LSJ - July 2014

JULY 2014


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I f adopted, proposed amendments to the Motor Accidents Compensation Regulation 2005 being considered by the government will see legal costs in the NSW Compulsory ird Party Insurance scheme capped, e ectively pricing out lawyers and leaving injured motorists to fend for themselves. Access to legal representation ensures the best outcome for injured motorists and must be preserved. To this end I will continue to talk to the media and make strong representations to the government to ensure that they understand the impact of such an amendment. Gender equality both within the legal professional and the wider community is of close personal interest to me. I was delighted to host a sold-out screening of the award winning

documentary About a Girl at the society on 4 June. is powerful lm investigates themes of human rights, gender and equality. Following the screening, the lm’s Australian director, Rebecca Barry, leading human rights lawyer Kate Eastman SC, forensic

mental health specialist and Law Society councillor Doug Humphries, and women’s rights campaign coordinator Ming Yu, from Amnesty International, led a lively and insightful discussion. Providing people with assistance and non-judgmental support in a time of need can be a fundamental rst step in helping people cope in a crisis. Lifeline for Lawyers helps lawyers deal with psychological and emotional distress with easily accessible help from a quali ed Lifeline Supporter. John Brogden AC and I launched the scheme on 23 June. You can read more about this important initiative on page 11.

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ISSN 1839-5287

Managing Editor Claire Cha ey Associate Editor Jane Southward Art Director Andy Raubinger Graphic Designer

Welcome to the July edition of LSJ . First, I would like to thank everyone who has provided feedback on the launch edition of LSJ , which we published on 1 June. We have been overwhelmed by the positive response from the membership and are listening to your constructive feedback in an e ort to produce the best publication possible. Second, thank you to everyone who has been in touch wanting to contribute articles for the legal updates section. We are committed to covering important and interesting cases as well as legislative changes and are eager to hear more ideas for articles you believe are relevant and indispensable to our diverse readership. In this issue we have 30 pages of legal updates starting on page 68. We are especially keen to hear more from our regional and suburban members, so feel free to let us know your thoughts, feedback and ideas. I very much hope you enjoy this edition, which is packed full of widsom, inspiration and expertise to get you through the winter blues.

Michael Nguyen Photographer Laura Friezer Editorial enquiries Business Development Manager Jemma Still Classified Ads Advertising enquiries or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2014 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Claire Cha ey


Michael Bradley is the managing partner of Marque Lawyers in Sydney. He looks at the ethical issues behind legal process outsourcing. Hot topic p20

Catherine Fox is a commentator on women and the workforce and an author of three books. She writes about work/life balance for lawyers. Beyond the mummytrack p30

Emma Sutherland is a naturopath and author of 50 Foods that will Change Your Life . She writes about the dangers of adrenal fatigue – and how to beat it. Health matters p52

Jane Southward has been a journalist at Fairfax and ABC Life etc magazine and is the LSJ ’s Associate Editor. In this issue she spends the day with a Salvos army chaplain. A day in the life p42

Cover photograph: Laura Friezer

Got an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.


The average employee doesn’t realise that copying, downloading, emailingor sharing copyright material is illegal without the appropriate licence. Many law rms may be carrying an infringement risk if relying on exceptions in the Copyright Act for copyright compliance across the practice. We have developed a law rm copyright licence with the Law Society of NSW to provide compliance for sta work ow.

To nd out more about our LegalAccess copyright licence visit our dedicated licensing website, or call us on 02 9394 7600.

Copyright Agency Limited, Level 15, 233 Castlereagh Street, Sydney NSW 2000 | ABN 53 001 228 799 phone 1800 066 844 or 02 9394 7600 | email | web


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50 THE TRUTH ABOUT SALT Discover why hidden salt is doing you damage 52 ADRENAL FATIGUE Naturopath Emma Sutherland delves into some scary facts about stress 54 PSYCHE Erik de Jong tells us about the one list we need to write to succeed 55 MUSCLE MATTERS Why optimum health means building muscle

56 CITY GUIDE Your guide to spending 24 hours in Rio 60 YOUWISH Claire ChaŒey explores the lush and luxurious Wolgan Valley 62 ICE DRIVE Peter Arnold slips and slides across one of NZ’s most powerful adventures

20 HOT TOPIC Michael Bradley discusses the ethical issues behind LPO 24 COVER STORY Julie McCrossin chats with outgoing Henry Davis York managing partner Sharon Cook 30 FEATURE Catherine Fox looks into the fraught world of the so-called sandwich generation 34 PROFILE Craig Sisterson meets Zimbabwean human rights lawyer Beatrice Mtetwa

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56 30






To cloud or not to cloud, that is the question

News and events from the legal world 13 FROM THE ARCHIVES 16 CAREER MOVES Who moved where this month 18 GLOBAL FOCUS Legal news from around the world 22 PEARLS OF WISDOM Kathyrn Fagg on women and leadership 40 CAREER HUB Get the best out of work 42 A DAY IN THE LIFE


MANAGEMENT The key to delivering client value 54 EXTRACURRICULAR Richard Shakenovsky shares tales of Mandela and Africa 70 LIFESTYLE The latest in motoring, wine, books and style 87 LIBRARY ADDITIONS



The latest books available in the Law Society library


98 EXPERT WITLESS Legal news to make you giggle

Jane Southward meets Salvos Legal chaplain Susan Reese

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It’s about time! Congratulations on the wonderful new LSJ . I was admitted in 1992 and it hadn’t changed at all, until now. Fantastic to see the change! Ted Dwyer, North Sydney Seeing orange Perhaps the Law Society’s logo should now have a facelift too – like the new LSJ . Its present monochromatic insipid orange should also be consigned to the past, I say. Edward Loong, Milsons Point Workplace bullying In the June edition of the LSJ (at page 82) the article by Amber Sharp includes a statement that: “In Nationwide News Pty Ltd v Naidu & another [2007] NSWCA 377, Mr Naidu su—ered severe psychological damage from “unrelenting abuse” over four years. The court found his employer negligent in failing to provide a safe place of work and awarded him almost $2 million in damages.” That statement is incorrect. The Court of Appeal dismissed the plainti—’s claim against the employer defendant, and ordered Mr Naidu to pay the employer’s costs. The employer, ISS Security Pty Ltd, was held not to have breached its duty of care and had no liability whatsoever to pay damages to Mr Naidu. The award of damages was made solely against Nationwide News Pty Ltd (the client for which the employer provided security guard services). I was the solicitor on the record for ISS Security Pty Ltd. Sam Kennedy, Turks Legal

That’s a bit rich ... Perhaps the editor doesn’t yet know the legal profession all that well. My understanding is – and it is, sadly, my experience of 40 years – that most solicitors don’t in fact do spectacularly well financially from the practice of the law. Unfortunately, a casual lay reader of the new look LSJ might be entitled to think of our profession as multi-millionaires with a taste for Jaguar motor cars and a glass of the best champagne after a walk around Maria Island before jetting o— to enjoy an afternoon’s shopping in Knightsbridge. If only. Peter Rosier, Rosier Partners A new light Thank you for sending a copy of the new look LSJ . Sensational! I’m certain you’ll receive a lot of very favourable feedback very quickly. The bulk of the profession will be thrilled at last; their publication shows them in a contemporary light. Justin Moses, Head of Knowledge & Development, Westpac Doctor, doctor The June edition of LSJ is, in my opinion, the type of magazine more fit for the doctor’s waiting room and not something by professionals for professionals. If I want a cheap travelogue magazine I can buy it from any newsstand but not so for an in- depth legal magazine. Peter Dehlsen, Darryl Quigley Partners Lawyers

A word with Ol’ Blighty? I’ve just read the new form of the Law Society Journal and could you please pass on to the editor and others my many congratulations. It is really very good indeed. One of the best around the world. Perhaps you could have a word with the people who run the one in England! David Hodson, International Family Law Group LLP (UK) refreshing the journal. As well as the much cleaner layout and a wider variety of content, the paper is beautiful. Overall, it delivers an impression of a vibrant, contemporary and quality organisation. I am looking forward to the July edition already. Fiona O’Loughlin, National Manager Legal, Origin All bulk I don’t like the new journal at all. It’s more of a corporate in-flight mag than a law journal. It’s bulkier but has less relevant content than before. I didn’t see anything of value till I got to page 72. I ripped o— the first half and chucked it. David Tritton Cover story I just wanted to drop you a quick note to say that I really like the new look of the LSJ . Well done. Just looking at the cover makes me want to open it up and read it! Charles Antoun, Parramatta All hail modernity Congrats on a great job

ISSUE1 JUNE2014 Untitled-1 1



22/05/14 9:01AM

WRITE TO US: Letters to the editor Email: A great read What a pity I didn’t renew my practising certificate because I have just seen the LSJ and it looks great. I would actually read it, rather than just open it to take the plastic o— before chucking it in the recycling bin! Kristin van Barneveld, Lane Cove Keep it up Congratulations on the new journal. I love the layout, the punchy out-takes, and the content. I hope you can maintain the enthusiasm. Michael Antrum, magistrate, Wagga Wagga Local Court First impressions I’m seriously impressed [with the LSJ ]. Great hard news angles ... and a reflection of the realities faced by a new generation of lawyers with stories on health and wellbeing. One possible

challenge [is] meeting the standards you’ve set in the launch issue. Chris Fogarty, Sydney

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NEWMENTAL HEALTH SERVICE The oŠcial launch of Lifeline for Lawyers took place at the Law Society on 23 June. A problem shared was a problem halved, said Law Society of NSW President Ros Everett at the launch. Guest speaker John Brogden AM attended the event, which was an opportunity to showcase an important new resource for the wider legal community and to thank everyone involved in the conception and development. The initiative is an independent, confidential and free crisis support service available at all hours for lawyers. Sta‘ed by qualified and experienced Lawyer Crisis Supporters, the service provides crisis support rather than an ongoing therapeutic counselling service, with the aim of reducing a person’s stress and improving their ability to cope with a crisis. Speaking at the launch of the service, Everett said: “The practise of law is high-pressured and exacting. Dealing with deadlines, long hours, client demands, legislative changes, new technology, managing a practice . . . the list goes on … and stress levels go up. It is how we manage that stress and pressure that is important. Sometimes we need help. “Since the mid-1990s, the Law Society has built on its support services to help reduce the pressures of practice and improve health and wellbeing. The launch of Lifeline for Lawyers now adds to this mix and will encourage members of the profession to seek help early if they feel stressed and unable to cope to prevent problems from escalating into more serious issues. Lifeline for lawyers can help you find solutions and ways to cope.”


Close to 100 delegates attended the NSW Young Lawyers’ 2014 mid-year assembly at the Blue Mountains Fairmont Resort from 31 May to 1 June.

The theme of the assembly was “Empower, Innovate and Lead” with delegates including oŠce bearers, executive councillors, committee chairs and vice- chairs, representatives from student law societies, lawyer delegates of the 29 regional law societies, court representatives and general delegates attending. The key note address was given by the patron of NSW Young Lawyers, Justice Julie Ward, pictured left, who o‘ered practical and insightful tips to assist delegates thrive in the practice of law. Her Honour also participated in a Q&A session with the president of NSW Young Lawyers, Thomas Spohr.

Other presenters at the assembly included Michael Tidball, the Chief Executive OŠcer of the Law Society of NSW, and Pauline Wright, the society’s Treasurer. The assembly also heard from the acting commissioner of the OŠce of the Legal Services Commissioner, Jim Milne. NSW Young Lawyers also ran a continuing professional development session which included high-profile speakers who updated attendees on the current hot topics in the profession. Delegates participated in several breakout sessions to brainstorm and provide feedback and ideas on the topics of acting ethically in the face of inadequate supervision, innovative ways to derive income to fund projects, and how to engage member groups outside of the typical lawyer under the age of 36. All delegates were also asked to provide input on a draft of a two-year strategic plan for NSW Young Lawyers. Attendees also voted for the 2015 patron and the NSW Young Lawyers charity. The results will be announced at the annual assembly, which will be held from 8-9 November 2014 at the Westin Hotel, Sydney. The mid-year assembly was sponsored by Jade (

Lifeline for Lawyers Crisis Support is available 24/7 by phoning 1800 085 062. Lifeline also provides online crisis support from 8pm-4am which can be accessed at:

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48.3% of all NSW solicitors are aged under 40

CHIEF JUSTICE RECEIVES QUEEN’S BIRTHDAYHONOURS New South Wales Chief Justice Tom Bathurst received a Companion in the Order of Australia (AC) last month for his contribution to the development of the legal profession and, in particular, the implementation of the uniform national rules of conduct. Chief Justice Bathurst was one of several lawyers to receive Queen’s Birthday honours, including The Honourable David John Collier, John Kennedy Mclaughlin and The Honourable Peter Isaac ROSE QC (Members [AM] in the general division); Paul Arthur Daley and Peter John MoŠtt (Medals [OAM] in the general division); and Michelle Therese Crowther (Public service medal). Australian lawyer David Hodson, partner and co-founder of International Family Law Group LLP in the UK, became an OŠcer of the Order of the British Empire. Chief Justice Bathurst was also recently appointed as the chair of LAWASIA’s judicial section. He will play a key role in organising the biennial Conference of Chief Justices of Asia and the Pacific, which coincides with the general LAWASIA annual conference in 2015. One in five employees has performed their job while under the influence of alcohol, according to a poll conducted by the Australian Drug Foundation across a range of industries. According to the results, one in five workers has taken a sickie due to the ežects of alcohol, about 40 per cent admitted to going to work while still feeling the ežects of their drinking, and nearly one in five has performed work duties while tipsy or drunk. The Australian Drug Foundation’s head of workplace services, Phillip Collins, said many people didn’t realise the hidden costs and risks associated with drinking. “From an individual perspective, most people don’t fully understand the ežect alcohol has on them particularly when it comes to drinks one night having an impact well into the next day,” he said. “Alcohol ažects a person’s concentration, coordination, decision making ability and slows reaction times. These can have implications for workplace safety and productivity.” Alcohol and other drugs cost Australian businesses $6 billion a year in lost productivity and absenteeism, the foundation said. The poll surveyed 1000 Victorian employees and was funded by the Myra Stoicesco Charitable Fund.

5,324 private law firms in NSW

57% of corporate lawyers practise commercial law

34% of solicitors in private practice practise conveyancing and property

1 in 5 solicitors earns more than $200,000 132 NSW solicitors identify as indigenous

Source: 2013 Profile of the Solicitors of NSW , Prepared by Urbis for The Law Society of NSW

JULY 2014 I LSJ 11



Work on the next stage of implementing the Legal Profession Uniform Law is in full swing as the Law Society of NSW works closely with the Law Council of Australia

Administration of the new scheme would be hosted in Sydney, too – something Tidball saw as a positive. “This will be a powerful thing for the state. It will allow us to extoll the benefits of our culture of co-regulation in the years ahead,” he said. “Hopefully it will also influence a strong co-regulatory culture in which the new legal services council and commissioner become well connected with the practising profession. Our vision is for a new scheme that is, over time, realistic about the regulatory burden and one which, while protecting the integrity of the profession through high standards, will not deliver excessive red tape.” While NSW and Victoria are the only jurisdictions to have entered the scheme, Tidball expects other jurisdictions will come on board in the future. Visit index.htm for more information on upcoming uniform law CPD sessions.

communications campaign. “There is great eŒort being put into a communications strategy and a confinuing professional development strategy, as well as a very genuine attempt to cover the state as well as we can through educating the regions,” said Tidball. The Legal Profession Uniform Law Application Bill 2014 was assented to in NSW Parliament on 20 May 2014. While Tidball acknowledged that “we didn’t get everything we want and there are elements of the package and the new Bill that we do not consider to be ideal”, he said that what had been delivered was much better than what would have transpired had the Law Society of NSW not had an active and continuing role in developing the uniform scheme. He said positives for NSW included the fact that the Law Society’s role in complaints, the issuing of practising certificates, the registry function, trust accounts and external interventions had been retained.

and the Law Institute of Victoria to develop new Uniform Practice Rules. The Australian Solicitors Conduct Rules, which have already been implemented in NSW, are expected to become the Uniform Conduct Rules. New Uniform Practice Rules are being developed. Both sets of rules will come into force at the same time as the new legal profession uniform law, which is expected to occur in early January 2015. According to Law Society of NSW chief executive o‡cer Michael Tidball, pictured, the new Uniform Practice Rules are unlikely to deviate greatly from the current practice rules and any changes will be communicated via a far-reaching


The Federal Government has advised the Aboriginal Legal Service (NSW/ACT) that the Prisoner ThroughCare program, a frontline service that helps Aboriginal men, women and children leaving jail to integrate back into daily life, will no longer be funded as of 30 June 2014. The Prisoner ThroughCare program is a the result of recommendation of the Royal Commission into Aboriginal Deaths in Custody and is in its eighth year of operation. The program employed one administration o‡cer and five case workers who, through a case management approach, assisted pre- and post-release

operations, announced in the Government’s mid-year budget in December 2013. “Cost-saving measures are one thing, but a direct hit to frontline services – losing the whole Prisoner ThroughCare unit – well that’s just disappointing. “We carry great sadness for the departing staŒ of our Prisoner ThroughCare Unit. And for the Aboriginal people who were benefiting from using this service, we’re truly sorry. “We can only hope the government will see the light once again, and fund this necessary service for our most vulnerable citizens.”

“Our Prisoner ThroughCare field staŒ are engaged in vitally important work on the frontline to assist people leaving prison avoid further recidivism, and these public statements do not reflect what our Prisoner ThroughCare staŒ were accomplishing.” Naden said he had contacted the funding body, the Department of Prime Minister and Cabinet, to express his disappointment. “Although only $500,000 per annum to run, we have little expectation the government will reverse their decision,” he said. “We are already preparing to absorb a big funding cut to our

prisoners in NSW and ACT to get out of jail – and stay out. Phil Naden, the chief executive oficer of Aboriginal Legal Service (NSW/ACT), said in a statement that the new cuts had come as a shock. “Six months ago, the Australian government brutally stripped our budget by 4.5 per cent over four years and now we’re facing even more cuts, this time with a program that is solely, purely ‘frontline’,” said Naden. “We have heard so many public statements by government, in the lead up to and after the 2014 Budget, that no frontline services in Indigenous AŒairs would be cut.

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review THE YEAR IN 1981

Take a trip down memory lane through the pages of the Law Society Journal.

DE FACTO RELATIONS The Law Reform Commission has received a reference from the NSW Attorney-General concerning the legal issues arising from de facto relationships. The NSW courts, unlike the Family Court (which deals with married couples), have no power to adjust the property rights of de facto spouses. A Supreme Court judge recently said that “a significant number of cases come before the courts in which injustice results from the failure of the law to adapt to changing patterns of cohabitation”. This comment came after he was forced to reject the claim of a woman to a share in the family home in which she had lived for 20 years. The woman’s de facto husband had died without leaving a will. The judge pointed out that if the man had no relatives, the property would pass to the government.” WHO IS DEAD? A solicitor received instructions to apply for a grant of administration in an estate consisting of a home, a bank account and some debts. These instructions were given in 1955 and a complaint was lodged with the Law Society recently in regard to the delay. The solicitor cannot o˜er any explanation for the delay of some 24 years. How long is it since you have been through ALL of your files?

Fast facts 1981 6,984 practising certificates issued 25 members reported deceased 816 women members 41 solicitors transferred to the Roll of Barristers

CHILDCARE DEDUCTIONS Sir, I refer to the article from the Women Lawyers Association of NSW on tax deductions for childcare and advise these ladies that quite the contrary to the request “for all parents to write to the Treasurer asking for tax deductions for childcare expenses” this parent will be writing to request the Treasurer to leave things as they are and to give no further assistance to people wishing to place their children in these establishments for their own selfish reasons. It seems to me that women should make up their minds whether or not they wish to pursue a career or bring up well-adjusted and happy children as my experience over many years is that when they try to do both it usually is the unfortunate children that su˜er. John D Plowman

Advertisement from March 1981

JULY 2014 I LSJ 13


LSJ LAUNCH EVENT On 29 June, guests turned out to the The Mint in Sydney to celebrate the launch of the all new LSJ . Guests included State Attorney-General Brad Hazzard and Law Society president Ros Everett (main picture below right), Law Society CEO Michael Tidball, society councillors and contributors.

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THOUGHT LEADERSHIP SERIES 2014 WOMEN AND LEADERSHIP On 2 June, members gathered together at a lunch to hear keynote speaker Kathryn Fagg (below right), board member of the Reserve Bank of Australia, share her thoughts on inclusive leadership and the advancement of women in the profession.

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JULY 2014 I LSJ 15



JEFF MARHININ Appointed as accredited family law specialist and partner Barkus Doolan

MACAIRE BROMLEY Joined as partner in the Restructuring and Insolvency practice Dibbs Barker

JAMES LONIE Appointed as senior

GEORGE HALIKIOTIS Appointed as special counsel in the commercial group Eakin McCaery Cox Lawyers

partner in the Corporate and Commercial group Holding Redlich Sydney

GAVIN PARSONS Now managing director Gavin Parsons and Associates

VANESSA GIBSON Appointed as partner

MICHAEL PAUL Joined as special counsel in family law Mills Oakley Sydney

HUGO PAUL Joined as a lawyer in the

Gordon Garling Moƒtt Lawyers

family law practice Mills Oakley Sydney

KATE MACDONALD Joined as a lawyer in the

EMMA MACFARLANE Promoted to partner in the Commercial Litigation practice Marsdens Law Group Campbelltown

AARON JOHNSON Promoted to partner

MICHAEL BACINA Promoted to partner in the Commercial practice ERA Legal

family law practice Mills Oakley Sydney

in the Commercial Litigation practice Marsdens Law Group Sydney

Know someone with a new position? Email us the details and a photograph (at least 1MB) at:

1 LSJ I JUNE 2014 6 LSJ I JULY 2014



Grace Records Management removes the disorganisation, managerial headaches and inefficiencies from records management. In our fast-moving world, information is a critical resource. To ensure Law Society members have access to solutions for any kind of information or record, from paper to electronic, we’re delighted to announce Grace Records Management as a new Practice Connexions partner. Grace is a national records management and record archiving service, combining movement and storage solutions options. Their service is rapid, efficient and seamless, no matter what type of record you wish to store or when you wish to retrieve it. Member benefits Access discounted rates on carton storage, media storage and security destruction. Find out more at

Elevate Executive Health Checks deliver value through peace of mind and performance. In striving to meet ongoing demands at work and home, we often sacrifice our health and wellbeing. To assist Law Society Members achieve balance and take affirmative action when it comes to their health, we are pleased to launch a new Practice comprehensive medical evaluation, personalised action plan and ongoing support from a team of multi-discipline health professionals all located in the same clinic to support you to optimal health and wellbeing. Member benefits Save $100 on a Diamond or Platinum check, or $50 for the Gold Check. Find out more at Connexions partner in Elevate Health. Their Executive Health Checks deliver a

JUNE 2014 I LSJ 15


global FOCUS



GERMANY NO NUDES IS GOOD NEWS A court in Germany has held that ex- lovers should, on request, delete intimate or nude photos and videos taken of their former partners when a relationship ends. As reported in TIME , the Higher Regional Court of Koblenz ruled that one person’s right of privacy outweighed another person’s ownership rights to intimate photos taken during the relationship. The case involved a couple from the Lahn-Dill region in Hesse in central Germany. During the relationship, the woman had given her consent to her partner, a photographer, to make erotic videos and take many intimate photos. She had even taken some of the photos herself. When the couple separated, she demanded he delete the photos in which she appeared. The Court agreed, stating consent to use and own privately recorded nude images could be withdrawn on the grounds of personal rights, which are valued higher than the ownership rights of the photographer. However, the ex-partner did not have to delete photos and videos in which the woman was clothed, as these had “little, if any, capacity” to compromise the complainant.

CANADA LAW FIRM PARTNERS MISS OUT ON HUMAN RIGHTS PROTECTIONS The Supreme Court of Canada has ruled that a law firm partner’s forced retirement was legal and that partners are not eligible for protection from age discrimination under human rights legislation. As reported by The Globe and Mail , the court held that law firms and other partnerships are allowed to force their partners to retire at the age of 65 because an equity partner was not an employee, and therefore could be not covered by provincial human rights codes. The court noted that status as an equity partner allowed complainant John McCormick (who worked for 40 years at Fasken Martineau DuMoulin LLP, 31 as a partner) to vote for and stand for the firm’s board and share in the firm’s profits and losses, meaning he exercised too much control over his workplace to be considered a mere employee. The unanimous judgment did, however, leave open the door for partners in firms to be employees under human rights codes in other cases where there was an absence of control.

In a landmark case, the Supreme Court of the United Kingdom has held that partners in law firms are “workers” for the purposes of employment legislation, and should be o˜ered protection under whistleblowing laws. As reported by the Law Gazette , the case of Clyde & Co LLP and another v Bates van Winkelhof i nvolved an English- qualified partner in an international law firm alleging she was sacked in 2011 after making allegations against the managing partner of the firm’s Tanzanian operation. The Supreme Court’s ruling means the former partner’s allegations of sex discrimination and unfair dismissal due to whistleblowing will be heard in the Employment Tribunal in September. “Partners are the people most likely to become aware of wrongdoing in LLPs but risked being at the greatest disadvantage with respect to protection,” said counsel for Bates van Winkelhof following the ruling. “High-profile collapses like Enron and Arthur Anderson demonstrate why we need partners to speak out if they spot wrongdoing. It is in everyone’s long-term interests for partners to have the same whistleblowing protection that all other employees already enjoy.”

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NEW ZEALAND, UK, UNITED STATES JUDGES LOOK TO THE FUTURE Judges from three continents recently participated in a successful test run of an international electronic trial, reported the Law Gazette . The “virtual trial” was hosted last month by UK electronic court bundling company Caselines, with Judge Simon Brown of the Birmingham Civil Justice Centre chairing, while South Eastern Circuit Judge John Tanzer acted as counsel for the plainti—, Washington-based Superior Court Judge Herbert Dixon, and New Zealand District Court Judge David Harvey acted as counsel for the defendant. In an event looking to demonstrate the benefits of digital courts for international dispute resolution as well as domestic civil and criminal cases, the participants utilised video technology to watch the trial and a separate screen to view electronic case documents. Judge Brown noted the potential for e-trials to save time and money, a pressing issue given strict budgets under the Mitchell regime, and that the option would be a—ordable and e›cient for small businesses. Judge Harvey said the technology would have ‘considerable advantages’ for domestic cases, and even greater cost savings in the international context.

EUROPEAN UNION NEW PATENT SYSTEM AND COURT DRAWS COMPANIES TO EUROPE A new unitary patent system and Unified Patent Court is likely to lead to a shift from the US to Europe as the preferred forum for patent disputes, a recent survey by Allen & Overy LLP has concluded. Under the new European filing system, rather than filing in individual countries, applicants will seek a single patent only, which can cover 25 countries and opens up a consumer market double the size of the US, at less than 20 per cent of the cost of filing in the US. About 75 per cent of survey respondents said the new system and dedicated European court will benefit them, and half had plans to use the new filing system for some of their current or future patents, reported the Lawyer Herald . “Where companies have made up their minds, one thing that is clear is they are preparing to opt in their crown jewel patents, their most valuable ones,” said Allen & Overy global head of intellectual property litigation Nicola Dagg.

MALAYSIA GOVERNMENT WELCOMES FOREIGN LAW FIRMS Another growing Asian economy has welcomed foreign law firms with Malaysian Attorney-General Tan Sri Abdul Gani Patail announcing that measures to liberalise the country’s legal market had now come into e—ect. As reported in The Law Gazette , the measures were introduced in legislation in 2012 following a decade of liberalisation discussions, and will allow foreign firms to open o›ces in Malaysia and form joint ventures with Malaysian firms. Three licenses are available under the new regime: qualified foreign law firm, international partnership and Malaysian law firm to employ foreign lawyer. Previously, foreign lawyers entered Malaysia on national passports and provided legal services on a “fly in, fly out” basis. The Law Society of England and Wales has worked with the Malaysian Bar Council and other legal bodies on the liberalisation process and has published a guide to help Malaysian lawyers do business with its members. “Opening up a jurisdiction to foreign law firms and foreign lawyers can seem like a leap into the unknown,” said Law Society of England and Wales chief executive Des Hudson.

JULY 2014 I LSJ 19



As more law firms turn to using legal process outsourcing providers to save money, MICHAEL BRADLEY asks whether they are compromising core values.

I ’d never given much serious consideration to the prospect of using legal process outsourcing (LPO) providers for our rm, but I spent half an hour with an LPO rep recently while he explained in some detail how they can improve pro tability. While he was talking, I started thinking about how I could reconcile using his company’s services with our philosophy and values. I realised I couldn’t. Easy answer in the end, but actually there are some pretty big questions here. LPO has been around for less than a decade. As it does with all innovations, the entrenched legal profession at rst pretended it wasn’t there, then loudly poo-pooed it, then made some tentative steps towards it, and is now increasingly getting into bed with it. A milestone was reached when (the then) Mallesons proudly announced it had tied up an exclusive arrangement with a big

Indian LPO with the Abbott-like promise that this presented no threat at all to graduate job numbers. Obviously untrue, but that’s a di erent concern. e rationale being presented by local rms for using LPO services is the same as that promoted by the LPOs themselves: cost e ectiveness and increased pro tability. Prices are under constant pressure, the market is super-competitive, and clients want cheaper solutions. What better way to increase your pro t margin than to send work – which previously would have been done by troops of junior lawyers or paralegals in a premium-grade o ce tower in Sydney or Melbourne, being paid relatively high wages – to India, where it will be done by more senior and at least equal quality lawyers at a fraction of the price? It’s a very simple economic argument, like buying a cheaper brand of copy paper.

Photography: Laura Friezer

20 LSJ I JULY 2014

I had a sudden image of those scenes in gangster movies where the workers in a drug lab are forced to work in the nude so they can’t stash any of the product in their clothes.

In our business, we’re not averse to making a pro t and we do love a bargain. So, all things being equal, there’d be no particular impediment to our giving LPO a go. I was therefore open-minded when the LPO guy started his spiel. He had a long script memorised, so I didn’t need to prompt him with questions and it was interesting to hear what he thought worth emphasising. It became clear that he expected my two big questions to be: will this save me money; and what about client con dentiality? It was the second question that made me sit up. He enthusiastically outlined all the measures his company takes (and I’m sure they’re standard for LPOs) to ensure that con dentiality is protected. eir lawyers are not allowed to bring mobile phones to work, so they can’t photograph the computer screen; no USBs; they have no access to printers or the internet except under strict control; and there are surveillance cameras throughout the o ce. I had a sudden image of those scenes in gangster movies where the workers in a drug lab are forced to work in the nude so they can’t stash any of the product in their clothes. An equally pragmatic approach. So here’s the thing. I understand entirely that what was being described to me is not unusual in that kind of work environment, and that the lawyers are not being treated in an inhumane or denigrating manner. ey would be prepared to suck up much worse conditions, no doubt. I was told by this LPO that they get 800 applicants for every job. is is India, so in context they are some of the fortunate few. I’m not criticising how the LPOs choose to treat their employees. However, the dilemma that struck me while hearing about it is that there is no way on earth we would ever treat our own employees the same way. To say that isn’t to pass judgement on the alternative, it’s just to recognise that it isn’t for us. Our law rm has a set of stated values, and one of them is about giving respect. en again, all the law rms that use LPOs, and I expect all the companies that directly engage LPOs, also have stated values and they’re probably pretty similar.

In any event, I bet none of them require their lawyers to hand in their mobiles at the door, or prevent them from accessing a printer or the internet. Why does this matter? Is it at all relevant that a business, that allows its own employees certain basic expectations of privacy, trust and dignity is comfortable outsourcing some of its core functions to a contractor that denies those same expectations? Well, I think it matters a lot. We’re not talking here about moving to a cheaper building to save rent or sourcing cheaper software. We’re talking about people. Accepting that in di erent countries there are di erent cultural norms, so that it’s acceptable in India to deny employees certain rights which are non- negotiable in Australia, it doesn’t follow that an Australian employer can rest easy with the rationale that that’s just the way things are. You can de nitely argue the alternative, and accuse me of paternalism and arrogance in my refusal to accommodate cultural di erence. But I think you’ll miss the point if you do. As an employer, the question for us is this: as we’re contemplating LPO purely for economic reasons (it will enable us to sell our product either more cheaply or at a higher pro t margin), and LPO means outsourcing labour, do we not still stand morally and ethically (if not legally) in the position of employer to these lawyers? And, if we do, as I believe we do, then how can we not extend to them the same adherence to basic values as we a ord our Australian employees? at’s why we’re not going to use an LPO. But this issue raises some much larger questions, not just regarding labour outsourcing but for businesses that directly employ people in other countries. If, for example, as an organisation you hold a core belief that every person is entitled to workplace exibility, surely you must insist on that as a minimum for all your people everywhere? I say yes, absolutely. But I don’t think it’s a question that gets asked much, let alone answered.

Michael Bradley is the managing partner of Marque Lawyers in Sydney.

JULY 2014 I LSJ 21


New research shows that women are five times more likely to be promoters of their organisations when females comprise more than 25 per cent of the executive team. And when it comes to gender equity, how leaders talk and act can really make a dierence, writes KATHRYN FAGG , a member of the Reserve Bank of Australia board and a non-executive director of a number of companies. wisdom PEARLS OF

O ver the past decade, there has been a lot of work to evaluate the impact of greater diversity of leadership teams. In Australia the number of women in executive management has improved. The most recent figures, from the 2012 Equal Opportunity for Women in the Workplace Agency (EOWA) census, show executive management teams have 10 per cent women – up from 8 per cent in 2008. Now, 10 per cent is clearly an improvement but it is not a very inspiring number, particularly given the number of women in line management positions is even lower at 6 per cent. It seems an enormous waste of talent given that more than 50 per cent of university graduates are women. McKinsey, the management consultants, have reported that companies with top- quartile representation of women in their executive committees perform significantly better than companies with no women at the top – with an average return on equity which is about 50 per cent higher. As well as financial returns, it is recognised that more diverse leadership teams have a broader array of thinking and problem- solving skills, a better match with the customer base and, very importantly, tap into a bigger talent pool.

It is useful to consider what is working to improve the number of women in senior roles in organisations. I’d like to focus on leadership because the reality is that without the strong, visible and vocal commitment of the CEO and also the top team, nothing will happen. The reason that strong leadership is needed is because to shift the gender balance in leadership teams requires deep cultural change. So what do leaders need to do to make a dierence? To answer this question, I’d like to share with you the work done in collaboration between Chief Executive Women (CEW) and the Male Champions of Change. The Champions were in three teams – with one being on the topic the “Role of the Leader”, which has been led by Simon Rothery, the CEO of Goldman Sachs in Australia and New Zealand, who asked executive women to say what made a dierence to their success. Together the Champions and CEW developed a simple and elegant tool – “The Leadership Shadow”. The tool is used to help people reflect on how they can have a bigger impact – based on the way they are perceived – by the shadow they cast. It looks at four questions:

• What I say? • How I act?

• What I prioritise? • How I measure?

We identified that it is really important for a leaders to be able to make a compelling case for change to improve gender balance – and then to repeat that message. If there is one thing we tell leaders they need to do . . . it is to make sure that their own team includes a critical mass of women. Last year, CEW and consulting firm Bain conducted a third survey looking at what needs to happen to achieve gender parity in Australia. Last year’s research shows that the biggest factor in enabling women to reach their full career potential is the presence of women in leadership positions. In fact, the research shows that women are five times more likely to be promoters of their organisation when females comprise more than 25 per cent of the executive team. When a senior leader now asks me what is the most important thing they can do to move the needle – I say it is to make sure that they have a number of senior women in their leadership teams – including in profit and loss roles – not just in functional roles.

This is an edited extract of an address by Kathryn Fagg at the Law Society of NSW’s Thought Leadership event on 2 June.

22 LSJ I JUNE 2014

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