ISSUE 48 SEPTEMBER 2018
Grinning and baring it Why current laws around sexting are criminalising today’s youth Banishing burnout Does hitting rock bottom mean the end of your brilliant career? Reflecting on change Justice Virginia Bell on the battle for women’s legal status Criminal law reforms An analysis of sweeping changes to sentencing and committal laws Modern-day bag search How far does privacy extend when it comes to mobile phones at work? Child sexual abuse redress Why the new government scheme will present a challenge for lawyers All aboard the tech train Why there is no excuse for small firms failing to embrace technology Saving community justice Attorney-General Mark Speakman on new funding for struggling CLCs
The sink-or-swim culture hurting our junior lawyers
Shatteringthe illusion The messy truth behind high-functioning alcoholics in law
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ISSUE 47 I AUGUST 2018 I LSJ 49 Sydney • Brisbane • Melbourne • Perth • Singapore • Hong Kong • India
26 Hot topic
36 Practicemanagement Legal tech solutions must form part of every firm’s future, writes Dominic Rolfe 40 Profile Melissa Coade meets solicitor and artist Amani Haydar who shares a tragic family story Most lawyers eagerly recount their success, yet few willingly discuss their failures. Ray Steinwall argues there’s power in making mistakes 46 Mindset
With a review of the Coroners Act well underway, former Deputy State Coroner Hugh Dillon argues it’s time for an overhaul of how NSW investigates and reports on sudden or unexplained deaths Studies show lawyers are three times as likely as the general population to be problem drinkers. Kate Allman reports on a troubling issue in the profession
In-house lawyer Jason McLennan tells how law and football make for a compelling match
America’s capital has something for everyone – from history
bo ns to wine connoisseurs. Lynn Elsey reports from Washington DC 66 The case that changedme Kingsford Legal Centre’s Anna Cody shares what a Stolen Generation case taught her about legal practice
30 Cover story
ISSUE 48 I SEPTEMBER 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 The LSJ quiz
The latest developments in advocacy and law reform
Reshaping alternate dispute resolution and enforcement – Singapore Convention 2018
National redress scheme and direct personal responses for child sexual abuse survivors
86 Contempt &
freezing orders Avoiding contempt of court for breach of freezing orders
Criminal record discrimination and the need for reform
88 Wills and estates
24 Out and about 44 Career matters 28 In focus
The case for application of the forfeiture rule as a deterrent to elder abuse
When is it reasonable to inspect an employee’s mobile phone?
48 Day in the life 50 Doing business 51 Career coach 51 Library additions 54 Health andwellbeing 64 Books 106 Avid for scandal
Contempt of court – not an everyday matter
Limitation periods in equity – taking an analogous approach
The tricky business of amending trust deeds
Taking security for legal costs – approach with care 82 Regulatory litigation Investigatory powers and the Harman obligation
93 Case notes
A wrap-up and analysis of the latest key judgments – FCA, Criminal, Family and Wills & Estates
4 LSJ I ISSUE 48 I SEPTEMBER 2018
FR I DAY 1 4 S E P T EMBER 20 1 8 • SO F I T E L S Y DNE Y DARL I NG HARBOUR
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ISSUE 47 I AUGUST 2018 I LSJ 49
A word from the editor
Chances are this edition’s cover caught your attention. Not because of the image – which certainly is striking – but because you have at some point in your life stopped to question whether you or someone you know drinks too much. Kate Allman’s cover story on page 30, “One too many”, was borne of anecdotal evidence fed to us about the level of concern within the profession about alcohol use and abuse. We
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman
were hearing that many lawyers – young, old and in between – were worried about using too much alcohol to cope with the stress of their jobs. This led to the article, which you will read here, and also the podcast that Kate and I have produced for the first in LSJ ’s Off the Record podcast series. So why are so many of our members grappling with issues around alcohol? Stress? Culture? Boredom? Everyone has different reasons, but one thing that’s certain is that this is an issue far too many people are dealing with – and it is spoken about far too infrequently. The more we, as a community, can confront and acknowledge our struggles and frailties, the better it will be for everyone. We are human, after all. If this cover story strikes a chord with you, I would encourage you to listen to the podcast (see page 7 for download details) and visit lawsociety.com.au/advocacy-and- resources/mental-health-and-wellbeing for resources and support.
Senior Journalist Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2018 The 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 specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The 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.
HUGH DILLON Hot topic p28
KATE ALLMAN Cover story p30
ANNA CODY Upfront p66
ROSALIND CROUCHER Discrimination p73 Emeritus Professor Croucher is President of the Australian Human Rights Commission. She writes about moving towards more effective protections for criminal record discrimination in employment.
27,501 * *AUDITED MARCH 2018 DISTRIBUTION
Dillon is an ex- Deputy State Coroner and an Adjunct Professor at UNSW Law School. He is a member of Maurice Byers Chambers and argues why NSW needs a stand-alone Coroner’s Court to increase services and overcome delays.
Kate Allman has university degrees in both journalism and law, and is the Online Editor at LSJ . In this edition, she shines light on the somewhat taboo subject of alcoholism in the legal profession – a problem which, she reveals, is shockingly widespread.
Associate Professor Cody is the director of Kingsford Legal Centre at UNSW. She shares valuable lessons about the limitations of litigation when seeking to achieve justice for members
of the Stolen Generation.
Have 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 firstname.lastname@example.org. 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 do not accept unsolicited articles.
Cover image: Andy Raubinger
NEXT ISSUE: 1 OCTOBER 2018
6 LSJ I ISSUE 48 I SEPTEMBER 2018
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SUBSCRIBE TODAY • O the Record can be found on iTunes and SoundCloud • lawsociety.com.au/o therecordpodcast
ISSUE 47 I AUGUST 2018 I LSJ 49
President’s message W hile artificial intelligence is transformingour homes with the likes of Google Home and Amazon Echo, it is also changing the way solicitors work and deliver legal services. To many solicitors, the ability of machines to predict the outcomes of legal proceedings might seem far off, yet artificial intelligence is already being implemented in many legal practices for a lot more than just document review and legal research. It is also increasingly being used in the courts. Technology presents both challenges and opportunities for legal service providers and their clients. Yet, there is much perplexity in the legal profession about how technology will affect the viability of practice and the way legal services are delivered. It is essential to understand and anticipate these changes to ensure you are not left behind. The Law Society is powering ahead with new initiatives to assist the legal profession to meet the challenges posed by technological disruption. The upcoming inaugural Future of Law and Innovation in the Profession (FLIP) Conference and Dinner on 14 September will give attendees the chance to learn from top international and Australian experts as well as experience the latest technological solutions. There will be practical forum sessions, a technology showcase, and a hackathon, with finalists to be announced at the Innovation Awards Dinner. The FLIP Conference will explore the different impacts innovation is having on the various segments of the profession from in-house counsel, litigation and transactional work to the legal assistance sector. Increased digital access to sensitive information and critical services is leading to an increase in cyber risk with new threats and vulnerabilities being identified all the time. The conference will give clarity to many in the profession who are grappling with understanding these new professional risks, as well as new risks their clients face. There will be many other questions explored, including how the use of technology should be regulated and what regulation might look like. The conference and dinner enables everyone involved in the legal industry to be part of the conversation, from solicitors in firms, in-house, government agencies and the legal assistance sector to academics, technology developers, start-ups and consultants. This is an opportunity to come together to share experiences with innovation in the law and learn from the best in the field.
Doug Humphreys OAM
8 LSJ I ISSUE 48 I SEPTEMBER 2018
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ISSUE 48 I SEPTEMBER 2018 I LSJ 9
ISSUE47 AUGUST 2018
Age is no barrier – so don’t make it one Respectfully, the Monday Briefs President’s Message headed “Succession planning: There’s no time like the present” requires response. Having read it twice, still it is not entirely clear what is its precise target. It states: “Solicitors spend much of their time advising clients about estate planning but neglect to implement their own sound business succession plans … There are around 4,309 sole practitioners in NSW, many of them in suburban and regional areas ... Many solicitors today are working well beyond the retirement age of the past. In the rush of daily business and ongoing concerns about the viability of practice, it is easy to put o contingency planning for unforeseen circumstances such as a sudden inability to work because of illness, injury or death … For this reason, the Law Society will be contacting all sole practitioners across the state to advise them of the steps they need to take to plan adequately for the future.” I am a sole practitioner “working well beyond the retirement age of the past”. I am 67 years young. I have a regional practice that employs a number of qualified practitioners, and others. My Senior Accredited Specialist Consultant Solicitor won’t tell me his age, but I gather that he is aged around 75 years. Another is aged 72, another 74. The youngest is 24. I formerly operated a successful Sydney CBD law practice. I tried retirement. The result was the three Ds: debt, divorce, depression. I returned to work, but fell asleep at my desk around 1pm daily. I acquired my current practice around six years ago. In the last month or so, I have: • established a viable branch strategy to take the former business into an electronic process environment, each
of the o ces seamlessly communicating and in daily contact, under
with “working well beyond the retirement age of the past”. Solicitor sole practice is not a new business model. If there is an issue, it surely has to do with the fact that, by definition, regardless of their age, they practise as sole practitioners. Such a person is equally capable of being struck down, or incapable – or even of touring Portugal in a van – before even reaching “the retirement age of the past”. Every day I learn something new and get better at what I do. Everyone working with me, young or old, does so too. I intend to continue, and to guide those who might want to learn my lessons. I suggest that the Law Society might better serve by focusing upon and encouraging a mentor program, where painful lessons and ethical values learned by those “working well beyond the retirement age of the past” can be a bridge to those now coming forth. Every day, the work that is done in building and consolidating our business creates a more secure platform for the ones to come. I respectfully suggest that you explain and qualify the remarks, which have the characteristics, unexplained, of inadequately considered ageist prejudice. Your positive role could conversely be to encourage those of lesser experience to have regard for lessons and values learned from acquired wisdom and past experience, rather than wanting to engage the Society’s resources in the enquiry to which I perceive you to be contemplating. Greg McInnes, Bromhead Legal Amother of an issue Thank you for your article “Mum’s the word” in last month’s LSJ . Without articles such as these, which get people thinking, the legal profession fails to evolve. I have three young children and
central supervision, video communication and quality control, creating new livelihoods for families in the process; • obtained new “Possessory Title” for an aged client needing, but unable, to sell her residence to pay for entry to a nursing home; • solved a boundary issue because the riparian river boundary had shifted on a significant rural property; • assisted a maritime client to avoid insolvency and create a viable business employing many; • worked to help create a new local industry; and • sponsored a local education charity. Notwithstanding that I have the natural yearnings to rent my house on AirBnB and tour Portugal in a van, I have decided it will be a detriment to me and the many others who share the enthusiasm of what is being created, if I stop before I am finished. My active mind of enquiry would drive me and my family bonkers if I stopped before then. I reason that, statistically, I have between 7,000 and 10,000 days left on this earth. I must use every one of them to the best e ect. I would like to leave better and more meaningful than it is now. It needs to be, because the practice models of past days need to evolve with change. Mervyn Victor Richardson’s successful business life commenced when he was aged 65. I do not understand why someone “working well beyond the retirement age of the past” should be a problem for the Law Society. The risk upon which you focus – the 4,309 sole practitioners – has nothing whatsoever to do something behind when I stop, something bigger,
Grinningandbaring it Whycurrent lawsaround sexting arecriminalising today’s youth Banishingburnout Doeshitting rockbottommean theendof yourbrilliantcareer? Reflectingonchange JusticeVirginiaBellon the battle forwomen’s legal status Criminal lawreforms Ananalysisof sweepingchanges to sentencingandcommittal laws Thetimeforevolution Do lawyers reallyhavewhat it takes to survive theA.I.onslaught? Googlingdefamation Why lawyersneed to stepupand evolve inachangingmedia landscape Ditchingherdemons TalithaCumminsopensupabout herdevastatingbattlewithalcohol Breakingperceptions Howeverythingwe thinkweknow about sexoffenders iswrong
Thesink-or-swim culturehurtingour junior lawyers
Puttingbaby inacorner Whychoosi gparenthood isstillriskybusiness in the legalprofession
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19/7/18 4:46 pm
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
Please note: we may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! Greg McInnes has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 48 I SEPTEMBER 2018
just landed a graduate role at a boutique firm in Sydney. I sometimes have to pinch myself that, out of all the applicants, they chose me. I’m getting lots of great feedback on my work so far, but I have to thank the many female and male mentors that I had while working as a legal secretary for a mid-tier firm for 9.5 years after moving here from the US. I hope your article reaches many young men and women and gives a realistic view on what it’s like to become a working parent, at the same time pointing out that it’s definitely doable. Erica Ayad A grateful graduate Despite the sad state of a airs described in the July 2018 article “Bloody Terrifying, the modern law graduate experience”, I enjoyed reflecting on my own experience as a law graduate six years ago. I also started in civil litigation, and I realise now that my then supervisor was exactly that: a supervisor! She was open to questions and provided guidance. She also allowed me to shadow her at court until I was ready to appear. At the same time, I agree with the quote from Registrar Howard that you have to take a bit of initiative and ask questions rather than clam up. I just hope that law graduates reading your article take heart from the tips and hints, and that their next role will be more positive. Now I better go and send a “Thank you” note of appreciation to my former supervisor. Ellen Goh We’re all human Having just received my LSJ August edition, I was reminded that I hadn’t done something I’d been meaning to do since receiving the July edition. I thought your Word from the Editor was brave, admirable and needed. Thank you for helping make it legitimate
to admit to common human frailties. Thank you also for giving hope and inspiring others. You will have made a di erence. Darryl Browne Running rings around the rest of us I read with interest the two pieces in the May edition of LSJ on marathon running. I thought members would be interested in the feat of my old friend Frank Dearn. I met Frank at Sydney University Law School in 1951 and we were both admitted to practice in 1957. I practised for 52 years but Frank outlasted me and held a practising certificate for 59 years. We are both associate members of the Law Society. Like most men of our era, Frank and I played di erent sports, but Frank developed an interest in marathon running. He is still doing marathons at the age of 85. In June, Frank competed in a marathon event at Campbelltown and completed the full marathon course (over 42 kms). In doing so, he became the third- oldest person in Australia to complete a full marathon. Younger members of the profession might draw some e ective inspiration from the performance of this senior member. Rob Lloyd, Narara Don’t blame the guns When children were murdered by their father in NSW using a pistol there was an outcry for banning pistols because one was used to kill his family. Recently in Western Australia, a man killed a mother and her two children. A firearm was not used. What this tells us is if someone wants to kill another person it does not matter if a gun is available or not. Instead of using valuable political time and energy railing against firearms, we should be seeing what can be done to detect and prevent mentally ill people
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ISSUE 48 I SEPTEMBER 2018 I LSJ 11
from killing. I do not intend this statement to reduce the horror of what Edwards did to his family, but to attempt to reframe the debate to provide actual solutions to prevent this type of violence occurring at all. Brendan Manning, Manning Lawyers Pty Ltd Banks are letting down the system As a practitioner with a significant proportion of my practice being conveyancing transactions, I have been a willing adopter of PEXA. The PEXA system is very user-friendly and our PEXA Direct Specialist, Carl Fortu, is always very helpful. I had presumed that use of PEXA would streamline the settlement process and result in e ciencies for my business, which would ultimately benefit my clients. My presumption has been misguided, because I am now finding that because the banks and the settlement agents and law firms acting for them do not appear to be taking PEXA seriously, my team is spending more time on PEXA settlements than we are on paper settlements. In the past week, the majority of PEXA settlements I have had involving a bank have been delayed because the bank has not complied with attendances required by them within the PEXA guidelines and before the appointed settlement time. Examples of these failures to comply include: • Not completing the information about discharge request being received, loan documents being issued and received, and whether they hold a surplus funds nomination; • Not accepting the appointed
The poor performance of the banks in PEXA has resulted in additional time being spent to push settlements through PEXA. It has resulted in me needing to have a team member sitting on PEXA on the day of settlement to see if a bank has completed their attendances for settlement and, on occasion, I have needed to leave a client meeting in order to sign o just before settlement because the bank has signed o 15 minutes or less before settlement. The bank’s conduct also results in settlements being delayed, resulting in vendors not receiving their funds on time and purchasers sometimes sitting outside a house with their removalist incurring extra removalist fees while the bank gets its act together. The issues in PEXA are mostly created by banks or their appointed settlement agents or law firms being tardy. I have spoken to many other conveyancing practitioners and we all have the same issues. Can the Law Society please make representations to the banks, PEXA and the O ce of the Registrar General in relation to these issues as they are having a detrimental impact on the financial viability of conveyancing practices and creating extra cost and inconvenience for those clients whose transactions involve a bank. On a more positive note, for the most part, conveyancing practitioners we have had matters with in PEXA have been very diligent in complying with PEXA guidelines, and conveyancing practitioners acting for vendors and purchasers are to be commended on the professional way in which they have adopted this significant change. At least lawyers and conveyancers acting for vendors and purchasers are
“I’d love to know the average age for female lawyers to have a baby. I’ve had my first before 30 and I don’t seem to know many other lawyers my age that have children. All the lawyers I do know who are under 30 believe that it will ruin their career.” Alana Doyle, Facebook “As I have recently returned from mat leave to full time @NSWBar, it will be interesting to read how others in the profession have found this.” Renee Bianchi, Twitter “Another fantastic article by @KateAllman1! It highlights a problem faced, quietly, by many women in the profession when it comes to maternity leave and flexible work arrangements. It’s one I’ve faced myself! We shouldn’t have to choose between child or career! #whynotboth #auslaw” Arabella Zucchetto, Twitter
“A great article, we need to keep this conversation going!” Karli Evans, LinkedIn
“It’s a very important topic as maternity is putting many female young lawyers behind in their careers. Firms seem to be not very family friendly.” Judy Hamawi, Facebook
“What a beautiful shot, congrats.” Angela Graves, Facebook
settlement date and time until the day of settlement or at all;
“I actually think another issue is there needs to be changes in workplaces to allow men to also have flexible work arrangements, so they can also participate in parenting as was discussed at the end of this article. This will in turn also allow women to return more actively to the workforce (i.e. it is a real option open to both parents to share in earning income and also parenting).” Zoe Durand, LinkedIn
• Not entering source funds and destination funds until minutes before the appointed settlement time or at all; • Not replying to messages sent to them through PEXA.
taking PEXA seriously! Murray Hamer, Legal Practitioner Director, Hamer & Hamer Balgowlah Solicitors
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“Fantastic campaign from @LawSocietyNSW – our
“If only the average person could a ord it. And yet there are so many law grads.” Barbara, Twitter “I saw the new ad on the news stand outside Chifley this evening - coincidentally, while on my way to the Law Society for the launch of the 2018 Young Lawyers Mentoring Program. Great to see our member organisation doing such positive things for its members.” Thomas Russell, Facebook
#JusticeProject has shown time and time again that legal problems left unresolved can spiral into big problems. Access to timely legal advice can make all the di erence #auspol #auslaw There is no substitute for quality legal advice.” The Law Council of Australia, Twitter
“Fantastic initiative.” Christine Smyth, Twitter
“This is an excellent campaign.” Matt McGirr, Twitter
Nate Karazinov, Facebook
This year has seen the short-term loans market become more crowded and complicated, with tighter lending constraints placed onmany businesses, particularly in the construction and development finance sector. Short-term funding solutions found with legal specialist
“I have joined the fast-growing NWCFinance to provide bespoke, expert advice to lawyers on a project by project basis, without conflicts or the spectre of regulatory problems”, he adds. Many of the loan requests – ranging from $500,000 to $20 million – have been organised within days before ATO deadlines, receiving a commercial notice to complete or winding up notice. Matt says, “Given the purpose or use of funds, by its very nature, a quick turnaround time is one of the critical success factors in assisting clients requiring short term funding”. A specialist on your side, Matt can reduce the stress and financial pain by working closely with lawyers, speaking the same language and thinking about the same issues. So call Matt at NWC Finance today to discuss your clients’ needs on 0477 55 22 39 or 1800 628 303 to gain fast, accurate and efficient funding solutions.
Business owners are more often turning to their lawyers for advice about how and who can provide short-term commercial loans. Now there is a solution for lawyers seeking that expert and independent advice – specialist financier NWC Finance . Lawyer and accountant, Matt Tenace, well-known for his expertise in commercial finance, construction and development funding, debt restructuring and pre-insolvency workouts, has joined the NWC team in Sydney. Matt says, “With a law and accounting background, I understand the dynamics in the client/lawyer relationship and speak the same language as you, and can quickly identify the often complex issues at hand.
Matt Tenace J.D. CPA National Relationship Manager – Legal & Accountancy Professions
ISSUE 48 I SEPTEMBER 2018 I LSJ 13
EQUALITY AT THE BAR Scales of justice still lopsided at the bar Women barristers took home just 15 per cent of the $270 million total in briefing fees paid to Australian barristers in the 2016-2017 financial year – despite doing 20 per cent of the work, according to a new report. The first tranche of data from the Law Council of Australia’s Equitable Briefing Policy has revealed women are still battling bias and inequity at the bar. The report compared the total earnings to the number of briefings for men and women in the 2016-2017 financial year and found male barristers received 85 per cent of the fees charged, for undertaking just 80 per cent of the work. Although the Law Council said women now make up almost 25 per cent of barristers in the nation, they receive just 15 per cent of total fees. “Shifting a longstanding culture will not happen overnight,” said Law Council President Morry Bailes. “Yet we are confident that through the conscious efforts of signatories in volunteering to self-regulate, coupled with steadfast regular reporting, we can make a real difference in the coming years.” Bailes noted that inequity remained at the bar, despite female solicitors and law graduates now outnumbering their male counterparts, as was reported in the Law Society of NSW’s 2017 National Profile of the Profession . “We know that women are graduating from Australian law schools in significantly larger numbers than their male counterparts, yet they make up a lower percentage of barristers (23 per cent in 2015),” said Bailes. “[They] spend fewer hours in court, and get paid less in fees. As a profession we can and must improve in this area.” The Law Council report drew data from 4,855 briefings that were submitted by law firms, companies and barristers who had signed its landmark Equitable Briefing Policy since it was launched in 2016. The policy was launched to increase female barrister numbers and representation in the superior courts, with a target of briefing women in at least 30 per cent of all matters – and paying the proportionate 30 per cent value of all brief fees – by 2020. “I note that the trend for junior women barristers is encouraging,” said Bailes, pointing to data in the report that showed women received 28 per cent of briefs among junior barristers. “We are hopeful we will see those junior barrister trends graduating into the senior barrister ranks over time.”
FIRST 100 YEARS Celebrating a milestone
The Chief Justice of the High Court, Susan Kiefel AC, joined members of the First 100 Years of Women in Law initiative for a tour of the Archibald exhibition at the NSWArt Gallery on 17 August.
Chief Justice Kiefel is the first woman to serve as Chief Justice and has held the position since 2017. She has served on the High Court since 2007. Artist Yvonne East, who is a finalist in this year’s Archibald Prize with her portrait of Chief Justice Kiefel, joined the tour, along with Law Society President Doug Humphreys OAM, Law Society CEO Michael Tidball, and lawyers from Herbert Smith Freehills, which funded the commission. East said the portrait was particularly significant as this year is the 100th anniversary of changes to the law that allowed women to practise as solicitors and politicians. Chief Justice of the High Court Susan Kiefel AC, sixth from left, at the NSW Art Gallery with supporters of the First 100 Years initiative, and, below, with artist Yvonne East, whose portrait of the Chief Justice was a finalist in the 2018 prize.
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NEWTHISMONTH NSWYoung Lawyers State of the Profession Address The Honourable Justice Fabian Gleeson, Patron of NSW Young Lawyers, will deliver the State of the Profession Address on an issue he views as important in the practice of law. An annual highlight in the NSW Young Lawyers calendar, this year’s address will be hosted at 6.30pm on Thursday, 13 September at the Law Society of NSW. It is free to attend. The highly-anticipated Rural Issues Conference on 26 October 2018 at Parliament House NSW will focus on the unique matters affecting practitioners in rural areas. Notable speakers include Mick Keogh, Deputy Chair of the ACCC, Jock Laurie, NSW Land and Water Commissioner, NSW Department of Industry, and Deputy Chief Magistrate Michael Allen, Local Court of NSW. The conference offers 6.5 CPD points for practitioners. Register at lawinform.com.au First 100Years project galadinner amust-attendevent The First 100 Years project will host a gala event at State Parliament on the evening of 26 November. Celebrate the hard work of trailblazers, male and female, who fought for a change to the law so women could practise as solicitors in NSW from 1918. NSW Attorney-General Mark Speakman will attend and former Sex Discrimination Commissioner Elizabeth Broderick will deliver the keynote address. Book now at lawsociety.com/first100years Rural Issues Conference
Larissa Behrendt ADVOCATE
Professor of Law and Director of Research at the Jumbunna Indigenous House of Learning at UTS, and first Aboriginal Harvard law graduate on the value of her high school education:
I was encouraged to have a voice and be passionate about what’s right and wrong.
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Allens Associate Keerthi Ravi works in a team of about 200 lawyers on disputes ranging from insolvency to tax and the banking Royal Commission. She has also worked at Corrs Chambers Westgarth and as a judge’s associate in the Supreme Court of Victoria. Ravi co-founded the Diverse Women’s Mentoring Association, a not-for-profit that facilitates mentoring and development opportunities to raise the profile of culturally diverse women in professional services. Ravi is passionate about mentoring and community engagement and is involved in pro bono initiatives for homelessness, asylum seekers and the rights of Indigenous Australians. In her free time, she tutors English and performs Indian music and dance. KEERTHI RAVI sixminuteswith ASSOCIATE, DISPUTES & INVESTIGATIONS TEAM, ALLENS
Diversity Council of Australia reported in 2017 that CALD women are under-represented in leadership ranks. DWMA, founded in 2015, seeks to bridge the gap between CALD women and leadership by facilitating access to role models and creating learning, development and networking opportunities across professional services environments. Men (and non-CALD women) absolutely need mentoring, too. It’s a critical component of long- term sustainability in any career. In DWMA, men can put their hands up to be mentors, which I believe is a hugely rewarding experience. I’ve certainly learned just as much being mentored as I have when I’ve mentored someone else. Best and worst traits of a good mentor? e best traits: willingness to listen, openness, constructive, honest, leading by example, and being invested in a mentee’s personal and professional development. e worst traits: a lack of openness and honesty. While it is important to be constructive, in some cases it’s also important to “tell it how it is”. I’ve admired mentors who have been candid with their experiences and lessons learned. It has made the mentoring relationship feel more open and authentic. Who is your inspiration? I admire Rowena Orr QC, Senior Counsel Assisting the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. She has done an incredible job leading one of the most important nationwide inquiries which will have some level of impact on every Australian. Her calm and measured advocacy style is both authentic and e ective.
What made you choose law as a career? Practising law was always an obvious choice for me. I enjoyed mooting at university and loved the “black letter” elements of my subjects and electives. I interned in the tax department of an accounting rm one summer but I spent most of my time seeking work from their in-house lawyers, so law had a hold on me. I did do my research; I shadowed a barrister who was an excellent advocate (which I loved), spoke to lawyers (heard the good, the bad and the ugly), worked as a paralegal at a law rm (the overtime pay was all that mattered), volunteered in a community legal centre (hugely rewarding) and, on balance, decided that law was the career for me. Having now been in practice for nearly four years, I know I’ve made the right decision. e shades of grey in the law make it so fascinating and serve as a springboard for meaningful law reform. My involvement in the Victorian Royal Commission into Family Violence comes to mind. It helped bring so many changes in perception and made me realise the power of law to bring changes to society and really make a di erence. Why did you co-found Diverse Women’s Mentoring Association (DWMA) and why just for women? Don’t men need mentoring too? Across the professional services sector there is a lack of representation of CALD (culturally and linguistically diverse) women at virtually every stage. Going through law school, I came across numerous CALD women like myself who did not have existing connections or networks in the law, which made a career in the law feel like an unachievable reality. e numbers certainly paint a bleak picture; the
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BY LINDEN BARNES, ETHICS SOLICITOR
Q: How do I win clients in a market where competition is so fierce? Are there certain tactics to avoid? A: Has the ethics solicitor turned into a marketing guru? Most de nitely not. My “clients” are you, the solicitors of NSW. Luckily for me, you keep on calling (that number again is 02 9926 0114 – there’s my bit of marketing). So, let us rephrase the question to an area where I can claim a little more expertise: What are some of the ethical considerations when seeking clients? Here are three to ponder.
Rule 12 - is is the rule about avoiding con icts between our own interests and those of the client. It gives guidance on steps which may help avoid such con icts, including in relation to referral fees. Please don’t forget the prohibition on referral fees in motor accident matters. Rule 34 - is rule is in two distinct parts. First, there are the inappropriate tactics which we must not use for our client. Second, and more relevantly to this topic, is a prohibition on seeking out clients when they are at a signi cant disadvantage. I am sure we have all heard of the term “ambulance chasing”.
Rule 5 - e nal rule I want to mention is the very broad duty not to harm the administration of justice or the reputation of the profession. Rule 34 is a good example of where certain client- building activities could breach Rule 5 – a double whammy in terms of rule breaching. We are no longer like the lawyers of old who were not able to dirty their hands by touching money. However,
there are still important ethical considerations in seeking clients. ose considerations re ect our privileged position as members of the legal profession.
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ISSUE 48 I SEPTEMBER 2018 I LSJ 17
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
Rosemary Aloisio Promoted to Senior Associate Watts McCray
Rescina Hekimian Promoted to Director Watts McCray
MichelleMeares Promoted to Associate Watts McCray
Georgina Dalton Joined as Solicitor, Family Law Koffels Solicitors & Barristers, Sydney
John Kahn Promoted to Principal, Criminal Law H & H Lawyers
Beth Agar Promoted to Associate Watts McCray
StephenWilson Joined as Senior Associate Koffels Solicitors & Barristers, Sydney
Casey O’Mahony Appointed Principal Walsh & Blair Lawyers
Patrick Barrett Appointed Principal Walsh & Blair Lawyers
Shannon Isemonger Promoted to Partner DEA Lawyers
Janelle Boutros Appointed as Partner Atkinson Vinden
CaitilinWatson Appointed as Partner Atkinson Vinden
Erin Brown Appointed as Special Counsel SWS Lawyers
LanceWatson Appointed as Partner Caldwell Martin Cox Solicitors
Jillaine Duve Appointed as Partner Caldwell Martin Cox Solicitors
Patrick Riordan Appointed as Principal Thompson Cooper Lawyers
Sheri Carolan Joined as Principal Gordon Legal
Aron Neilson Joined as Principal Gordon Legal
Juli-MayWelthagen Appointed as Senior Associate Thompson Cooper Lawyers
BelindaMason Appointed as Special Counsel Thompson Cooper Lawyers
LauraMaker Appointed as Senior Associate Thompson Cooper Lawyers
18 LSJ I ISSUE 48 I SEPTEMBER 2018
Peter Lichaa Promoted to Partner, Insurance Bartier Perry
Balveen Saini Promoted to Associate BBW Lawyers
David Hughes Promoted to Partner BBW Lawyers
TomMessenger Joined as a Solicitor Messenger & Messenger Solicitors, Orange
Michael Kozlowski Opened new law firm Kozlowski Legal, Newcastle
Helen Kowal Promoted to Partner Bannermans Lawyers
Anna Bryson Joined as a Solicitor Tiyce & Lawyers
Duncan Campbell Promoted to Partner Bannermans Lawyers
Chris Stevens Promoted to Partner Deutsch Miller
Karina Ralston Appointed as Principal, Family Law Coleman Greig, Penrith
Louisa Daniels Appointed as Associate, Wills and Estate Planning Coleman Greig, Penrith
BonnieMcMahon Appointed as an Associate MatthewsFolbigg Lawyerss
AdamHutchings Appointed as an Associate MatthewsFolbigg Laywers
Antonia Rose Appointed to Partner Webb Henderson, Sydney
John Soueid Appointed as an Associate MatthewsFolbigg Lawyers
SamSaad Promoted to Executive Partner
Matthew Smith Promoted to Senior Associate
Samantha Harmer Joined as a Lawyer, Corporate & Commercial Bartier Perry Pty Limited
Clinch Long Woodbridge
Clinch Long Woodbridge
Mathew Jessep Joined as Director, Sports, Esports, & Entertainment Law DWF
Eric Louca Joined as an Executive Partner Clinch Long Woodbridge
Felix Lo Appointed to Special Counsel AVANTRO, Sydney
ISSUE 48 I SEPTEMBER 2018 I LSJ 19
AWARDS LSJ and Asian Jurist named finalists inMumbrella Publish Awards
The findings of an independent review into community legal centres (CLCs), commissioned by NSWAttorney-General Mark Speakman in September 2017, reveal that underfunding is still at critical levels. The Cameron Review, named after Alan Cameron AO, who acted independently of his role as Chairperson at the NSW Law Reform Commission in conducting the review, recommended that funding for CLCs should expand to just under $12 million per year. This would include an additional $3 million per annum announced by the NSW Government in April 2017. The report said additional funding of $15.6 million was needed over four years to implement the recommendations of the review, and it recommended that the NSW Government shift to a minimum three-year funding cycle to increase stability and confidence for CLCs. The Director of Kingsford Legal Centre (KLC), Associate Professor Anna Cody, welcomed the release of the Cameron Review and the NSW Government’s response to it. “The report emphasises the critical importance of community legal centres like KLC in helping people and communities with their everyday problems,” said Cody. “Without quality early legal assistance in the sorts of problems our clients have, issues can quickly escalate and result in serious financial, social and health impacts,” Cody described Kingsford Legal Centre as “already stretched well beyond capacity” and said the additional funding could help lawyers to help vulnerable plaintiffs with employment and discrimination cases, particularly women who had been sexually harassed at work. The Cameron Review also noted that extra funding was urgently needed to address “signifi- cant gaps” in CLC services. These gaps included in regional and rural areas where no or very few legal assistance services operated, in areas of law where there was significant unmet demand, and to help service under-serviced clients including Indigenous Australians, children and young people, and people with disabilities. For more on this issue, see In Focus on page 28. FUNDING Independent review calls for $15.6million extra funding for CLCs
Two magazines published by the Law Society of NSW– LSJ and Asian Jurist – have earned nominations in the prestigious Mumbrella Publish Awards for 2018. For the fourth year running, LSJ was named a finalist for Association or Member Organisation Publication of the Year – a category it has dominated since the magazine was re- launched in 2014. Asian Jurist, a publication of LAWASIA, is a finalist for Magazine Cover of the Year, alongside LSJ ’s February cover that featured a grinning dog in our wellbeing issue. Online Editor Kate Allman was named a finalist for Young Writer of the Year and Associate Editor Jane Southward was nominated as a finalist for the category of Journalist of the Year (small publisher). The Publish Awards recognise the best in Australia’s print and online publishing industry across a variety of categories. The 2018 winners will be announced in Sydney on 20 September.
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