Thank you for asking me to speak here this morning. As you know, I am a member of the Bar Association and I value my membership of an organisation which is playing an increasingly important role, not only in the profession, but in the administration of justice. In its short life the Bar Association has intervened in a number of important cases. For example, in Harley v McDonald

both in the Court of Appeal and the Privy Council on the all-important issue of whether or not there was jurisdiction to award costs against a barrister. On that occasion, I was one of the counsel for the Association. More recently the Association was represented by JA Farmer QC and Gillian Coombe in the High Court, Court of Appeal and Supreme Court in Lai v Chamberlains, which dealt with whether or not barristers should have immunity from suit. On that occasion, I appeared for the New Zealand Law Society.

The Bar Association has sponsored very useful seminars and conferences, the most notable of which was "Civil Litigation in Crisis" held in Auckland in 2008 and jointly sponsored with the Legal Research Foundation. I attended that seminar and was very interested in the proposals which came out of the conference. There was a consensus that the law on discovery needed reform. The Rules Committee has recently released a consultation paper on that very issue and, in particular, whether the rule in Peruvian Guano should be retained. Some years ago I spoke on Peruvian Guano at your conference in Queenstown. Down the back of the room three very senior barristers - your president, WM Wilson QC and R Asher QC (as they then were) were shaking their heads like three knights of the Apocalypse while I was trying to advocate abolition. They were appalled with the prospect that the rule in Peruvian Guano could be abolished. How things change! Justice Asher is now a member of the Rules Committee and has played a major part in drafting the paper on discovery reform.

I was a member of the Rules Committee from 1999 to 2005 and I am now an ex officio member as Attorney-General. The Rules Committee has worked very hard in recent years to improve High Court procedure. After three years of discussions, the outstanding intervention of Justice Baragwanath and the able assistance provided by George Tanner and Don Mathieson QC, the rules were substantially rewritten. The Judicature Amendment Bill 2008 sailed through the House in the closing days of the last Parliament. It was before the Justice and Electoral Committee for about five minutes - literally. It represented a major improvement in the way the rules are presented. It is another illustration of the tremendous contribution provided by individual members of this association. I approached a number of practitioners asking if they would go on committees to look at aspects of the rules and suggest improvements. Not one practitioner refused to assist; everyone made a contribution. So for example, people like Nathan Gedye in Auckland worked very hard on improving the rules relating to enforcement of judgments. Reforming the law is another area where lawyers can and do make a substantive contribution.

If I am critical of the Bar Association's activities, it is that I don't think it makes enough submissions to select committees. Perhaps you leave it to the legislation committee of the Law Society but I think your perspective can be very useful. Your representatives made a useful contribution to the fashioning of evidence law when the Evidence Bill was before the Justice and Electoral Select Committee and I hope you will do the same with the Limitation Bill which is currently before that committee. That is exactly the kind of legislation where you should be making a contribution and where Parliament values submissions from barristers. For example, in the context of the Limitation Bill, should claims under the Bill of Rights Act be covered by the Limitation Act? Are the transitional provisions capable of improvement? Members of Parliament value what you have to say.

The other night I was opening an exhibition at the Portrait Gallery and a former MP came up to me and said he was most interested in the topic I was about to present today and added "what about talking about the court's duty to cooperate with counsel by getting judgments out quickly and by treating counsel courteously?". I don't intend to talk about those topics today because I want to focus on the duties of counsel and I am very interested in the concept of the cooperation of counsel.

Perhaps it's because I am in the early days of my ministerial career, but one real pleasure for me as Attorney-General is to visit the courts to speak to judges about any concerns they may have and also speak to the profession. Unfortunately, what I am picking up is not always that impressive. One recurring theme is that of counsel competence. Competent counsel ensure cases proceed efficiently through the system by:

• preparing thoroughly;


• identifying issues early;


• giving appropriate advice to their clients;


• making only appropriate applications to the courts;


• giving the courts proper assistance;


• conducting trials with skill and precision; and


• dealing with their colleagues in a professional and competent manner.

Some people contend that the overall standard of the bar, and particularly the criminal bar, is not high enough in New Zealand and is the reason why there are so many delays. They say the time has come to lift standards. One firm of solicitors referred me to a report published by the American Bar Association in 1992 which concluded among other things:

• developing competent lawyers should be seen as a continuing process involving the law schools; the admissions process; early professional development; continuing legal education and ongoing professional development;


• there should be greater dialogue among the law schools and legal profession as to the skills and values that should be taught to lawyers;


• law schools should do more to emphasise writing and clinical skills;


• transitional education (bar admission programmes) should emphasise practical professional skills instruction;


• there should be mandatory CLE programmes requiring participatory exercises, trained instructors, feedback and evaluation;


• there should be an Institute for the Practice of Law with the purpose of promoting excellence in the practice of law.

I have also been referred to an article by Warren Burger,

former United States Chief Justice, who complained that the American system of advocacy was poor and that their system was "more casual about qualifying the people we allow to act as advocates in the courtrooms than we are about licensing our electricians." He suggested that America:

• abandon the idea that every lawyer is automatically qualified to appear in Court and be an advocate;


• develop a comprehensive system of trial advocacy certification;


• require collaboration by the Law Schools, Bar Association, Courts and others to maintain trial advocacy standards;


• abandon generalist certification schemes until these other measures are in place.

I was not surprised to learn of these concerns because I have them myself. For many years I served on the Council for Legal Education and in 2002 I was a member of a review panel which was appointed to undertake a review of the IPLS course. Other members of the panel were Robert Hughes, Professor and Head of Law at the University of the South Pacific, and Julian Webb, Professor of Law at the University of Westminster, and General Counsel of the Bar of England and Wales. Much of the discussion focussed on the future of the IPLS course and whether it should be decoupled from the CLE.

There was, however, a strong feeling that the transactional context of the course needed strengthening. Most of the recommendations were ignored by the Council for Legal Education. I think that was a shame because most people regard the professionals courses offered in this country as a joke which do not equip students properly to practise at the bar. The report was very much a compromise. I can recall trying to persuade my fellow reviewers that there was a case to be made for the introduction of something like the New York Bar exam, which would have really raised standards. My colleagues felt that was, perhaps, going too far.

I think those lawyers I spoke to last week are one-hundred percent correct: too many lawyers practising at the bar are incompetent or worse and there is no proper means of assessing their competence or requiring them to be properly educated. Something has to happen and this association has to take leadership in relation to barristers. In particular, we must ensure:

• students and young practitioners are well trained including practical advocacy skills;


• there is an effective certification process to ensure only those with the necessary skills can act as trial advocates;


• the criminal law is sufficiently well-remunerated to attract skilled practitioners and ensure competition;


• practitioners are well-supported to develop and maintain their skills and act competently;


• there is ongoing, mandatory, effective CLE.

These are the bare basics but I would go further. I am the one who is responsible for pushing for inclusion in the High Court Rules of a duty to cooperate. Where did this idea come from?

The original proposal was for a positive duty on counsel to co-operate and communicate in a responsible manner during the discovery process, consistent with the objective at HCR 1.2 of securing the just, speedy and inexpensive determination of proceedings. This idea was prompted by the US experience and, in particular, the Sedona Conference Co-operation Proclamation of 2008, which has received significant judicial endorsement. 

The Sedona Conference is a non-profit research and educational institute focussed on law and policy in anti-trust, complex litigation and intellectual property. The Cooperation Proclamation has as its goal promoting cooperation by all parties to the discovery process to achieve the goal of a 'just, speedy, and inexpensive determination of every action" and sets out what that may involve, including jointly developing automated search and retrieval methodologies to cull relevant information and developing discovery budgets based on proportionality principles.

I think a positive duty on counsel to co-operate to secure the just, speedy and inexpensive determination of proceedings should be a general obligation, not simply for the discovery process.

The US Federal Rules of Civil Procedure, used in 35 US states, contain what is called the 'stop and think rule' (Rule 26(g)).  Counsel are require to certify discovery documents, confirming that, to the best of their knowledge, information and belief, formed after a reasonable inquiry, the disclosure is complete and correct, and the request or response is consistent with the rules, not interposed for a improper purpose (such as cause unnecessary delay or cost) and neither unreasonable nor unduly burdensome or expensive considering the context of the case.

A breach of Rule 26 was a key part of the $8.5 million sanction awarded in Qualcomm Inc v Broadcom Corp

last year and the referral of six counsel to the state bar for disciplinary action.  The Magistrate held that Qualcomm had withheld 46,000 documents directly responsive to several discovery requests, without substantial justification and that their lawyers had suspected there was addition evidence or information but "chose to ignore the evidence and warning signs and accept Qualcomm's incredible assertions regarding the adequacy of the document search and witness investigation". On appeal, the court vacated the sanctions against the individual attorneys, allowing privileged material to be used by the outside counsel to defend itself in the ongoing proceedings.

So the idea of cooperation isn't some wild-eyed and novel idea. It is a well-established duty in the United States; indeed one cannot comply with one's obligations in discovery unless counsel act with cooperation rather than contrariety and communication rather than confrontation. The sad thing is that things have reached a stage in this country where we have to contemplate putting such a self-evident statement in writing. But I suppose that's inevitable when we're breeding a class of barristers who don't even know how to address the court much less know how to cross-examine, write submissions and generally act in a professional manner.

A related duty was explained to me by David Williams QC a few days ago and I think there is a case for including this as well. It places a duty on counsel not to undermine the procedures of the tribunal before which he or she appears. For example, he or she should not set up a court hearing to fail or require adjournment by appointing at the eleventh hour a senior counsel who has a direct conflict of interest with the assigned judge.

The late Harvard Law Professor Lon Fuller wrote that a lawyer's "highest loyalty" is to democratic institutions and procedures; the attorney is a trustee for the fundamental processes of government, and hindering those processes violates the duties that the adversary system was designed to serve.

This is no different from what Justice Ipp wrote in his seminal article about lawyers' duties to the court:

the duty to conduct cases efficiently and expeditiously. He quoted, for example, Lord Woolf in his 1996 judgment in Brennan v Brighton BC, who held that lawyers have a duty not to waste time and money and to bring a case to trial as quickly as possible.

I think things have got so bad that we need to investigate whether the courts should have, in addition to their inherent jurisdiction, the power to order barristers to meet the whole or part of any wasted costs as the court may determine. Section 51(1) of the Supreme Court Act 1981 (UK) defines wasted costs as meaning:

any costs incurred by a party -

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or

(b) which, in the light of any such act of omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay. 

I would be interested in your views. I support some way where an associate judge or judge can impose a modest cost order on lawyers for wasting time and imposing unnecessary cost. This will emphasise the need for the maintenance of professional standards and the need for cooperation. What I don't want to see is the development of satellite litigation where time and money is consumed on other than the central issues in a case.

I am conscious that this all seems rather bleak. You know, however, that I am not directing these comments at the people in this room, for whom I have enormous respect. As I said in my opening comments, the profession can be proud of people like you who make such a significant contribution to the administration of justice. Some years ago I attended the annual meeting of the American Bar Association in Chicago. I am an associate member. I heard Associate Justice Stephen Breyer of the United States Supreme Court give an opening keynote address entitled "Our Civic Commitment".

He spoke about the three public service roles that the lawyer traditionally played and which, taken together, make up a spirit of public service that continues to characterise the American Bar. They apply with equal force to many in this room. In particular:

• He mentioned pro bono legal work.


• He emphasised the role of the lawyer as law reformer, referring to Learned Hand, who, many years ago, said "it is the bar that makes the statutes". As I said in my introductory remarks, lawyers are often critical to the process of developing the law.


• He mentioned the role of lawyers as teachers of our legal and constitutional values.

This association continually demonstrates the willingness of the independent bar to engage in these three forms of public service in New Zealand. The tragedy for us all is that some of our number let us all down. Not only are they incapable of doing pro bono work, being law reformers and teachers, they can't even get the basics right. We have tolerated them too long. Something needs to change. We cannot as a profession tolerate those who, whether wilfully or not, undermine the system and who cannot cooperate in the just, speedy and inexpensive determination of proceedings. If litigation, both civil and criminal, has reached a crisis point in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out.

I finish today with the words of Sir Owen Dixon, upon taking the oath of office as Chief Justice of the High Court of Australia. He said that:

The activities at the Bar are greater than those on the Bench, and the responsibilities are no less. The Bar has traditionally been, over the centuries, one of the four original learned professions. It occupied that position in tradition because it formed part of the use and the service of the Crown in the administration of justice. But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.

[T]here is no more important contribution to the doing of justice than the elucidation of the facts and the ascertainment of what a case is really about, which is done before it comes to counsel's hands. Counsel, who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very high tradition of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.

I believe this strongly which is why I think the Bar Association needs to do whatever is necessary to help raise the standards of professionalism in the independent bar of this country.

1

2 WLR 1749; 1 NZLR 1

2

NZSC 70; 2 NZLR 7

3 American Bar Association, The McCrate Report: Building the Educational Continuum, Chicago, ABA, 1993.

4 Warren E. Burger: "The Special Skills of Advocacy: Are Specialized Training and Certification Essential to Our System of Justice?" 42 Fordham Law Review, 1973-74.

5 The Sedona Conference® Cooperation Proclamation, July 2008

6 Qualcomm Inc v Broadcom Corp, 2008 US Dist. Lexis 911 (S.D. Calif. 2008)

7 Qualcomm pp. 41-43 

8 Quoted by Judge Paul W. Grimm in Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008), pp. 20-21.

9 D.A. Ipp, "Lawyers' Duties to the Court", (1998) 114 LQR, pp. 63-107.

10 Ibid., p. 65.

11 Stephen Breyer, "Our Civic Commitment" - Keynote Address at ABA Annual Meeting, Chicago, 4 August 2001.

12 Owen Dixon, "Upon Taking the Oath of Office as Chief Justice" in Jesting Pilate, 1965, p. 247