New Zealand Law Society - 2020 - A year like no other

2020 - A year like no other

2020 - A year like no other

No matter what area of the law you work in, the arrival of COVID-19 saw the biggest disruption to our way of working since the second world war.

The legal profession faced significant challenges on a number of levels. Businesses had to run without any income, there was new primary and secondary legislation alongside protocols and guidelines to interpret, understand and implement. Many lawyers had had highly emotional clients dealing with situations they had never predicted and all of us had to work in new ways using virtual technologies and electronic systems in what has traditionally been a highly paper-based profession.

This was an incredibly challenging time for the profession. People need lawyers at some of the most important, most stressful times of their lives. Many lawyers enter this profession driven by a sense of service to help people, and not being able to help clients has been one of the hardest aspects of this year.

In this article we reflect on the impacts of Covid from this year and what the legal profession can expect going forward. Whilst every area of law was impacted, we have spoken to employment, immigration, criminal and in-house lawyers for this article.

Chris Macklin, Crown Prosecutor with Gordon & Pilditch based in Rotorua is acutely aware that his experience is not unique.

“Across the legal profession we will continue to feel the impacts of this year. It doesn’t really matter if you’re prosecuting or defending, or in a solicitor role without as much court work, all practitioners are up against a very difficult balance managing multiple clients and stakeholders.”

For Immigration Lawyer Mark Williams of Lane Neave, based in Christchurch this has been the most difficult year on record.

“I started in 1999 and nothing has come close to the difficulties we have faced this year. It’s been challenging on so many levels, and far more so than the Christchurch earthquakes were to manage. Financially we’ve all been hit by the border being closed, whilst at the same time the level we’re working at in terms of legislation and policies has grown increasingly complex.”

Impact on lawyers as employers and employees

Running a business, either as a partner or sole practitioner is challenging at the best of times but this year there were major disruptions to income streams which led to some firms having to restructure. At the same time many organisations needed to equip staff to work remotely.

“It’s a constant challenge for us in the legal profession to balance admin, our own workloads, meeting with clients and advocating for them in court, but 2020 took this to a whole new level”, says Chris.

“As a partner I was particularly aware of the obligations to our staff, in terms of their work as well as to them as people. Our income stream dried up almost overnight with the postponement of jury trials. We were fortunate to very quickly get assurance from Crown Law that arrangements would be put in place, but it was incredibly stressful.”

That disruption to income was a similar story for immigration lawyers and advisers, as Mark Williams explains.

“With the border closing the immigration system effectively froze. This meant that we didn’t have new business and the existing business we could bill on was locked up. Most immigration lawyers faced a significant revenue reduction over the first two to three months in particular. We had reduced revenue coming in but were still working hard, fielding hundreds of calls from highly stressed clients and dealing with new complex policies that constantly changed.”

Mark’s experience at Lane Neave has been echoed across many firms. In July, LawTalk reported findings from interviews carried out by consultant Emily Morrow with a number of law firms. She reported that almost all of them received wage subsidy benefits. Some partners voluntarily reduced their earnings and a few firms cut everyone’s pay by approximately 20%. All interviewees reported that revenue decreased in April and May.

Emily’s interviews also reflected the significant change in working to a paperless or paper lite work style, online meetings and remote locations. This flexibility is something that many legal organisations are now adopting, either offering employees a choice or structuring when people are in the office.

In-house legal teams have also felt the impact on their organisations from Covid. In early May LOD surveyed in-house legal counsel about their experiences. All survey respondents said their workload changed to new or more immediate priorities. Two-thirds of respondents said workloads increased, and just over half (56%) said that a lot of BAU and projects were deferred. Just under half (45%) had been asked to make budget cuts.

The role of senior in-house legal counsel also changed, becoming more involved in executive management decision-making, acting as the voice that reminded leaders that decisions still needed to be made thoughtfully and involve certain stakeholders.

New World supermarket
New World supermarket

For the Foodstuffs Legal Team this saw them step into an advisory role working with the Government, helping to define how certain essential businesses could operate.

General Counsel Mike Brooker’s role was to chair the co-operative’s Crisis Management Team (CMT). At the height of lockdown, the CMT daily stand-ups became the catalyst for decisions, which were then opened to a forum to cover all bases. Often more than 300 New World, PAK’nSAVE and Four Square operators joined the call.

“The position we were in was a privilege,” says Mike. “While businesses we dealt with were closing down, here we were overtrading.”

As the Alert Level system cemented its position in ‘normality’, New Zealand’s supermarkets were first to inherit a unique logistical issue of essential businesses. “We had increased demand while balancing the risk of a decreased amount of people working in stores,” Mike says.

“A fair amount of workers across our stores are older in age, immunocompromised or had family at home in those groups to consider. We had to be prepared some couldn’t or wouldn’t want to come to work at the risk of being vulnerable, and we ensured they would still get paid.”

“Meanwhile, there were others that wanted to come to work,” Julian Benefield adds, Associate General Counsel for the cooperative.

Organising guidance for stores around vulnerable workers, employment and wellbeing and safety issues became a priority. The unfamiliar risks Covid posed challenged the team to make critical judgment calls as they worked between agencies, their stores, and assisted regulators and external stakeholders.

“We had an intranet set up which all our stores could access to find up to date information, but one of the key things we were able to do was to coordinate and respond to answers to questions from regulators and external stakeholders, who wanted to know how we were complying with the law and taking care of our people.”

Tackling complex and novel policies changing at speed

Because the law covers so many facets of society almost all lawyers faced challenges understanding the changing legal landscape at speed and translating complex policies into plain English for clients and colleagues.

Mark says this was particularly the case in the immigration space where for the first time in our nation’s history the border closed to almost everyone. Only New Zealand citizens and permanent residents could enter.

“Whilst our industry has lost volume in terms of standard work what has replaced that are highly complex policies that are difficult to apply and likely to change at short notice. A lot of the work was so complex that it could only be completed at partner level, adding to the pressure on partners in our firm. We had changes coming through all the time so we were constantly having to understand a new policy and what it meant for our clients.”

"On the first day of the announcement, there was this lull of sorts. The next day, the phone wouldn’t stop ringing"

New orders and Government response tools such as the wage subsidy, presented a variety of challenging questions for employment lawyers.

“On the first day of the announcement (that we were going into Level 4 lockdown), there was this lull of sorts. The next day, the phone wouldn’t stop ringing” says Karen Radich, an employment law barrister at Clifton Chambers.

"Many of the questions were new for employment lawyers. And finding answers wasn’t easy. There wasn’t a piece of legislation or any regulations to read and consider, or a Court decision available as a clear precedent. Information about wage subsidy rules and around continuing to operate essential services needed to be located and interpreted from Government websites. What’s more, nuances between what information was displayed across different Government websites sometimes raised more questions than answers."

In place of legal advice given with knowledge, experience of legislation and case law was advice based on whatever Government information was available at the time. Information flowed quickly online by the daily government announcements but could also change at the same pace. “The law is still the law, but websites are subject to change,” notes Karen.

"For employees, there was uncertainty about whether their next pay would be made and whether that would be at 100%, 80%, or wage-subsidy levels, and whether they would even still have a job in a couple of days. Decisions were needing to be made very quickly, often based on scant information. At the same time, all face-to-face employment mediations were cancelled and hearings were delayed."

Impact on people

One of the most challenging aspects of the changing legal landscape has been the impact on people, and that’s not ended with the lifting of lockdowns. Heading towards Christmas, Chris Macklin’s thoughts are with those people who will spend the holiday period behind bars awaiting trial.

“There are very real and very challenging obstacles for criminal practitioners doing their best for their clients. There are massive challenges for rescheduling, particularly legal argument for bail and things have been pushed back so people are stuck.”

Prior to the pandemic the average wait for a jury trial in Auckland was already 436 days, while the nationwide average is 425 days. Family Court delays were also extensive. A review panel looking at family justice reform reported in the middle of last year that the time the court took to resolve each Care of Children Act case increased from an average of 284.7 days per case in 2014/15 to 307.9 days per case in 2017/18.

There is also no end in sight for the impact on those wanting to enter New Zealand. Mark recalls the many difficult phone calls he’s taken over the past few months.

“Initially things were okay – people understood that the Government had to take drastic action but the longer it went on, the uncertainty and the stress increased. We started to deal with people emotionally distraught at being separated from family. There were clients being made redundant but they couldn’t return home, others who had sold their homes and quit their jobs only at the last minute to not be allowed entry to New Zealand.

“As immigration lawyers and advisers we were on the front line of dealing with people in really challenging situations. It was really hard, we felt helpless. We understood what they were going through but could do very little to help them.”

Where the ability to work was threatened, so too were employment relationships. As soon as a business couldn’t open doors, employers had to make quick decisions in response.

“And it varied tremendously, in terms of the circumstances,” says Karen Radich.

Deciding on when to apply for the wage subsidy could impact a payroll deadline, and whether there would be money available to pay staff. Questions were raised on what staff should be paid when the business was closed completely and had no income source. The onus on the employer to apply for the wage subsidies and meet the Government’s conditions, changed the conversations many employers had with their employees.

Post-lockdown, employment lawyers have noticed that workplace problems that may traditionally have been resolved face-to-face on site, are more likely to bubble up into a legal issue. The Government Centre for Dispute Resolution saw demand for dispute resolution services dip during Alert Level Four as preferences for face-to-face mediation remained, but was not available. Eventually the demand for mediation surpassed pre-Covid levels through Alert Level 2, and the service is still catching-up.

However, the pressure on lawyers to provide information and advice on new and unusual employment situations has continued throughout the year. As alert levels changed, employment issues also changed so there was the constant need to keep up-to-date.

On a positive note, Karen observed that MBIE, the Employment Relations Authority and the Employment Court were all very quick to update practitioners on how each was responding to the changing lockdown levels. “Updates and new protocols were circulated quickly and regularly through employment law committees.”

Positive changes – increased use of technology and greater collaboration

One of the greatest changes to the profession from the Covid experience has been the move away from being so reliant on paper. For a time, everyone was using digital technologies, learning new systems and understanding how to operate in a paper-lite world.

This was a huge learning period for everyone. Across the judiciary, two schools of thought quickly arose during lockdown – those who embraced online courts and high-tech ways of conducting court business as a permanent move towards better access to justice, and those who felt quite strongly about criminal justice in Aotearoa fundamentally requiring a return to kanohi ki te kanohi (face to face) approach as soon as possible.

Photo of a thermal camera being used in a NZ court building
Thermal camera in operation and full PPE worn by CSOs under levels 3 and 4 at the Gisborne District Court. Left to right: Tala Taimalelagi, Wiremu Moa, Frances Kennedy, and Tui Tuia.

In favour of technology was the fact many practitioners noted benefits associated with being able to appear from their chambers via a virtual meeting room for procedural/administrative hearings. This flexibility was valued by counsel given the efficiency of time and travel cost savings.

However, a major problem was the availability of good working technology. Many concerns were raised during the lockdown regarding counsel’s inability to access their clients in custody. AVL meeting rooms were often not available and it was difficult to reach clients via the phone. There was also considerable variation in gaining access via telephone to clients in custody between the different courts and corrections facilities.

Even when it did work, lawyers learnt there simply was no substitute for seeing a client, taking instructions in person and attending court.

Speaking to Radio New Zealand earlier this year, Chief Justice Dame Helen Winklemann said she was keen to support lawyers to continue using new technology because of the time and cost savings.

However, she was keen to point out that remote technologies aren’t appropriate for all situations, particularly when a person is at their first or second appearance in the court system.

Another positive change that will endure into the future was the collaborative ways of working that developed. For Mark Williams that meant taking part in an industry led Reference Group that meets regularly with Immigration New Zealand. INZ has also increased its direct communication to immigration lawyers and advisers, as INZ General Manager of Strategy, Engagement and Education Steve McGill explains.

“Webinars where participants had the chance to ask questions were very popular. A learning from this was confirmation that people who use the immigration system for their jobs appreciate the chance to ask INZ questions directly. It helped us respond accordingly and provide as much information as possible. We plan to continue regular webinars.”

Wellington employment lawyers found themselves working much more closely, supporting each other with information and answers despite the remote requirements.

For Mike and Julian working in an essential industry there was an increased mandate for collaboration across supermarkets to deliver essential goods.

“At the outset, the Commerce Commission said they did not intend to take enforcement action against competitors talking to each other about the provision of essential services.

“That didn’t mean we could talk to the likes of Countdown carte blanche, but it opened up the possibility for us to help in ways we couldn’t otherwise. We also ensured that our quieter areas, such as our wholesaler, Gilmours, could help supply food banks and the like.

“That was a space where neither of us wanted to compete, but both wanted to coordinate to help to fill a need in the response to Covid.”

Heading into 2021

2020 has been the most disruptive period in a generation. As the Chief Justice noted to Radio New Zealand “It’s made us see that things we have thought are inevitable, or unchangeable, effectively are not. So, it’s made us reflect about what we should take forward into our future from that past way of doing things.”

For Chris Macklin he’s concerned about the ongoing impact on the courts.

“There is still no sense of when we will catch up on the Covid backlog. I’ve seen really positive engagement from the Ministry of Justice and the senior bench and people working on solutions but there is an immense amount of work in the pipeline.”

Mark Williams is also expecting a long tail in immigration from this year.

“It’s going to take at least two to three years for the immigration industry to recover, but I’m optimistic we will see changes at the border. I also think that immigration lawyers and advisers will be in more demand as the policies become increasingly complex. It is going to be far more challenging for people to complete their own applications without representation moving forward.”

Terms like lockdown, alert level, contact tracing, essential and non-essential have become mantras of 2020, seeping into all aspects of our professional and personal lives. As 2021 approaches it’s highly likely they will continue to dominate conversation, but it’s equally likely most of us feel like Mark Williams in never wanting to repeat this year.

Lessons learned during this crisis

  1. Prepare: preparing your organisation for a disaster cannot be left until the last minute. Use everything you’ve learnt from 2020 to prepare for future scenarios that test your business in novel ways..
  2. Build relationships: relationships are important in good times but in bad times, they’re absolutely necessary. Collaborative relationships work best when built before a crisis.
  3. Be brave: sometimes as a leader you need to make hard decisions that won’t always be popular.
  4. Tap into your existing resources: you will have built relationships and banked good will, a crisis is the time to help each other and further strengthen these relationships.
  5. Ask for help and give it: you will be amazed at how many people will help if you just ask. If you are in a position to help others, do so.
  6. Communicate: communication and the provision of information is the key to good leadership in a time of crisis.

The role of in-house counsel as the only gig in town

Mike Brooker, General Counsel and Julian Benefield Associate General Counsel, Foodstuffs

“It was one of the most memorable times in my career,” says Mike, “and I’ve been doing this for 30 years. I feel we did right by New Zealand.”

Mike and Julian can recount moment-by-moment each move as it happened. From the first case entering the country in February, responding to panic-buying and questions of supply when shelves were empty, to when they were just about to pack up on holiday in August when Auckland re-escalated to Alert Level 3.

"It was one of the most memorable times in my career... I feel we did right by New Zealand"

Supermarkets were the first cabs off the rank responsible for ensuring appropriate safety measures were in place for trading. “As ‘one of the only gigs in town’, we had the attention of everyone."

“But we were able to help our stores by taking on some of the focus and pressures at a Cooperative level, that helped us get clear messaging for our stores, from organising PPE to coordinating and answering questions from Regulators and external stakeholders," adds Julian.

Empty shelves were a backend issue for the stores. “Not much was actually running out. We were dealing with filling the demand as it ramped up from truck to store.”

The team says they also had to became experts in the vast array of ISO standards and CE numbers that accompany PPE, and carefully manage the risks of counterfeit PPE.

When they were finally getting on top of things life changed again with a second lockdown. “We had everything in place from the first lockdown, but now we were met with different problems, this time particularly in Auckland. We had employees across the regional borders who had to get to work on the other side. We had to figure out quickly how that worked in terms of where our employees could travel,” says Mike.

“Our demands were very different from others. Smaller businesses and people close to us were closing down or couldn’t work. We were in a very privileged position to be able to trade and never wanted to lose sight of that.”

And where challenges became prevalent, some things changed by the nature of what was deemed essential work. “There was also rapid action on projects, which helped what we had been wanting to do for some time,” says Julian. “E-signatures became necessary, and we had begun to automate contracts, but the take-up of our automation offering increased greatly because of the nature of working during COVID-19.”

While they’ve been entrenched in supporting the business the past few months, Foodstuffs’ Legal Team say they have some break time between them. “Taking care of your own wellbeing or putting on your own oxygen mask is really important, especially when this thing might go on for a long time,” Julian says.

Olivia Taylor, Jodie Gallagher, Jenine Briggs and Michelle Gibbs also had key parts to play in managing the demands on the Foodies Legal Team during COVID-19.

Mark Williams

Partner at Lane Neave, Christchurch

“The last six months have been the most difficult of my entire practice, and that includes managing a practice outside a building written off in the Christchurch earthquakes. When the border closed immigration just stopped dead and the whole system froze. We didn’t have new business at a reasonable volume coming in and the existing business we could bill on was locked up.

Most immigration lawyers faced a significant revenue reduction over the first two to three months in particular. We had reduced revenue coming in but were still working hard, fielding hundreds of calls from highly stressed clients and dealing with new complex policies that constantly changed.

Our firm had to go through a restructuring process. If all you’ve done in your career is grow something, to have to partially destroy that through no fault of your own is really tough.

Whilst our industry lost volume in terms of standard work what has replaced that are highly complex policies that are difficult to apply and likely to change at short notice.

A lot of the work was so complex that it could only be completed at Partner level, adding to the pressure on Partners in our firm. We had changes coming through all the time so we were constantly having to understand a new policy, how that applied in practice to our clients and then communicate that very quickly to them.

I’m optimistic we will see changes at the border, especially as economic pressures increase.

I am relieved we survived this year, but I never want to go through it again. I guess the one plus is that I now travel a lot less around the country, as we use video conferencing a lot more!”

Chris Macklin

Crown Prosecutor and Partner at Gordon & Pilditch, Rotorua

"My primary focus is on prosecuting jury trials, so within days of the Prime Minister’s announcement about the alert levels our core work was put on hold. But with that came a host of different challenges – as a lawyer, a business owner and a parent.

As a Partner I was particularly aware of the obligations to our staff, in terms of their work as well as to them as people. Across the firm we felt the human impact of the pandemic, and the different ways people reacted.

From our local perspective the courts in Rotorua started to roll out under-used remote resources like virtual rooms. They got more rooms up and running so we could participate remotely. Talking to others it sounds like this wasn’t always the case and other practitioners weren’t experiencing the same rapid introduction of virtual technologies.

Outside of the Courts many other organisations within the justice system were experiencing far greater challenges trying to continue business as usual. There were very real and very challenging obstacles for criminal practitioners doing their best for their clients.

There is still no sense of when we will catch up on the Covid backlog. There will need to be significant changes to how business is done as we start 2021, and it’s going to take all of us. It will need lawyers, judges and the government to work together to prioritise addressing the backlog of cases."

Thermal camera in operation and full PPE worn by CSOs under levels 3 and 4 at the Gisborne District Court. Left to right: Tala Taimalelagi, Wiremu Moa, Frances Kennedy, and Tui Tuia.

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