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Practice Areas (April 2012)Stephen Layburn

I have hung out my own shingle as a commercial barrister advising on a wide range of corporate / commercial matters.  In addition, I continue to work with a wide variety of ‘non-standard’ entities including those in the sports sector and not-for-profits.  I was previously a partner at Hesketh Henry in Auckland and, before that, spent a long time working for Kensington Swan, Simpson Grierson and Bell Gully (as well as a secondment to the (then) Securities Commission) and time doing the Big OE in London).

The principal areas in which I have developed experience over more than two decades as a lawyer at the ‘big end of town’ are in the areas of corporate and commercial law, the financial services sector (particularly securities law), business transactions and corporate governance matters.  My governance experience has enabled me to advise on a range of strategic and governance matters – including by providing assistance in the resolution of disputes at a Board or shareholder level.  In addition, I have a long involvement with venture capital / private equity matters as well as matters affecting a range of non-standard entities (co-ops, industry organisations and Maori groups) involved in commercial activities and have advised a number of not-for-profits involved with a range of undertakings.

A bullet point outline of some of the key areas in which I have experience and believe that I can add value is set out below.

  •  Corporate / M & A / fundraising:  Corporate advisory – compliance, governance and structuring issues, M & A transactions, advising different stakeholders (including directors, interest groups and management).  Securities markets – regulatory compliance matters, equity & debt issues, waivers, rulings & exemptions from NZX, Securities Commission / FMA & Takeovers Panel, etc.
  •  Commercial:  Advice on compliance issues, new commercial and legislative developments, negotiating / documenting commercial arrangements, project management of inputs into commercial arrangements.
  •  Venture Capital / Private Equity:  Marriage of skills across a variety of corporate / commercial (legal) disciplines as well as a mentoring role.  Assisting with fund raising, advising different stakeholders, partnering arrangements and advising on exit strategies.
  •  Financial Services:  Working with financial service providers / financial advisory sector – on commercial and compliance matters (including AML/CFT matters) and dealings with regulators.
  •  Corporate Governance:  Advising management, boards, individual directors (including independent directors), committees and those providing other inputs for corporate decision-making processes.  Assisting other stakeholders (including shareholders, classes and interest groups), organising, chairing / conducting meetings and setting up reporting processes.
  •  Non-Standard Entities:  Establishing / advising co-operatives, industry organisations, charities and Maori groups.  Sports sector work including management and governance issues, dealings with regulatory bodies / local & central government agencies and advice, negotiations and drafting inputs into commercial matters (including funding, sponsorship, licensing, events management, broadcasting and supply arrangements).

The experience of working as part of a project team over a long period and in a variety of different contexts (including while on secondment at the Securities Commission, as part of large commercial transaction teams and work on matters for central and local government – including work on both the policy and ‘black letter law’ for various legislative and regulatory initiatives) has also helped me work with a range of advisers across a broad spectrum of other disciplines.  I find that this experience translates well into working with and advising other lawyers as well as members of the accounting, management advisory and investment banking professions – both on technical, legal, issues and in working with them to find practical solutions for issues for their clients.

Finally, I have maintained an active involvement in law reform issues, including by providing proactive advice about new developments, identifying problems in need of a solution and making submissions including (most recently) CMD Taskforce, Securities Commission / FMA, MED and NZX.  I am also a long-time member (and former convenor) of Commercial & Business Law Committee of the New Zealand Law Society and a member of the PWC (New Zealand) Advisory Advisory Board and counsel to the NZX Markets Disciplinary Tribunal.  My roles in the not-for-profit space include being a board member of Auckland Basketball, as well as the operator of the National Basketball League and the national sporting organisation for basketball, and a tour of duty on the Board of Trustees of a secondary school. Most recently, I have been appointed to the Council of the New Zealand Bar Association.

Please feel free to contact me – and chew the fat over a coffee or a call.  As a starting point, if its less than 20 minutes, I am unlikely to charge.

Commercial Barrister

Don’t get too hung up on labels – but, historically, barristers specialised in Courtroom advocacy, drafting Court pleadings and documents and giving expert legal opinions.  They can be contrasted with solicitors, who are in general office-based lawyers.

In New Zealand, all lawyers are at first admitted to the roll as both a “Barrister and Solicitor of the High Court of New Zealand”.  But once they have sufficient experience, lawyers can choose to practise as a “barrister and solicitor” or just as a “barrister”.

I have chosen to practise as a “barrister”, after 20 something years  as a barrister & solicitor, working in the corporate team of big firms and as a corporate/commercial partner in a mid-tier firm, because a lot of what I do is in a narrow, specialised, field – where my target audience is other lawyers and law firms.  In part it is to give them a signal that I am not competing with them for their clients but seeking to work with, or alongside, them as part of a team in much the same way as I did at the big end of town. In this way, I can bring an independent perspective and specialist input to a project or engagement.

It is important to note that some of the distinctions between barristers and solicitors that do still remain in New Zealand are:

  • Barristers have to accept instructions through an instructing solicitor.  Historically this used to mean such things as (for example) a client could not telephone a barrister directly to make an appointment.  Clients would have to engage a solicitor first, and the solicitor would then instruct the barrister.  This is inefficient and sounds a bit like ‘Rumpole of the Bailey’.  Thankfully, in the 21st century, clients can contact a barrister directly – but the barrister must ensure that the client has retained an instructing solicitor.   If a client does not have an instructing solicitor, I am happy to recommend one.  Usually in such a case, an instructing solicitor is unlikely to charge a fee for overseeing the file.
  • Barristers cannot operate trust accounts or handle clients’ money (other than accept payment for services after an invoice is issued).  This means that if I seek a retainer as security for work to be done in the future (which itself is rare) – those funds must be held by the instructing solicitor.

Finally, those who choose to practise as ‘commercial barristers’ do so because they wish to provide independent legal advice in their respective, often specialised, fields.