Tag: legal aid

Lockdown survival tips for New Zealand lawyers

Posted on by Matt Taylor 34 Comments

Survival tips for New Zealand lawyers working through the COVID-19 lockdown

Fence in a field by Omar Lopez - omarlopez1
Photo by Omar Lopez on Unsplash

This post is not legal advice, but a collection of points that lawyers may find useful to consider while working during the COVID-19 lockdown. If you require legal advice you should instruct a lawyer.

Other posts in this series:

Witnessing affidavits/declarations remotely

  • On 16 April 2020 the Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020 came into force which modifies the Oaths and Declarations Act. This came into force after the NZ Law Society opinion mentioned below was written.
  • If the client and independent lawyer both have a printer and scanner, see Paul Collins’ opinion on remote witnessing for the NZ Law Society here, and draft certificate here (docx), if not, see the below section Signing documents/unsworn affidavits.
  • If a deponent does not have access to a physical bible, can they affirm their affidavit instead of swearing, or bring up an online bible/bible app on their phone?

Signing documents electronically

Wills/Enduring Powers of Attorney

See also information from the Property Law Section from 16 April 2020 with guidance on drafting wills and enduring powers of attorney during the lockdown and executing them via AVL (pdf) however note this was drafted prior to the Wills Act immediate modification order which includes a modified attestation section.

  • [No longer relevant, see the immediate modification order] Consider whether the suggested clause iv. may place doubt over the document if the client does not have it witnessed in the traditional way when physically able to.
  • See the linked attachments including Paul Collins’ opinion, Theresa Donnelly of Perpetual Guardian’s document on validation applications, and checklists for drafting EPAs/wills during this time.

Family law

Resources for children/parents

Links collated by the Family Law Section (pdf):

Shared care

Witnessing relationship property agreements by video conference

See Ingrid Squire’s 2014 article in the New Zealand Law Society Family Law Section’s Family Advocate, To Skype or not to Skype: that is the question (pdf) on things to consider when witnessing a relationship property agreement by video conference.

Example of an audio-visual clause for inclusion in a relationship property agreement (republished with permission from Lady Deborah Chambers QC):

“Both [party one] and [party two] acknowledge and agree that both parties will execute this agreement before their lawyer using a Skype, FaceTime or WhatsApp connection and on that basis their lawyers will witness their signatures and give an explanation as to the effects and implications of this agreement.

The parties agree to this document being executed using that technology and agree that they will not attempt to set aside the agreement on the basis that execution and witness of signature occurred using internet connection. They also agree that it will be necessary for each party to send a scanned copy of their signed agreement to their lawyers in New Zealand for them to then complete the document. The fact that it is a scanned copy will also not invalidate the document.

The parties may sign separate copies of this agreement but once all parties have signed separate copies they will form a final binding agreement.”

Care and Protection

See Oranga Tamariki’s internal guidance on Family Group Conferences (PDF) and access (PDF).

Conveyancing

Deferring settlement

See the Property Law Section of the New Zealand Law Society Te Kāhui Ture o Aotearoa‘s suggested wording to defer settlement:

“The parties agree that settlement is hereby deferred to the 10th working day after the Government reduces the COVID-19 Level to Level 2 or below, or to such other date as may be mutually agreed. For the sake of clarity neither party shall have any claim against the other in relation to this deferral.”

But consider:

  • If the property, both lawyers, and the seller and purchaser are not in the same area, what if there are regional differences in the COVID-19 level?
  • Workload if all settlements are deferred to the 10th working day.

Accessing Landonline

  • Can you remote onto the computer your digital certificate is stored on?
  • Can you transfer your certificate to another computer? See the information on the LINZ website here or contact LINZ.
  • Is there another user (e.g. a colleague, your attorney) that would be able to access your workspace?

Authority & Instruction forms (A&Is)

KiwiSaver

If your clients’ are relying on KiwiSaver funds for a future settlement, are their funds at risk from market fluctuation, or are they in a cash fund?

Courts

Priority proceedings

  • See the list on the Ministry of Justice website.
  • If needing to travel for priority proceedings, print or save/screenshot to your phone the email from the Law Society sent to all lawyers on 8 April 2020, subject ‘Confirmation of being a practising lawyer’.

Filing documents electronically

Service

  • Court bailiffs may not be serving documents at all (check with the Court), so unless service will be undertaken by Police, address service in application/interlocutory application.
  • One option if electronic (email/social media) service is not available (from Wellington Family Law Section):
    • Ask the Court to direct the respondent to attend the registry to collect the documents as arranged by the registry. The case officer is to contact the respondent by telephone to advise the documents are ready to be collected. The notice period begins from the time the registry advise the respondent and they are to be advised that if they do not make arrangements with the registry to collect or otherwise obtain a copy of the documents, they will be deemed to have had notice of the proceedings and the court will continue to progress the application as directed.

Signing documents/unsworn affidavits

  • If the deponent has a printer, can they print and sign the document and scan it to you or take a photo of it (or at least the jurat page) using a scanning app like Microsoft Office Lens?
  • If the client does not have access to video chat/a printer/a scanner can they extend their bubble to include someone who does?
  • Can they sign the document electronically? See options in this post.
  • Can you amend the lawyer’s certificate to explain why the document is unsigned/signed in a different way, or file a memorandum of counsel?
    • See the Principal Family Court Judge Jackie Moran’s Guidelines for Family Law Practitioners during period of epidemic notice (pdf)
      • An adaption of the without notice certificate statement in those guidelines: “The affidavit filed in support of this application was prepared in accordance with the deponent’s specific instructions. [It was read/An electronic version was provided] to them. The deponent confirmed that they fully understood the affidavit and that the contents of it were true and correct to the best of their knowledge and belief.”
      • Note the difficulties of providing an undertaking as worded in the guidelines that you will file an affidavit when 1) that is not solely under your control and 2) circumstances may have changed which makes filing an affidavit containing the same information misleading.

Information in without notice Family Court affidavits

From the Principal Family Court Judge Jackie Moran, reported in Family Law Section Bulletin 420 – 25 March 2020 (pdf):

“Judges on the e-duty platform have encountered a lack of specificity in some affidavits filed in support of without notice applications seeking orders for day-to-day care and/or the enforcement of day-to-day care orders due to [COVID-19].

It is imperative that affidavits contain all relevant information including, but not exclusive to, the following:
• the terms of the parenting order;
• the occupants of the property/properties;
• whether any occupants are engaged in an essential service;
• steps taken to ensure compliance with the lock down;
• comprehensive details of any health issues;
• the mode of travel between the respective homes and who will undertake that travel; and
• the distance between the homes.”

Appearing via AVL

Tips from the NZLS heads of bench webinar:

  • Robes are not necessary. Dress in formal business attire.
  • You do not need to stand up when speaking.
  • Raise your hand toward the screen to signal an interruption (instead of standing up in a courtroom to signal you would like to speak) but these should be rare.
  • Set up your workspace appropriately and consider your background.
  • Read the information that the Court has provided you.
  • Follow the other usual rules that apply during hearings.

Also, consider if participating remotely will be particularly difficult for your client for example: for linguistic reasons, developmental reasons or that there is no private space away from children.

See the protocols on the Courts of New Zealand website.

Criminal

Emailing documents to prisons

See this letter from the CEO of Department of Corrections (pdf) regarding emailing documents for prison staff to print.

List of prison email addresses (pdf) last updated 8 April 2020.

  • Consider a cover letter and/or stamp over the documents regarding legal privilege.

Note that family and friends can also email prisoners, see here, however prisoners cannot reply by email. Prisoners will be given a $5 phone card every week until visits recommence, see here.

Contacting clients in prison

See the information from the Department of Corrections to request phone or AVL meetings with clients (PDF, from around 15 April 2020) and the update from 20 April 2020 (PDF).

Bail

See the 7 April 2020 letter from Crown Law to Crown solicitors and public prosecutors (pdf); the 15 April 2020 letter from Crown Law for distribution to lawyers (pdf); and the 15 April 2020 letter from Crown Law to Crown solicitors and public prosecutors (pdf) regarding the approach to bail.

See the 16 April 2020 letter from barrister Douglas A. Ewen in reply (pdf).

Legal aid

  • Application forms do not need to be signed, see update here (emailed out on 25 March 2020 and updated online 7 April 2020).

Family Legal Advice Service (FLAS)

  • Family Legal Advice Service (FLAS) funding forms do not need to be signed by the client, see update here (9 April 2020).

Leases

Health Act orders

Other resources

Updated 19 April 2020: Added information on contacting clients in prison; updated wills section and added information on enduring powers of attorney; added information on appearing by AVL.

Updated 20 April 2020: Explained where the Family Advocate article is from; added information about the Wills Act and Oaths and Declarations Act immediate modification orders; added information about bail.

Updated 30 April 2020: Updated conveyancing, A&I, affidavits/declarations, wills/EPAs, shared care, leases, appearing via AVL, contacting clients in prison, Health Act orders, signing documents, and other resources sections. Added care and protection section.

Posted in Law, New Zealand, Technology

Employment Law and Criminal Procedure Changes

Posted on by Matt Taylor 2 Comments

United States Supreme Court90-day trial

The 90-day trial period that was previously limited to employers with 20 employees or less now applies to all businesses. Despite all the commotion about it, it is unlikely to actually negatively affect most people. Employers are not going to start hiring people for 80 days just to fire them then rehire for the position and retrain someone new. They’re still going to try to get the best person for the job and get it right the first time. Some employers are purposely not using 90-day trials because they think it will create lax recruitment procedures, but that doesn’t seem likely. New Zealand Institute of Economic Research’s study seems to show that smaller businesses using the 90-day trial had increased hiring activity.

In the Stokes Valley Pharmacy case (pdf) among other recommendations is that the employer gives feedback in a structured way during the trial. Successfully navigating the 90-day trial process isn’t exactly straightforward for businesses and a number of employers won’t try to use it for fear that they’ll stuff it up.

Medical certificates after one day of sick leave

Brought in with the 90-day trial period is the ability for employers to ask for a medical certificate after an employee is off work for one day. It doesn’t seem like employers will start asking for medical certificates without reason. Most are reasonable and realize that a visit to the doctor that day, if at all, is not always possible. This will probably only affect people if their employer is suspicious of their sick day use.

Union access to workplaces

Union representatives now have to request access to workplaces instead of just rocking up and going in. Businesses have one day to respond to a request for access and another to provide a reason if they refuse access. This seems a long time to just get an answer for two simple questions “can we have access?” and “why?”.

A lot of union members work in the public sector—PSA represents public sector workers and is the largest trade union in New Zealand. Union access won’t become an issue in those workplaces. This will mainly affect workplaces like supermarkets and hospitality related workplaces. However it seems like a lot of the time a visit might not be necessary—newsletters can always be posted or emailed out to union members.

Two arguments put forward by employers were that union visits will affect workers’ productivity and that by allowing access to union representatives workplace security is affected. Neither seem like very good reasons. Union representatives are likely to be responsible and union visits are unlikely to be the only distraction throughout the day. Other third parties like the water guy, the photocopier girl and the cleaners are given access to the workplace, and representatives can always be escorted.

The majority of employers are going to allow visits so this change also seems unlikely to affect most people.

Jury trial threshold

New Zealand’s jury trial threshold at three months or more imprisonment is one of the lowest in the western world. Other countries are up there at a charge having to have a penalty of five years imprisonment or more before the accused can elect trial by jury.

The Criminal Procedure (Reform and Modernisation) Bill plans to change the jury threshold from three months to three years—an offence would have to carry a penalty or three years or more for the accused to elect trial by jury—in an effort to speed up trials and save money.

Juries are an important part of the justice system. Statistically a jury is more likely to acquit than a judge is. This isn’t a bad thing. Juries force lawyers and judges to speak in plain English. The jury stands between the state, the accuser and the accused. Common sense ordinary New Zealanders are able to decide when it would be wrong to convict someone of a crime. They “round off the harshness of the justice system”. Money would be saved for an uncertain outcome. Judges will be busier and will have to provide careful written decisions. There will be delays because of reserved judgements. Other countries that have higher jury thresholds have more judges than New Zealand does. A change of the jury threshold from three months to three years requires public input and discussion.

If three months is an arbitrary number, three years is too. As a community there needs to be discussion and we need to ask ourselves at what point do we think an offence or prison sentence becomes serious enough to warrant trial by jury.

Legal aid

Changes planning to be phased in from October include making single people who earn over $22k a year and an adult with two dependants who earns over $50,934 a year ineligible for legal aid for “less serious criminal cases, most of which cost less than $650.00.” People who earn more can still get legal aid if they prove that they can’t pay for their lawyer or that their case is likely to be expensive.

If someone proves that they need the money they can still get legal aid so that change isn’t a huge deal. A more worrying change happened last year, when legal aid clients lost their right to choose a lawyer for charges that carry a prison sentence of less than 10 years.

Can I choose my legal aid lawyer?
The Agency will choose your lawyer for category 1 and 2 cases (these cases include criminal charges that carry a possible prison sentence of less than 10 years)

Depending on income and assets, clients can be required to pay back some of the legal aid money, making it more like a loan than a grant. The Criminal Bar Association said “If a client is required to repay a loan it is only fair that they should be able to choose their lawyer.” A woman might prefer a female lawyer and others might want to choose a lawyer who speaks their first language. Personal choice is removed. Some people might not mind who their lawyer is, but some people have a lawyer who they have rapport with and who they trust. Their lawyer understands them and their issues.

This change supports the expansion of the Public Defence Service which is run by the Legal Services Agency who also assign legal aid cases. They’ll be able to run at their full capacity of 33% of legal aid cases because of these changes.

John Anderson from the Criminal Bar Association said that expanding the PDS will cost more money, that “The Public Defence Service is more expensive than independent lawyers. In 2010, the PDS cost $1612 per criminal legal aid case, whereas lawyers as a whole cost $1343 per case.”

Some legal aid lawyers were taking on too many cases and this is meant to solve that. The Legal Services Agency are able to look at each lawyers legal aid caseload and could have made a decision as to whether someone was taking on too many cases without having to make changes to lawyer choice.

About six months ago anyone on criminal legal aid could specify their lawyer. Now that’s been removed for category one and two offences. Where will we be in six more months?

If 10 years of your freedom was on the line, would you like to be able to choose the person defending you? I would.

Image credit: Phil Roeder

Posted in Law, New Zealand