Where do you work, what’s your role?
Where do you work, what’s your role? I’m a barrister and solicitor with my own practice in High Street, Auckland. Probably about 80% of what I do is now AML. I’m a specialist advisor in regulatory law, but primarily AML.
What’s been your career to date?
I’ve worked for law firms and as in-house counsel, initially in Auckland, Wellington and the UK, where despite being employed in the banking team of a huge corporate firm, I ended up managing a number of death-row appeals.
After I had children, I was general counsel for a finance company. I was shoulder-tapped while I was standing in the YMCA, playing with parachutes with children. The person said, “my wife is looking for a lawyer”. And two weeks later, I had a job. My son was about four-and-a-half, so it was good timing. It coincided with the CCCFA (consumer credit legislation) being introduced which proved to be a challenging time for smaller lending operations, as it was a complete change to how they had charged fees and interest, and they simply were not used to being regulated this way. It’s fair to say there were robust discussions from time to time about what the law required!
After a few years, I was approached by the Commerce Commission and decided it would be a good opportunity to see how a regulator works, so I took up a position as senior counsel, specifically to provide support to the Auckland-based CCCFA team. After that, I was general counsel for Diners Club and Warehouse Group Financial Services. The latter purchased Diners Club as part of its move into the financial sector and decision to launch its own credit cards and financial products. Of course, it was around this time that New Zealand was introducing its AML/ CFT regime, and so along with being GC I enjoyed the role of the AML compliance officer (and privacy officer, for good measure).
My last in-house role before going out on my own was as New Zealand general counsel for credit reporting bureau Equifax (previously Veda). I had already been considering going out on my own but when I was approached to see if I would be interested, I felt the opportunity to work in a business where privacy law was such a focus was too good to pass up and Veda offered AML verification services which was a point of interest.
After the Equifax purchase, about a year later, I finally went into my own practice. I feel that having worked with a regulator and been part of a management team and walked the walk as an AML compliance officer, I am well placed to provide practical legal advice on compliance. l enjoy my own practice and the autonomy that comes with it.
Where did you study?
Auckland University, where I completed an LLB (Hons).
How long have you been involved with The Law Association committees and which committees have you worked with?
I am the inaugural convenor of the AML/CFT committee. It came about because when the law first came in, Gary Hughes and I did a webinar for ADLS members. From there, I became heavily involved in the AML content that ADLS put out, including the toolkit series (of which there were two), each consisting of four in-person/webinar presentations. Series one was very practical, covering risk assessments, programs, CDD, that sort of thing. And then series two was more targeted, including sessions on auditing and meeting the regulator. Since then, I’ve done several workshops for ADLS/The Law Association and another series started in November. These are designed for smaller groups to work through common challenges and review changes in the law for the supervisor’s approach to enforcement.
Being approached to convene this committee came about because of my work, because it’s a bit of a different committee, I think. This is a law that directly impacts a huge proportion of the legal profession as it is a law with which lawyers have to comply. I am the only lawyer on the committee that specifically advises in this space so probably have the most specialist knowledge, but all our committee members represent reporting entities and bring real working knowledge of the challenges practices face when it comes to implementing the legal requirements, which is fantastic.
Why is committee work important?
I think operating committees is a valuable way to bring together the views of passionate and committed lawyers, whether that is to take a position in respect of a major piece of legislative reform that’s happening and addressing how that will affect our clients or an area of legal practice or, as is the case in our committee, working to protect the interests of the profession.
At the outset, I asked my committee how they saw themselves; whether they wanted to comment on AML legislation per se or whether they wanted to look at it through the lens of the profession and represent the profession. And the latter was the choice. We’ve made quite a number of submissions and we always do it through the lens of the profession, looking at the areas that impact lawyers rather than looking at areas that impact potentially all reporting entities.
How do The Law Association committees make a difference?
Looking at this from the perspective of our committee, as well as having input into the regulatory process and proposed legislative change, and educating the profession, we also are increasing our direct engagement with key stakeholders. For example, we had three representatives from the Department of Internal Affairs (DIA), who are the supervisor of the legal profession for AML/CFT, at our meeting last month. We are planning to meet with representatives of the Ministry of Justice (MoJ) as they are tasked with managing the full statutory review of the legislation.
In terms of the DIA and MoJ, we see the opportunity of being real advocates for the profession. This legislation has had, and continues to have, a huge impact on lawyers’ working lives. There is a lot of compliance and there are still areas that are not well understood by a lot of practitioners, and I think the cost of compliance can be very challenging, particularly for smaller practices. We made a point of telling DIA that The Law Association has a national presence, it isn’t just Auckland-centric, and so we see real value in us getting their messaging about expectations and application of the law out to our members. We just need to ensure we have a clear understanding of what that message is, as it isn’t always obvious!
How do you see the role of a committee convenor? What specific skills do you think a convenor needs?
My role is to oversee and ultimately bring a mix of ideas to some form of cohesion, where we can present it. Part of my role is to protect the outliers, those with a different position, and ensure all voices are heard. I am very conscious that often when we make submissions, we can’t put everybody’s ideas forward. We have to go with the general consensus. But I still think within the context of a committee, hearing all these different views and different experiences is really important.
What is your biggest frustration as a convenor?
We’re a small committee, so whenever there is a submission or something to write, there’s a lot of work to be spread amongst a few of us. And this is against the backdrop of committee members who have very high workloads in their day jobs and who often are members of other committees too. For a small committee, I think we do pretty well. But my gripe would be there aren’t that many of us to carry that workload.
What’s been the most notable achievement or biggest focus of your committee over the past few years? Why was that important?
We should see some changes to the legislation around the timing for lawyers for reporting SARs (suspicious activity reports). We’ve also had some engagement with the ministry about greater protection for lawyers. Currently all reporting entities which file an SAR are protected if they’ve done so in good faith. The New Zealand Law Society sought an exemption from that for lawyers, with the result that the protection applies but with the proviso it is lost if there were reasonable grounds to believe the information was privileged.
My experience is that the areas where SARs often arise are not areas of law where issues around privilege commonly arise, and so practitioners can understandably be very nervous about filing SARs. We’ve had 1:1 engagement with the ministry and made quite extensive submissions on both these issues, and in concept it has been agreed that there will be amendment to the legislation.
The extension to five days from three for filing an SAR for lawyers was proposed in the last regulatory change. Unfortunately, it was pulled late in the piece as it was determined regulation was not the correct mechanism and there needs to be an amendment to legislation. However, both those changes are in the pipeline. And if they come through, they’re a direct consequence (in my view) of our committee’s work.
Over the past year, has your committee made submissions on a parliamentary bill or any consultation paper?
We have submitted on the extensive changes that were made to the AML/CFT suite of regulations. We’ve submitted on the overview of the legislation, and we will continue to submit on those areas.
What would you say to anyone thinking of becoming involved in a Law Association committee?
Being a member of a committee provides the opportunity to give back, but it also provides the opportunity to learn from others. No matter how experienced you are in practice, you can always learn from someone else’s perspective. Committees also make great sounding boards, and forge great camaraderie and support amongst members.
What’s the biggest issue facing your practice area? And how does that affect lawyers and their clients?
I think many practitioners still struggle conceptually with the legislation. We come through law school with the clear message that we protect our client, their confidentiality and their presumption of innocence. It is a difficult transition to suddenly be dobbing in your client.
There is the issue of when privilege is lost, or when as lawyers you should report an issue. And on a day-to-day basis, there is the issue of trying to undertake CDD (client due diligence) in accordance with the Act – as that is prior to entering a business relationship and that isn’t a concept that fits easily into legal practice. The legislation is still very much skewed to financial institutions, and there are real stresses with getting this legislation to work for lawyers.
The other big issue commonly raised is enhanced due diligence. Lawyers really struggle with getting information from clients to satisfy the requirements of enhanced due diligence. The problem for lawyers is that the legislation requires you to terminate a relationship if you don’t complete CDD. And of course, under our Lawyers and Conveyancers Act, we have quite specific times that we are allowed to terminate. So again, that’s a really challenging area for lawyers.
What’s the best kept secret about The Law Association?
Hospitality. Collegiality – don’t underestimate the importance of it.
What is the biggest issue facing the legal profession right now? T
The NZLS review.
Have you done any media interviews/ provided any statements to the media in the past year as a committee convenor and spokesperson for ADLS/The Law Association?
No.
What is your vision for the legal profession in 2050?
I would like us to be better role models.
What do you think The Law Association could do to improve its offering to members?
I think it’s moving in the right direction but does need to be more visible and to check in with members. For example, when I do my workshops, I always say, “ask people, don’t assume what they want”. Just don’t put on that course. If you’ve got people who attended this workshop previously, email them and ask them would they like another? It’s just that personal shouldertapping all the time. I think The Law Association is really working on it, and I think it’s important to get the message across that we are not just Aucklandcentric, we do represent lawyers across the country. And that’s good news for everyone.
To find out more about The Law Association’s committees, please contact Daniel.Conway@thelawassociation.nz or Moira.McFarland@thelawassociation.nz.
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