New Zealand Law Society - Pathways in the Law: Cooper Legal

Pathways in the Law: Cooper Legal

Pathways in the Law: Cooper Legal
The team at Cooper Legal around a meeting table

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About 99% of the work the lawyers at Cooper Legal do is around historic abuse and associated human rights claims.

And they’ve reached at least 700 settlements for victims of abuse who were in state care as children.

“That figure would be a conservative estimate,” says Cooper Legal principal Sonja Cooper.

The Wellington-based firm is also involved in employment law, medical legal issues, education, youth law and civil litigation.

Social issues were always at the forefront for Ms Cooper, who started out as a family lawyer over 30 years ago. She has also been a youth advocate since she was admitted. During those early years as a young lawyer working for law firms of varying sizes, she also practised both public and employment law.

“I was considered a sort of Jill of all trades and if there was anything extra in the litigation team that needed attention, I would often pick it up,” she says.

About nine years into her legal career, Sonja Cooper became a sole barrister and solicitor.

“At that stage I was still doing my core work of family, youth advocacy, general civil law, and employment and was then appointed a District Inspector of mental health in August that year (1995),” she says.

Human rights moves to the front

Upholding human rights slowly took centre stage in her career and it was this work that would eventually bring Ms Cooper into contact with many people who had been abused as children while in state care.

She says 1995 was the year when the first of the historic child abuse cases came her way. Some of that work was instigated by lawyer Jill Moss. She was about to go behind the bench as Judge Moss and made some potential case referrals to Sonja Cooper.

“I also had a handful of historic child abuse claims that came from various other sources. One case I learned had come from a referral by the person’s hairdresser. They were all social welfare, either foster care or adoption cases,” she says.

The psychiatric hospital work came later.

The Limitation Act conundrum

One of the biggest hurdles was the Limitation Act 1950 and whether the abuse claims could be filed because of the time lapse since the alleged abuse.

The revised Limitation Act 2010 is not retrospective – unless defendants agree.

Amanda Hill and Sonja Cooper from Cooper Legal
Partner Amanda Hill (left), and principle Sonja Cooper

“This means most clients will be covered by the Limitation Act 1950 – which requires claims of our kind to be brought within two years of the cause of action arising (or within two years of adulthood) or within six years if there are reasonable grounds for delay.

“If a client is already in their 40s or 50s, even their 30s, by the time they instruct us there are real hurdles to get over,” she says.

Ms Cooper says there are two ways through this obstacle.

“One – if the person reasonably did not understand there was a link between the abuse they suffered and their clinically recognisable damage, and two – if the person has been under a disability – a clinically recognisable condition that has prevented them from instructing a lawyer.

“The cases we won in 2002/2003 in the Court of Appeal meant that many claimants should have had a good chance of getting through either or both of these hurdles.

“However, the courts started taking a more rigid approach from 2007 onwards, which meant that only a few would be able to surmount the barriers,” she says.

A decision of the Court of Appeal in 2015 has somewhat ameliorated the harsh position which existed for some years, and the 1950 Act was amended to give courts a discretion to extend time for specified victims of abuse, although the scope of that has not yet been tested and the wording is pretty complex.

Law firm partner, Amanda Hill, adds that the Limitation Act 2010 is much kinder to young victims, but provides little assistance to those who suffered abuse prior to 2011.

“Outside of the court, our clients have the protection of our agreement with the Ministry of Social Development to ‘stop time’ for limitation purposes. However, any claims progressed to litigation have to deal with it and the cost of doing that is high as we need a full psychiatric report. The professionals who are willing and qualified to do the reports are rare,” Ms Hill says.

She says this also means that claims progressed to a trial are carefully vetted for Limitation Act potential issues.

“Scotland has just abolished its Limitation Act for claims like ours. Many Commonwealth jurisdictions are now abolishing limitation periods in historic child abuse claims, including Australia.”

No end in sight for abuse claims

Twenty years after Sonja Cooper’s initial work in this area, the wheels of justice are still turning slowly.

“We have over 800 current open files we are working on and yet we have already settled hundreds of cases. We settled 320 psychiatric hospital cases in 2012,” she says.

There have also been a significant number of historic church abuse cases involving a range of denominations.

There was a time when representing people who were abused in state care almost came to an end for Cooper Legal.

“We lost two trials in 2007, and in 2008 Legal Aid sent us a letter informing us they were about to embark on a process of withdrawing legal aid for about 600 of our clients. We were also subjected to a major audit because we were one of the biggest recipients of legal aid,” she says.

“An audit that we came away from perfectly clean,” adds Amanda Hill.

“It was a really dark period for our firm. I had to tell many of my staff that I couldn’t guarantee any ongoing work, however we came back from it all,” Ms Cooper says.

Media coverage has been critical to its momentum and pace.

“It’s been incredible, as through media exposure we got the Human Rights Commission on board to publically back the work we do, including the need for an inquiry.

Journey to partner

Amanda Hill began working at Sonja Cooper’s firm in 2005, and was a junior counsel for Ms Cooper at a 2007 trial lasting nine weeks.

After the trial and the 2008 Legal Aid debacle, she decided to look at other areas to practise law in.

That included working in an insurance litigation team, and a stint as an employment lawyer at NZPost.

“At that point I felt I’d moved away from my original goals and it was through an email to Sonja about a job at the Ministry of Social Development that Sonja asked if I’d consider coming back to work for her,” she says.

That was 2014, and Ms Hill was hired as a senior associate and is now a partner, and things have never been busier.

Sonja Cooper says there is little chance a projection by the Ministry of Social Development that historic claims would be completed by 2020 will happen.

“Given that we are still receiving instructions, this is not possible. In October alone we opened 67 new legal aid files and most of them are new clients with claims against the Ministry of Social Development for abuse they suffered as children in state care,” she says.

Large workload

“We are currently working six days a week. We’ve just got so much. Our clients range in age from 17 to 80-years-old,” Ms Cooper says.

You’d think the historical claims would be the most difficult but Amanda Hill says it’s the younger people’s claims that often prove the most challenging.

A sign of the current times perhaps because we live in the digital information age.

“There’s so much information from so many sources and all claims that come after 1990, you have a potential Bill of Rights claim too. So the work that goes into the cases for young people is a lot harder because of these complexities,” she says.

Ms Hill says many of the younger clients are also second generation welfare children which can cause conflict of interest challenges.

“Their parents were state wards. So it could be their father or mother was abused in care who has made an allegation against the state, and then his or her children could be making a claim against him or her for similar abuse.”

Drug and alcohol addiction is a common thread in many of their clients.

Not only are the legal claims complex, but the claimants are often just as complex and damaged.

As lawyers, Sonja, Amanda and their team also have to weather the frustration of their clients who have lived with memories of their abuse for long periods and often want and demand an instant fix.

“Some of these people are eight or even 14 years into the process and they’re only now settling. It’s understandable, and some of the younger ones are incredibly damaged by their experience because it was more recent than the historical cases,” she says.

Research is a massive part of preparing for the kind of work they do at Cooper Legal. Sonja Cooper has just completed her Masters of Laws and is in the early stages of embarking on a PhD.

“Research is absolutely critical here. There is very little New Zealand jurisprudence so we have to watch very carefully at what’s going on in England, Canada and Australia particularly where new laws are being developed.”

Cooper Legal are members of the Association of Child Abuse Lawyers which is based in England and the Australian Lawyers Alliance, which has helped build a network of lawyers involved in abuse cases internationally.

“We are very isolated in New Zealand. You could count on two hands the amount of lawyers that do human rights work in this country,” she says.

The legal team

It’s an all-women team of seven lawyers at Cooper Legal but not for any particular reason as they’ve had men work there before.

Courtney McCulloch is an associate and has been with the firm for over eight years. She is currently working three days per week on a flexible work arrangement, having returned to work after having a baby last year.

She has a degree in psychology, a useful skill when dealing with and understanding some of her clients.

“Being able to work with people who have both mental health and legal issues was very appealing to me. It’s been a really good fit for me as I never thought I’d be using that degree in my law practice,” she says.

Olivia Taylor is the newest member of Cooper Law. It’s her first job in law. Previously, along with some short internships, she worked in Uganda with refugees including women who had been abused through genital mutilation.

“It was through being in the audience at a lecture that Sonja Cooper was presenting that compelled me to want to work here,” she says.

Toni Knipping has been with the firm for about two years and it was her first job after graduating from law school.

“Studying politics along with law got me interested in human rights and I also volunteered for the Wellington Workers Rights service which was advocating for mostly low income workers. I originally applied for a legal secretary role but Cooper Law turned around and offered me a solicitor role instead. I think you need to be passionate about human rights law or you’d find it very difficult to endure the kind of work we do,” she says.

Lydia Oosterhoff originally studied journalism before branching into law. She then worked in communications before travelling overseas where she worked in Holland for a public broadcaster that specialised in human rights stories and the rights of the child.

When she returned to New Zealand Miss Oosterhoff worked in Government communications and policy advisory before working for the Public Defence Service and then Cooper Legal.

“You definitely see a different side of New Zealand. People have said to me, they could never work with the clients I work with, but then I’d struggle to work with many of the corporate clients they work with. On a personal level it’s very rewarding work that we do here,” she says.

Esther Kim says when she was studying law her plan was always to work for the most vulnerable people in society.

“I grew up in South Auckland and a lot of my old friends were in and out of the District Courts and had CYFS (Child Youth and Family) involvement in their home lives. I saw how this played a part when they became part of the justice system. They’re people that need representation from people who see them on an equal footing,” she says.

Miss Kim has also been a volunteer for several community law groups including the Otara Community Law Centre.

Essentially, the sort of lawyers Cooper Legal look for when hiring are those who have good grades in their law degree because the work is intellectually challenging. They must also have an ability to connect with people and prove they have been involved in voluntary work for community law centres or other related advocacy work.

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