At The Bar - 2018 Annual Conference Lawyers Speaking Out Auckland Bench and Bar Dinner www.nzbar.org.nz - NZ Bar Association
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At The Bar July 2018 2018 Annual Conference Lawyers Speaking Out Auckland Bench and Bar Dinner www.nzbar.org.nz
ANNUAL CONFERENCE 2018
Wisdom from the Past, Realities of the Present
and Ambitions for the Future
21 – 22 September 2018
Novotel Lakeside, Rotorua
SPEAKERS:
Keynote: Minister of Justice Hon. Andrew Little Kate Davenport QC
Keynote: Attorney-General Hon. David Parker Clive Elliott QC
Keynote: The Hon. Justice Helen Winkelmann Jonathan Eaton QC
Keynote: Caroline Adams Miller Paul Radich QC
Rt. Hon. Dame Sian Elias GNZM Paul Wicks QC
Hon. Christopher Finlayson QC Victoria Casey QC
Hon. Justice Raynor Asher Maria Dew
The Rt. Hon. Sir Ted Thomas KNZM QC Honor Ford
Hon. John Wild QC Josh McBride
Kylie Nomchong SC Belinda Sellars
Stuart Grieve QC Natalie Walker
Register at www.nzbar.org.nz
Thank you to our sponsors
(Gold sponsor)
(Silver sponsor) (Silver sponsor)
YOUR ASSOCIATION
4 From the President – Clive Elliott QC
p13
12 New Members – members who have recently joined
the Association
16 Annual Conference 2018 – details of the conference
programme and events
42 Auckland Bench and Bar Dinner 2018 – pictures from
the recent dinner
38 Member Benefit – Marsh outlines its policies for NZBA
members
p21
LEGAL MATTERS
7 When Are Lawyers Not Permitted to Say What They
Think? – speaking up in a free society
20 Advancing the Rule of Law – how one company is
helping locally and globally
28 The Tortoise and the Hare? – unconstitutionally
obtained evidence in the digital age; a US perspective
30 Keeping Pace with Change – flexibility, mobility and
efficiency are crucial to the future of legal practice
p32 obtained evidence in the digital age
36 Creating a Safe Workplace Through Drug Testing –
how to successfully carry out workplace drug testing
PRACTICE AND LIFESTYLE
10 Do You Have the Right Kind of Grit to Succeed? –
Annual Conference Key Note speaker on grit
13 Creating Your Future – the second article in our series
on retirement
p36 22 The Future of Bitcoin. Is the toss of a coin a bit too
risky – investing in crypto currency
25 359 Years On; Alive and Kicking Harder Than Ever
Before – Planet Wine
32 Cultivating Reputation in a Connected World –
creating your online presence – reputation matters
34 10 Tips & Hints for Using Dragon Legal – a member
benefit that will help you each day
40 Petrol Heads’ Corner – what happens when Mercedes
p38
lets David play with its cars
The views expressed in the articles in this publication may not necessarily be the views of the
New Zealand Bar Association.
Cover: Te Puia – Rotorua, NZ. © 2018 Hot Lobster Design.
EDITORIAL COMMITTEE Jacqui Thompson NEW ZEALAND BAR
David O’Neill - Chair (Contributions & Advertising) ASSOCIATION
Tel: +64 7 839 1745 Tel: +64 9 303 4515 Tel: +64 9 303 4515
Email: david.oneill@nzbarrister.com Email: jacqui.thompson@nzbar.org.nz Email: nzbar@nzbar.org.nz
Melissa Perkin Web: www.nzbar.org.nz
Tel: +64 9 303 4515 DESIGN AND LAYOUT BY
PO Box 631, Auckland 1140
Email: melissa.perkin@nzbar.org.nz Kirsten McLeod
Tel: +64 9 834 2224
From the President
Clive Elliott QC*
Tēnā koutou.
This will be my final column as President of the NZBA. By the time the
next issue of At the Bar comes out, Kate Davenport QC will have taken
over as President. For this reason, I would like to take a few minutes to
reflect over some of the key events of the last three years.
I took over the presidency from his Honour Judge Paul Mabey QC when
he was appointed to the District Court, partway through his term. This
means that I have been in the job for longer than anticipated and served
part of the term without a President Elect to back me up. For this reason,
I would like to thank Kate Davenport for her help, wisdom and support
over the last year. The President-Elect position is very important to the
smooth running of the Association.
I would also like to thank the Council and the Secretariat for their support during this time.
The Association has grown both its role and its membership to a considerable degree. Today, it is
involved in a wide range of activities, from pure membership matters through to the important areas
of access to justice and upholding the rule of law. We provide a strong, independent voice for the
independent Bar and represent our members' interests both with the regulator and the government.
When I took on the presidency, I had been on Council for some years and been involved in the Law
Reform Committee, as well as being the editor of the At the Bar newsletter. I had worked with Stephen
Mills QC during his presidency and was aware of the heavy load at times. I decided therefore to set
some goals. I identified two or three key areas in which I felt I could help the Association to genuinely
make a difference. But, I have to say, I underestimated just how much work that would entail!
I started by thinking about the systems and structures that were in place and how these could
be improved to better support the Association. An important innovation during my term was
the establishment of a management committee to share the load. This committee can respond
quickly to matters which require an urgent response and allow Council to concentrate on wider
strategic and policy issues. We have recently seen the benefit of this, including responding
quickly to media queries. It is an indication of the Association’s increased profile that we are now
regularly asked for comment on significant issues by a wide range of organisations, including
from the media.
The expanding role of the Association meant that we had to sit down and think about what
mattered to the Association and its members. This led to the Council for the first time drafting and
adopting a detailed strategic plan. This has become our blueprint when making decisions about
the activities and priorities of the NZBA. It is referred to at every Council meeting and provides the
Secretariat with important guidance when proposing initiatives. The plan covers a five-year period
and provides direction for us all. A copy of the plan is available on the website on the About Us page
and I would encourage all members to review it and provide feedback - given it is meant to be a
living document.
I recently was interviewed for an article in At the Bar (which will appear in the October issue) about
the 30th anniversary of the NZBA. After looking back at my time with the Association, I was then
asked to suggest what the future might look like. Crystal ball gazing is not something that people who
are particularly busy enjoy doing. It tends to distract from the more mundane but important day-to-
day tasks that need to be done.
www.nzbar.org.nz 4
However, I had recently returned from the Australasian Institute of Judicial Administration 2018 Conference in Australia where I spoke on the profound changes confronting the legal profession now. I asked the audience the following question: “If you could get legal advice from all the greatest minds in law and philosophy for the last 2000 odd years or from a very competent current day lawyer, who would you instruct?” Much to my surprise, most conference attendees opted for the current day lawyer. And yet the reality is that with the advent of Artificial Intelligence, most people will be able to draw on the greatest minds in law to answer their complex legal questions. Why would they limit themselves? There are a variety of drivers affecting the Bar’s future, and I discuss these in more detail in the article that will be published in October. But, the question for us all to address now is how do we prepare for this future and what will our role be? It seems to me that it comes down to this; we must find a way to be effective, professional and affordable. Given the speed and pervasiveness of the change that we are facing, this isn’t something that we can put off. In my view, there is a very small window and it is a conversation that we need to have now. There are potential advantages for the independent Bar, but we need to ensure that we are ready to compete with law firms and other service providers with their greater resources. Ultimately, it is the junior lawyers of today who will inherit the decisions that are made now. Their voices need to be heard. But those of us who are senior members of the profession have a duty to think about what the law should look like in the years to come and how we preserve fundamental principles to ensure the survival of the Western-style democracy. In other words, we all have a role to play. And I hope that the Association will be at the forefront of the changes to come. Access to justice The Access to Justice Working Group has been finalising its report for the Council. This will be presented to the membership at the 2018 Annual General Meeting. Several people have worked extremely hard on this report and considered ways in which members of the Bar can contribute to this very important matter. I thank all of those who contributed. The reality is that the access to justice gap is growing. It is no longer just the very poor who cannot afford legal services. Many people who are employed full-time still cannot afford to hire a lawyer. These are people who don't qualify for legal aid, but who either don’t earn enough or have very high outgoings and cannot meet standard legal fees. Some of the solutions considered in the report are at the “macro” level. However, there are some micro level or local solutions that can be implemented by members who want to make a difference. For example, they can get involved in pro bono work through community law centres and not-for- profit organisations. There are also fee arrangements that can be implemented to help clients who can pay something, but not the usual hourly fee rates. And members could also consider offering a “low bono” option. While many of us would agree that justice should not be limited to corporate clients and the comfortably rich, finding the balance between a lawyer’s need to earn a decent living and charging a reasonable fee for valuable work, can be very difficult. But it is this environment that is creating the opportunity for non-lawyers to lobby the government for access to the legal work market. They have already successfully done so to a certain extent in the UK and Australia. These people will directly compete with lawyers, but will seldom offer the same level of service, not to mention the same level of ethical integrity. We must come up with creative solutions for offering a service that maintains our highest professional standards and which clients can afford to buy. Again, this is a debate that I encourage you all to engage with.
Events
We have had several very well attended and successful events in the last few months. We launched
our new mentoring programme with events in Auckland and Wellington and will be promoting this
programme throughout the year. We encourage people to sign up as both mentors and mentees.
There are two-way benefits from this relationship.
We recently held the Auckland 2018 Bench and Bar Dinner. This was extremely well-attended, and
we were privileged to have the Attorney-General, Hon David Parker, as our guest speaker. Other
guests included Greg Tolhurst, the Executive Director of the NSW Bar Association, Fiona McLeod
SC, immediate Past President of the Law Council of Australia and Jennifer Batrouney QC, Vice-
President of the Australian Bar Association. The pictures from this event are on pages 38 - 39. The
Wellington Bench and Bar dinner will be held on 18 October. If this is not already in your diary, make
sure you put it in!
Annual Conference 2018
This year’s annual conference picks up the theme of reflecting over the past 30 years, looking at
where we are now and then looking forward to the next 30 years. We have a great line up of speakers
and topics. We are holding the conference in the infamous “RotoVegas”. Those who attempted to keep
the hotel bar open all night in Blenheim will have a real challenge this time. The optional activities
again have a mix of exciting and cultural. The link to the conference registration and more information
is on our website.
Conduct and Values
I would also like to draw your attention to the conduct and values policy developed by the Association
as a resource for barristers. All barristers in chambers who have employees or contractors (of any
kind, not just lawyers) should establish procedures for dealing with complaints, so that complainants
are provided with options for dealing with their complaints. The policy suggests avenues for complaint
and support and notes the obligation to report certain matters to the New Zealand Law Society. It
includes a model policy document for use by barristers’ chambers. I would like to thank the Conduct
and Values Committee for its hard work on this.
And so, to conclude…
I would like to thank all those members who have participated in the work of the Association over
the term of my presidency. It has been extremely rewarding for me. If there is one thing I have learnt,
it is that the future will depend on how we shape it. I have no doubt that several of you will disagree
heartily, so I hope to see you at our Annual Conference and discuss this further with you!
Kia ora rawa atu,
Clive Elliott QC
ABA/NZBA Appellate Advocacy Intensive
7-9 September 2018, Brisbane - (CPD 15 hours +)
The New Zealand Bar Association and the Australian
Bar Association Advocacy Training Council (ATC) are
once again combining in 2018 to present an Appellate
Advocacy Intensive workshop. The faculty will represent
the profession at its senior levels. All faculty members are
experienced trainers and will include members from the
New Zealand Bar.
Feedback from one senior litigator was that the course was
the best training he had ever undertaken.
More information is available on our website.
www.nzbar.org.nz 6
When Are Lawyers Not Permitted to Say
What They Think?
By Warren Pyke*
“[A] function of free speech under our system of and opinions of any kind in any form”, and the right
government is to invite dispute... The vitality of civil to convey information about court proceedings.5
and political institutions in our society depends on Section 14 protects the right to receive information
free discussion … The right to speak freely and to and ideas,6 and it has been said that this protection
promote diversity of ideas and programs is ... One “is a necessary predicate to the recipient’s
of the chief distinctions that sets us apart from meaningful exercise of his own rights of speech,
totalitarian regimes.”1 press, and political freedom.”7 So, by speaking out,
lawyers may empower others to speak.
The recent inquiry by a Standards
Committee into comments made by a However, freedom of expression is a right
lawyer about a Judge’s sentencing that is qualified under the International
remarks in a domestic violence case Covenant on Civil and Political
has brought into focus the scope of Rights.8 By virtue of s 5 of the New
freedom of expression by lawyers.2 Zealand Bill of Rights Act, freedom
of expression is subject to “such
I contend that lawyers should speak reasonable limits prescribed by law
boldly and forthrightly about the as can be demonstrably justified
role of the courts in society, about in a free and democratic society”. It
the relationship between law and has been held that these limits can be
justice, and about our own personal drawn by rules of professional conduct.
visions of justice. This article offers The question for lawyers is: when is it not
some observations about why lawyers permitted to say what one thinks, and it is only
should ‘speak out’ about justice and other issues, permissible to keep silent?9
and explores the limits when lawyers do so, by
reference to some previous cases when lawyers The scope of freedom of expression in the lawyer’s
have experienced disciplinary consequences. disciplinary context has been considered in most
common-law jurisdictions.10 In Orlov v New Zealand
The right to express ideas, including critical or Law Society, the Court of Appeal affirmed settled
unpopular opinions, is basic to our democratic authority, holding:11 “…it is clear that disrespectful or
system of government.3 Freedom to criticise and scandalous allegations against a judge exercising
to have one’s views published helps hold public judicial authority is an affront to the court and poses
and private power to account, and promotes social a risk to public confidence in the judicial system.
progress. But if we are uncritical, we will always Such excessive conduct does not qualify for
find what we want; we will only look for, and find, protection under the right to freedom of expression.”
confirmations of our beliefs; and we shall look away
from, and not see, what might call into question our In the sequel to that appeal in 2014, Mr Orlov’s
pet theories.4 defence to disciplinary charges based on freedom
The right to freedom of expression under s 14 of of expression was examined by the Full Court of
the New Zealand Bill of Rights Act includes “the the High Court.12 Describing the right of freedom
freedom to seek, receive, and impart information of expression as “important”, the Full Court held
1
Terminiello v. City of Chicago 337 U.S.1, 4 (1949). Terminiello is a leading US Supreme Court judgment on the First Amendment to the US Constitution.
2
The process and issues were discussed in the Committee’s published reasons – see Decision dated 11 May 2017, file 17177, available at: www.lawsociety.
org.nz/_data/assets/pdf/0007/122110/MacLennan-OMI-Notice-of-Decision.pdf. I have previously acted for this Standards Committee, but I was not consulted
or retained in relation to this matter. As to the correctness of the process and jurisdiction points raised in the public domain in the MacLennan matter, see: Part 7
of the Lawyers and Conveyancers Act 2006, discussed in Hart v Auckland Standards Committee 1 [2013] NZHC 83, [2013] 3 NZLR 103 at [73] (Full Court), and
see Duncan Webb, Ethics Professional Responsibility and the Lawyer, 3rd ed., Lexis Nexis, 2016, at 4.4.2, pages 137-139.
3
Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [156] per McGrath, William Young and Glazebrook JJ.
4
Karl Popper, The Poverty of Historicism (1957) Ch. 29 (The Unity of Method).
5
Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [158] per McGrath, William Young and Glazebrook JJ.
6
See Stanley v. Georgia, 394 U.S. 557, 564 (1969).
7
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982).
8
Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [21] per Elias CJ (dissenting, but not on this point), citing Article 19(3).
9
Paraphrasing from one of Cicero’s letters written during the dictatorial rule of Julius Caesar, see Fam. 4.9.
10
It has also received consideration in the European Court of Human Rights: see, for example, Nikula v Finland (2004) 38 EHRR 45 (ECHR); Steur v Netherlands
(2004) 39 EHRR 35.
11
Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562, at [122].
12
In Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 (“Orlov v NZLCDT”).
www.nzbar.org.nz 7
that a “significant level of robustness” was required dependent and discretionary exercise.18
when considering a defence to a disciplinary
charge based on this right. The Court held that In Ellis v The Law Society,19 two Judges sitting in
freedom of expression in this context was not to the Queen’s Bench Division held that allegations
be “lightly restricted”, 13 and identified some of the directed to and about the Law Society, members
limits when lawyers criticise judges.14 The Court of the judiciary (alleging corruption),20 and others,
held that allegations of bias, or that were improper, which were made in the course of proceedings and
inflammatory and intemperate, even if made without which were inappropriate, offensive and derogatory,
a sufficient foundation, would not usually constitute failed to observe professional standards. The
misconduct, although disciplinary action short of Judges, while upholding the disciplinary charges,
a misconduct charge might remain available, for opined that it was necessary to approach the
example based on unprofessional conduct.15 matter on the basis that a solicitor is entitled to hold
strong views about matters such as human rights,
The Court added that allegations which were however unpalatable others might find them to
extreme in their nature or which alleged improper be, and, that officials and judges must be robust in
motives on the part of a Judge, have potential to being able to ignore observations of an intemperate
significantly undermine public confidence in the or even abusive nature.21
administration of justice. This is particularly so
when the allegations “come from within”, such as In the United States, it has been held that the First
from a lawyer.16 Amendment to the US Constitution shields lawyers
from disciplinary consequences unless there is
Similar circumstances arose before the Supreme proof of a false statement and of malice (in the
Court of Canada in Doré v. Barreau Du Québec.17 sense of, knowing a statement to be false or having
Mr Doré, having appeared before a Judge of the reckless disregard to its truth).22
Superior Court, then sent a missive to the Judge,
accusing him of being arrogant and fundamentally In Deliu v Molloy,23 the Legal Complaints Review
unjust, of hiding behind his status like a coward, Officer considered commentary made by Mr Molloy
of having a chronic inability to master any social QC, reported in media. Mr Molloy contended that
skills, of being pedantic, aggressive and petty, and some High Court Judges were not competent
of having a propensity to use his court to launch to sit in certain types of cases, describing these
ugly, vulgar and mean personal attacks. While this Judges as “flouting” their oaths and “sitting under
comment was not published, the lawyer was still false pretences”, among other things. The Review
charged with violating a rule of ethics requiring him Officer considered that Mr Molloy’s comments,
to act with objectivity, moderation and dignity. when taken in context, were intended to provoke
an informed debate over the issues. While Mr
The Supreme Court held that open, and even Molloy’s extravagant commentary was borderline,
forceful, criticism of our public institutions by taken in context and given that it had been
lawyers is fundamentally important; however, selectively reported, a disciplinary response was
this freedom has to be balanced against the not warranted.
professional duty on lawyers to act with civility.
The Court added that disciplinary bodies must The courts’ decisions are generally open to
demonstrate that they have given due regard to the public scrutiny. Most proceedings occur in public.
importance of lawyers’ “expressive rights”, both in Therefore, judges cannot expect to stand above
the light of an individual lawyer’s right to expression the public dialogue. As to judges bearing up to
and the public interest in open discussion. As with lawyers’ criticisms, the late Stephen Reinhardt
all disciplinary decisions, this balancing is a fact- observed that:24
13
Orlov v NZLCDT at [84].
14
The source of the limit is Rule 13.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008; comparable rules exist in other
common law jurisdictions, for example see the discussion about similar rules in Australia in Dal Pont, Lawyers Professional Responsibility, 5th ed., Thomson
Reuters, 2013 at 25.25.
15
Orlov v NZLCDT at [123]. Mr Orlov was struck off, but this order was overturned, and he effectively served an 8 months’ suspension.
16
Orlov v NZLCDT at [207]. I question whether lawyers are truly “within”: while lawyers are officers of the court, they are not within the justice system in any
functional or formal sense. Lawyers have an overriding duty to the court under s 4 of the Lawyers and Conveyancers Act, but this is imposed from without, by
law and historical practice, rather than being an institutional duty arising from official status.
17
Doré v. Barreau Du Québec [2012] 1 S.C.R. 395. Mr Doré was suspended.
18
To similar effect, see Histed v Law Society of Manitoba [2007] MBCA 150, where a lawyer described certain judges as bigots and too “right wing” to sit. Mr
Histed was fined.
19
Ellis v The Law Society [2008] EWHC 561 (Admin). Mr Ellis was suspended from practice.
20
Compare a similar allegation, among others, resulting in suspension, made in National Standards Committee v Deliu [2016] NZLCDT 26, upheld in Deliu v
National Standards Committee & Anor [2017] NZHC 2318. An appeal by Mr Deliu to the Court of Appeal is pending.
21
Compare similar sentiments of Cooper J in Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No.2) HC Hamilton, CIV 2010-
419-1209, 20 December 2010.
22
Even when a lawyer’s statements undermine the administration of justice, see In Re Green 11 P.3d 1078 (2000), a decision of the Colorado Supreme
Court, citing Gentile v State Bar of Nevada 501 U.S. 1030 (1991): the ratio being that, if an attorney's activity or speech is protected by the First Amendment,
disciplinary rules governing the legal profession cannot punish the attorney's conduct.
23
Deliu v Molloy LCRO 155/2013, 14 April 2016.
www.nzbar.org.nz 8
“Because we are often isolated from public It is, of course, impossible to draw clear lines
debate, we are disturbed when others, between what speech is appropriate and what
particularly lawyers, criticise us. We tend to is not.
forget that the cases we are deciding have
broader implications outside the courts, the Like many other areas of the law, the boundaries
cases being litigated often represent small are imprecise.27 However, the need for caution is
battles in a larger war that the parties are greater when a lawyer is commenting on a matter
fighting on a far broader front. Thus, we should in which she or he was involved, or over which
give attorneys the freedom to speak freely the lawyer has strong personal feelings. Lawyers
about cases outside the courtroom; we should wanting to ‘speak out’ ought to first ask: should I
also give them the freedom to criticise us even be commenting? Can I be objective? Am I
openly when they believe that such criticism is moved to adjectival extravagance, or worse? It is
deserved.” advisable when thinking of expressing oneself in
such circumstances to have a respected colleague
Judges’ decisions stand or fall on their merits. vet your comment before going public. Some of the
When judges utter nonsense or make controversial cases reviewed above highlight this point.
statements in open court or in judgments, they
must expect public scrutiny or criticism.25 It is also Lawyers can greatly enhance public
important, perhaps more important, that the merits understanding of the role of judges and of the
of judicial decisions are freely debated. diverse ways in which judges approach the
judicial function.28 Being critical of the justice
It has been said that systemic discouragement of system in an informed manner is to uphold the
judicial criticism often rests on a “terribly confining” rule of law and the administration of justice,
myth: namely, that the judiciary has risen above which is one of the fundamental professional
the usual human foibles, and that judges are not a obligations of lawyers.29 I believe that lawyers
collection of “human beings, with weaknesses and have an obligation to help to educate not just
biases, struggling to do their best to interpret and the legal community but the public at large
apply the law as we see it.”26 about matters concerning which lawyers
have knowledge or experience. It follows that
Lawyers ought not to give succour to such a myth. restraints on lawyers’ speech should be few, and
And judges should welcome commentary and be demonstrably justified.
criticism from lawyers, if only because it is likely
to be more informed and principled than most lay * Warren Pyke is an Auckland Barrister with considerable
experience and expertise in professional discipline and
comment.
civil litigation.
24
Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), 812.
25
If moved to do so, others including lawyers and law associations may come to their defence, if they consider the criticisms to be meritless or unfair. There
may be occasions when it is in the public interest to come to a judge’s defence, particularly if a judge is facing a jingoistic or vile attack.
26
Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), 810.
27
As a starting point, check off the obvious: respect the sub judice rule, suppression and non-publication orders; ensure there is an adequate basis for what
you say, and check your facts.
28
For example, there may be a wide-spread public notion that judges are emanations from a generally conservative social matrix. But judges are “not fungible”
(per Justice Douglas in Chandler v Judicial Council of the Tenth Circuit, 398 U.S. 74, 137 (1970)): some judges might be described as judicial technicians, some
are deferential to the legislature, others are alive to the potential evils of majoritarianism; some are concerned with due process, some with fairness and some
with the broader development of justice – see Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), from which article I
have drawn liberally for themes and propositions in this article.
29
See s 4 of the Lawyers and Conveyancers Act 2006.
Financial Planning for Lawyers Webinar
5 September 2018, 5.00pm - 6.30pm (CPD 1.5 hours)
Presented by Laetitia Peterson and Nick Crawford from The Private
Office, this webinar will look at financial strategies and asset management
for lawyers. It will help you consider where you are today, and where you
want to go. It will look at financial goal setting, developing a plan to reach
those goals and identifying investments that fit your plan. We are able to
provide this webinar at a very reasonable price.
Members: $28.75 (GST inc)
Non-Members: $33.07 (GST inc)
Check our website for more information.
www.nzbar.org.nz 9
Do You Have the Right Kind of Grit
to Succeed?
By Caroline Adams Miller, MAPP *
Caroline Adams Miller is one of the world’s leading experts on the science of goal setting and grit.
She will be speaking at the NZBA Annual Conference in Rotorua on 21-22 September 2018 about
success and well being. In this article she talks about a related aspect - grit.
Recently I spoke of setbacks, so excellence has been replaced
about the topic of by “good enough,” and discomfort is met with
grit to a packed quitting. The legal profession, which is notorious
auditorium in an for long hours and high expectations, can be
affluent community especially daunting for a generation that has
outside of Dallas, always been coddled and praised.
Texas. My talk
spurred one woman The word that sums up much of what the
to share this millennials are lacking – and that has never
comment: been more essential in law - is “grit.” Dr
Angela Duckworth defines grit as “passion and
“Now I more clearly perseverance in pursuit of long-term goals.”
understand why She has studied this quality for over a decade
our firm just fired and even won the MacArthur genius grant in
a brilliant young 2013 for what she calls “the secret to success.”
graduate from Yale Law School,” she said. “From Her Grit Scale has been found to be predictive
the beginning she acted as if she was better than of one’s ability to thrive and survive in several
everyone else, and like we were fortunate to have challenging settings, including being selected
her working with us. She never wanted to work for Green Beret special forces units, remaining
late or do what she felt was beneath her, and she a married man, completing college, and even
always had excuses for why she couldn’t pitch becoming a finalist in the National Spelling Bee.
in when other people needed help. We warned
her several times that she wasn’t meeting our Being gritty in the legal profession carries more
expectations for teamwork and effort, and finally benefits than simply rising to the top of tough
we had to let her go for poor performance. And competition. For example, people with grit don’t
guess what? She threatened to sue us.” give up when work is overwhelming or difficult,
they elevate the quality of the teams they are on
This story illustrates a problem that is familiar in because of their uncomplaining attitude, they
many workplaces, including legal workplaces inspire others to be resilient and passionate,
such as chambers and firms, because of the they are more engaged in their work, and
influx of the millennials whose work ethic and they don’t necessarily grab credit from others
sense of entitlement have become cause for because of their inherent humility and ability to
concern. Although there are exceptions to every delay gratification.
rule, by and large this generation has been found
to be emotionally and physically fragile, slow to Not all grit is good, though. Having too much
take initiative, and whiny when challenged. It is of the wrong kind of grit can be a negative
thought that this is because they’ve been raised and destructive. If a team leader isn’t careful,
in a sanitized, safe world starting with baby- conditions like “stupid grit” and “selfie grit” can
proofed houses, dumbed-down playgrounds, wreak havoc on morale and the health of other
trophies for participation, easy A’s, and politically team members. Understanding the best types
correct communities and college campuses of grit, how to cultivate its components, and how
where victimhood is embraced, and free speech to encourage the right dose in the right settings,
is called “microaggression.” is something that every leader needs to invest in
if the team is going to thrive.
When they enter the workplace, they don’t know
how to set hard goals and be resilient in the face
www.nzbar.org.nz 10What is the right type of grit? others to do their best. Embedding people with
authentic grit, like Joey, in legal environments
The most positive type is “authentic grit.” I define could have a similarly positive contagious impact,
it as “the passionate pursuit of hard goals that spreading strengths of persistence and optimism,
awes and inspires others to become better people, among others.
flourish emotionally, take positive risks, and live
their best lives.” You see authentic grit when Authentic grit is characterised by humility, a
someone goes outside their comfort zone to trait that is often at odds with the 21st century
attempt a meaningful achievement that carries culture of taking credit and trumpeting one’s
the risk of failure but is central to a person’s own success on social media. Humility isn’t
purpose in life. necessarily a quality that makes a person
happier, but it does enhance teamwork and
One of the common types of authentic grit is has been dubbed the “social lubricant” by
“ordinary grit,” the behaviour we see in men and researchers who note that people are more likely
women all around us, who are pursuing such to trust a colleague who isn’t always just looking
workaday goals as remaining sober for decades, out for oneself. The opposite behaviour, “selfie
holding steady jobs despite physical disabilities, grit,” which is defined by bragging about one’s
and devoting time to charities without seeking own successes and monopolising the spotlight,
recognition. The way they carry on despite doesn’t build harmony.
disdain, unpopularity and challenge is what awes
and inspires others to up their own game. Grit is Another negative form of grit is “stupid grit,”
a contagious quality. The workplace that creates which is characterised by working stubbornly
a culture where the qualities that feed into grit, at a goal for longer than necessary, not heeding
such as persistence, humility, hope, zest and the signs that it isn’t useful any longer or failing
self-regulation, can thrive is one that motivates to listen to advice from colleagues. Stupid grit is
everyone else to thrive, too. costly if the person fails to pivot at an important
moment when circumstances dictate a different
I interviewed a law firm partner in Washington, approach is called for and it can also harm a
D.C. for my book, “Getting Grit” (SoundsTrue, person who compromises their health by ignoring
2017). I asked how she spots grit in applicants warning signs that they are working too late,
and why she feels it is important to hire people drinking too much, and eating poorly.
who bring ordinary grit into her firm. She
described a young man named Joey, whose How can your workplace foster good grit?
life had been full of setbacks and hardships. At
18, he moved out of his foster family’s house, Bringing education into the workplace around
scraped up enough money to rent an apartment goal-setting theory, the difference between
and adopt his little brother. He then put himself performance goals and learning goals, and how
through college and law school with loans, jobs, to identify one’s strengths is a good first step.
and endless days of family responsibilities. Gritty people have well-formed goals and develop
creative strategies to accomplish them. Many
She hired Joey for his demonstrated work ethic, millennials have not been taught to understand
academic success and conscientiousness. goal-setting, the importance of self-regulation,
Despite these limiting conditions, Joey
maintained a sense of optimism and humour. His
character strengths and life story outweighed any
concerns about Joey’s second-tier law school.
Echoing the lawyer who’d stood up after my
speech near Dallas, she noted that the applicants
who came in feeling like they had something to
prove worked harder and acted less entitled than
the students they had once favoured from places
like Harvard, Yale and Stanford.
The University of Michigan Ross School of
Business has found that every workplace has
what they call “energy hubs,” which consist of
“positive energisers” who motivate and inspire
www.nzbar.org.nz 11how to identify and use one’s strengths, or how people don’t even notice when nice things are
to cooperate with others without needing to be done for them, so be sure to be aware of, and
rewarded or singled out as special. responsive to, the kindnesses that occur around
you. Another robust finding is that all success in
A flourishing workplace that supports the life is preceded by being happy first, and not vice
pursuit of hard, gritty goals is one where there versa, so any workplace filled with positivity is
are positive emotions and strong, reciprocal also a workplace that is more likely to succeed at
relationships. Positive emotions like awe, pride, any goal, let alone the ones that take long-term
joy and contentment emerge when people feel effort and commitment.
engaged, curious and grateful, for example, so
being able to connect with others around shared Grit is definitely the word of the year and is a
interests, or with supportive conversations can popular topic in settings where excellence is
improve morale and build solid friendships and prized, and highest performance is desired.
professional relationships. To cultivate grit in workers, managers/team
leaders need to support proper goal setting,
Google’s research found that the managers reward behaviours that exemplify authentic grit,
who elicited highest performance from others and endorse collaborative teamwork toward
were those who led with empathy and kindness, achieving hard goals. In addition, the workplace’s
and who connected authentically with the culture must be positive and motivating. If leaders
people around them. Without those humanising manage consistently, some of the challenges
components, workers can begin to feel faceless brought about by the millennials will be overcome
and demotivated. Taking the time to find out with a new type of excellence.
about someone’s interests, or to ask if you can
help them with one of their goals, can go a long * Caroline Adams Miller has a Master of Applied
way in the right direction. Positive Psychology from the University of
Pennsylvania, and graduated magna cum laude from
Gratitude is also necessary when people need Harvard. She is the author of six books. For more
each other’s cooperation to achieve hard goals; information, see https://www.carolinemiller.com/
interesting research has found that unhappy
New Members
The NZBA welcomes the following new members:
Ms Jills Angus Burney MASTERTON Miss Amy Lake CHRISTCHURCH
Ms Kathy Basire CHRISTCHURCH Mr Simon Lance AUCKLAND
Mr Stephen Bourne CHRISTCHURCH Ms Sarah Mandeno AUCKLAND
Ms Helen Bowen AUCKLAND Ms Deborah Manning AUCKLAND
Ms Sheila Cameron HAMILTON Mr Andrew Marsh CHRISTCHURCH
Mr Stephen Christensen DUNEDIN Ms Emma Miles AUCKLAND
Hon. Justice Robert Dobson WELLINGTON Mr Simon Mitchell AUCKLAND
Mr Scott Fletcher WELLINGTON Mr Ian Murray WELLINGTON
Ms Jane Glover AUCKLAND Mr Michael O'Brien AUCKLAND
Hon. Rhys Harrison QC AUCKLAND Ms Sarah Ongley NEW PLYMOUTH
Mr Ed Heerey QC SYDNEY Ms Michelle Paddison TAURANGA
Ms Jane Herschell WELLINGTON Mr Ants Pereira AUCKLAND
Mr Saul Holt QC QUEENSLAND Mr Tim Rainey AUCKLAND
Ms Frances Iggulden AUCKLAND Dr Andrew Simpson WELLINGTON
Mr Greg Jones AUCKLAND Mr Tony Stevens WELLINGTON
Mr Tim Jones AUCKLAND Mr Allan Tobeck OTAUTAU
Ms Nina Khouri AUCKLAND Ms Carmel Walsh AUCKLAND
Dr Anna Kirk AUCKLAND Mr Andy Wei AUCKLAND
Mr Jonathan Krebs NAPIER Mr John Young INVERCARGILL
Mr Steven Lack AUCKLAND
www.nzbar.org.nz 12Creating Your Future
By Geoff Pearman*
“The 20th century gave us the gift of longevity – but for what? The longevity revolution forces us
to abandon existing notions of old age and retirement. These old social constructs are quite simply
unsustainable in the face of an additional 30 years of life.” Alexander Kalache, President International
Longevity Centre.
that shape our experiences and life trajectories.
As early as 1923 eminent sociologist W I Thomas
said, “If you define a situation as true it will be
true in its consequences.” The decisions we make
about how we want to live the latter half of our
lives is to a large extent in our hands.
We create our future through the decisions (or
non-decisions) we make in the present. The way
we view the ageing process and what we believe
about ageing may very well influence how we
age. We have colloquialisms for this, “talking
yourself into an early grave”, etc. But not all
sayings are true, in fact many of the throw away
lines we use about ageing are self-limiting if not
blatantly false.
In a series of four articles we are exploring
some the implications of this significant societal Over the years I have built several new homes. A
change. In the first article I set the scene, recent build tested my patience. During a phone
proposing that we are already seeing the end call to one of the sub-trades to report yet another
of retirement as it has typically been portrayed issue I found myself getting somewhat irritated.
and dreamed about. Not only are many more Talking later to the builder I warned him that if he
New Zealanders staying on in work beyond was talking to the sub tradesman he would no
the traditional exit points, but they are also doubt tell him that I was a grumpy old so and so.
constructing this life stage quite differently to The moment I said it I realised what I had done. A
their parents. stereotype! I may have been unhappy, and who
wouldn’t have been, but did my grumpiness have
In this the second article I want to explore the anything to do with my age or my gender?
opportunities this presents and debunk a few
myths. The reality is at 50 you could still have The jokes we make, our throwaway lines and
another 20 or more years of paid work ahead of the language we use often reveals our deeper
you and at 60 you may only be two thirds of the beliefs, insecurities and anxieties. As one writer
way through given projected life expectancies. observes, “At the root of ageism or any kind
So how do you want to live the rest of your life? of discrimination are assumptions, attitudes,
Are we able to create and shape our futures, prejudices, and biases generalised into erroneous
or are we doomed to play out a predetermined beliefs.”
script? Dare we even think about the next stage
as we age? While we can develop high levels of awareness
through education and expose our underlying
Sociologists and others debate the relationship biases and beliefs to the light of day, research
between agency and structure. It is true has shown that the biases we thought we might
that social structures create a complex and have extinguished can linger as "mental residue"
interconnected set of social forces, relationships in the unconscious. So it is with age, unconscious
and institutions that work together to shape our biases and deeply engrained beliefs can stick
thoughts, behaviours, experiences, choices, and around. It is this mental residue and the beliefs
our overall life course. Equally we have agency, we hold about age that can either empower or
the ability to think for ourselves and act in ways constrain us as we look to the future.
www.nzbar.org.nz 13So, let’s clear up a few of the more common employee engagement. How engaged we feel in
beliefs about age. our workplace and our work makes the difference.
Do we really fall apart with age? They say you can’t teach an old dog new tricks?
The short answer is that as we age physical and This falsehood persists despite it being
mental changes do take place. It can start as thoroughly disproved. There is no evidence that
early as in your twenties. However, we do need to as we age we lose the ability to learn. Quite the
be careful. While most people aged 60 and over opposite. Old dogs can learn new tricks - if they
are not in poor health and are still productive, want to. While we might become a little slower
there are widespread differences that need to as we age in completely new areas of learning,
be acknowledged and accommodated. Many of we will overall be faster in areas where we have
the physical declines we experience as we age some prior expertise.
will be small rather than critical and can often be
improved with training or accommodated with Chronological age is again a poor predictor of a
simple ergonomic and workplace changes. It has person’s technical learning capability. The ability
been found that our mental abilities may in fact to embrace so-called new technology depends
improve with age. In cognitive tests researchers much more on a combination of confidence,
found that while older and younger workers could perceived benefit and the training approaches
achieve similar results, they got there via different used. If you start to believe the myth that older
routes. Older workers can be superior in some people do not embrace new technology, there is
areas such as strategic thinking, reasoning and a very real risk of this becoming a self-fulfilling
problem solving. prophecy.
As one expert who studies people’s ability to If I stay on at work does it keep a young
work as they age notes, “Some mental functions, person out of work?
such as speed and the precision of information
perception and processing, show small declines This myth goes back to 1891. Economists call
with increasing age. With others, such as it the ''lump of labour fallacy". It's the idea that
language skills and the ability to process complex there is a fixed amount of work to be done, so any
problems, there is no change or there may be increase in the amount each worker can produce
improvement.” A retired geriatrician once said to reduces the number of available jobs. Or if more
me “never attribute to age complaints that are not people stay on it limits the opportunities for others.
age related, we all get the flu…”
There have been some famous examples:
Should I expect my productivity to decline as I
age at work? • the dire warnings in the 1950's that
automation would lead to mass unemployment;
Only if you want it too, is the short answer. There • concerns in the 1980's that women
is a wide spread belief that older workers are re-entering the workforce would displace men;
less productive than their younger colleagues. • more recent concerns that immigrants will
The research evidence does not support this displace local workers.
view. There is no clear relationship between
productivity, performance and age. Using age as The latest version is that older workers staying
a predictor for performance can lead to negative on will limit the opportunities for the so called
and unfounded performance management "millennials". Labour markets simply do not work
aspersions and non-hiring decisions. in this way. The opposite is the case. A recent UK
Government report showed that when people
Numerous studies have now shown that older in their 50’s stay on in the workforce, it creates
employees can be as productive as younger more, not fewer jobs for younger people.
employees. Again, there are more differences
within age groups than between age groups until The three “P’s”
a person reaches their mid to late 70s.
In working with organisations and talking with
From studies of organisational performance, large numbers of people about life and work after
the clear conclusion is that the major factor 50 three broad groups of mature aged people
contributing to high levels of productivity is have emerged.
www.nzbar.org.nz 14The first group we see are people who have given He became an American senator and then in
serious thought to the next stage in their lives and October 1998, at the age of 77 and while still a
have started to put things in place. We will call this serving senator he became the oldest person
broad group “The Planners”. They constitute at to fly in space on board the 25th mission of the
most around ten per cent of the population aged space shuttle Discovery.
over fifty. They have well-formed plans about
what they would like to be doing. They have a When we open our eyes and look around us we
good understanding of their financial situation. will see more and more people doing the second
Some have already made a deliberate decision half differently, not just the national heroes, the
not to retire, at least not yet. Their plan could be to film stars and celebrities or the wealthy but people
transition to another form of work, possibly with like you and me. Individuals continuing to explore
greater flexibility or even to a different a career. the boundaries, challenging the stereotypes,
disrupting traditional views of ageing, answering
The second group are “The Perplexed”. They the why question in new ways and creating a
have given some thought to the next stage in future quite different to their parents’ generation.
their lives but not too much as it can be rather
scary, confusing and after all it doesn't affect “Vital people don't dream of retiring someday.
them just yet. Periodically the Perplexed may think They think of new ways that they can keep
about the next stage when they contemplate their doing more of what they love to do for as long
nest egg and despair as to whether they will ever as they can.” Daniel Priestley
be able to retire. Or maybe after a bad week they
* Geoff Pearman specialises in the field of age and
dream of retirement and doing something different
work. For more information see:
but feel trapped as they don’t know where to start.
www. partnersinchange.co.nz/about/
The Perplexed will have dreams and maybe some
tentative plans but overall have not turned these
into actions or a plan. Developing a Life Stage Plan
The third broad group, “The Procrastinators”,
don’t even know where to start or if they in fact Goals
want to. So, they don’t. The Procrastinators are a 1. What’s important for me and those
group who face probably the biggest challenges around me?
if for some reason they find themselves facing 2. Where do I want to be?
a change in their work or life circumstances 3. What do I want to be doing?
over which they have little control. This could 4. What contribution do I want to be making
be brought on by a redundancy or a change in over this next stage to my family,
their ability to hold down a full-time job whether community, profession, society?
this is due to their own health or that of a family Realities
member. The Procrastinators when they do talk 5. What are the realities of life for me now?
about the future usually do so with trepidation, Think about work, family, health,
anxiety and fear. Like the Perplexed, they don’t finances, housing, community etc.
know where to start, but unlike the Perplexed 6. What can I change or not change?
they dare not even dream. Opportunities, obstacles and options.
7. Are there options I need to bravely
The Planners are likely to have been planners all
explore?
their lives. So, if you are not a Planner, where do
8. Are there opportunities I need to grasp?
you start? I suggest start by sketching out a Life
9. Are there obstacles that I can overcome,
Stage Plan using the GROWS framework and
if not now, then in the future?
exploring the 13 questions. By the way, Planners
may also find this framework helpful. Will do, or way forward.
10. List down the actions you plan to take
Creating Your Future over the next year to create the future
you desire.
As a child I remember the sense of awe and 11. List down your mid-term actions with
wonderment I experienced when in 1962, John specific dates assigned.
Glenn, then aged forty-one, circled the globe Sabotage
for close to five hours, reaching speeds of more 12. What will I do to sabotage my plan?
than 17,000 miles per hour. He was instantly a 13. What do I plan to do when I catch myself
national hero. But that wasn't the end for Glenn. sabotaging my best intentions?
www.nzbar.org.nz 15Annual Conference 2018
21-22 September, Novotel Lakeside, Rotorua
2018 marks the 30th anniversary of the New Zealand Bar Association.
This year’s Annual Conference's theme is "The New Zealand Bar
Association at 30: Wisdom from the Past, Realities of the Present, and
Ambitions for the Future”. This will provide the opportunity to reflect on
the last 30 years as well as look to the future.
A Keynote speaker, from the United States is
Caroline Adams Miller, recognised as a world leading
expert in the areas of goal setting/accomplishment,
grit, happiness and success. She has spent more than
30 years helping individuals, leaders and companies to
achieve their goals.
Other Keynote speakers include Minister of Justice
Hon. Andrew Little, Attorney-General Hon. David Parker,
and The Hon. Justice Helen Winkelmann.
The programme will also examine the conference theme
in the context of the objectives set out in the NZBA’s
strategic plan:
• Upholding and advocating for the rule of law
• Promoting access to justice
• Diversity and equality
• Pathways for a successful and fulfilling career
• Independence, integrity and collegiality
• The future for advocates and advocacy in
New Zealand
www.nzbar.org.nz 16The Programme Friday 21 September 2018 11.30 a.m. – 11:50am Welcome Clive Elliott QC and David O’Neill Session 1 Upholding and advocating for the rule of law • Present and future challenges to the rule of law in New Zealand • The NZBA’s/the Bar’s role in upholding the rule of law Chair: The Hon. John Wild QC Speakers: Hon. Chris Finlayson QC, Victoria Casey QC Session 2 Topic 2: Promoting access to justice • The NZBA Report • Ongoing initiatives Chair: The Hon. John Wild QC Speakers: Maria Dew, Belinda Sellars Session 3 Keynote: Attorney-General Hon. David Parker Session 4 Topic 3: Diversity and Equality at the Bar and pathways for a successful and fulfilling career at the independent bar • What does diversity and equality at the Bar mean? • How can it be achieved? What might the Bar look like in demographic terms in 5, 10, 20 years? Chair: The Hon. Justice Raynor Asher Speakers: Paul Radich QC, Kylie Nomchong SC, Natalie Walker Session 5 Topic 4: Independence, integrity and collegiality • What do these concepts mean in 2018 and are they still relevant? Why? • What are the present and future threats to these values? • What can be done to enhance these values? Chair: The Hon. Justice Raynor Asher Speakers: Paul Wicks QC and TBC Casual Dinner Skyline Rotorua Saturday 22 September 2018 Session 6 Keynote Speakers: Minister of Justice Hon. Andrew Little, Followed by The Hon. Justice Helen Winkelmann Session 7 Keynote: Caroline Adams Miller Session 8 Topic 5: The future for advocates and advocacy in New Zealand Chair: Chief Justice Dame Sian Elias GNZM Speakers: Stuart Grieve QC, Clive Elliott QC, Josh McBride, Honor Ford Session 9 Kate Davenport QC 1.00pm – 5.00pm Optional Activities Formal dinner Te Puia Speakers: The Rt. Hon. Sir Ted Thomas KNZM QC and Kate Davenport QC www.nzbar.org.nz 17
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