Niue 1774-1974 by Margaret Pointer 2015, Otago University Press
constitution was put to the peo-ple in a 2005 poll. It was a prema-ture step in Alison’s view. Amajority voted against the pro-posed changes and St Helena re-mains a non-self-governingcolony. “The opportunity forchange at that time was lost, butthe draft constitution is still sit-ting there and some day may bepicked up again and completed.”
It was not all bad news – notlong before going there Alisondiscovered that an ancestor ofhers had been governor of StHelena. “He had married a wom-an who was descended from oneof the first English settlers, so thefirst time I went there I had a teaparty for about 25 relations eventhough it was 220 years since mybranch of the family had left!”
Law Commission director
Aside from a concern for smallislands and their constitutionaldestiny, Alison Quentin-Baxterhas been busy in many otherareas over the past 60 or moreyears. She was the first director ofthe Law Commission in 1986,though she adds, “… it was just anadministrative position”.
“Sir Owen Woodhouse, thefirst president, was the chief exec-utive but he had been looking fora ‘chief of staff’. I met him bychance in the street and we had along talk and then two weeks laterI was asked if I would like to bedirector.
“There was no job description.Sir Owen said ‘make of it whatyou can’, and that was not alwayseasy. But over the eight years Iwas there the nature of the jobgradually emerged. In addition tothe management roll, I was ableto contribute to various projects,and I also did some drafting whenthe commission was proposing anew statute.”
Nuclear weapons action
Earlier, in 1973-74, Alison be-came involved in the New Zea-land government action at theInternational Court of Justice at-tempting to stop France testingnuclear weapons in the atmos-phere of the South Pacific, thoughshe emphasises that her contribu-tion was small. Quentin Quentin-Baxter had a leading role from thebeginning and had been named“Agent of New Zealand” for thepurposes of the case. The lawyerswho took part in the case were theAttorney-General, the Hon A MFinlay QC, the Solicitor-General,Mr R C Savage QC, ProfessorQuentin-Baxter, Professor Ken-
Conventions in 1977-79 andagain in 1990 when the constitu-tion was reviewed.
The Marshall Islands were partof the US Trust Territory of thePacific Islands, administered bythe United States and encom-passing hundreds of islands in-habited by several distinctMicronesian peoples. The Mar-shall Islanders disagreed with abroad American plan to lump allthe groups in a federation. Theycited significant traditional, lan-guage and economic differencesin their wish to become self-governing alone. Alison had beeninvited to accompany Quentin inassisting with the constitution-making, but Quentin had teach-ing commitments and Alisonwent alone.
“The first time I was there forthree weeks and was deeply in-volved in advising at the firstsession of the constitutional con-vention. Interestingly, the Mar-shall Islanders had looked to theSouth Pacific because they wereinterested in a Westminster-typeconstitution rather than a US-style one, with an election tochoose the president or governorwho heads the executive branch,and the separate election for thelegislative branch. That had beentried in Guam and the NorthernMarianas but different parties hadwon control of the two branchesof government and it had beendifficult if not impossible to re-solve the resulting deadlock. TheMarshall Islanders were lookingfor a more unified system.
“We worked out what wouldneed to be done over a 21-monthperiod if a new constitution wasto come into force on 1 May 1979as was hoped. After two referen-dums and a general election, aswell as a lot of work on draftingand adopting a constitution, thattarget date was met. I more or lesscommuted between Wellingtonand the capital, Majuro. It had itsfunny side though – while it hadbeen considered quite alright forQuentin to travel overseas on hisprojects leaving me behind tomow the lawns, now that I wasleaving him at home to cook hisown chops, it was seen as veryodd behavior on my part, despitethe fact that both of us were com-fortable with it.”
The Americans were personal-ly helpful, Alison says, but the in-stitutional side was difficult. “Ihad to go to Washington a couple
Our HistoryCOUNCIL BRIEF, MAY 20156
the accompanying constitutionwere passed by Parliament butthe constitution did not comeinto force until after it had beenapproved at a referendum in Niuein September 1974. Niue then be-came self-governing in free asso-ciation with New Zealand.
After a decade away from Niue,both Alison and her husbandwere invited to celebrations forthe tenth anniversary of self-gov-ernment late in 1984. Sadly, Pro-fessor Quentin-Baxter diedsuddenly in September of thatyear. “I had to decide whether Ishould still go and after very realhesitations I did so. While I wasthere one of the Niuean govern-ment ministers took me aside andasked me to help them in theirrelationship with New Zealand.”
When in 1985 a Niue ReviewGroup was set up to examine therelationship between Niue andNew Zealand, Alison was one ofthree members appointed by thegovernment of Niue. She wrote apaper emphasising that the opendoor to New Zealand risked drain-ing Niue of its workforce unlessliving standards there were com-parable with New Zealand. Tothat end, the review group recom-mended New Zealand assistanceshould be aimed at improving theliving standards on the island.
Alison was also appointed asthe member of the Niue PublicService Commission “with specialknowledge of Niue”. The Com-mission had the duty of maintain-ing an independent and politicallyneutral public service without pa-tronage or favouritism, but takingaccount of the special circum-stances of a small island nation.
“Niue stayed with me for a longtime and I felt a special bond withthe people and place. I had asense of commitment … On ourfirst visit we had flown in by airforce Hercules with the ministerof island affairs, landing on thehalf completed airstrip. Westayed there until the ship cameto take us off so I had some idea ofwhat it was like to live on a small,isolated island with no readymeans of leaving it.”
On that occasion they had trav-elled by the GMV Moana Roa, theNew Zealand government-ownedvessel which serviced the islands atthe time. The 14-day voyage tookher from Niue to the Cook Islands,first to Rarotonga, then to Aitutaki,then back to Rarotonga, and finallyto Auckland. “Going up and downa rope ladder when the ship is roll-ing in an open roadstead is alwaysa challenge and I realised that itwas absolutely essential to thewellbeing of the people and the de-velopment of tourism that Niueand other small islands shouldhave an air connection.”
Marshall Islands
A further opportunity to workwith small islands came when Ali-son was appointed Counsel to theMarshall Islands Constitutional
of times to argue over variouspoints, but my earlier diplomaticposting there meant that I knewmy way around.”
She had asked that a goodAmerican constitutional lawyershould advise on the Bill of Rights– something New Zealand did notthen have – and Professor Lau-rence Tribe of Harvard Universitywas willing to assist. He and Ali-son worked closely on the role ofthe judicial branch of govern-ment. He came twice to the Mar-shal Islands, and at a later stageshe met with him at Harvard ac-companied by a Marshallesemember of the Convention.
“Since coming into force theconstitution has had its momentsbut it is still in place and has beenmade to work in ways that appearto meet the people’s needs. I wasalways clear that they had tomake their own decisions abouthow it should work, and my in-volvement there is probably thesingle most satisfying profession-al experience I have had.”
St Helena
The most recent chapter in Ali-son’s work in small islands be-tween 2002 and 2004 was perhapsthe most improbable. This was forthe south Atlantic island of St Hele-na, once a victualling depot for theEast India Company sailing shipsand famously where NapoleonBonaparte was detained in 1815until his death in 1821.
Just getting there was difficult.On her first visit Alison flew toLondon, then made her way toBrize Norton Royal Air Force basein Oxfordshire for a nine-hourflight to Ascension Island. After await of several days for the RMS StHelena to arrive, once again at anopen roadstead, she sailed for StHelena, a voyage of three daysand two nights. On a subsequentvisit she embarked on the RMS StHelena in Capetown, then spentfive nights on the voyage to StHelena. When she left St Helena,the ship was bound for the UK, avoyage of two weeks. An airportdue to open in 2016 will no doubtbring great change.
St Helena was settled mainlyby people from England, Africa,China and the Indian subconti-nent. Subsequent intermarriagehas produced a homogeneouspopulation of English-speakingpeople who call themselves“Saints”. They are British citizenswith the right to live and work inthe UK or in other EU countries.
Alison went there as an inde-pendent constitutional adviser tothe members of the St. HelenaLegislative Council, and wasfunded by the CommonwealthSecretariat. On her two visits, sheworked with the councillors de-veloping the principles of a newconstitution providing for minis-terial government. Its main fea-tures had been negotiated andagreed with the Foreign Officewhen the nearly completed draft
neth Keith (later Sir Kenneth), MrChristopher Beeby, Legal Adviserto the Ministry of Foreign Affairs,and Alison. She became involvedat the time of the first hearingwhich considered New Zealand’srequest for “interim measures” –the immediate cessation of all nu-clear testing in the atmosphere.When the hearing date was fixed,Quentin and Alison had been inGeneva where Quentin was at-tending a meeting of the Interna-tional Law Commission, of whichhe was a member. They travelledtogether to The Hague.
“I was just the accompanyingwife, but there was huge pressureto be ready for the hearing. Noteshad been prepared for the attor-ney-general’s address to the courtbut were not in an organised form.So after breakfast one morning myhusband handed me a large pile ofpapers, saying could you put thesenotes into an order that works,write a beginning and an end, andany necessary connecting bits,and have it ready by lunchtime!
“I did my best and the draft Ihad assembled became the work-ing document. From then on Iwas treated unofficially as a mem-ber of the team. At the next hear-ing a year later we had to satisfythe court that it had jurisdictionto deal with the case, and also thatthe case was ‘admissible’ – essen-tially that there was a dispute be-tween New Zealand and Franceinvolving a question of interna-tional law. Quentin was to argueone aspect of jurisdiction. Ihelped him by doing some re-search into why France had ac-cepted the jurisdiction of thecourt under its Statute, but hadmade a reservation excludingmatters of national defence.”
Alison could read French andfound some information inFrench legal journals that Quen-tin was able to use. “We were backin Geneva when a telegram cameinviting me to join the team offi-cially. So I put on my wig andgown and sat in the court with theother lawyers but junior counseldid not speak – so that was all.”
Among other matters: in 1980she completed a review of the Let-ters Patent constituting the Officeof the Governor General; she wasCounsel assisting the Fiji Consti-tution Review Commission 1995-96; and special counsel to the Niuegovernment on the reform of elec-toral law. She was awarded anhonorary doctorate of Laws byVictoria University in 2003, and in2007 was made Dame Companionof the New Zealand Order of Merit.
In a career of 60 or more years,Alison says that there has neverbeen a plan; events and opportu-nities have simply unfolded. Thisis no doubt true, but overlooksthe fact that she has been ready,willing and able to take up thechallenges that have been pre-sented to her.
We stayed [on Niue]until the ship came totake us off so I had
some idea of what it waslike to live on a small,isolated island with noready means of leaving
❑ Continued from previous page
Dame Alison Quentin-Baxter – a career in constitutional law
❑ Continued on page 7
I have had enormouspleasure in searching forways of making the lawaccord with people’s
needs and aspirations…
COUNCIL BRIEF, MAY 2015 7Community Law
DOWN1. Surplus remained on top (4-4)2. The conductor is caricatured, we hear (5)4. They figure out the total number of
poisonous creatures (6)5. Presumably he’s not in the front rank of
foresters (12)6. Noble arrangement about an Eastern
country (7)7. Position from which to take aim, one
hears (4)8. Figures are cut on them by blades a foot
long (7-5)12. Describing the cleric who is unusually
spritely (8)14. Upholder of the board (7)16. Pressman tried to change nothing inside (6)18. Promotes sales - item of property put back
inside (5)19. The position of one who has retired (4)
ACROSS1. They provide fuel records (4)3. Observed the beaks - they’re mergansers
(3-5)9. Behaved playfully - subjected to a search
(7)10. Measure a young animal by it (5)11. Making the pitch too big - but inflicting
defeat (12)13. The area of what was once temporary
accommodaton (6)15. A woodworker who becomes a member
(6)17. The affliction of one who experiences
irregular beatings (5-7)20. Stick to prohibition outside (5)21. Opposite directions included in
characteristic conveyance (7)22. They put on other people’s clothes! (8)23. Permanent settlers have come to this (4)
DOWN1. Delight (8)2. Extend (5)4. Recommence (6)5. Adequate (12)6. Apparel (7)7. Pitcher (4)8. Memory (12)12. Outlook (8)14. Simulated (7)16. Tremble (6)18. Smell (5)19. Nil (4)
ACROSS1. Saucy (4)3. Jam (8)9. Rubbers (7)10. Hackneyed (5)11. Teacher (12)13. Lottery (6)15. Hesitate (6)17. Impolite (12)20. Boredom (5)21. Wordy (7)22. Commonplace (8)23. Pluck (4)
Cryptic Clues
Quick Clues
PRACTISING WELL
Chaplain, Julia Coleman, 027 285 9115You can use this diagram for either the Quick or Cryptic Clues, but the answers
in each case are different. This month’s solutions are on page 2.
COUNCIL BRIEF CROSSWORD
Council Brief [email protected]
By Kate Scarlet, Community Lawyer
Ponytail-gate: supporting low income workerswho experience harassment and bullying
HARASSMENT experienced by lowincome workers has been in thenews recently after the experienceof Amanda Bailey became public inwhat has been dubbed ‘ponytail-gate’. Community Law Wellingtonand Hutt Valley (CLWHV) sees awide variety of low incomeworkers. They come to us todiscuss the broad range ofharassment and bullying theyexperience at work – from physicalharassment by customers to severepsychological bullying from co-workers and bosses.
When your primary income re-lies on interacting with people whoare in a more powerful positionthan you, if they harass you (are“playful” at your expense), it can bea very difficult situation to be in.For people who have the power intheir employment to safely talkback, complain or easily leave thesituation, it’s simple to view apony-tail pull as harmless, but forpeople who can’t leave or speak upand who feel uncomfortable, har-assed or bullied, it’s an awful situa-tion to be in.
Many of our clients feel trappedand believe that rocking the boatwill get them into more troublethan it’s worth. They fear thatthey’ll be blamed for the harass-
ment and bullying, or that speakingup won’t make a difference. Thereare legal protections in place butthese are not without personal risk– to reputation, to mental health, tolivelihood. Clients must make thetough decision whether enforcingtheir legal right to a safe workingenvironment is worth the personalblow back. But there are some im-portant steps that can be taken tosupport clients beyond working ontheir legal case.
Most low income clients are un-able to afford a lawyer to supportthem to raise issues and negotiateon their behalf before formal legalaction begins (and legal aid be-comes available). At this prelimi-nary stage, we think it is crucial tosupport clients to help themselves.At Community Law, we encourageclients to bring a support person tomeet with us. The client can taketheir support person along to ameeting with an employer, and wecan help them both prepare. Wecan assist clients to write up thepoints they want to raise and en-sure they have all the relevant infor-mation to give to their employer.
By the stage low income workersare seeking legal support it is oftentoo late for them to join a union. Buta union is a great option for pre-
venting legal issues from arising inthe future as they are able to pro-vide early support, paid for via un-ion fees. Explaining the right to joina union and the support a unionprovides can be very helpful to lowincome clients. If there isn’t a unionin the work place, talk to differentunions about options for establish-ing a union.
After a low income worker losestheir job or feels forced to resign,they can have difficulties support-ing themselves day-to-day anddealing with Work and Income.Leaving your job in a constructivedismissal type situation is not easyto do at the best of times, but be-comes more difficult if you are on alow income and aren’t necessarilyin a strong financial position. Workand Income can be there to fill thegap. However, if a client leaves a jobfor ‘no good reason’ or is dismisseddue to misconduct, then Work andIncome will put them on a 13 weekstand down. A constructive dis-missal may appear to Work and In-come as if the client is leaving for nogood reason. To help a client in thissituation, write a letter to Work andIncome setting out the facts,whether there are legal grounds toraise a personal grievance for con-structive dismissal and advise
whether the client intends to raise apersonal grievance or pursue otherlegal action. This can allow Workand Income to reduce the 13 weekstand down to 1-2 weeks standdown. Encourage clients to applyfor benefits early, as the applicationdate can affect when they will beginreceiving any benefits they are eligi-ble for.
Finally, simply knowing thatharassing and bullying behaviourcan result in legal action gives a lotof clients hope. The simple act oflistening and letting them knowthere are protections available canbe a source of immense comfort.
The proposed new legislation,the Health and Safety Reform Bill,seeks to expand protections for allsorts of workers. This legislation isbased on an Australian model,which appears to provide remediesfor severely bullied workers or theirfamilies.
Brodie was an Australian wait-ress who was severely bullied by hermanager and co-workers. She hadsauce dumped all over her and wasoften belittled. The owner of thecafé was aware of this and had toldthe manager to tone down the be-haviour in front of customers – butnever stepped in to prevent it. In2006, Brodie jumped from her
apartment and died three days laterfrom her injuries. Her co-workersand manager were fined between$10,000 and $45,000, and the com-pany was fined $220,00 after plead-ing guilty to failing to takereasonable care for the health andsafety of persons and failing to pro-vide and maintain a safe workingenvironment.
While Brodie’s case was a trage-dy, it does illustrate the ability ofhealth and safety legislation to takebullying very seriously and recog-nise the potential harm it repre-sents. We hope this legislation willhelp ensure employers have aneven stronger incentive to take bul-lying and harassment seriously andprotect their workers from such de-structive work environments. Theability for an outside organisationto undertake prosecution, Work-safe, can help some workers feelbetter about coming forward.
It is important to recognise theextremely vulnerable position lowincome workers who experienceharassment and bullying are in,and provide the necessary supportto ensure workers are can maketheir own decisions to protectthemselves or take action.
“I was brought up to act re-sponsibly and to do jobs on myown without supervision, once Ihad been shown or told what todo. The need to take the initiativewas an element of my early train-ing at the department of externalaffairs. I do not think I would havebeen much good at waiting for cli-ents to give me instructions – Iwould have wanted to suggest thatthey take all sorts of initiatives.
“My proactive approach doesnot mean that I am not commit-
ted to the law. But I have hadenormous pleasure in searchingfor ways of making the law ac-cord with people’s needs and as-pirations. And I have been solucky in having challenging in-ternational and constitutionallaw questions come my way.
“It has given me great pleas-ure to work with other people,share ideas and collaborate insolving problems. I have enjoyedmy work – I hope it has been use-ful.”
MADESIGNm
© Mark Gobbi 2015
1 How many times can you take 6away from 36?
2 Field mice love corn. A perfectlyhealth, totally intact, field mouse cantake away three ears from a cornfield each day to its nest. In fourdays, how many ears of corn wouldit have taken from the corn field?
3 Samson’s mane was a luminous 36centimetres before Delilah, who hadlearned the secret of his power,divided his glorious locks by a half.With time, Samson’s hair grew 12centimetres, which gave himenough power to bring down thetemple of his captors, crushingthem and himself to death. Howlong was Samson’s hair when hedied?
4 It is white’s turn to move. Whatshould white do?
❑ Continued from previous page
Dame Alison Quentin BaxterMelton Prosser
MEMBERS will be saddened tohear that longstanding solepractitioner Melton Prosser is ill inKeneperu hospital.
He is making good progress buthas had to take “early retirement”!
The firm of Morrison Kent hastaken over his files and any queriesshould be directed there: tel 04472 0020, fax 04 472 7017,[email protected]
We send our very best wishes toMelton for a speedy recovery.
An interview with Meltonappeared in the March issue ofCouncil Brief.
COUNCIL BRIEF, MAY 20158 Notices
We are seeking a lawyer to join our specialist family law firm.
The successful applicant will join the firm’s partners and staff, undertaking afull range of family law services. 3-5 years PQE, completion of the Lawyerfor Child course and Legal Aid Lead Provider approval is preferred.
Our firm is based in central Wellington and has clients locally, nationally andinternationally. Our offices are conveniently located within walking distanceof the Wellington Family Court.
The partners and staff have significant litigation and mediation experience.We are committed to continued professional development.
Applications are invited to be made by post or email by 29 May 2015 to thefollowing address:
Wellington Family Law, PO Box 5251, Wellington 6145
Email: [email protected]
Wellington Family Law
FAMILY LAW VACANCY
Graham Taylor, Lisa Hansen, Christopher Griggs, Peter Barker, Peter Churchman QC and David McLay announce that on 20 April their chambers, Barristers.Comm, relocated to Level 7, Legal House, 101 Lambton Quay, Wellington.
The chambers’ new postal address is P.O. Box 5577, Wellington 6145. All other contact details remain unchanged.
CHIN, Wee Doo, also known asMichael ChinDied 22 March 2015.
Maude & Miller (Alexandra Li)
PO Box 5259, Wellington
Tel 04 496 9689 Fax 04 471 [email protected]
Please contact the solicitorsconcerned if you are holding a will
for any of the following:
FOR URGENT ACTION
WILLENQUIRIES
■ The cost of will notices is $50.00 (GSTinclusive). Please send payment withyour notice.
■ Will notices should be sent to the BranchManager, NZ Law Society WellingtonBranch, PO Box 494, Wellington.
Barristers gown,as new, $500.
Tel Rob @ 06 323 4636
BARRISTERSGOWN
FOR SALE
Council Brief [email protected]
SENIOR FAMILY LAWYER
We are seeking a Senior Family Lawyer to join our vibrantWellington Central city practice. Our ideal candidate would beexperienced in all areas of family law with significant litigationexperience and with an interest in relationship property/trusts.Lawyer for the child approval would be an advantage. Definitepartnership prospects; flexible and friendly workingenvironment.
Please email your CV and cover letter to Liz Lewesby 29 May 2015 – [email protected]
Wellington
cubafamilylaw
THE internet has become integralto business – however, thereliance we place on it also poses amajor threat, as our inability tocontrol the risks related to it seemto be growing exponentially.
Law firms with critical issuesaround security of client informa-tion need to be very vigilant in thecollection and storage of informa-tion, all of which usually is of aconfidential nature. With the in-creasing frequency and size ofdata breaches, it is clear that beingbreached is inevitable and per-haps only a matter of time.
In addition to good risk man-agement principles, law firms alsohave a duty to protect client mon-ies and assets. “Cyber-crime”presents a significant risk to suchfunds and assets, with client ac-counts posing a very attractive po-tential target for cyber-criminals.
Law firms also need to take intoaccount the need to keep clients’affairs confidential. Cybercrimi-nals consider the informationheld by law firms on clients to bevery valuable, so firms need to en-sure effective measures are inplace to prevent confidential in-formation being breached. Thedamage to a law firm’s reputationneeds to be considered, shouldany personal or sensitive informa-tion entrusted to the firm by cli-ents be compromised.
It was announced earlier thisyear that the Privacy Act 1993 willbe repealed and replaced withnew legislation which aims to putthe onus on those who hold infor-mation to identify and addressrisks before they occur. It is likelyNew Zealand will follow similarprivacy reforms implemented inCanada, the United Kingdom andAustralia, with new offences andincreased fines for breaches.
Data breaches have a signifi-cant impact on whether a clientwill interact with an organisationagain. Data breaches are not justbreaches of security. They are alsobreaches of trust between the firm
and its clients or customers. Glo-bal research across five of theworld’s largest economies foundthat 66 percent of respondentssaid they would never deal with anorganisation again if a data breachoccurred where financial data wasstolen, or were unlikely to do so.
Cyber risks are not self-con-tained within individual enterpris-es. Just connecting to the internetcan result in risks, from intercon-nections with counterparties andaffiliates, or contracts with exter-nal suppliers of services, e.g. cloudproviders, outsourcing providersor supply chain infrastructure.
Cyber risk comes in a bewilder-ing variety of forms. Hacking,information security and confi-dentiality concerns can arise fromattacks causing denial of service,malware, viruses, administrativeerrors, fraud, data providers, mali-cious employee activity or loss ofmobile devices.
If such an attack does occur,firms will in the first instance needto engage IT consultants to estab-lish what has happened. They willalso need to remedy all issues aris-ing, such as third party actions orbrand reputation issues, as well asaddressing the costs of restoringdata.
How to mitigate the risk of cy-bercrime The threat from cyber-crime is ever-increasing and thelegal profession is not exempt.Willis is aware of at least one lawfirm which has recently sufferedthe effects of a virus infection in itsnetwork, resulting in considerableexpenditure to identify and treatthe attack.
All law firms need to considerthese questions:• How secure are your computer
systems?• Could you become a victim of a
cyberattack?• Would your systems withstand a
cyberattack?You can help to mitigate risk
and minimise exposure by stepssuch as:
• carrying out risk assessments• reviewing current policies and
procedures to check efficiency• checking that operating sys-
tems, browsers, anti-virus/mal-ware software and firewalls areup-to-date
• using strong passwords (whichshould not be shared) and limit-ing number of failed login at-tempts
• carrying out frequent back-ups;• limiting use of flash drives (USB
sticks) and other forms of unen-crypted portable media
• being mindful of and reducingthe amount of sensitive infor-mation sent in email attach-ments
• considering using encryption onportable devices;
• blocking access to inappropriatesites
• revoking access rights when staffleave the firm and closing un-used accounts
• training staff in the dangers ofcyber-crime and the correct pro-cedures to mitigate risk.We are all aware of the need for
protection of buildings from fire,damage, earthquake etc. So we im-plement risk management such assmoke detectors, sprinkler sys-tems and earthquake strengthen-ing. But we still insure suchbuildings, in case of an event oc-curring which will cause signifi-cant financial harm.
The same should apply to yourcomputer network. Insurance isnow available for many of the is-sues that arise out of a cyber-at-tack, e.g. loss of revenue, datarestoration costs, privacy breach,and brand reputation.
If you’d like to discuss your in-surance cover with NigelGrantham, phone (09) 356 9356.Willis has a dedicated team of 12associates, nationwide.
As always, there was a great turnoutfor the recent Young Lawyers QuizNight, with some very happy winnersand merry contestants.
This article first appeared in Law News Issue31 (12 September 2014), published byAuckland District Law Society Inc.
By Nigel GranthamNational Manager - Financial, Executive & Professional Risks, Willis
Cyber-crime – coming to a law firm near you
