MAN IN THE MIDDLE
JUDGE OF CHARACTER
Duncan McGregor conquers the green divide
AJ Brown dissects Kirby
Why the ASX merger failed
Maurice Blackburnâ€™s replacement for Bernard Murphy
Friday 15 April 2011
Print Post Approved 255003/05160
The small firms beating the big fish at their own game
Dolman Private Practice – Numerous opportunities are available so there is no better time to contact us to discuss your options. Melbourne | Banking & Finance
Sydney | M&A / ECM Senior Associate
Sydney | Commercial Litigation
Senior Associate/Special Counsel Premier top tier firm is searching for a banking and finance lawyer with high calibre experience in project and structured finance. You will be working with first rate partners, provided a strong work flow and great support from the firm with practice development. You will work on cross boarder deals for blue chip clients and mentor junior lawyers. This is a genuine long term opportunity with real prospects for progression. Ref: MEL/4127/RL
Our client’s enviable corporate group includes a capital markets practice comprised of some of the most reputable partners in the Australia. The group regularly advises on high profile capital raisings, IPOs and strategic placements in Australia and internationally. The M&A team works on both public and private transactions advising both corporate clients and investment banks. This key leadership role will challenge you to manage the firm’s strategic client relationships and legal project teams. Ref: SYD/4178/RL
Bright, talented and commercially astute all round litigator is sought by this innovative and expanding national firm. Previous commercial litigation experience is essential. You will be involved in a variety of matters including trade practice, intellectual property and branding, real property, shareholder rights and general contract disputes. You will gain excellent experience providing advice, drafting agreements, and acting on a range of litigation cases and dispute resolutions. Great firm with a friendly, supportive and social culture. Ref: SYD/4101/GG
Sydney | Energy / M&A
Sydney | Compliance
We currently represent a client searching for a lawyer with a background in mergers and acquisitions gained from a top or highly regarded mid tier firm to join its Energy & Resources team. A background in energy & resources in not necessary but candidates should have an interest in gaining practical experience in this sector. This is a unique opportunity to broaden the scope of your experience to include advising on a mix of corporate work involving energy, resources and infrastructure. Ref: SYD/4181/RL
A mid-level compliance lawyer is sought by this leading mortgage and finance advisory team. High level of work for leading banks and lenders in the finance industry sector. You will be exposed to a range of compliance and regulatory work. Previous experience in this practice area is not essential providing you possess solid experience with transactional banking matters. Great mentoring and training on offer within a collegiate team environment. Excellent career opportunity. If you are a talented and bright lawyer looking for a great opportunity and career progression then apply now! Ref: SYD/4149/GG
Melbourne | Construction Lawyer 3 years + Join this first rate construction team and be part of a successful and award winning team with this international firm. You will enjoy a mixed role including gaining exposure to front end work including some of Australia’s largest major projects, including PPPs, and back end disputes including some International Arbitrations. You will work under dynamic partners known for their mentoring and nurturing of talent and act for many of the household names in the construction industry. Ref: MEL/4050/RL
Perth | Employment Senior Associate Opportunity for a senior associate level lawyer to join a premier top tier firm and work in a busy employment practice. You will work on a range of industrial/employment disputes, draft a variety of employment agreements, and advise on equal opportunity and OH&S matters for blue chip clients. The role would suit an individual who is keen to handle a broad caseload of matters on behalf of some of Australia’s largest and fastest growing organisations. Ref: PER/4068/RL
2 years +
Sydney | TMT 1 – 4 years
Prestigious firm’s telecom & technology practice continues to expand creating new opportunities for aspiring technology lawyers. This position will develop your expertise in all aspects of technology related transactions including drafting terms and conditions for complex software and services products, outsourcing and distribution agreements, offshoring and information management compliance and data protection matters. Solid academics required. Multiple roles. Ref: SYD/4182/RL
2 years +
4 years +
Brisbane | Corporate Senior Associate
One of Australia’s leading law firms has an opportunity for an experienced mid level transactional lawyer to join their Brisbane Corporate Team. You must have previous experience in a senior role of a corporate team for a mid-tier or top tier firm with a sound understanding of the relevant complex legislation, equity capital markets, structuring, due diligence and a broad range of other transactions. Competitive salary and great benefits and incentive bonus on offer. Solid academic results are essential. Ref: BRI/4124/GG
In-house Sydney | IT
Sydney | Construction
Sydney | Wealth Management
This major technology group is currently seeking a dynamic and commercially focused lawyer with strong IT Law experience. High-level work will involve drafting & negotiation of complex agreements relating to outsourcing (IT and BPO), systems integration and consulting transactions as well as provision of strategic legal advice to senior management. Major law firm and/or blue-chip technology company background required. Ref: SYD/4183/DS
This internationally recognised Construction & Engineering company has a new opportunity for a dynamic lawyer to handle negotiations and advice on a range of high-profile projects. Front-end or mixed Construction Law experience required from a major law firm and/or a leading company in the infrastructure sector. Work directly with the business and take responsibility for your own portfolio of internal clients! Ref: SYD/3871/DS
New role for a commercially focused lawyer with financial services experience to support the private wealth division of this major financial institution. You will play a key role advising senior management on legal issues relating to their broad range of products and services (including Super, Managed Investments and Life). Large firm background as well as in-house experience preferred. Great prospects and an enjoyable culture on offer! Ref: SYD/ 4179/DS
London | Energy & Resources
Singapore | M&A / PE
5 years +
3 years +
4 years +
International London | Derivatives 3 years +
The lawyers in the capital markets group of this international firm specialise in structured finance, debt and equity offerings and derivatives. Growth has created a role for an experienced derivatives lawyer to join the team. The ideal candidate will have experience gained from a top or mid tier law firm or an investment bank. Sponsorship, career progression and competitive remuneration is on offer. Ref: LON/4192/RL
5 – 8 years Highly regarded international firm requires a projects lawyer with a background in construction contracts to take a leadership role advising sponsors of large scale energy, mining and infrastructure development projects. Must be capable of leading negotiations and project managing transactions. Ref: LON/4194/RL
For a full list of active roles that Dolman is working on throughout Australia and worldwide visit www.dolman.com.au For further information, please contact one of our consultants: Ralph Laughton, Daniel Stirling or Gail Greener Sydney (02) 9231 3022 Melbourne (03) 8637 7317 or email email@example.com
Junior partner or senior associate who has partnership aspirations and M&A and Private Equity experience is needed by an international law firm to advise investment banks and blue chip corporates in Asia on complex cross border acquisitions, disposals and joint ventures . Strong technical skills are essential to manage intellectually challenging deals. Ability to travel is also necessary. SING/4167/RL
“People in the market, such as investment bankers, were writing this off months ago” – Blake Dawson partner Bill Koeck, on the failed merger between the Singapore Exchange and the Australian Securities Exchange
14 16 25 26
THIS WEEK: A round-up of the latest legal news IN-DEPTH: The geographic extension of client needs is seeing a new wave of law firms go national. But, as Angela Priestley reports, the strategy requires a long-term outlook – and a little bit of luck
PRACTICE PROFILE: As the political standoff over Australia’s proposed carbon price mechanism continues, climate change lawyers must be prepared to adapt to any outcome. Briana Everett reports LEGAL LEADERS: Leading climate change lawyer Duncan McGregor has the difficult job of juggling roles on opposite sides of the environmental fence. He tells Justin Whealing how he does it CAREER COUNSEL: Lower expectations and flexible recruitment strategies are the key to finding the right legal talent. Briana Everett reports
COVER STORY: In the competitive corporate legal market, a few small boutique firms have dared to take on big law ... and won. Claire Chaffey reports BOOK LAUNCH: Freehills’ colourful history was celebrated at the launch of a new book tracing the evolution of Australia’s first national law firm. Justin Whealing reports
PROFILE: AJ Brown’s new biography of Michael Kirby explores the paradoxical nature of the retired High Court judge. By Angela Priestley
FOLKLAW: The lighter side of the law
Subscribe to the Lawyers Weekly FREE e-newsletter today!
Kickstart your morning with news,views and information on your profession from Australia’s best legal news website.
www.lawyersweekly.com.au L AW Y E R S W E E K LY 15 A P R I L 2 0 11
Editor’sNote TWO VERY different law firm business strategies are explored in separate stories in this issue of Lawyers Weekly. First, in our cover story on page 18, are the successful small firms started by top-tier partner escapees who sought to use their client network outside the confines of big law. Ironically, two of Australia’s most successful boutique firms – Sydney’s Chang Pistilli & Simmons and Perth’s Cochrane Lishman Carson Luscombe – will soon return, at least in part, to the large-law lifestyle via a merger with Clifford Chance, one of the biggest law firms on the planet. Still, the move should not detract from the achievements of the firms’ partners. Nor should it take away from why they made the move in the first place. The second business strategy relates to the small-to-mediumsized law firms seeking expansion by opening new offices interstate and creating a national network (see story on page 10). The number of firms with such ambitions has increased in recent years, with some law firm partners declaring that establishing a presence across major Australian cities is necessary for maintaining continued growth and meeting the geographic needs of clients. Like the decision to leave a top-tier firm and go it alone, stretching from one city to another requires some exceptional relationships with colleagues, money and confidence in client relationships, as well as a little bit of faith. It’s the latter factor that will trip many up. Lawyers are not known for their willingness to break with tradition or take a punt, and leaving the boundaries of a large partnership and/or taking a firm interstate may not always come naturally. Yet with more and more baby boomers reaching retirement age, but finding little reason to retire, the conditions required for a successful jump into the unknown – money, relationships and confidence in good people – may already be available in abundance for a whole generation of lawyers realising that the notion of taking a “leap of faith” is easier to stomach than it may have been earlier in their careers. Perhaps, given such a generational shift, it’s only a matter of time before we see even more breakaway firms popping up across the country – a number of which also foster national expansion ambitions of their own. And, as demonstrated by CLCL and CP&S, it’s these leaps of faith that truly have a dramatic impact on the business of law.
Editor, Angela Priestley
ON THE WEB Clayton Utz has suffered significant departures recently, losing a partner and a swathe of lawyers to Sparke Helmore and Maddocks. Middletons, Minter Ellison and Mallesons also snapped up some talent. Get the latest on who has moved where at www. lawyersweekly.com.au.
TOP 10 STORIES ONLINE THIS WEEK 1 Lawyer drops C-bomb in court 2 Exodus from Clutz continues with loss to Maddocks 3 Thrills, scandal and diversity celebrated 4 Kirby biography records High Court dissent 5 Sparke Helmore pockets team from Clayton Utz 6 Mallesons’ main man mulls over mergers and marathons 7 AAR referrers take $20k finder’s fee 8 Blocked ASX merger to dampen M&A activity 9 Lawyer switches sides and wins 10 Clifford Chance continues international expansion
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
NEXT WEEK Do the benefits of using social media as a business development tool outweigh the risks? Lawyers Weekly looks at how legal practitioners are embracing social networking tools such as LinkedIn, Twitter and blogs to raise their profile and drum up business online.
EDITORIAL BOARD Lawyers Weekly is delighted to have the following industry leaders on its editorial board Andrew Grech Managing director, Slater & Gordon
Nick Abrahams Partner and Sydney chairman, Norton Rose
Will Irving Group general counsel, Telstra Corporation
Helen McKenzie Deputy managing partner, Blake Dawson
Sharon Cook Managing partner, Henry Davis York
Joe Catanzariti Partner, Clayton Utz
David Cowling Partner, Clayton Utz
Robert Milliner Chief executive partner, Mallesons Stephen Jaques
Ewen Crouch Chairman of partners, Allens Arthur Robinson
Megan Pitt Director, Australian Government Solicitor
Sue Gilchrist Partner and practice leader (intellectual property group), Freehills
Lucinda Smith Partner, Thomson Lawyers
ABOUT US Editor: Angela Priestley Deputy Editor: Justin Whealing Contributors: Claire Chaffey, Briana Everett, Sarah O’Carroll, Ben Nice Design Manager: Anthony Vandenberg Production Editor: Vanessa Fazzino Group Production Manager: Kirsten Wissel Group Sales Manager Adrian Fellowes Head of Media: Fiona Marcar SUBSCRIBE TODAY Lawyers Weekly is published weekly and is available by subscription. Please email firstname.lastname@example.org All subscription payments should be sent to: Locked Bag 2333, Chatswood D/C, Chatswood NSW 2067 ADVERTISING ENQUIRIES: Adrian Fellowes email@example.com (02) 9422 2134 (mob) 0407 489 060 Vic, SA, WA: Stephen Richards (02) 9422 2891 EDITORIAL ENQUIRIES: Angela Priestley firstname.lastname@example.org (02) 9422 2875 All mail for the editorial department should be sent to: Lawyers Weekly, Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067
CAB MEMBER SINCE SEPTEMBER 2000 Copyright is reserved throughout. No part of this publication may be reproduced without the express written permission of the publisher. Contributions are invited, but copies of all work should be kept, as Lawyers Weekly can accept no responsibility for loss. Lawyers Weekly and LexisNexis are divisions of Reed International Books Australia Pty Limited, ACN 001 002 357 Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067 tel (02) 9422 2203 fax (02) 9422 2946 ISSN 1833-5209 Important Privacy Notice: You have both a right of access to the personal information we hold about you and to ask us to correct if it is inaccurate or out of date. Please direct any queries to: The Privacy Officer, LexisNexis Australia or email email@example.com. © 2010 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.
w w w.law yersweekly.com.au
Middle East Opportunities
SNR Denton has a presence in 59 locations in 42 countries spanning the UK, Europe, the Middle East, the CIS, Africa, Asia Pacific and the US. We are one of the largest and oldest international law firms in the Middle East with 10 offices in 9 jurisdictions. Our Middle East offices are growing, and we have particular opportunities in the following areas:
Telecommunications and Technology
Our Energy practice is consistently ranked No.1, and we were awarded “Infrastructure/Energy Firm of the Year” by The Lawyer and “Oil and Gas Law Firm of the Year” by ACQ Global Awards in 2010.
Our Muscat office, ranked 1st by Legal 500 for Banking and Finance, Corporate and M&A, Dispute Resolution, and Projects and Energy, is now looking to invest in and develop a Telecommunications and Technology practice.
We are looking to recruit mid-level to senior energy associates and at partner level for our Abu Dhabi, Dubai and Muscat offices to assist in developing our Energy practice.
We are seeking a senior lawyer with a strong academic background and a minimum of five years’ experience. Knowledge of Oman law and Arabic is not essential but would be advantageous.
Candidates should be from a top tier Law firm, or with a major oil company. You will have experience in energy projects and transactional matters with particular emphasis on upstream and downstream oil and gas and power.
To apply, or to learn more about one of these positions, please contact our retained consultants: Jonathan Walmsley at firstname.lastname@example.org; telephone 02 8014 9050 or Greg Plummer at email@example.com; telephone 02 8014 9052
For more information about our firm, please visit snrdenton.com
Law Society to demand HR act The Law Society of NSW has welcomed Greg Smith SC’s appointment as Attorney-General and Minister for Justice in the new NSW Government. The society has outlined a number of priorities to Smith, including court funding and staffing levels – particularly in rural and regional areas of NSW – the backlog of DNA cases and the introduction of a charter of human rights and responsibilities in NSW. Lawyers get health lessons Victoria’s young lawyers are taking action to improve their health and wellbeing. A new series of innovative lectures, hosted by the Young Lawyers section of the Law Institute of Victoria (LIV), will begin this month, with a focus on fitness and nutrition, preventing depression, and managing stress and anxiety. “Surveys consistently show lawyers are among the most depressed professionals in the country and many leave the profession,” said LIV president Caroline Counsel. CC breaks into Africa Magic Circle firm Clifford Chance has announced plans to launch its first office in Africa. The firm is set to open an office in Morocco to focus on infrastructure and the energy and mining sector while also targeting the major international corporates operating in the region. The move follows its recent launch in Australia through its merger with Chang, Pistilli & Simmons in Sydney and Cochrane Lishman Carson Luscombe in Perth. Legal guide for disaster victims Legal Aid Queensland has launched a selfhelp guide to assist people affected by the natural disasters that struck the state earlier in the year. When disaster strikes – cyclones, storms and floods: A guide to getting your insurance claim paid provides information on understanding insurance policies, submitting claims, how to prove cause of damage to property and what to do if a claim is rejected.
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
According to the report, the ALRC’s budget was cut by $242,000 in the 2010-11 financial year and by $495,000 annually in previous years. As a result, the ALRC could only afford to have one full-time commissioner, president Rosalind Croucher, its education outreach program was discontinued and travel expenditure was reduced. Accordingly, the report recommends that the Federal Government restore the ALRC’s budget cuts for the period of 2010-11 to 2013-13 as a matter of urgency. The report also recommended that the Australian Law Reform Commission Act be amended to provide a minimum of two standing, fixed-term (not inquiry specific) full-time commissioners, with an additional full-time commissioner appointed for each additional inquiry referred to the ALRC in circumstances where the ALRC already has two or more ongoing inquiries. Other recommendations called for the immediate resumption of the ALRC’s public information and education services program, plus the provision of all necessary travel resources. “The ball is now in the Government’s court to address the committee’s recommendations by providing urgently needed funding for the ALRC in the 2011 budget,” said Rule of Law Institute of Australia CEO Richard Gilbert, endorsing the committee’s recommendations. “All five recommendations of the committee go to the heart of the nation having a viable and effective law reform body.”
Lack of funding threatens law reform THE AUSTRALIAN Law Reform Commission (ALRC) needs urgent funding, according to recommendations resulting from a recent Senate inquiry. A report presented on 8 April by the Senate Legal and Constitutional Affairs References Committee, following its inquiry into the ALRC, outlined the committee’s recommendations regarding the ALRC’s recent budget cuts, the terms of appointment of full-time commissioners, the public information and education program, and the conduct of inquiries. The inquiry – the first into the ALRC in 17 years – was announced on 23 November 2010 to address issues such as adequacy of ALRC staffing and resources and the appropriate allocation of functions between the ALRC and other statutory agencies. “Over the last three years, the ALRC’s resources have been stripped disproportionately to government outlays, which is putting serious law reform at risk in this country,” said Senator Guy Barnett, chair of the Senate committee, last year.
R E W IND Malcolm Turnbull (pictured right) won a six-year court battle against a Perth businessman who accused him of knowing that an IT company in which he had interests was founded on dishonestly acquired commercial information. The OECD (Organisation for Economic Co-operation and Development) said Australia needs to bump up the GST, relax foreign investment laws and bring in road congestion taxes to increase productivity. Portugal’s caretaker government reluctantly joined Ireland and Greece in seeking a financial bailout from the European Commission, recognising that the costs of borrowing had become unsustainable. Italy and the United States were involved in secret talks in which they were allegedly considering arming Libyan rebels in an attempt to bring about Colonel Gaddafi’s demise sooner rather than later. The Indonesian parliament passed stringent new laws to combat people smuggling, including the introduction of prison terms of up to 15 years for those convicted of crimes related to people smuggling. w w w.law yersweekly.com.au
Movers & Shakers
D E A L O F T HE W E E K Deal name: Privatisation of Newcastle Knights Key players: Freehills; Bilbie Dan
Freehills helps Knights go private FREEHILLS HAS advised the Tinkler Sports Group on the privatisation of the Newcastle Knights rugby league club. The transaction was approved at a meeting of Newcastle Knights members, held last week, with an overwhelming 97 per cent vote in favour of the move. The change will involve a new not-for-profit company, owned by Tinkler Sports Group, acquiring the assets and operations of Newcastle Knights. Tinkler Sports Group has also undertaken to underwrite at least $100 million in sponsorship commitments over 10 years. This transaction will give the Knights the opportunity to restructure and resolve its current financial position, increase the existing committed revenue derived from sponsorship and corporate hospitality, and increase the annual spend on junior rugby league development, the National Youth Competition and Newcastle Rugby League.
The Freehills team was led by partners Sarah Kenny and Mark Crean, supported by senior associate Shing Lo and solicitors Tracy Nau, Christopher Hill and Ksenia Belova. “The transaction will ensure that the Newcastle Knights has the benefit of stable ownership and financial security for at least 10 years, which will benefit the rugby league team and its members,” said Mark Crean. The league’s club was advised by local Newcastle firm Bilbie Dan.
DE AL MAKERS
Allens Arthur Robinson, Slaughter and May, Carey Olsen
Henderson Group plc on acquisition of UK fund managers Gartmore Group Ltd
Computer Sciences Corporation on proposed acquisition of iSOFT Group Ltd
Australian Agricultural Company Ltd’s expansion of Australian interests through purchase of 53,000 head of cattle from Tipperary Group
Mergers and acquisitions
Food and agribusiness/ commercial
Allens’ Alex Ding (pictured), Robert Speed and Edwina Sinclair
Jones Day’s Chris Ahern (pictured) and Weyinmi Popo
McCullough Robertson’s Rodney Bell (pictured)
Advent recruits Deutsche Bank lawyer Advent Lawyers has appointed international technology lawyer Graham Jefferson to lead the firm’s technology, media and telecoms practice. Jefferson was previously a senior IT lawyer with Deutsche Bank in Sydney, London and Singapore and also worked in-house with Barclays Capital in London. Clayton Utz appoints project finance director Clayton Utz has appointed Angus Foley as a director of project finance in the firm’s banking team in Sydney. Foley joins Clayton Utz from Crédit Agricole CIB Australia where he spent the last three years as director of natural resources, infrastructure and power. Partner swaps Freehills for Minters Minter Ellison has appointed Daniel Scotti as a partner in the firm’s international equity capital markets team. Joining Minter Ellison from Freehills, Scotti specialises in all forms of equity and hybrid capital raisings including IPOs, placements, secondary offerings, rights issues and entitlement offers. TressCox adds DLA partner TressCox Lawyers has appointed Iain Rennie as a partner in the firm’s national corporate and commercial practice in Sydney. Previously at DLA Phillips Fox, Rennie brings more than 20 years of experience in mergers and acquisitions, joint ventures, special purpose contractual arrangements and proposals, transaction structuring, regulatory consents and project management.
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
thisweek xrace discriminationx
Law Council supports reform for ‘offensive’ constitution
THE LAW Council of Australia (LCA) has linked constitutional reform to the reconciliation process via a new discussion paper outlining options for recognising indigenous Australians in the constitution. “Indigenous Australians were denied voting rights, denied fair pay and refused citizenship and, unfortunately, the vestiges of those attitudes continue to exist under the constitution today,” said LCA president Alexander Ward. “Constitutional recognition should also assist with overall reconciliation.” On 8 November 2010, Prime Minister Julia Gillard announced that there would be a referendum to recognise Aborigines and Torres Strait Islanders in the Australian constitution either before or at the next federal election. Professor George Williams, an Australian Research Council Laureate Fellow and the University of NSW’s Anthony Mason Professor, told Lawyers Weekly last month that the constitution still contained elements that most Australians would find offensive. “There are still provisions like Section 25 that permit racial discrimination in that it enables the states to prevent someone from voting based on their race,” said Williams. “Also the ‘race power subsection’, contained in Section 51(26) of the constitution, which the High Court has left open to the possibility that it can be used to enact racially discriminatory laws. “I have no doubt that people would like to see things like Section 25 removed, because people are horrified that it is still actually in there in the first place.” In addition to discussing whether the constitution should guarantee equality and prohibit racial discrimination, the LCA discussion paper also explored the question of whether the Commonwealth should enter into agreements with indigenous communities enabled by constitutional force.
l aw y e r s w e e k ly 15 a p r i l 2 0 11
New chairman for Maurice Blackburn as Murphy appointed judge STEVE WALSH has taken up the position of chairman at Maurice Blackburn after former chairman Bernard Murphy was appointed a judge of the Federal Court of Australia last week. Murphy (pictured left), credited with establishing Maurice Blackburn’s class actions department – which has returned more than $710 million in damages to class action plaintiffs since its inception in 1998 – will commence his judicial career on 14 June 2011. Walsh, who has served as Murphy’s deputy chairman over the past six years, noted Murphy’s significant contribution to the firm – including the expansion of the firm from four offices to 23 across four states of Australia. Walsh told Lawyers Weekly that the firm will continue with its current growth plans, despite the leadership transition. “We’re in a really strong position. We have a strong board, strong managers and a good executive team,” he said. He added that Murphy’s appointment will be a big boost for the profile of the firm. “I think it’s an accolade to the firm to produce such high-profile people who are so sought after elsewhere.” Murphy has a high profile in class actions work, having won 30 since opening the department 13 years ago. Walsh believes this experience will benefit the Federal Court. “Bernard has a practical approach to things and that’s something that will be really welcome in application in many matters he deals with,” he said. Murphy said in a statement that he was “humbled by the opportunity” to serve the court, but that he will be sorry to leave the firm. He was unable to comment directly on his appointment. xpractice shake-upx
Clayton Utz bleeds government talent to Sparkes SPARKE HELMORE has snapped up four senior lawyers from Clayton Utz, adding to its govern ment team in Canberra. Public and administrative law expert Michael Palfrey joins Sparke Helmore from Clayton Utz as a partner, bringing 11 years of experience gained in the legal branches of the Department of Finance and Deregulation, the Department of Health and Ageing, and the Therapeutic Goods Administration. He joins the firm along with three other senior lawyers from Clayton Utz, including consultant James Stellios, an associate professor in
constitutional law at the Australian National University College of Law. A consultant at Clayton Utz since 2005, Stellios has also worked with the Australian Government Solicitor and as Counsel Assisting the Commonwealth SolicitorGeneral. Last week’s addition follows the firm’s 2010 appointment of five government specialists, including partner Richard Morrison, from Clayton Utz. Maddocks has also announced it has pocketed a Clayton Utz lawyer, after recruiting senior associate Mathew Stulic to its construction and major projects group.
w w w.law yersweekly.com.au
thisweek xmerger vetoedx
The decision to block the merger between the ASX and SGX was a rare display of government regulation in the M&A market. But, as Justin Whealing reports, insiders predicted the deal’s demise for months
WHEN TREASURER Wayne Swan blocked the merger between the Australian Securities Exchange (ASX) and the Singapore Exchange (SGX) last week, he stated that the proposed $8.4 billion merger was not in the national interest. While the Federal Government’s decision was also driven by what would be in its best political interests, lawyers were quick to point out that such a display of government regulation might not be in the best interests of a recovering mergers and acquisitions market. “It is never a good thing in terms of crossborder activity to have a transaction knocked back,” said Shaun Clyne, the head of Norton Rose Australia’s M&A group. “It won’t be a deal killer in terms of transactions, but it will lead to a temporary halt.” Clyne said clients were calling him in the days prior to the Treasurer’s announcement, when speculation intensified that the merger would be blocked, expressing their concerns about whether this signalled a shift in the Government’s attitude towards cross-border transactions. “Is this a systematic shift in policy that will have ramifications in other sectors, particularly energy and resources?” said Clyne. “That is a concern and a question we have already had clients ask.” Senior Blake Dawson partner Bill Koeck said that from within the market, “minds differ” as to whether this was a one-off decision from the Government, or part of a broader shift in policy.
“You can argue that a lot of potential foreign companies will see this as an extra level of regulation, which could potentially ward them off.” Although the Federal Government has allowed the vast majority of cross-border M&A deals in the Australian market to proceed, Koeck said the rejection of this deal came as no surprise. “I have been hearing for a long time that there were some very serious objections to the merger,” said Koeck. “People in the market, such as investment bankers, have been writing this off months ago.” Koeck added that many people within the Australia M&A market were reluctant to voice these concerns due to the powerful lobbying efforts undertaken by representatives of the ASX who supported the merger. The Treasurer said the proposal from the SGX would need to be substantially altered for it to have any hope of gaining government approval in the future. SGX chief executive Magnus Böcker has previously commented that he would not alter the current offer. The decision to can the merger is a blow for the two Australian law firms acting on the deal – Clayton Utz and Freehills. Despite the Australian Competition and Consumer Commission (ACCC) giving the deal the green light in December last year, Clayton Utz partner Karen Evans-Cullen knew it would be difficult to get the deal over the line. “We were confident the whole way through that the ACCC would give approval, but this step would probably be the easiest of the various approvals that need to be made for the merger to go through,” Evans-Cullen told Lawyers Weekly at the time. Evans-Cullen and national M&A head Rod Halstead acted as the Australian advisers for the SGX, with Allen & Gledhill acting as the exchange’s Singaporean adviser. Freehills partner Fiona Gardiner-Hill acted for the ASX. Former Freehills partner David Gonski is the chair of the ASX. Both Clayton Utz and Freehills declined to comment when contacted by Lawyers Weekly.
asX and sGX: national interest vs the market
French firm mourns partner Independent French firm Bredin Prat announced the sudden death of its founding partner, JeanFrançois Prat, reports The Lawyer. Prat passed away on 26 March, aged 69. He founded UK firm Slaughter and May’s “best friend”, Bredin Prat, in 1969 and continued working up until his death. Under Prat’s leadership the firm became one of the most recognised firms in the French legal market. a&O leads social initiative Allen & Overy is the first law firm to get on board the British Government’s new “business compact”, which involves companies offering internships to youth from disadvantaged backgrounds, reports Legal Week. The compact forms part of the government’s broader social mobility strategy, unveiled on 5 April by Deputy Prime Minister Nick Clegg. BBC revamps team BBC Scotland has tripled its number of legal advisers after recently finalising its panel review, reports The Lawyer. The number of panel firms now stands at six, up from two. All the firms are based in Scotland. The review was conducted by parties from the BBC’s legal and editorial standards departments, including principal lawyer Rosalind McInnes. Burness and Biggart Baillie – the two original firms on the panel – retained their places. Blp promotes lucky 13 UK firm Berwin Leighton Paisner has promoted 13 partners, signalling its largest partnership round since 2006, reports Legal Week. Nine of the partners, who will take their new titles on 1 May, are in the firm’s London headquarters, while three are based in Moscow and one in Singapore. The partners, of whom almost one-third are female, will practise in the areas of corporate, finance and litigation. Horns come out in Uk defamation case The UK’s leading defamation judge, Justice Tugendhat, upheld a claim against the website Solicitors from Hell, telling its founder, Rick Kordowski, he abused court process, reports The Lawyer. Tugendhat said Kordowski had, by defending the defamation claim, abused the court process by “seeking to cause the claimants to incur costs which he says they have no prospect of recovering from himself”. The website “names and shames” lawyers by letting consumers comment about their service.
l aw y e r s w e e k ly 15 a p r i l 2 0 11
The Australian crawl
The geographic extension of client needs is seeing a new wave of law firms go national. But, as Angela Priestley reports, connecting the dots across Australia requires a long-term outlook – and a little bit of luck
he national-coverage ambitions of law firms have long been the backbone of Australia’s private practice history. For the country’s largest firms, like Allens Arthur Robinson, Freehills and Mallesons Stephen Jacques, it’s been the successful connection of dots across the country in recent decades – via mergers, takeovers, the acquisition of teams and opening of new offices – that have ultimately enabled their success. Still, the foundation blocks typically emerge from century-long traditions of single-city or single-focus law firms that have eventually branched out. In the case of Mallesons, these founding blocks can be traced all the way back to the 1850s, but it was only really in the 1970s and ’80s that cities were linked, mergers occurred and the firm started along a true national path. These days, a new wave of law firms is seeking to connect the dots across the continent, doing the ultimate Australian crawl. And for firms such as Moray & Agnew and Thomsons Lawyers, this
l Aw y e r s w e e k ly 15 A p r i l 2 0 11
expansion is key to not only servicing the growing geographic needs of clients, but also enabling the potential for some significant revenue growth.
Coast to coast Just what can be classified as “national” is debatable. Some believe offices in Perth, Melbourne and across the eastern seaboard is enough. Others, particularly plaintiff firms such as Slater & Gordon, look for numerous small office offerings across all states and territories and within regional centres. For Michael Pitt, the managing partner of Moray & Agnew, being a national firm is about linking one coast to another. Last month, with the acquisition of a six-person insurance team from Sparke Helmore in Perth, his firm declared that it had finally done just that and could consequently label itself “national”. But while extending the firm’s reach has happened faster than the time it took those in the top tier, it’s still been a slow and deliberate
build. Pitt traces the national strategy back to the 1990s, when the firm decided that in order to react to the consolidation of the insurance industry – the major focus of the firm – it needed to extend its reach. “They [insurers] started looking for firms that could provide them with at least multistate, if not national, coverage,” says Pitt. “It was embracing this philosophy that we decided to first extend our reach on the east coast by opening an office in Brisbane in 2000. That was the start of our expansion.” It’s been a steady expansion ever since, with the firm opening in Melbourne in 2004 and later acquiring further spots on the map in Canberra and Newcastle. Thus far, the strategic steady pace that has predominantly relied on the opportunistic acquisition of practice groups has been deliberate for Moray & Agnew. Pitt cites examples of failed national attempts by law firms as cause for assuring such plans are well scrutinised. “I’ve seen too many firms expand too quickly and then have the inevitable partner disputes and bust-ups,” says Pitt. “Our strategy has been one of ensuring that everything we do is given the maximum chance to succeed. We haven’t sought to become national overnight; it’s been a long-range plan and so far it’s been successful.”
w w w.law yersweekly.com.au
indepth And for a firm that seeks to extend its reach via opportunities that emerge from disgruntled partners or teams looking for a change, Pitt also acknowledges the importance of ensuring the right cultural fit. “That’s been of paramount importance to us,” he says. With offices now in Sydney, Melbourne, Brisbane, Canberra, Newcastle and Perth, Pitt concedes the firm’s ability to classify itself as national is a loose one. But, having successfully completed a commitment to opening in Perth, he sees little reason for the firm not to explore opportunities in Adelaide, Darwin and Hobart. Another firm that has recently furthered its national ambitions is Thomsons Lawyers, which is preparing to open in Brisbane as a result of 10 DLA Phillips Fox partners who voted against the merger with DLA Piper. Thomsons’ chief executive partner, Adrian Tembel, says that although his firm was lucky enough to be able to snap up the 10 partners leaving DLA Phillips Fox, the new Thomsons Brisbane office would have happened regardless, and is part of a long-term strategy to go national and break the $100 million revenue mark. Tembel counts his firm as part of the second wave of law firms to go national, with the larger
“I’ve seen too many firms expand too quickly and then have the inevitable partner disputes and bust-ups. We haven’t sought to become national overnight; it’s been a long-range plan and so far it’s been successful” MIchael pItt, ManagIng partner, Moray & agneW
firms in the Australian legal sector having become what they are today via that series of consolidations or mergers in the 1980s and ’90s. “I think what we’re seeing now is that there’s a block of 10 or so firms behind the large law firms that are naturally the second wave [of going national]. I think it’s the natural progression of a maturing industry,” he says. Tembel is not convinced there will be room for all those involved in the second wave to truly reach a full-service national capacity. But he’s confident that by working with quality lawyers and keeping them and their partners satisfied in the process, his firm can succeed – especially given the fact it hasn’t lost a single equity partner in more than two years. But despite the national ambitions of some, a handful of large law firms have resisted the urge
to expand their reach across Australia – at least for the moment. One example is Middletons, whose size and clout in the Australian market has grown to significant levels even though its presence is limited to Sydney, Melbourne and, more recently, Perth. While Middletons managing partner Nick Nichola labels the firm a “full-service national commercial law firm”, he does note that its limited presence – particularly the missing Brisbane piece – may lead some to question just how national it truly is. “There’s probably one or two other jurisdictions we need to look at as well,” says Nichola, who adds that opening other offices in Australia will come down to opportunity. “Then there’s the whole international scene, in particular the region on our back-door step including China and India. I think there’s a lot more that Middletons needs to do.” No doubt the notion that there is a “lot more to do” is on the minds of law firm partners and owners across the continent. While not all can be successful in their plans for Australia-wide domination, Mallesons is a fitting example of why, with opportunity on board, the potential for such success can be limitless. lW
l aw y e r s w e e k ly 8 a p r i l 2 0 11
a tale of two men AJ Brown’s new biography of Michael Kirby explores the man at the centre of a controversial period in the High Court’s history. The author tells Angela Priestley how he came to know the paradoxical nature of the former judge
Above: Biographer AJ Brown says former High Court judge Michael Kirby (left) is a more conservative character than his public persona suggests
T WAS IN 1986 that AJ Brown first met Michael Kirby. The encounter with the man who would soon become a High Court judge was unusual: meeting Kirby was the first prize in a law school essay-writing contest organised by the University of NSW. “I put a bit of effort in [to the essay], thinking it would be wonderful to meet Michael Kirby,” AJ Brown tells Lawyers Weekly. “Consequently, I won the prize and got to have morning tea with him. That was the beginning of my understanding of what a paradoxical character he is.” Fifteen years later, Brown continues to be perplexed by the paradoxical nature of Kirby. But, having spent a number of years researching his life and career, he is closer than most to understanding the real Kirby. Last week, Brown launched his biography, Michael Kirby: Paradoxes and Principles, at two events in Sydney and Brisbane. A professor at Griffith University, Brown maintained contact with Kirby ever since that initial encounter, noting his continued curiosity regarding how the Michael Kirby he knew from the media could be so different from the Michael Kirby he met in person. “He was a much more conservative, traditionalist character in person than the progressive, modern and slightly radical reformist figure that his public reputation suggested,” says Brown. It was during a later encounter that Kirby told Brown he had been approached by a number of people who expressed an interest in penning his biography. He made it clear that he wanted a lawyer to write it, rather than a journalist. Realising that somebody would eventually become Kirby’s biographer, Brown decided to pitch it as his first major academic project.
l aw y e r s w e e k ly 15 a p r i l 2 0 11
“I thought, it needs to be written by somebody who is conscious and aware of the extent of these paradoxes because otherwise it could be a really inaccurate biography,” he says. When Brown started his research, Kirby was still on the bench. Indeed, many of the controversies to plague the High Court, and Kirby’s career, had either just broken or were yet to unfold, giving Brown a front-row seat. Of particular interest were false allegations made by senator Bill Heffernan that Kirby had used Commonwealth cars for sexual purposes – a claim that consequently divided the High Court. In the book, Brown reveals that the judges were the first to know that the accusations were false. Justice Mary Gaudron became the High Court’s “first whistleblower” after her pleas to chief justice Murray Gleeson to issue a joint statement declaring their united support for Kirby fell on deaf ears. The author provides some clarity in what was a controversial period for the High Court of Australia and the Howard government, telling Lawyers Weekly he has provided “his best assessment” of the incident via extensive document research, Freedom of Information requests and interviews. But just as importantly, Brown sought to document the general inner workings of the
High Court and Kirby’s unique professional character by analysing his draft judgments, memos and communications with associates after judgments were handed down. As a result, Brown uncovered some significant issues regarding the process of joint judgment writing. “Some people will find that controversial,” says Brown. “There’s always *been Michael Kirby: Paradoxes andjudgments Principlesget this traditional illusion that (The Federation $59.95) bycomplete, AJ Brownbut completed by thePress, court whole and is available selected bookstores. they are the at product of months and months of drafting and … refinement. It’s a process that’s very important.” It was not until much later in the research process that Brown actually interviewed Kirby, using, he says, his “forensic instinct” as a lawyer. “I zeroed in on the documents first and anything relevant to his life,” he says. “I figured I would cross-examine him on the evidence at the end of the process rather than at the beginning.” As for initial reactions to the manuscript, Brown says Kirby has offered little response so far. “He’s working from the presumption that it’s factually accurate and well researched,” says Brown, who concedes there may be arguments regarding the interpretation of some events. “We’re going to have some interesting discussions for years to come.” LW
w w w.law yersweekly.com.au
08-146 | Hudson Global Resources (Aust) Pty Limited ABN 21 002 888 762
MAKING YOUR CASE AROUND AUSTRALIA AND THE GLOBE To experience the challenges and exposure for a satisfying career in law, you need a legal recruiter at the top of their game. You need Hudson Legal. We offer an expansive portfolio of public sector, private practice and in-house roles both locally and internationally. Backed by over twenty years of success, Hudson Legal has the industry insight and global coverage to deliver you career-defining opportunities. And our people know law. Our specialist consultants leverage years of expertise to understand your situation and find the perfect-fit role for you every time.
SYDNEY RESOURCES LAWYER
• 5-8 Years PQE • National Law Firm Our client is a leading national law firm with a well established and growing energy and resources practice. Work with blue chip clients in the Oil, Coal and Resources sectors. Excellent mentoring from top-tier partner. Ref. No. BX/31906.
BANKING & FINANCE LAWYER
AU . H U D S O N . C O M / LEGAL J O B S
MELBOURNE IN-HOUSE PROPERTY/ COMMERCIAL LAWYER • New Position • CBD Location Fantastic opportunity for a property/ commercial lawyer to join a high performance, in-house team. You will have at least three years legal experience, strong drafting and negotiation skills and an enthusiastic approach. Ref. No. 3B/54128.
VIC GOVERNMENT SENIOR LAWYER • Leading Government Department • Policy, Legislative, Regulatory Advice Our client seeks a policy lawyer to develop state-wide building policy and implement it through legislative/ regulatory review and amendment. You will understand government legislative and regulatory processes, engage in ministerial directions and carry out legislative functions across a range of priority projects. Ref. No. 3B/55543.
PRIVATE WEALTH • M&A Background • BRW Top 100 Work Amazing role for a 2-5 year PQE corporate lawyer to provide highly personalised quality advice to Australia’s most wealthy and influential family groups, individuals and businesses. You will work across a range of transactions including joint ventures, mergers and acquisitions and corporate governance. Ref. No. 3B/52613. For further information, please call Greg Monks on 03 9623 6746, or Stuart Ablethorpe on 03 9623 6777, quoting the relevant reference number.
BRISBANE IN-HOUSE FRANCHISING & LEASING LAWYER • 3+ Years PQE • Dynamic Financial Institution Our client is one of Queensland’s leading financial institutions with a large and well established legal team. An exciting opportunity exists for a franchising and leasing experienced lawyer who has worked in private practice or an in-house role. Knowledge of leasing and/or property and/or corporate and commercial law would be an advantage. Ref. No. BX/32004.
IN-HOUSE CLAIMS LAWYER • 3+ Years PQE • 12 Month Contract Our client is a world leading insurance broker and risk advisor who offers business insurance and risk management services. An exciting and rare in-house opportunity has arisen for a Claims Lawyer to join their Brisbane office. Defendant insurance experience with exposure to PIPA will be highly regarded. Ref. No. BX/31959. For further information, please call Nick Robertson on 07 3258 8374 or Katie Rogers on 07 3258 8302, quoting the relevant reference number.
• 3+ Years PQE • London Our client is a leading premium global law firm seeking to source an exceptional lawyer with solid experience in the project finance and banking sector. You will have excellent academic qualifications and proven technical legal ability. Australian/NZ top-tier and mid-tier experience preferred. Ref. No. 3B/54112.
SENIOR COUNSEL – MEDIA • 8-12 Years PQE • Hong Kong Our client is a leader in global media. You will provide business and legal support/advice to the Network, specifically to the Network’s Sales & Distribution business in Asia. TMT experience is a must. Uniquely, there is no requirement to speak Cantonese or Mandarin. Ref. No. BX/31906.
CORPORATE/ RESTRUCTURING LAWYER • 4-8 Years PQE • Central London Silver Circle law firm. Leading team. A great opportunity to enter the London market and deal with high profile work for large banking institutions and insolvency practices. Corporate and restructuring experience and strong academics are essential. Ref. No. BX/32081. For further information please call our consultants below, quoting the relevant reference number. Sydney: Dan Hogan on 02 8233 2649 Melbourne: Greg Monks on 03 9623 6746 Brisbane: Nick Robertson on 07 3258 8374
• Transport & Infrastructure Project • 3-6 Month Contract High profile government department is seeking a commercial lawyer, 5-8 years PQE, who will be responsible for providing legal advice, risk management and contract management across infrastructure/ projects, property, contracts and IT/IP. Immediate start. Ref. No. 2C/11636.
LEGAL COUNSEL • 4-6 Years PQE • Leading Australian Financial Institution Liaise directly with the business on a variety of high level work including managed funds and investment management, PDS, marketing and investor communications. You will have 4-6 years PQE with a specialisation in funds management. Ref. No. 2B/48468.
CONTRACTS MANAGER • 7+ Years PQE • Global IT Company Work closely with the sales team and other key stakeholders and be responsible for leading the negotiation of complex customer contracts in the Corporate and Government sectors. Top-tier/in-house experience required. Ref. No. 2B/46678. For further information, please call Lisa Delehanty on 02 8233 2246 or Bonnie-Louise Lussier on 02 8233 2367, quoting the relevant reference number.
Climate challenge As the political standoff over Australia’s proposed carbon price mechanism continues, climate change lawyers must be prepared to adapt to any outcome. Briana Everett reports
here have been a number of developments within the climate change arena since Malcolm Turnbull lost the Liberal Party leadership and former PM Kevin Rudd was controversially ousted, having just dumped the proposed emissions trading scheme (ETS). In 2011, the political ball game has changed significantly, with Opposition leader Tony Abbott taking the reins from Turnbull and Prime Minister Julia Gillard stealing the top job from Rudd – who this month candidly admitted that his decision to abandon the ETS was wrong. After the Gillard Government announced in February the introduction of a two-stage carbon price mechanism, the issue of climate change and what steps Australia will ultimately take for the environment was put firmly back on the political agenda. On 24 February, Gillard revealed plans for an initial fixed carbon price, which will eventually transition to a “cap and trade” ETS to be linked to international carbon markets. Although the proposed carbon price mechanism has been agreed to by the Government and Greens members of the MultiParty Climate Change Committee (MPCCC), the finer details of the carbon pricing framework, expected to begin as early as 1 July 2012, have not yet been finalised. According to the MPCCC, it was agreed that the proposal be publicly released to enable consideration by the community and to reveal the progress that has been made. At this early stage, the fixed price of carbon emission permits in the initial phase – which is to last between three and five years – has not been set and the level of abatement Australia is looking to achieve has not been confirmed. Without knowing the main elements of the Government’s proposed framework, companies are unable to fully prepare for and understand the impact the scheme will ultimately have on their business. “There is a lot of angst in certain sectors of the business community about the period of fixed permits,” says Clayton Utz partner Brendan Bateman. “The fixed price period, in some respects, puts up one of the most difficult questions that have to be answered, which is the level of abatement that we’re looking to achieve in this country. “Both the Gillard Government and the Federal Opposition have an unconditional five per cent abatement target by 2020, but they obviously differ in how they’re going to achieve it. One wants to use taxpayers’ money and the other one wants to initially start off with a [fixed price] and move to an emissions trading scheme.” Gillard’s proposed carbon tax has not yet received full support from the independents and key business groups, and it has been heavily criticised by the Opposition, with Abbott labelling the PM’s move a “fundamental breach of faith with the Australian people”. “There’s a better way to tackle climate change than a massive new electricity and petrol tax. We have a plan to reduce greenhouse gas emissions by direct action, without driving up electricity and petrol prices,” Abbott said in February.
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
With Abbott declaring that any price on carbon will be abandoned if the Opposition wins the next election, and Gillard’s leadership in doubt following claims Rudd is vying to win back the top spot, unease will continue to spread among business groups and industry members as long as Australia’s position on climate change remains uncertain. For lawyers working in the climate change space, this political brawl is merely another diversion in the nation’s progress towards the seemingly inevitable – some form of ETS – requiring them to once again attempt to anticipate what the architecture of Australia’s scheme will look like, if it eventuates.
Adaptability is key Despite the lack of certainty, climate change lawyers are not madly scrambling to decipher proposed legislation and have not been inundated with work – yet. Instead, it’s more of a “wait and see” atmosphere as the legal sector prepares for the impact of the latest scheme, which is closely aligned to the carbon pollution reduction scheme (CPRS) dealt with previously. “Whether it actually comes to fruition may be a bit problematic, but if it does, I think it will affect us in much the same way…,” says Allens Arthur Robinson partner Grant Anderson. “We’ll have clients who will want advice on how the legislation works and what the initial obligations are. Clients are already talking to us about the carbon pricing mechanism and what it is, in a preliminary way.” While he believes the effect of the new scheme will be much the same, Anderson adds that if the legislation is passed, it will lead to “quite a big kick” in work, involving the drafting of clauses with respect to carbon liability allocation. “There will be a large increase in work to begin with and then, as you’d expect, over time that work will gradually tail off and it will become business as usual.”
w w w.law yersweekly.com.au
practiceprofile “Our view is that the regulatory framework is very fluid, so we need to be ready for any eventuality” LOUIS CHIAM, PARTNER, MALLESONS STEPHEN JAQUES
“There’s a challenge in terms of drafting clauses that fairly and reasonably allocate whatever the carbon liability might be”
“There is a lot of angst in certain sectors of the business community about the period of fixed permits”
GRANT ANDERSON, PARTNER, ALLENS ARTHUR ROBINSON
BRENDAN BATEMAN, PARTNER, CLAYTON UTZ
But while the Government’s proposed carbon price mechanism will have a similar effect on workloads for climate change lawyers as the previously proposed CPRS, the advice is for lawyers to stay flexible and think long term in their day-to-day work. “Our working assumption is that we need to be prepared were [the scheme] to come into force,” says Mallesons Stephen Jaques partner Louis Chiam. “Certainly, our view is that the regulatory framework is very fluid, so we need to be ready for any eventuality.” The test for lawyers is structuring long-term contracts that accommodate this uncertainty over the carbon price mechanism and any future developments. “There’s a challenge in terms of drafting clauses that fairly and reasonably allocate whatever the carbon liability might be,” explains Anderson. “Even though we don’t have a carbon pricing mechanism at the moment, the anticipation is that in the next five years or so, something will happen. So if you’re entering into long-term gas or coal contracts, clients want to have clauses that cover the allocation of carbon, whatever happens, whether it’s an emissions trading scheme, a carbon tax or direct regulation. Either way, we have got to be flexible in our drafting.” According to Bateman, large deals are still being carried out despite industry talk of carbon price uncertainty impeding investment. “You need to form a view, indeed a long-term view, of what the carbon price is likely to be,” he says. “It’s not stopping business from taking place, although you might find a reticence to engage in it from the small-to-medium end of business.” Also offering potential for more work is the Government’s recently announced Carbon Farming Initiative, a carbon offsets scheme aimed at providing new opportunities for farmers, forest growers and landholders and helping the environment by reducing carbon pollution. With the legislation underpinning the initiative introduced to Parliament on 24 March, it is yet to have any direct impact on businesses. However, like the newly proposed carbon price mechanism, climate change lawyers are already receiving questions from clients. “There appears to be no certainty that it will be passed,” says Anderson. “But we’ve certainly had enquiries from clients and discussions with them about what it might entail for them – the opportunities that it might present.”
energy efficiency opportunities by large energy-using businesses and, in turn, encourage implementation of cost-effective energy efficiency measures – as well as the National Greenhouse and Energy Report Act, which provides for the reporting of information related to greenhouse gas emissions, greenhouse gas projects, energy production and energy consumption. “We’re giving advice to existing clients to meet their obligations, interpreting that [legislation] for clients,” he says. The demand for green buildings, according to Chiam, has grown stronger since the property market bounced back after the global financial crisis, providing a significant amount of work for his team, along with issues such as coastal retreat with respect to planning and approval processes. “We have a number of clients who are looking at projects driven by regulatory structure, whether it’s renewable energy or opportunities in agriculture and the Carbon Farming Initiative,” he says. “A lot of our clients are watching that space very closely.” LW
Beyond the ETS Keeping climate change lawyers busy while they await the outcome of the Government’s proposed carbon price mechanism is work related to energy efficiency initiatives, particularly in the commercial building sector. “I think energy efficiency is bound to increase workload,” says Anderson. “The Government has received a report on various energy efficiency proposals. Again, if they are followed through, we will have a substantial increase in work.” Even if those initiatives don’t eventuate, Anderson says there is plenty of ongoing work under the Energy Efficiency Opportunities Act – which aims to improve the identification and evaluation of
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
shades of green law Prominent climate change lawyer and Minter Ellison partner Duncan McGregor has the difficult job of juggling roles on opposite sides of the environmental fence. He tells Justin Whealing how he does it
uncan McGregor knows all sides of the environment and climate change debate intimately. On the one hand, as the head of Minter Ellison’s climate change group, he regularly acts for corporate clients caught on the wrong side of environmental law matters. The other professional hat he wears is as the head of the Federal Government’s Domestic Offsets Integrity Committee (DOIC), to assess proposed methods for developing and selling carbon credits. Given his personal interest in protecting the environment, has he ever found it hard to defend a client from an ethical viewpoint? “No,” he says, matter-of-factly. “I would have to say honestly and in quite a straight-forward way that [that question] has never actually concerned me, and I think that comes down to the quality of the clients that a firm like Minters has,” he says. “All our clients that I have dealt with in this area have been very concerned about their potential environmental liabilities. I can’t off the top off my head think of any circumstance where there has been a deliberate course of conduct or act where someone has got a pipeline and deliberately directed it to the local creek system so they didn’t have to pay some environmental licence fee, or something similar to that.” While McGregor’s practice covers a wide range of areas, from environmental and town planning issues to helping prepare for the imminent arrival of an emissions trading scheme (ETS), he says that acting for clients in environmental crime matters is one of the more interesting and “pointy” parts of his job.
l aw y e r s w e e k ly 15 a p r i l 2 0 11
Political clout: Duncan McGregor has been appointed the head of the Federal Government’s Domestic Offsets Integrity Committee
“A large chunk of my other work involves assisting clients to move ahead with a project or strategy, while with environment crime you are, as far as possible, preventing them from going backwards.” Clients often call on McGregor after the environmental authorities have commenced an investigation, typically into liquid discharges, air pollution or ground contamination. “There is some hand-holding in that, but it is very valuable work for clients, particularly on the reputational risk side and because the fines are quite significant.” Environmental planning is another area of environmental law that has always interested McGregor, who has acted for high-profile clients including Westfield Group and the chemical company ICI. He says he wanted to follow in the footsteps of his father, Kevin, and become a lawyer but was not attracted to corporate or finance work.
So, after graduating in the mid-1980s, he took a position with justice Paul Stein of the NSW Land and Environment Court. While McGregor enjoyed developing his core environmental planning competencies under Stein’s tutelage, it was also the judge’s interest in areas such as mental health issues and prison reform that left an indelible impression, with McGregor describing him as “a very cool and inspiring person to work for”. Like Stein, McGregor has sought to involve himself in varied legal issues. His appointment to the DOIC and his work on behalf of the Australian Indigenous Chamber of Commerce, where he assisted the organisation to develop a best-practice model for indigenous participation in the carbon market, are two areas where has stepped outside traditional legal realms. McGregor has come a long way since joining Minter Ellison in 1989 as a “baby lawyer”, charged with building his and the firm’s client
w w w.law yersweekly.com.au
legalleaders base in environment planning. “I like physical things, and while I understand the complexities of finance law and M&A and why people would get engaged in that area, what rocks my boat is the physical side of things,” he says. “I like the fact that I can drive down the street and say that [a building’s construction] is something I was involved in. It gives me a great sense of satisfaction.”
A breath of taxed fresh air Over the past decade, an increasing awareness of global warming and the gathering momentum of the ETS debate in many jurisdictions has put environment law at the forefront of social and political discussions. McGregor supports an ETS, and he has assisted some of Minter’s large corporate clients with regard to the proposed ETS in Australia. “There remains a significant level of uncertainty related to the form of an ETS, so there are some things where lawyers can give clients sensible advice despite that uncertainty,
A large chunk of my other work involves assisting clients to move ahead with a project or strategy, while with environment crime you are, as far as possible, preventing them from going backwards” and sometimes that uncertainty restricts a lawyer’s ability to provide advice,” he says. “There is a whole range of things flowing from a possible ETS, including the basics like contract reviews and the drafting of new contracts to ensure pass-through clauses are dealt with.” McGregor’s appointment to the Government’s Domestic Offsets Integrity Committee enhanced his status as one of the country’s leading climate change lawyers. Greg Combet, Minister for Climate Change and Energy Efficiency, set up the six-person committee to assess the environmental integrity of carbon offsets generated under the proposed Carbon Farming Initiative (CFI) scheme in October last year. In late March, the bills to create the CFI were introduced into Parliament, with the DOIC now assisting the Government to assess draft methodologies from carbon abatement projects ahead of the proposed commencement of the CFI in July. As someone who picked up the rugby boots a few years ago after 25 years on the sidelines, McGregor has shown that he is not afraid to throw himself into the political ruck if asked. Being involved in policy development “definitely adds to the excitement and to the engagement in the area,” he says. “I like being involved with the technology as well. It is interesting to understand how wave energy is converted and how it can be used to generate power, or how a desalination plant operates or how geothermal energy can be developed.” LW
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
â€œClifford Chance is such an incredibly powerful brand name, and it was so flattering that they chose to talk to us, we thought it would be almost criminal not to give it a tryâ€? ian CoChrane
l aw y e r s w e e k ly 15 a p r i l 2 0 11
w w w.law yersweekly.com.au
In the competitive corporate legal market, a few small boutique firms have dared to take on big law ... and won. Claire Chaffey reports
bold moves I
n 2006, two breakaway corporate law firms emerged that have now earned a place in the pages of Australian legal history. The first was Perth-based firm Cochrane Lishman, launched on 1 January 2006 by prominent Mallesons Stephen Jaques partners Ian Cochrane and Michael Lishman. Cochrane had been the head of mergers and acquisitions in Mallesons’ Perth office, while Lishman was the firm’s managing partner of operations for both Australia and abroad. Both had achieved resounding success. The second was Sydney-based firm Chang, Pistilli & Simmons (CP&S), which was established on 1 July 2006 by Atanaskovic Hartnell breakaways Mark Pistilli, Diana Chang and Danny Simmons. Again, the three partners were at the top of their fields in M&A, corporate advisory and complex litigation. When they opened, both firms had fewer than four partners and their creation was due to a belief among their founders that things could be better, both commercially and personally. The two firms also had a sense that the Australian legal market was changing, and they saw this as an opportunity to focus on high-end corporate work for sophisticated clients. Five years later, both firms have evolved and grown. Cochrane Lishman is now known as Cochrane Lishman Carson Luscombe (CLCL), thanks to the 2009 addition of former top-tier partners John Carson and Ben Luscombe, and CP&S has added four partners to the mix. The firms have consistently appeared in the upper rankings of the M&A league tables and their partners regularly appear on Australia’s best-lawyer lists. They are highly respected by both peers and clients. However, on 1 May 2011, CLCL and CP&S will be swallowed into the fold of global giant Clifford Chance,
l aw y e r s w e e k ly 15 a p r i l 2 0 11
“We have been surprised that more people haven’t done it. It has its risks, but ... it is so much better than working in the Australian top-tier environment” IAn cochrAne
the second Magic Circle firm to break into the Australian market. Effectively, the merger will bring to an end an era in which the two small firms fought gallantly and successfully in the high-end corporate space, and will begin the next chapter in the story of Australia’s evolving and globalising legal services market. While several other notable small corporate firms remain, and will continue to shake up the top-tier competition, the Clifford Chance merger – and the fact there will soon be two less boutique firms in the market – throws up new opportunities for those brave enough to attempt to replicate what CP&S and CLCL have achieved. It is also a clear indication of the talent, power and influence within some of Australia’s smallest corporate law firms.
The call to go small For Lishman and Cochrane, giving up secure and prestigious positions at Mallesons to take a gamble on a virgin boutique was not a decision taken lightly. However, they found themselves faced with a number of compelling factors that inspired them to do just that. “We felt two things,” says Lishman. “One was that in Western Australia, with the nationalisation of firms, there was an unmet demand by clients … we saw an opportunity. We were also concerned that the large Australian firms had placed very substantial revenue obligations on their partners and, consequently, very high leverage in what was a very competitive market. “We had to work really hard and we didn’t feel that the firm necessarily saw its partners as the key driver of value. We thought we could have a happier life in a boutique environment.” Michael Ryan, a partner at Sydney-based corporate boutique firm Addisons, gives similar reasons for leaving a large firm to team up with a small group of partners focusing on high-end corporate work. And once he made the move, there was no looking back. “Having felt that we were working hard but not being rewarded appropriately, the change to a smaller firm was like a breath of fresh air,” says Ryan. “I have found the lifestyle in a small firm a lot easier. You work just as hard, but there is less bureaucracy. There is camaraderie in a
l aw y e r s w e e k ly 15 a p r i l 2 0 11
small firm that I am enjoying. It is actually a nice place to come in the door on a Monday morning. You know everyone you work with and you respect them.” For Mark Pistilli, CP&S’s managing partner, breaking away from a larger firm was more a matter of pursuing opportunity than lifestyle, and he says the M&A boom Australia was enjoying at the time was the primary factor in convincing him and his colleagues to leave. “We wanted to create a specialist M&A boutique firm which focused solely on the kind of M&A that was happening in the market at that time. That is what really drove us,” he says. “The market was dominated by a few very large firms who were very good, but there just weren’t enough of them. When a client was looking to buy a service at the top end, they had a limited choice, and once those players were taken up, which they very quickly were during the M&A boom, they looked for a credible alternative. There weren’t many places for them to go. We tried to fill that gap in the market.”
Formula for success A common thread tying many of the more successful small corporate firms together is the fact that they were established by well-known partners of well-known firms who, when they made the decision to downsize, took their clients with them. “Most of Addisons’ partners came from large firms and brought with them significant clients and reputations,” says Ryan. “It gave us a base to work from and it helps that we can point out to a prospective client the experience within the firm and its client list.”
According to Ryan, convincing his clients to follow him to a small firm was not difficult, though he did, on occasion, have to reassure them that the firm’s capabilities would be sufficient. “None of the clients minded us moving to a smaller firm, and we didn’t lose a single client because of that,” he says. “Some did ask whether we would be able to handle their transactions, and we assured them that we could. Very few transactions require a lot of people. As long as clients have someone sitting next to them who is smart and experienced, someone they trust, the size of the firm doesn’t really matter.” Arguably, hugely successful small firms such as Perth-based Blakiston & Crabb and Price Sierakowski have proven that large-firm experience is not critical to a small firm’s success in the top-end market. But it does help. “You have to have several strings to your bow to attract top-end work,” says Lishman. “You either have to have a really excellent expertise and heavy industry focus, such as leading mining law firm Blakiston & Crabb, with very good networks and relationships, or be a lead partner of a large firm.”
Fortune favours the brave As it stands, very few firms the size and calibre of CP&S and CLCL exist in the Australian legal market and, given their success and reputation in a sector traditionally reserved for top-tier firms, the question arises as to why more breakaway firms have not emerged. For Pistilli, the reason is simple. “The problem with lawyers is that they are very conservative and comfortable. There are a lot of very good lawyers in Australia and a lot of them would be very good at running firms. It’s just that they have never done it,” he says. “It’s quite a hurdle to go out and do it, and if you look at the people who have done it, they have managed firms before, and that makes it easier. Lawyers who haven’t [managed firms before] are conservative, so they won’t try, but it doesn’t mean they couldn’t do it.” For Cochrane, the fact that more lawyers have not attempted to establish a firm like CLCL has been unexpected. “Frankly, we have been
“We had to work really hard and we didn’t feel that the firm necessarily saw its partners as the key driver of value. We thought we could have a happier life in a boutique environment” MIchAel lIshMAn
w w w.law yersweekly.com.au
A bright future “Having felt that we were working hard but not being rewarded appropriately, the change to a smaller firm was like a breath of fresh air” MICHAEL RYAN
surprised that more people haven’t done it,” he says. “It has its risks, but once you achieve it, it is so much better than working in the Australian top-tier environment.” Lishman agrees, though can see numerous reasons behind an apparent reluctance to branch out. “There are a couple of reasons why everybody doesn’t do it,” he says. “You have got to find the right person to be in partnership with. Ian and I have similar values, similar skill sets, different personalities – but we complement each other – and a high level of trust. You also have to be in quite similar financial circumstances because, to go out on your own, you have to take a risk that you might fall flat on your face and no one will give you any work. “To jump out of the security of a top-tier Australian firm you’ve got to either be incredibly confident or be financially confident to the point where you won’t stress if it doesn’t work. So for a lot of people, particularly earlier in their careers, it would be a big jump.”
A changing market According to Lishman, small law firms are destined to be significant players in the legal services market of the future, particularly as more global firms creep into Australia and firms in the mid tier edge closer to their toptier rivals. “I think there is a great future for small firms,” he says. “Now, a lot of mid-tier firms are bulking up, they’re getting bigger. So there are more 100-plus partner firms and you now have four established global brands with substantial operations in Australia. That is a very significant change.” As such, says Lishman, the primary issue now facing large firms is whether they will lose work at both ends of the spectrum as a result of that change. “Are they going to lose top-end work because it has an international component? Are they going to lose work at the other end because firms like CLCL have shown that if a client has got a good quality M&A deal, they actually don’t need to go to a large firm?” he says. “There are more players in the market, and the market will become more fragmented, so I
think there is definitely opportunity for people to do what we have done.” Lishman believes that a growing segment of talented, baby boomer partners from top-tier firms is likely to take up that opportunity in the near future, especially as their firms try to maintain maximum profit and they begin looking towards the next stage in their lives. “All the large Australian firms have maintained profit by ‘managing equity’, which is a euphemism for telling young lawyers they can’t be partners, and that some of the older partners have to retire before they are really ready to go,” he says. “That is fine in a rising market, but you are now getting to a critical point where there are so many partners with talent approaching that magical 55, who are now looking around and thinking they [don’t want to retire], they like work, they want to practise and they don’t need the same level of income, so they can afford to take a risk. I think there are going to be lots of small firms in the future.” Pistilli agrees, though cites different reasons. “Big firms are looking more towards practiceprofit alignment. For example, if the M&A department of a big firm is more profitable than the employment department, and that is more profitable than the IP department, that creates significant partner tension,” he says. “I think that over time, those firms might break up into more profit-aligned groups. The groups with the highest profits will be in one firm, the groups with the next highest profits will be in another firm, and so on. That will drive a large number of small off-shoots.”
“My sense is that once the market starts globalising, it’s a hard trend to stop” MARK PISTILLI
That CP&S and CLCL chose to merge with Clifford Chance is perhaps surprising, especially given their reasons for breaking away in the first place and the obvious pride and satisfaction such a move has delivered. Lishman and Cochrane openly acknowledge that many sleepless night were spent mulling over whether accepting the offer to merge was the right move. “As tempting as it would be to say that we positioned for a global play, we didn’t,” says Lishman. “We just focused on our market and on being as good as we could, and it happened to be something Clifford Chance wanted. We obviously had to think about it, because it’s a big change. We’d go from being very small to still being very small in terms of people in the office, but part of a huge firm. But we felt that the market was globalising and that, particularly for our younger lawyers and staff, this would provide a long-term opportunity.” Cochrane says that giving up the freedom they have enjoyed and the independence that comes with being the founders of a boutique firm was not easy. In the end, though, they couldn’t refuse. “Clifford Chance is such an incredibly powerful brand name, and it was so flattering that they chose to talk to us, we thought it would be almost criminal not to give it a try,” he says. For Pistilli, agreeing to the merger was a matter of staying one step ahead of the market and leading the charge into a new era in Australian legal service offerings. “My sense is that once the market starts globalising, it’s a hard trend to stop,” he says. “I think you’ll find that the top end of the legal market will, in a number of years, be dominated by global firms. There will still be one or two premier Australian firms in the mix, but they won’t dominate the market like they currently do. According to Pistilli, legal markets around the world in which global firms dominate also have numerous significant boutique players. “I don’t see any reason as to why that trend wouldn’t be the position here. In that kind of market, there is certainly scope for smaller firms.” Whatever shape the market takes in the future, it seems that small corporate firms are here to stay, and CP&S and CLCL have demonstrated just what successful small firms can achieve in the high-end corporate space. And it is highly likely that along with those that remain, new players possessing the right mix of ingredients will emerge and make their mark. “Small firms will always survive,” says Cochrane, “because invariably, the people who start them have strong personal relationships with their clients. And that, more than anything, dictates their survival.” LW
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
past to present Freehills’ colourful history was celebrated at the launch of a new book tracing the evolution of Australia’s first national law firm. Justin Whealing reports
candalous divorces, expensive leasing arrangements signed just prior to recessions, and encounters with “flamboyant” lawyers over multimillion-dollar tax bills were fondly reminisced by current and former members of Freehills at the launch of Suzanne Welborn’s new book, Freehills: A History of Australia’s First National Law Firm, at the firm’s Sydney office in Martin Place on 5 April. The book – which was available on request to staff who wanted a copy – traces the development of the firm from 1838 until 2000, when it changed its name from Freehill Hollingdale & Page to Freehills and became a single partnership. “So much courage has run throughout the history of this firm,” said former journalist and author Welborn. “It is such a wonderful story, with its themes of courage, enterprise and intelligence fascinating me.” Welborn said that Freehills, particularly under the stewardship of Brian Page, who was a partner with the firm for nearly 50 years before retiring in 1988, championed an open employment policy that did not discriminate against Catholics or Jews who might have had their career paths blocked at other firms. ‘The firm would not be here today without him,” said Welborn. “He was a wonderful man, charming and intelligent, and he would hire people on ability.” Page died in 2008, at the age of 96. The book deals with many interesting episodes in Australia’s legal history, including the story of how the firm came to represent former attorney-general and High Court justice Lionel Murphy on charges that he attempted to
So much courage has run throughout the history of this firm. It is such a wonderful story, with its themes of courage, enterprise and intelligence...”
pervert the course of justice. Freehills partner Gary Kelly told Murphy not to give evidence as a witness in the successful appeal case in the NSW Court of Appeal and he was eventually acquitted. The book also recounts how the firm’s first Vietnamese clients were sourced after a partner heard a conversation between two disgruntled businessmen in a bar, as well as a cautionary tale about how alliances with overseas firms can become costly exercises. In the 1990s, Freehills, which had ties with Makarim & Taira, was left with a multimilliondollar tax bill after it severed ties with the Indonesian firm. Welborn writes that when senior partner Martin Hudson flew to Jakarta to sort out the problem, “a flamboyant partner from Makirim & Taira threatened Hudson with unspecified consequences if he and the firm’s resident partners did not do as they were told”. Freehills paid the tax bill. Among the speakers at the book launch were Welborn, Freehills partner and board chairman Robert Nicholson, and one of the firm’s early female partners, Rebecca Davies, who was appointed to the partnership in 1983 and remains a consultant. “I hope this firm remains one that is prepared to take a risk sometimes, without 5,000 business plans behind it,” said Davies. The book was officially launched by David Gonski, the chair of Coca-Cola Amatil and the Australian Securities Exchange, and a Westfield Group director, who was appointed a partner at Freehills in 1979 at the age of 25. He left the firm in 1986. “It is an honour to launch the book,” said Gonski before adding, tongue-in-cheek: “It is a privilege to be with a firm that accepted me as a partner.” During his address, Gonski made the point that lawyers and law firms should not be afraid to delve into other areas and be “much more than the commodity of the law”. A spokesperson for Freehills confirmed that a number of Freehills lawyers, including the firm’s general counsel, reviewed the manuscript prior to publication. lw
Top: former freehills partner David Gonski at the official launch; (above) author Suzanne Welborn signs a copy of the book.
* Freehills: A History of Australia’s First National Law Firm (UNSW Press, $49.95) by Suzanne Welborn is available at selected bookstores.
l aw y e r s w e e k ly 15 a p r i l 2 0 11
Personal Property Securities in Australia Your guide to the new Personal Property Securities scheme in Australia by specialists in the field.
Personal Property Securities in Australia provides an accessible, highly practical guide to the implementation of the Personal Property Securities Scheme and assists practitioners to prepare for its commencement starting in October 2011. The work also provides invaluable guidance in identifying changes that may need to be made during the transitional period. Sample chapters, table of contents and a summary of the new scheme available at www.lexisnexis.com.au/ppsa Available in online and looseleaf format.
For more information, call Customer Relations on 1800 772 772. ÂŠ 2010 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.
Think outside Lower expectations don’t mean lower standards. Instead, flexible recruitment strategies are the key to finding the right legal talent. Briana Everett reports DESPITE A lingering prudence within the legal market, the first quarter of 2011 has seen significantly more activity and firms are now hiring multiple lawyers. However, according to Hays, firms need to adjust their recruitment strategies to help them secure candidates more quickly and reduce
13 % 71 % SOURCE: ECONOMIST INTELLIGENCE UNIT
the square competition from other firms in the hunt for talent. According to the latest Hays Quarterly Report, released in April, candidate levels are continuing to contract, with the number of quality lawyers on the market at the three- to five-year level as low, if not lower, than in previous quarters. The report claims law firms are too rigid in their recruitment strategies and unwilling to consider candidates who do not match a very specific set of criteria in terms of the amount and/or nature of their experience. “Our advice is to look more broadly outside of that inflexible square,” states the report. “For example, where the expectation of a mid-tier law firm has been only for top-tier candidates with great academics, we suggest that they instead consider lawyers who have kept their jobs over the global financial crisis and who have more hands-on, directly applicable experience from a reputable smaller firm.” The report notes that firms which adapt their expectations to match the
my of companies claim to have not considered the implications of rising employee longevity
of executives view increased employee longevity as an opportunity, rather than a risk
candidates available will enjoy a greater level of success when recruiting. “While some employers still cling to their wish lists, others are showing flexibility and will consider lawyers who can transition from one area to another. A constricting market means such flexibility will become even more important moving forward.” In the coming quarter, private practice teams are looking to expand, with solid ongoing demand expected for construction and property lawyers, as well as employment and finance lawyers. In addition, demand for litigation lawyers is expected to continue due to ongoing litigation and a rising number of class actions. On the in-house side, a continued focus on strong commercial and corporate advisory skills is expected, covering areas such as trademarks and intellectual property, contract negotiation, litigation/dispute resolution and regulatory issues.
“While some employers still cling to their wish lists, others are showing flexibility ... in a constricting market”
With Andrew Taylor, private practice consultant, Naiman Clarke
Is working in-house all it’s cracked up to be?
For many, the grass of in-house is proving not to been greener. Surely, no billable hours, work/ life balance, and a culture that values its employees is enough to tempt any lawyer to the bright, at-the-coalface, bonus-laden world of being an in-house counsel? Put simply, many in-house counsel miss the job of “lawyering”. When I probe a client, “You don’t feel like you are a lawyer in your current position?”, the response is: “Well, yes, I do. However, a lot of my work is compliance focused and I miss the advice aspect. It’s very satisfying providing people with advice; more so when that advice is appreciated and respected.”
Still not convinced, I think this lawyer’s need to provide advice may be his vice. He elaborates: “Don’t get me wrong – I do like my job. It’s just that now I know what the client wants and I want to return to private practice to share this knowledge”. I am convinced. Others in a similar situation have cited the following reasons for leaving the Holy Grail of in-house: “variety of clients”, being seen as the “roadblock” to deal-making, and no longer being in the position of “trusted adviser” they once were when in private practice. Perhaps lawyers contemplating a return to private practice should consider the fate of artist Paul Gauguin, who made it to paradise, though it didn’t end well. Think of all the sordid advice he could have given had he returned to Paris!
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
C-bomb dropped in open court
Career climber’s CV too good to be true
AN AMERICAN lawyer has gone all out in an effort to make himself sound like a half-decent member of the legal profession. As the American Bar Association reports, contrary to what his resumé states, Wade Jensen never received a law degree from Boston University, nor did he earn a Bachelor of Science from Tufts University. While Folklaw understands people tend to “embellish” their strong points on their resumé from time to time, Jensen didn’t hold back when it came to talking himself up. Accord to his phony resumé, Jensen was a six-time varsity-letter winner in hockey and lacrosse and also earned a place on the dean’s honours list – on three separate occasions – among other purported academic awards. Jensen also worked at a law firm for less than one year, rather than the two years he claimed. To give him some credit, Folklaw thinks Jensen did well for creativity and ambition and notes that he did in fact enrol in and attend classes at Boston University. However, he didn’t quite get to the important bit – graduating. Not surprisingly, Jensen was caught out for his misrepresentations and received a six-month suspension from the practice of law (thankfully, Jensen did manage to obtain a Juris Doctor degree from Washington and Lee University back in 2002). Jensen has since removed all false information from his online profile and resumé.
Suspended lawyer plays property game AN AMERICAN lawyer has shrugged off a suspension by stating that he will now turn his hand to real estate. High-profile Ohio divorce lawyer Vincent Stafford was suspended for one year on 5 April for legal misconduct. Metro – cleveland.com reports that in a unanimous 7-0 Ohio Supreme Court decision it was found that Stafford obstructed the discovery process and caused unnecessary delays in a 2006 divorce case, showing a “lack of candour” while representing a doctor in a legal malpractice case. “His evident contempt for the discovery process and his lack of respect for other offices of the court demonstrate a profound disrespect for the legal profession,” wrote Judge Judith Lanzinger. The attorney who was the target of Stafford’s malpractice said his behaviour was “the epitome of why people don’t like lawyers”. “He got exactly what he deserved,” the attorney said, generously taking time out from a holiday on an Egyptian cruise-ship to speak to the media. Despite receiving such a massive bollocking, Stafford seemed unfazed by his impending time out of the legal profession and maintained a stiff upper lip. He told Metro – cleveland.com that he would spend the next 12 months developing downtown real estate and commercial office buildings.
L AW Y E R S W E E K LY 15 A P R I L 2 0 11
“For nearly 20 years, I have aggressively represented my clients’ interest with spectacular results,” said Stafford. He has certainly “aggressively defended clients’ interests” in the past. In 1998 he was publicly reprimanded for punching an opposing lawyer and calling him an obscene name. Folklaw thinks Stafford should ditch the real estate game and pick up the boxing gloves, as that seems a natural fit for the aggressive lawyer.
IN A SHINING example of exactly how not to behave in the courtroom, a lawyer has hurled the C- and F-bombs at a surprised judge before storming out. RollonFriday reports that lawyer Nehemiah Ballem was due to appear before Judge Lee Bozalek in South Africa’s Western Cape High Court last week, but he arrived several hours late. Understandably, the judge was not impressed by Ballem’s excuse that his “car broke down”. Ballem has since claimed that he was under the influence of alcohol, having cracked open the vodka while waiting for the tow truck to arrive. The Cape Bar Council is investigating the incident. Below is an edited version of the exchange, courtesy of IOL News. Judge: Now first of all, Mr Ballem, where were you this morning? Ballem: My car broke down. J: Now why did you realise that around 10am when court proceedings were about to begin? B: We had to wait for the AA [to tow the car away]. J: But you, no doubt, had a cellphone? B: I didn’t know about the case. I didn’t have my diary with me. J: Could you not have phoned the High Court half an hour, an hour, before the time? B: Judge, how long must we hassle with this? J: Excuse me? B: How long must we hassle with this? I’ve gone to some trouble to be here. J: Mr Ballem, perhaps you don’t realise your first duty, if you have to appear in the High Court, is to be here, and you are not doing us a favour by being here, despite your problems... B: Well, I asked my secretary to pass on a message and I assume she must have done so. J: Then we got another strange message: could the case be postponed until Monday – a telephonic request for a postponement? B: Exactly. Then I got the message that you were prepared to wait for me, and now I am here. J: You were not involved in another case this morning, were you? B: I was not involved, Judge. I am here now. [He slams his hand on the desk.] J: Sir, your attitude, you must... B: But then you must not also come... J: You must be careful about your attitude, Mr Ballem, in front of the court. B: But, then, you must also not come with an attitude. J: Excuse me? B: I said, then you must not come with an attitude, because we are both adults. I am not your child. J: I must warn you... B: You do exactly what you want. Do what you want. J: You are sailing very close to the wind. B: Jou ma se p**s, man! (Your mother’s c**t, man!) F**k you!” (Ballem leaves the courtroom.)
w w w.law yersweekly.com.au
taylorroot.com.au Brian Rollo In-House Sydney
Australia IP Litigation
Premier global law firm has a position available for an experienced intellectual property litigator. Candidates up to c.senior associate level will be considered. The role reports to the firm’s national head of this practice group. $Outstanding plus bonus. Ref: 643303. 3-6 years
Listed Australian organisation seeks a senior construction lawyer to join its expanding legal team. Working on a broad range of front end matters, this role will be rewarded with working on key projects with major business leaders. PPP experience would be highly regarded. Ref: 640062. 7+ years
Leading financial services provider is seeking an experienced insurance lawyer to support its inhouse business in NSW. You will work closely with the business on regulatory and corporate advice, PDS drafting and negotiation, policy, distribution and marketing. Ref: 643902. 4-8 years
Mergers & Acquisitions
Senior Counsel - Projects
Our client has a talented partner group within the firm’s corporate team in Melbourne. It accordingly attracts an interesting mix of public and private work. Candidates with experience of listings rules are of particular interest. The firm is known for its outstanding culture. Ref: 641331. 3-6 years
This leading engineering and infrastructure organisation is seeking a senior legal counsel to join its group legal team. Based in Sydney, this will be a broad role and involve looking after major projects. A competitive salary is on offer. Great opportunity, get in touch for more information. Ref: 643990.10+ years
An excellent opportunity exists to join this all star team. Excellent opportunity for progression. This thriving practice is looking for someone to work across the full gamut of commercial disputes. Excellent salary package on offer. Our client is interviewing now. Apply in confidence. Ref: 642653. SA
Banking & Finance
Counsel - Financial Services
Exceptionally talented mid-level candidates are sought by this top-tier firm. If you have had at least 2 years of transactional banking experience gained ideally from another prominent firm but want to make a move to a globally recognised firm and take a step up, then this role is ideal. Ref: 644000. 2-5 years
Top-tier global asset management business currently seeks a talented lawyer for broad role. You will be involved in setting up of funds, asset management, investment management, product development, IMAs, offer documentation and corporate & regulatory advice. Ref: 643878. 3-6 years
We are working on a number of top-tier employment opportunities within leading top-tier firms. Our clients are looking for people from 2 years’ PAE up to special counsel level in locations such as Brisbane, Canberra and Perth. Get in touch for more information on this role. Ref: 642652. SA
M&A (Oil & Gas)
International Banking Associate
The London office of this top-tier US firm is looking for an outstanding banking lawyer with at least 1 year of finance experience from a leading Australian law firm. On offer is a broad mix of acquisition and leveraged finance, working with leading partners. Excellent academics a must. Ref: 812690. 1+ years
This US law firm is arguably the leading regional practice. You should have 3-5 years’ experience in oil & gas related transactions, including M&A. You should have gained exposure in drafting definitive documentation applicable to transactions in this sector. Ref: 113701. 3-5 years
This renowned holding company with interests in hospitality, construction/engineering and oil & gas is now looking for a mid-level commercial lawyer. You should have top-tier law firm experience and excellent commercial contracts experience. £Tax free package on offer. Ref: 23493GP. 5-7 years
Partner Int. Arbitration
This good quality UK firm is looking to expand its Swiss presence. With Geneva being a major hub for international arbitration cases, they want to take on board somebody at partner level to build up its international arbitration practice. Contacts in the region would be beneficial. Ref: 818140. 7+ years
This Magic Circle firm is looking for a 2 year PQE corporate lawyer to join a small team doing deals throughout south east Asia. You should have good M&A and joint venture experience gained in a toptier law firm with first rate academics. SG$150,000200,000. Ref: 102601. 2-3 years
Our new client is one of the world’s largest multinational companies. They are looking for 2 lawyers to come on board in project finance and contentious/ non-contentious work. The work is consistently top-tier and the company drives the market in its particular sector. Ref: 23843MA. 3-6 years
This restructuring group has long been at the forefront of commercial and legal developments, and is able to offer a fully integrated approach to both international & domestic restructurings and insolvencies & deals in all key jurisdictions. Strong academics required. Ref: 740480. 1+ years
This leading UK law firm has an interesting role focusing on south east Asian related deals in corporate (M&A and capital markets) and energy (mining, oil & gas) matters. You will be a key limb of the next phase of business plan for the Indonesia focused team. Ref: 101501. 2-3 years
This is one of the leading firms in the Middle East and with a significant pick up in corporate instructions over the last 6 months, is now looking for an additional junior to join its team. A wide variety of corporate, and occasionally commercial, work is on offer. Ref: 23973. 1-3 years
For International roles, call Karlie Connellan on +61 (0)2 9236 9000 or email firstname.lastname@example.org For Australian Private Practice roles, call Matt Harris or email email@example.com For Australian In-House roles, call Brian Rollo or email firstname.lastname@example.org THE SR GROUP . BREWER MORRIS . CARTER MURRAY . FRAZER JONES . PARKER WELLS . SR SEARCH . TAYLOR ROOT LONDON . DUBAI . HONG KONG . SINGAPORE . SYDNEY . MELBOURNE
Published on Apr 12, 2011
Australia's leading publication for the legal industry. This issue: the boutique firms daring to take on big law, climate change law heats u...