New Zealand Law Society - Letters to the Editor

Letters to the Editor

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Mentoring of younger lawyers

I was most interested to read the article on Trevor Booth (“Retiring from practising law at 90”, LawTalk 934, November 2019, pages 20-21).

I had a few dealings with him when I was in private practice in Whakatane and always found him unfailingly professional and pleasant to deal with.

As a ‘product’ of those earlier times in the law – albeit 15 or so years younger than Trevor – I recall the earlier times of ‘handshake, word is my bond’ well. I also recall that in the provincial areas in general practice, it was not uncommon – indeed expected – that you would do just about whatever work came in the door, whether it be court appearances, conveyancing and so forth.

I also agree what he is saying about the mentoring of younger lawyers. When I was in my first legal partnership at McVeagh Fleming in Auckland, I was very lucky to have as two mentors Maurice Hunt and Colin Holdaway and soon learned ‘the things I did not get taught in law school’. One discussion I will always recall with Colin was when he asked me one day “which is the most important – the duty to your client, yourself or your fellow practitioners?” I of course answered that is was the duty to the client, whereupon he chuckled and said, “all you young chaps say that, but it is actually your duty to yourself”. He explained it to me thus: “You must always get the legal advice to your client correct, and never ‘wing it’ as if you get it wrong then the client will come after you, so in looking after yourself you are also looking after the client.”

When I left Auckland in the early 1970s and came down to Whakatane to join what was then Buddle Harvey, I had been told that court work would not be required. However, when I arrived I was asked by the senior partner Joe Buddle whether I wanted “the good news or the bad news first”. I opted for the bad first and he said that the lawyer who had been doing the court had left but the “good” was that he was sure I could handle it. So I was thrown in the deep end, not having done court work before, but amazingly soon discovered I really enjoyed it and so developed a mixed practice of court and general conveyancing – even some Māori Land Court appearances.

I suspect that is increasingly rare in these specialist days, but probably still exists in smaller towns.

However, in community law I have rediscovered the delights of dealing with pretty well everything that comes in the door.

The modern LLB is of course very different from that I did in the 60s where there were no elective options.

David Sparks
Senior Solicitor, Baywide Community Law Service, Whakatane.

Extending ACC appeal jurisdiction to the Supreme Court

The judgment of the Supreme Court on 11 October, in the Shark Experience Ltd appeal case (Shark Experience Ltd v Pauamac5 Inc [2019] NZSC 111), highlights once again the anomaly in the ACC legislation that prevents an appeal on a question of ACC law being heard by the Supreme Court, the highest authority in the land.

The Shark Experience case involved one appellant and three respondents and six legal counsel were involved. The case was heard on 26 March 2019 before a full bench of five Supreme Court Judges who almost seven months later, delivered a 121-page judgment setting aside a decision of the Court of Appeal that “shark cage diving is an offence under s 63A Wildlife Act 1953”. A huge amount of legal and judicial resources were applied to arriving at that decision which affected one commercial enterprise.

Surely decisions by ACC on cover and entitlements under the ACC legislation affecting the rights of every victim of accidental injury in New Zealand, are more important and require an urgent review of the law.

The Supreme Court Act 2004 created the Supreme Court which was intended to replace the Privy Council in England, as the ultimate appeal authority under New Zealand law. However, for some reason, appeals on questions of law against ACC decisions, have been limited by legislation to appeals to the Court of Appeal.

Attempts by the New Zealand Law Society to remedy the situation by extending the jurisdiction of the Supreme Court, have fallen on deaf ears. No minister has moved to amend the law and there has been no “white knight” in any Parliament, who has led a move to improve the lot of accident victims who have not had the benefit of ultimate authority on questions of ACC law and policy. The ACC Board is obviously not anxious for its decisions to be tested before the highest legal authority to establish the true meaning of the complex legislation the Board administers.

A review of ACC law was not on the work programme of the previous government nor does it have priority with the present government so the anomaly remains. Yet another frustration for accident victims.

Don Rennie
Former Convenor NZLS ACC Committee, Wellington.

Legal nomenclature and JAWS

I read with interest and amusement Sir Ian Barker’s recent article on legal nomenclature (“Legal nomenclature – from prolix to trendy”, LawTalk 933, October 2019, pages 69-70). I wish to assure Sir Ian that there is no link between the name under which lawyers practise and their traditions of service to the community. For almost four decades we have been known to many people by the abbreviation JAWS – yet sharks do not abound.

Ian Finch
Partner, James and Wells, Auckland.

AML and compliance success

It was truly satisfying to read in the Dominion Post recently that the Police have apprehended a sophisticated drug dealing and money laundering operation with arrests made in Shannon and Palmerston North.

Clearly the Anti-Money Laundering and Financing of Terrorism Act compliance which we as a profession have had forced on us is really working and gaining some real traction in apprehending those responsible for money laundering. I was wondering if it was possible for the Police to identify which law firms’ AML documentation was instrumental in this apprehension of the money launderers so those responsible may in a small way be recognised for their excellent compliance efforts and so the rest of us can take heart that the cost to us as a profession is not all in vain.

Eugene Collins
Partner, Collins & May Law, Lower Hutt.

Guidance to lawyers on testamentary capacity

I have regularly provided medical opinions about capacity, including testamentary capacity, in situations where this capacity is in doubt. The loss of capacity for decision-making is a tragic component of many neurodegenerative illnesses, but can also occur at younger ages in some of those with learning difficulties, head injury or treatment-resistant mental health problems. I have also participated in providing expert opinions regarding the likely capacity for such as making a new will, after that person’s death.

Studies have shown high levels of incapacity for those who are general hospital inpatients or residing in Aged Residential Care. With the aging of the population, this is far from being an academic concern only.

I have also provided teaching to legal groups about how to assess capacity, with particular reference to testamentary decision-making, with my colleague Professor Kate Diesfeld (AUT). The premise of our teaching programme was that all professional groups, especially lawyers, should be able to undertake a capacity assessment of clients. This is a perfectly achievable skill for most professional groups. Lawyers should be able to identify “red flags” where capacity might be in question, and then undertake the interview which would establish whether the person had capacity to proceed with giving instructions for a new will.

I admit that there remain cases where capacity is equivocal following assessment, or the dynamics in the situation are complex, or where influence is considered possible. In these situations it is always advisable to obtain a second opinion about capacity, for example from a medical or health practitioner. But there is nothing to prevent lawyers from assessing capacity and being confident of its presence or absence in most cases. In our view, this should be part of lawyers’ everyday practice.

I was therefore alarmed to read the article by Sally Morris and Freya McKechnie, summarising the judgment in Sandman v MacKay [2019] NZSC 41 (“Supreme Court provides guidance to lawyers on testamentary capacity”, LawTalk 933, October 2019, pages 29-31). The majority decision appears to state that the lawyer should proceed with preparing and executing a new will, despite any concerns about the person being incapacitated. Any concerns about capacity should be resolved after the person’s death. I note that Elias CJ dissented from this part of the judgment, saying that she doubted that “a solicitor who knows a client to lack testamentary capacity is nevertheless obliged to carry out the client’s instructions, leaving capacity to be assessed after death…”

As someone who provides post-mortem capacity opinions for historical decisions, I would like to say that certainty about the person’s capacity is often not achieved based upon the (often flimsy) medical or legal records available from the time of the decision, and therefore, from a practical point of view, this is hardly a satisfactory way of bringing closure to the issue. Furthermore, it is costly, time-consuming and emotionally draining for many of the parties in the dispute.

I also believe that a lawyer, as a member of a professional group, should be acting both for the client and in their best interests, and where these are in conflict, for example, where someone lacking capacity is giving unwise instructions about their new will, the lawyer should have the confidence to pause proceedings and get an assessment done. What is the point of preparing and executing, and charging for, a new will, when that instrument is going to be invalid? Furthermore, international studies show that the degree of financial abuse that is inflicted on older people is shocking, with estimated figures from the US running to the billions of dollars each year. It is my contention that lawyers should be willing to protect their clients, in the same way that the banks have now signed up to. I hope that this obligation to one’s clients might be present in the Code of Conduct for the legal profession.

When appointing a new Enduring Power of Attorney, the lawyer, legal executive or trustee officer witnessing the signing by the attorney is required to assert that the person understands what they are doing, understands the risks and there is no reason to believe that the person has incapacity. This implies to me that those involved witnessing this document are expected to know how to assess capacity for this decision.

The medical profession has had to be dragged into confronting the issues around incapacity, whether for surgical procedures or accepting admission into aged residential care. Slowly, confidence and competence in this area has increased amongst doctors and other health professionals, due to training and open-discussion. I hope that the legal profession might commit to the same path, and I hope that the minority decision in this case will come to be seen as more practical, protective and just for clients.

Dr Mark Fisher
Mental Health Service Clinical Director, Auckland District Health Board, Auckland.

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