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LEGAL LEADERS

WESTGARTH’S WAY From Bathurst to Law Society head

THIS WEEK

STUTSEL LEAVES LAW

Depression campaigner quits Freehills

LEGAL SPOTLIGHT

SHOW ME THE LOVE

How to be tender ready

IN DEPTH

NO MALAYSIA SOLUTION Government in crisis

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GREATER EXPECTATIONS Why a law degree is no longer enough

Friday 9 September 2011


Bank on Dolman to secure your next move


Contents

“We’ve just developed a new course on energy resources law and the tax aspects of energy resources, as well as the global and environmental aspects. These are subjects I couldn’t possibly have introduced 10 years ago” Gillian Triggs, dean, Sydney Law School

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THIS WEEK: A round-up of the latest legal news IN-DEPTH: It was the decision we had all been waiting for: whether the Government’s so-called Malaysia Solution was valid and lawful. Claire Chaffey and Justin Whealing examine the verdict, the reaction and what happens next IN-DEPTH: Despite crumbling support for the proposed national legal profession reform, the project must go on. Briana Everett reports

18 COVER STORY: The options for postgraduate study have dramatically expanded over the years as more and more lawyers seek to specialise to get ahead. Briana Everett finds out why lawyers are taking the postgraduate path

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LEGAL SPOTLIGHT: In an ultra-competitive legal market, law firms have to work harder to gain and retain clients. Justin Whealing looks at how they can best get their foot in the door during the tender process LEGAL LEADERS: Stuart Westgarth’s journey in law took him from Bathurst to Kiribati, to big law partnership and then to running the NSW Law Society. He talks to Stephanie Quine MY NEXT MOVE: How do I decide whether to accept a new job offer? FOLKLAW: The lighter side of the law

CRICOS Provider: Monash University 00008C

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There is a place for law

Postgraduate Law – Monash Law Chambers, CBD, Melbourne www.law.monash.edu/postgraduate

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Editor’sNote

Editor, Justin Whealing

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Have your say Do you have something you’d like to share? Send an email to editor@lawyersweekly.com.au or phone (02) 9422 2875. Alternatively, go to www.lawyersweekly.com.au and make a comment online.

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PRESSURE IS often a word you hear in September, mostly from football commentators as they talk about which teams can best handle the “pressure” during what is the traditional month for finals matches in the NRL and AFL. However, what this edition of Lawyers Weekly shows is that lawyers are under constant pressure, and not only in September. In an illuminating cover story by Briana Everett (see page 18), post-graduate study for lawyers has morphed from a vehicle whereby practitioners can develop theoretical legal knowledge and gain business administration skills to almost a prerequisite for career progression. “In a time of tighter budgets and increasing competitiveness in the job market, those people that are prepared to make an effort to improve their skills will be the ones that employers turn to first,” said Narinder Uppal from the Chartered Management Institute. For lawyers, this harsh reality adds stress and pressure to what is already a job that involves plenty of both. Lawyers are now expected to undertake post-graduate study and include that in a schedule that is already crowded with long hours, billable hour targets, a continuing requirement to complete continuing legal education courses, and the expectation of doing pro bono work during the year. Private practice lawyers also face the pressure of retaining clients and attempting to pick up new clients in a climate where many companies are looking to reduce their legal spend and the number of law firms used on legal panels. Last week in NSW, the Fair Work Ombudsman’s in-house legal team accepted the NSW Excellence in Government Legal Service Award (see page 9) after it had cut its external legal spend by around 30 per cent during the last financial year. It had made the decision to use the in-house team to conduct all of its civil penalty litigation work. With the legal departments of companies considered to be a cost centre rather than a profit generator within a business (unlike a private practice law firm), general counsel are often under the pump to reduce costs and demonstrate to senior management that they can meet internal budget targets. These pressures faced by general counsel in a volatile economic market are trickling down to private practice law firms. The pressure on all lawyers is coming from many sources, and shows no sign of abatement. TOP 10 STORIES ONLINE THIS WEEK 1 Hard work pays off for Allens team 2 Freehills’ Philippa Stone on making it count 3 Malaysia deal unlawful: High Court 4 Billable hour reigns in-house 5 Ex-AAPT legal head starts own firm 6 Mallies stallies bring home the bacon 7 Criminal law: Real life practice far from prime time 8 Malaysian lawyers relieved at High Court ruling 9 Ditching firms earns in-house team award 10 Norton Rose poaches Clayton Utz trio NEXT WEEK

With the rise and rise of the legal services market in Perth, Lawyers Weekly takes a look at whether the streets really are paved with gold.

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, 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, Thomsons Lawyers

ABOUT US Editor: Justin Whealing Deputy Editor: Claire Chaffey Senior Journalist: Briana Everett Journalist: Stephanie Quine Designer: Ken McClaren Design Manager: Anthony Vandenberg Senior Online Producer: Rebecca Whalen Group Production Manager: Kirsten Wissel Group Sales Manager Adrian Fellowes Senior Account Manager Stephen Richards SUBSCRIBE TODAY Lawyers Weekly is published weekly and is available by subscription. Please email subscriptions@lawyersweekly.com.au All subscription payments should be sent to: Locked Bag 2333, Chatswood D/C, Chatswood NSW 2067 ADVERTISING ENQUIRIES: Adrian Fellowes sales@lawyersweekly.com.au (02) 9422 2134 (mob) 0407 489 060 Stephen Richards stephen.richards@lexisnexis.com.au (02) 9422 2891 (mob) 0429 305 836 EDITORIAL ENQUIRIES: Justin Whealing justin.whealing@lexisnexis.com.au (02) 9422 2832 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 privacy@lexisnexis.com.au. © 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.

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thisweek

Freehills loses top partner

The Web

MoU cements legal ties with China The Australian Government has moved a step closer to strengthening legal cooperation with China. Federal Attorney-General Robert McClelland met in Canberra last week with the Chinese Minister for Justice, Madam Wu Aiying, to sign a Memorandum of Understanding (MoU) on legal cooperation. The MoU updates a previous agreement, signed in 1984, and McClelland said he hopes it will improve understanding across the law and justice sectors in both Australia and China.

Freehills has lost one of its most prominent partners, with a 17-year veteran of the firm taking up a position with KPMG. Matthew Stutsel, a partner in the firm’s fund management team, said he was leaving Freehills on good terms and simply could not turn down KPMG’s offer. “Although I had a wonderful time for 17 years at Freehills, I couldn’t refuse the opportunity and challenge to be the national head of the state tax team at KPMG,” he said. “As well as being able to work closely with the corporate tax team here, we help the advisory business in planning and executing transactions and provide specialist support to the audit teams, so there is a large degree of interaction and team work.” Stutsel said the plan is to grow and integrate his new team both nationally

Mining giant backs ACICA International arbitration won a powerful ally last week with the vicepresident of litigation at BHP Billiton welcoming the introduction of the new ACICA Arbitration Rules. Damian Lovell threw his support behind the rules, which were launched on 1 August this year and are designed to make the resolution of cross-border and international commercial disputes more efficient. “We see international arbitration as an integral part of our global dispute resolution strategy,” he said. “We commend ACICA’s initiative in producing these rules.” Maurice Blackburn tackles construction giant Maurice Blackburn has commenced a class action against Australia’s largest project development and contracting group. Following a series of profit downgrades and concerns that Leighton Holdings failed to disclose the problems it faced on key infrastructure projects, Maurice Blackburn will act for shareholders in the company. On 14 February 2011, Leighton announced an estimated fullyear profit of $480 million, but by 11 April that had turned into a $427 million loss. As a result, Leighton’s share price dropped 14 percent.

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and globally, with a focus on local property, infrastructure and financial services, global investors and the growing market for Islamic finance. While Stutsel has long been recognised as one of the country’s top specialist stamp duty lawyers, his recent involvement in the fight against depression in the law has also earned him the respect of his peers. Last year, Stutsel featured in a short film produced by the Depression and Anxiety Working Group as part of the resilience@law initiative. In the film, he spoke candidly about his battle with depression which had led him to attempt to take his own life. Speaking to Lawyers Weekly at the time, Stutsel said he wanted to speak out in order to help those who are suffering as he did. “Knowing how difficult it was for me to speak about it as I was suffering it, and having a couple of friends who are currently suffering from depression, made me want to help,” he said. “I am really hoping that I can help someone before they get to the stage that I got to, and certainly before they get to the stage where they do something they can’t turn back on. That’s the difference I’d really like to make.” Stutsel told Lawyers Weekly he will continue to work on the resilience@law project in the future.

R E W IND To compete with the smartphone market, Microsoft is spending millions of dollars to train sales staff of phone companies worldwide to encourage them to sell devices running its Windows Phone operating system. Microsoft said its Windows Phone system may capture more than 20 per cent of the smartphone market over the next two to three years. British supermarket Tesco has announced its decision to sell its business in Japan, after spending more than £250 million ($382 million) and eight years trying to crack the Japanese retail market. Japan is the smallest of Tesco’s international retail businesses. Sydney Grammar School (NSW) is the top earning private school in terms of donations and fundraising activities, receiving almost $8 million in donations in 2009, according to research by The Australian Financial Review and The Australian. The Australian Government announced plans to introduce two weeks of paid leave for fathers to take time off to be with their newborn babies. From 1 January 2013, the paid parental leave scheme will be expanded to include a dedicated payment of about $1180 for eligible fathers and other partners.

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thisweek D E A L o f T HE W E E k

Deal name: Invocare Limited acquires Bledisloe Group Holdings NZ and Aus operations Key players: Addisons; Johnson Winter & Slattery; Minter Ellison

Addisons, Johnson Winter & Slattery (JWS) and Minter Ellison have acted in the Australian acquisition of a funeral services company. InvoCare Limited, Australia’s largest provider of funeral services, including cemeteries and crematoria, acquired Bledisloe Group Holdings Pty Limited, which operates such services in Australia and New Zealand. The acquisition – settled for $114 million in cash and shares – complements InvoCare’s operations in Sydney, Melbourne, Brisbane and the Gold Coast while introducing the company into New Zealand, Tasmania and regional Queensland. Addisons partner Michael Ryan has counted InvoCare as a client for the past 20 years. He said that Bledisloe was the largest rival to InvoCare in the funeral services market and that this acquisition is a major coup for his client. “The first hurdle was getting an agreed price and when they did finally agree on the price the Australian Competition and Consumer Commission (ACCC) was not happy because there was a fear that InvoCare would dominate the market,” said Ryan The acquisition price was agreed in November 2010 but only recently completed due to the ACCC public consultation and clearance process. As a condition of the acquisition, the ACCC required that InvoCare divest its

Gregory & Carr business in Sydney and Great Northern Garden of Remembrance in Brisbane. “Those businesses were sold to people that [InvoCare] thought would be significant and worthwhile competitors in the market,” said Ryan, adding that it was a challenging logistical exercise to settle the main acquisition while selling the other two arms of InvoCare “almost all at the one time”. The Bledisloe acquisition was completed on 15 June; the Gregory & Carr sale was completed at the end of June; and the sale of the Garden of Remembrance last week. Ryan was supported by Addisons senior associate Kristy Dixon and lawyer Sarita Walpola. Minters Brisbane partner Bruce Cowley acted for the shareholders of Bledisloe, supported by senior associate Stephen Knight. JWS partner John Kench, a competition and consumer protection adviser, assisted with the ACCC negotiations on behalf of InvoCare.

DE AL MAkERS

David Ryan

James Philips

David Ferguson

Firm

Blake Dawson (New Hope Corporation), McCullough Robertson (Northern Energy Corporation)

Minter Ellison (Count Financial), Freehills

Addisons (Bega Cheese), Allens Arthur Robinson (CBA Equities)

Deal name

Off-market takeover of QLD coal group NEC

CBA acquires Count Financial

ASX listing of Bega Cheese

Area

Corporate

M&A

Corporate

Value

$261 million

$373 million

$35 million

Key players

Blakes’ David Ryan

Minters’ James Philips

Addisons’ David Ferguson

Movers & Shakers

three firms bring funeral deal to life

swaab attorneys poaches from middletons A former Middletons senior aviation lawyer has joined Swaab Attorneys as a senior associate. Andrew Draper has over seven years experience in private practice and in-house roles. He worked in Middletons’ transport, logistics and defence group, and was at Piper Alderman prior to that. minters recruits global Ip specialist Minter Ellison has appointed IP and international trade specialist David Morfesi as a special counsel in SA and the NT. With 10 years experience working for the US government as a senior IP advisor, Morfesi has negotiated the IP aspects of 15 bilateral and multilateral free trade agreements and served in the executive office of the President in Washington, DC. ex-minters lawyer joins College of law The College of Law has appointed university lecturer and former Minter Ellison lawyer Madeleine Dupuche to teach the Graduate Diploma of Legal Practice. Dupuche worked for seven years at Deakin University teaching the Bachelor of Laws and Masters in Commercial Law courses, and prior to that practised as a solicitor for Minters and Sharrock Pitman in Melbourne. moray & agnew takes lander & rogers partners National insurance firm Moray & Agnew has appointed Robyn Hickie in Sydney. With 22 years of experience specialising in insurance law, Hickie joins the firm from Lander & Rogers where she was a partner and head of the firm’s workers compensation practice.

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thisweek

raneberg fraud gets political South Australia’s opposition leader has called for an audit of State Opera and Adelaide Fringe finances in the wake of a police investigation and civil action against former Minter Ellison CFO Craig Raneberg. Raneberg, who was the CFO at the firm’s South Australian and Northern Territory offices for 10 years and was also the treasurer of the Adelaide Fringe Festival, is currently being investigated by police for the embezzlement of large amounts of money from partner funds. News.com reports that Isobel Redmond said the Labor Government needs to “assure South Australians that public moneys have not been misappropriated”. In late August, Minter Ellison general counsel Greg May filed an affidavit in court, including letters to equity partners and clients regarding the allegations about Raneberg, and details of the firm having told the Law Council of Australia. Raneberg, who is no longer with the firm, is believed to have fled to Thailand before Minter Ellison informed police of irregularities with the firm’s bank accounts. Police investigations are continuing.

Calls for national bullying laws

AustrAliA needs to introduce national laws to make workplace bullying illegal and give victims quicker access to the legal system, according to an employment lawyer. Maurice Blackburn employment and industrial law principal Josh Bornstein has called upon the Federal Government to ensure workplace bullying is explicitly addressed by new national legislation, rather than forcing victims to rely on the current occupational health and safety or personal injury laws. “[Workplace bullying] is devastating for victims and their families and has an immense economic impact. the Productivity Commission estimates bullying and harassment costs the

Australian economy between $6 billion and $36 billion a year,” said Bornstein. “it is astounding that Australia lacks national legislation to enable victims to take action to stop bullying in its tracks.” Borstein is calling upon the Government to introduce new legislation giving victims the ability to quickly access a court or tribunal to expose bullying at work; enable victims to seek court orders or injunctions for proven cases of bullying; a national educational campaign to reveal the true costs of workplace bullying and to work with Australia’s mental health sector to pre-empt the health, economic and other damage wrought by the problem.

Global law alliance snubs australia for NZ

A global alliance of employment law firms has joined forces with a New Zealand firm, bypassing Australia as it moves into the Asia-Pacific. L&E Global, launched in January 2011 as an alliance of boutique employment firms throughout Europe and the USA, has joined forces with New Zealand firm Swarbrick Beck Mackinnon. The firm will join Flichy Grangé Avocats (France), Jackson Lewis LLP (United States),

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LABLAW - Studio Legale Failla Rotondi & Partners (Italy), Palthe Oberman (the Netherlands), Pusch Wahlig Legal (Germany), Bufete Suárez de Vivero, S.L (Spain) and Van Olmen Wynant (Brussels). “Joining forces with SBM greatly strengthens our global footprint,” said Stephan Swinkels, the executive director of L&E Global. “This move indicates our first footsteps into Asia-Pacific countries.” When asked why L&E Global had chosen to enter New Zealand and not Australia, a spokesperson for the alliance said it is not intent on “world domination”, but will instead go where its clients wish it to go. The alliance has confirmed, however, that it is already in discussions with several firms in Australia and Asia. “We will be announcing new international team members in the coming weeks and months ... and expect to double in size by the year’s end,” said the spokesperson.

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thisweek

US/UK Update Ditching firms earns in-house team award A legal award has been won by an in-house team that cut costs by doing more work themselves at the expense of law firms. Lawyers Weekly reports on what is a growing trend An in-house legal team which has dramatically cut its external legal spend by using its own lawyers for litigation work has won a prestigious award. The Fair Work ombudsman’s (FWo) legal team accepted the nsW excellence in Government Legal service Award in sydney on 31 August at the annual nsW Government solicitors’ conference in sydney. FWo chief counsel Janine Webster said the team won the award for its innovative use of in-house lawyers to conduct all civil penalty litigations. “earlier this year, the Attorney-General granted our legal team a 12-month approval to use in-house lawyers to run all cases,” she said. “it was an extension of a process which began in 2008 in which we were given approval to use our internal team for court matters involving employee underpayments.” Webster said this resulted in a reduction of external legal spend of around 30 per cent last financial year. “Based on a blended hourly rate of $150 an hour for our own lawyers, compared to an average rate of $303 an hour for an external lawyer, $418 for a senior associate or $515 for a partner, the Fair Work ombudsman could cut the cost of these litigations by up to 50 per cent,” she said. “The cost savings have, and will, free up additional resources to conduct more court proceedings.”

Webster added that allowing the FWo to run its own litigation matters had helped it to attract and retain talented lawyers. “Maintaining an in-house practice means that lawyers are able to maintain and build upon their litigation skills and keep them current, which has proven to be very important in the retention of valuable skilled staff,” she said. Last month, Austin Carwardine left his role as the general counsel of the telecommunications company AAPT to start his own firm. he told Lawyers Weekly that in-house counsel are often under pressure to reduce costs from senior management, and that an effective way to do this and provide opportunities for young in-house lawyers is for the in-house department to do more work themselves. “A factor in deciding to reduce our external legal spend was a desire to give the in-house lawyers in my team the interesting work, rather than have all the interesting work be instructed out,” he said. “i wanted the lawyers who worked for me to get the sexy work, as it is often the in-house lawyers that deal with the drudgery and the external lawyers get the interesting work. “You are often constrained by salary, so i tried to give non-monetary benefits to my team through the type of work they could do.” See Legal Spotlight on page 14

Custody crackdown The UK police force, prisons and youth detention centres will soon face prosecution for corporate homicide if someone dies in their custody, reports The Guardian. Between 1999 and 2009, 333 people died in or following police custody, yet there have been no successful prosecutions at a senior management level. Units will now be subject to a new clause in the Corporate Homicide Act 2007 which relates to the duty of care of facility managers. Court rejects anti-abortion plans A court has blocked key parts of a Texas antiabortion law drawn up by the state’s governor and the leading Republican presidential candidate, reports The Guardian. The proposed law would see women seeking terminations forced to view an ultrasound and listen to the heartbeat of their foetus. The law also stipulates that doctors describe the unborn baby to the mother in the hope she changes her mind. The judge said the provisions were an unconstitutional intrusion on the rights of women and doctors. bbC legal chief gets arty Former BBC legal head Nicholas Eldred has been appointed as group general counsel at international art auction house Christie’s, reports The Lawyer. Eldred will provide strategic direction to the legal department and legal counsel on major transactions and contracts, intellectual property, competition, litigation and employment issues from the company’s London office. He will also oversee its executive team and worldwide businesses on matters of governance, risk and compliance. At the BBC, Eldred led a team of 70 legal staff. taylor wessing aligns with asia As part of its expansion project in Asia, Taylor Wessing has signed an alliance with Singapore firm RHT Law, reports The Lawyer. The UK firm will this month enter into a co-operation agreement with the local firm which was established in May. The alliance is part of a project headed by corporate partner Robert Fenner and Munich partner Michael-Florian Ranft, who heads the firm’s China group. Managing partner Tim Eyles said more than 50 per cent of Taylor Wessing’s clients had a presence in Singapore.

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law v policy: the ultimate fight It was the decision we had all been waiting for: whether the Government’s so-called Malaysia Solution was valid and lawful. Claire Chaffey and Justin Whealing examine the verdict, the reaction and what happens next.

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n what came as a surprise to many - not least of all the Gillard Government - the High Court of Australia last week torpedoed the Government’s plans to implement the muchdebated Malaysian asylum seeker deal. The six-to-one judgment (with Justice Heydon dissenting) in M70/2011 v Minister for Immigration and Citizenship & Anor saw Chief Justice Robert French ordering that Immigration Minister Chris Bowen be restrained from sending asylum seekers to Malaysia on the basis that the deal was made “without power and is invalid”. The Court found that under s198A of the Migration Act 1958 (Cth), the Minister could not validly declare Malaysia a country to which asylum seekers could be sent for processing unless it was legally bound by international or domestic law to provide procedures for assessing asylum seekers’ need for protection; provide protection for asylum seekers while awaiting determination of their refugee status; and provide protection for those given refugee status until they voluntarily returned home or were resettled in another country. The Court held that the general powers of removal of “unlawful non-citizens” could not be invoked if the country did not meet those requirements. Malaysia does not meet those stipulations. In making judgment, however, the Court expressed no view about whether Malaysia meets relevant human rights standards or whether asylum seekers are treated fairly or appropriately. In what could be considered a scathing rejection of the Government’s policy, its plans to send 800 boat arrivals to Malaysia in return for 4,000 refugees over four years, were put permanently on hold.

the reaction For those opposed to the deal, the High Court’s decision could not have been better. The Malaysian Bar immediately welcomed the ruling, with Malaysian Bar president Lim Chee Wee telling Lawyers Weekly he had long been highlighting the plight of asylum seekers in Malaysia. “The Malaysian Bar, together with civil society bodies and the Malaysian National Human

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Rights Commission, have regularly highlighted to the Government of Malaysia the suffering of the almost 100,000 asylum seekers in Malaysia arising from the lack of legal and effective protection from indiscriminate prosecution as illegal immigrants, and the lack of basic rights of livelihood, healthcare and education,” he said. “That the High Court of Australia held that Malaysia’s legal regime was inadequate must be a reminder to Malaysia of the importance of being

a signatory to the Refugee Convention and its Protocol.” Lim said the decision is a “solemn reminder” that for Malaysia to take its rightful place in the international community, it must be a state party to international instruments and recognise and adopt international human rights standards. The national president of the Australian Lawyers Alliance, Greg Barns, also welcomed the decision and said it sends a clear message that

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indepth “i don’t know how many hours were involved, but i do know that we had lawyers working on weekends and putting in many late nights” MALCoLM sTePHens, PARTneR, ALLens ARTHuR RoBinson

legislators and governments must be cognizant of Australia’s international human rights obligations in relation to asylum seekers. “The decision will bring welcome relief to many asylum seekers who have come to this country seeking a better life and freedom from persecution and fear for themselves and their families,” he said. “It also sends a clear message to government that the courts are the protectors of incursions on the rights of individuals by the executive, particularly when that incursion would result in the individual’s safety and security being threatened.” The president of the Law Council of Australia, Alexander Ward, said the decision illustrates the importance of access to judicial review of decisions made under the Migration Act. “Governments past and present have attempted to restrict rights of judicial review under the Migration Act. The Law Council has continually called for such rights to be restored and for access to legal assistance to applicants to pursue such rights,” Ward said. The lead partner instructing M70’s counsel on the matter said he is delighted and relieved by the outcome. Allens Arthur Robinson partner Malcolm Stephens, who worked pro bono on the matter with a team of Allens lawyers, said he was pleased they were able to come up trumps in the matter, especially after so much hard work. “The team worked extremely hard to prepare this matter for hearing in a very short timeframe,” he said. “I don’t know how many hours were involved, but I do know that we had lawyers working on weekends and putting in many late nights.” One of the most controversial reactions was that of Julia Gillard, who said the High Court “missed an opportunity” in its rejection of the deal. Gillard also accused Chief Justice French of inconsistencies with regard to his rulings, prompting the Law Council to issue a statement rebuking the Prime Minister. “It is highly inappropriate to single-out the chief justice for particular criticism,” said Ward. “His honour was one of six judges who were in the majority in this case and the legal principles established by the case are very clear.”

Professor George Williams, the foundation director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales, defended Gillard’s right to speak out, telling Lawyers Weekly that she has a right to speak up as a “disappointed litigant”. “The Prime Minister’s comments don’t compromise the independence of the judiciary,” he said. “She has responded to the judgment, and the importance of courts is that they deliver judgments with reasons and they are all there so people can agree or disagree with them.”

what next? According to one refugee law expert, Australia must get back to basics and begin processing asylum seekers onshore. Dr Angus Francis, a refugee law expert with the Queensland University of Technology, told Lawyers Weekly that the High Court’s decision makes it clear that Australia’s international obligations must now be taken seriously. “I would hope [the decision] makes it clear that our international obligations are the key consideration that has to be taken into account. They are not just another policy consideration,” he said. “I know there are very important competing priorities - such as border security and saving lives at sea - but, at the end of the day, we do have international obligations and they will be taken to the High Court in the context of the Migration Act, and we have to abide by them.” Francis said the decision now means the Government will have to rethink offshore processing, but he added that this should not be a particularly difficult exercise. “This does not require radical new thinking. What is needed is ‘back to basics’,” he said. “Forget offshore processing. Forget processing on Christmas Island. Assess onshore, on the mainland, according to fair and effective procedures that can determine who is a refugee and who is not.” This, said Francis, will ensure that Australia sets an example for others in the region. “Australia has to be able to go to the region - to countries like Indonesia and Malaysia - and say; ‘Look, we have in place a system for processing refugee claimants and this is something we’d

“That the High Court of Australia held that Malaysia’s legal regime was inadequate must be a reminder to Malaysia of the importance of being a signatory to the Refugee Convention and its Protocol” LiM CHee Wee, PResidenT, MALAysiAn BAR

like to export to the region’. Rather than exporting our refugees, let’s export the model for processing them onshore and set an example.” In a forum held at the Law Institute of Victoria following the decision, Julian Burnside QC said he believes it is safe to say that offshore processing is no longer an option for the Government, and said he would support a model whereby asylum seekers are placed in shortterm detention while they undertake health and security checks, and are then released into the community while their claims are assessed. When asked about what will happen in the wake of the decision, Matthew Albert, the lead counsel acting for M70, told the forum he had the “sombre” task of telling his clients that even though they will not be deported to Malaysia, they will be held in indefinite detention until the Government decides on a new course of action. LW

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reform process stumbles on Despite crumbling support for the proposed national legal profession reform, the project must go on. Briana Everett reports

T

“The LCA still thinks it’s a good opportunity and we hope that the matter doesn’t get buried. ALexAnder WArd, presidenT, LAW CounCiL of AusTrALiA

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he president of the Law Council of Australia (LCA), Alexander Ward, has claimed it is vital for the national profession project to move forward, despite news that the smaller states of Tasmania and the ACT have joined Western Australia and South Australia in rejecting the proposed legislation. Following the Council of Australian Governments (COAG) meeting on 19 August – for which the COAG communiqué made no mention of the reforms – Ward said it is important for further progress to be made, especially while the reforms have the support of the Federal Government. “The LCA still thinks it’s a good opportunity and we hope that the matter doesn’t get buried. If that means a partial uptake – and we knew it would be a partial uptake because of Western Australia and South Australia – it’s better than nothing. Right now is the best opportunity to push on with the scheme and get maximum sign up because the Federal Government is very supportive,” said Ward. “If all that momentum goes, you lose the benefit of the people who’ve been working on it. If the reforms are set back five or 10 years, then it’s a whole new scenario and we might not necessarily have the chance to be involved in it.” Following the COAG meeting, the Law Society of New South Wales also announced its support for the national regulations, indicating its plans to work with the smaller states to ensure the reforms are finalised. “We are disappointed, having worked for months in the belief that we had all compromised and were in lockstep in our desire to achieve a unified profession,” said NSW Law Society president Stuart Westgarth. “We will continue to work at a federal and state level to ensure that the model for national regulation is adopted and is efficient, effective and affordable for those who consume, provide and regulate legal services.” With the exact outcome of the latest COAG meeting still unclear, Ward said he could not understand why the smaller states would reject the proposed regulations.

“At the last COAG meeting at the beginning of this year the legislation was, as we understood it, approved subject to running a fine-tooth comb over it to make sure it was all appropriate,” said Ward. “One didn’t expect there would be more fundamental concerns raised at this latest meeting. We knew Western Australia and South Australia were saying no, but we were not aware that anyone else had raised concerns.” According to Law Society of Tasmania president Bill Griffiths, the concerns of the smaller states surround questions over the necessity of the new national reforms, as well as the potential for increased costs for Australia’s smaller states and territories. Griffiths claimed that the smaller states and territories have for some time had doubts about whether the reforms would have any real benefit for them. “Until about 2007 all the states, except South Australia, brought in new legislation to control lawyers ... Most of what was needed, to have a truly national profession, was achieved in that legislation,” said Griffiths, adding that the new legislation contains more regulation, is costly and will introduce “another layer of bureaucracy”. “It contains expensive procedures, which might not be seen to be expensive by the larger states but are certainly expensive so far as the smaller states are concerned,” he said. In relation to claims that the new national scheme will involve increased costs, Ward disagrees. “When you hear people saying, ‘We’re concerned about the cost’, it’s not something I follow … The profession made it clear they did not want to pay, so a proposal was put up so the profession would not pay for the cost involved in running the national scheme.” The next step, according to Ward, is to understand what the smaller states are concerned about and to address them. “Everyone coming on board has always been problematic. We knew there wouldn’t be an initial 100 per cent sign up …We’re making enquiries to find out what needs to be done.” LW

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legalspotlight

love me tender In an ultra-competitive legal market, law firms are having to work harder to retain and gain clients. Justin Whealing looks at how they can best get their foot in the door during the tender process

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“The tender process puts a science around your instincts” Gai STephenS, General leGal and Tax counSel, aSia-pacific, luxoTTica

Don’t big note yourself At a conference in Sydney in May, Paul Rogerson, the head of legal at NRMA Motoring & Services, said that when going through the tender process, it is the value of relationships – not how many awards a firm and its lawyers have won – that is important. “I was staggered by the amount of lawyers one firm put forward, and they told me all about the wonderful things they have done, and how certain lawyers were in Chambers Top 500 for this, that and the other,” he said at the conference. “I was thinking, ‘Why do I need to have 15 lawyers?’”.

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ai Stephens had an issue. The general legal and tax counsel, Asia-Pacific, for Luxottica, the world’s biggest eyewear company, wanted to use an external law firm to handle legal issues regarding its franchising work. The trouble was, franchising was a new area for Luxottica and Stephens wanted to make sure they got the best firm around. So she put the work out to tender. “I sat down with our head of procurement who uses a supplier rating tool, and we came up with a set of criteria, with each firm given a score between one to nine against minimum standards we would expect,” she says. Ten firms applied for one position. The criteria by which they were judged included their relevant experience and expertise in franchising, but also the firm’s work in associated areas such as leasing, regulatory requirements, media and litigation. The different costing models, performance delivery, overall financial position, diversity policies, commitment to pro bono work and whether the values of those firms matched Luxottica’s corporate values were also compared. “When you are recruiting a firm, particularly in a specialist area, you want a ‘thought leader’,” says Stephens. “You want them to bring big ideas to the table, and to be able to offer examples of international work, for instance, and say, ‘This is what we are doing for clients in the USA, and we think it could suit you’.”

when less is more When Stephens took up her current position, Luxottica had formal ties with seven firms in New Zealand. She wanted to simplify the relationship her company had with its external legal advisers, so she put the work out to tender in a bid to reduce the number of firms she used to one. Stephens chose a firm on the strength of its expertise, the ability to offer alternative billing arrangements and its pro bono and diversity policies. That latter point is something she says is becoming increasingly important in choosing a law firm to give work to. “I use a colleague during the tender process who might play ‘bad cop’ to my ‘good cop’,” Stephens says with a chuckle. “She will say to them, ‘Why did you bring all male colleagues

with you to meet us when we have more females on our side of the table? How many women are in your firm? What does your firm do to promote women to leadership positions?’” Similar to Stephens, when Austin Carwardine was the general counsel at telecommunications company AAPT between 2007 and July 2011, he was seeking to streamline his use of external legal advisors. He says that a major motivator for a smaller law firm panel was cost. “Overall targets were set to reduce our legal spend and by careful management we would often significantly reduce our external legal spend in some years,” he says. Carwardine recently returned to private practice to start his own firm. He says that when he was at AAPT, an important factor in the firms he chose for his then company’s legal panel, which included a mixture of top-tier and boutique law firms, was the ability of lawyers below the partner level. “Due to cost issues, the type of work many companies have is not so complex that it requires a lot of partner attention,” he says. “A good senior associate is often at a level where they can really value add. You are not necessarily after star partners.”

sell yourself Australia’s private practice legal market has never been more competitive than it is today. The arrival of global law firms and the continuing trend to rationalise the use of external legal advisers means that law firms need to know their strategy when pitching to potential clients. Like many law firms, the marketing department at Corrs Chambers Westgarth has become an intrinsic part of its internal processes, including preparing tender submissions. “For us, the whole tender and procurement process is about clients identifying what they value, and us, as a supplier, determining how we best deliver that value to them,” says Wayne Stewart, the director of marketing at Corrs. “In our experience, it needs to be a balance between the marketing team and the lawyers, and when we get that right, we tend to do pretty well. When we don’t get the balance right, we find the tender is not at the peak that we would require it to be at.”

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legalspotlight “It is making sure we are not taking a brief and directing it to our point of interest, but we are trying to meet the client’s brief”

Panel snapshot

RobeRt Regan, CoRRs ChambeRs WestgaRth

In order to “get the balance right”, Corrs employs senior partners to look at tender submissions and go through role-play exercises where partners will put their colleagues through the ringer by asking tough questions they might experience during client interviews. Senior Corrs partner Robert Regan says this process is designed to put the client at the centre of any final documentation presented. “The first process is to understand what the client’s perception of value is,” he says. “If we allow ourselves to have tunnel vision, to deliver what we think the client might want, and not deconstruct the brief and stand in the client’s shoes, than we can often

Company – Luxottica, Asia-Pacific australian law firms used – Five, including Mallesons Stephen Jaques, Baker & McKenzie, Norton Rose and Norton White the rationale –“I have a strategy session once a year with my trusted legal advisers where I get to hear what they are doing for other clients and they can hear from me about what we are doing. I reassure them that there is enough work to go around for everyone and we can all work together for the best interests of the company and not splinter”

miss the point with a tender. “It is making sure we are not taking a brief and directing it to our point of interest, but we are trying to meet the client’s brief.” While the science and preparation around the tender process has become more sophisticated, the gut instinct of a general counsel about whether they can work well on a personal level with a particular partner is still vitally significant. Sometimes, it will come down to relationships, pure and simple. “The tender process puts a science around your instincts,” says Stephens. “If you have the science behind your intuition, you feel more confident about your decision making.” LW

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legalleaders

Keeping it in the family Stuart Westgarth’s journey in law took him from Bathurst to big law partnership, the island of Kiribati and leading the NSW Law Society. He talks to Stephanie Quine about learning from others and making his mark

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ike many aspiring young lawyers, Stuart Westgarth moved away from his country hometown to study law in the city. Unlike many, however, the conclusion of studies did not coincide with interview after interview for a highly sought-after graduate position; he knocked on his great uncle Dudley’s law firm door instead. “I knocked on the door and said, ‘I’m your country cousin. Can I have a job?” recounts Westgarth. Having never met the firm’s senior partner (his cousin John Westgarth), nepotism nonetheless prevailed and he was given a position at Dudley Westgarth and Co (DWC) in Sydney, where he stayed from 1973 to 2008. “That’s more than the lifespan of most people I know these days,” he says. A great grandson of the founding solicitor of the NSW Law Society, George Charles Westgarth, and a grandson of Scone solicitor George Mansfield Westgarth, he was certainly not the first in his family to follow a path in law. Having grown up in Bathurst, Westgarth relished his city role and says he was mentored well by a number of senior partners throughout his career, including his cousin John, who he remembers as a “very solid and sensible person”. “He didn’t engage in emotional outbursts, he was very controlled and he had the most brilliant, economical writing style. He could express complex ideas in a paragraph,” says Westgarth. Starting out in commercial advisory work and later moving into banking and finance litigation, Westgarth says he admired such skills and strove to emulate them in work he describes as “complex and analytical, involving a lot of technical issues and not too much emotion”. He must have learned something from his cousin, as Westgarth is recognised amongst his peers as being a very calm, calculated and considered character.

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Stuart with his wife, Marnie, graduating in 1975 (left). George Charles Westgarth with sons Ronald, George Mansfield and Dudley (above).

“People are different. You can’t be a personality that’s not natural to you,” says Westgarth. “I tried to observe people and pick up what I thought I could take on myself.” While experiences amongst family were valuable, Westgarth says it was on various international sojourns where he was taught a thing or two about law and life. In the late 1980s, Westgarth found himself in a bamboo hut on the tiny Pacific island nation of Kiribati, observing a grass skirt and sandalwearing minster for trade with whom he was about to negotiate. “I thought, ‘This guy’s not going to be very sophisticated, because he’s wearing a grass skirt’ … but he spoke with the most beautiful Oxford accent. He’d been at Oxford for three years and had a degree in arts or geography … and was a really sophisticated person,” says Westgarth. The pair ended up setting up the third ever company on the island register. “It’s funny how you shouldn’t judge people by their appearances,” says Westgarth, who recalls it as one of the most memorable transactions of his career. Ten years prior to his Kiribati experience, Westgarth was sent to Norfolk Island to negotiate a mortgage. When the local – and only – solicitor on the island told Westgarth he must go to the site and “ceremoniously” be handed a clod of earth in order to acquire a mortgage over the

land for his client, Westgarth assumed he was pulling his leg. But he was wrong. “I did some research and found out he was probably right,” he says, explaining that the system of conveyancing on Norfolk Island at the time was that which existed in 19th century England and did indeed involve handling dirt. While neither island transaction ended up being successful, Westgarth says both experiences were valuable. “[Overseas travel] is very beneficial for lawyers, because it’s a way of seeing how other people do things and whether we can pick up beneficial aspects of the way they go about their business,” he says. An appetite for travel and learning has persisted throughout Westgarth’s career, and after a stint in a London firm where he satisfied his interest in maritime law, Westgarth eventually took up a partnership at DWC. By 1994, DWC had merged to become Corrs Chamber Westgarth, and Westgarth was managing partner of the firm for over four years – an experience he admits was “quite demanding” and stressful. “I’m pleased that I did it in the sense that I got satisfaction out of it … [but] I was pleased when it was over too,” he says. In 2008, Westgarth finally left the firm at which he had worked for over 25 years. He went on to join HWL Ebsworth and says that “a very persuasive managing partner”, a desire to be refreshed and a strong banking and finance client base at HWL were the reasons behind his move. Westgarth now heads HWL’s national litigation group, although he says 90 per cent of his time is tied up with the NSW Law Society. When he was appointed to a casual role on the Society’s council in 2007, Westgarth says he happily accepted it because it coincided with his desire to “speak up” for the profession. Four years later, he took up the position of president – and this is a role he has since used to try and affect change and tackle some of the big issues in law. “I thought there had been excessive and unjustified criticism about lawyers and the legal

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legalleaders

“It’s funny how you shouldn’t judge people by their appearances” Stuart WeStgarth

profession and I thought the Law Society – given its strong and long-standing reputation as a solid and impartial communicator on related issues – really needed to reenergise itself and be much more on the front foot,” he says. When strong criticism was made about hourly billing by noted legal figures, such as former NSW chief justice James Spigelman, Westgarth says he encouraged a balanced discussion by defending its benefits alongside its deficiencies. “We need to not take the criticism in a timid and reactive way, but rather reject it if it’s wrong and be open about that, or accept it and deal with it if it is correct,” he says.

He has also made his views about national legal profession reform known, and while acknowledging the potential benefits, also questions whether uniformity alone was a desirable goal. Women in law has also been a focal point for Westgarth and, when it became apparent to him that only around 20 per cent of women were principles or partners in law firms and that many were leaving law prematurely, he made the advancement of women in the profession a priority. This culminated in the launch earlier this year of a “thought leadership” initiative aimed at encouraging the advancement and

retention of women in the profession. Although his term as president will come to a close at the end of this year, Westgarth says he will continue to take an active interest in the affairs of the profession and defend it where he deems necessary. “I’m lucky I’ve got a wife who runs the family and I can devote my time and attention to my career,” he says. And with four children of his own – one practising as an in-house counsel and another in her final year of Arts/Law at the University of Sydney – it seems that the law genes will live on in the Westgarth family. LW

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coverstory

The race for

23 34 The median age of a bachelor degree graduate

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The median age of a new postgraduate

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coverstory

legal honours The options for postgraduate study have dramatically expanded over the years as more and more lawyers seek to specialise to get ahead. Briana Everett finds out why lawyers are taking the postgraduate path

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coverstory

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he number of people across the country studying postgraduate law courses has increased substantially in recent years to approximately 6000 in 2011, demonstrating just how valuable postgraduate qualifications are becoming. With competition on the rise as the Australian legal market goes global, the days when bachelor degree qualifications were sufficient are gone. In 2011, lawyers are increasingly opting to undertake postgraduate study in niche areas in recognition of the need to improve their skills, differentiate themselves and advance their careers. According to a UK study by the Chartered Management Institute (CMI), some employees believe their lack of career progression is a result of being overlooked for a promotion or pay-rise because of a lack of available funds (22 per cent), the need to get more experience (13 per cent) and 6 per cent admit they don’t have the right training or qualifications to advance. Recognising the need to do more to get ahead in their careers, 45 per cent of employees surveyed identified the need to do some study in their spare time. “It’s too easy to blame others for your own lack of progress, but in a time of tighter budgets and increasing competitiveness in the job market, those people that are prepared to make an effort to improve their skills will be the ones that employers turn to first,” said CMI’s Narinder Uppal.

“Students tell us is that it helps them create a network with other people working in the area – it might be other people in law firms, governments or non-government agencies” CAROLYN EVANS, DEAN, MELBOURNE LAW SCHOOL

The pros of postgrad study

Specialising for success Putting in the time and effort to improve skills and demonstrate a commitment to a particular area of law has become a much more important focus for lawyers over the last decade, according to the University of Sydney’s Law School dean, Gillian Triggs. “Historically, most lawyers in the practising profession and indeed lawyers who went into government work or corporate work were never expected to have Masters and certainly not PhDs,” she says. “In the last 10 years and increasingly so, the major firms and government departments are looking for that extra commitment to particular areas of specialisation.” The College of Law’s director of applied law programs, Angie Zandstra, has also observed the trend towards specialisation and the growing demand for postgraduate qualifications as an important indicator to potential employers. “Every year we see more and more students coming into the program, so that would

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According to new research conducted by Graduate Careers Australia (GCA) 86 per cent of postgraduates who were available for full-time employment were in full-time employment four months after the completion of their studies marginally down from around 87 per cent in 2009 and 90 per cent in 2008.

While the figures were slightly lower in 2010, GCA senior research associate Graeme Bryant noted that when taken in context, they are still a positive reflection of the added value of postgraduate study. “Employment figures of 86 per cent for postgraduates in 2010 are around 10 percentage points higher than the equivalent figure of 76 per cent for bachelor degree graduates,” explained Bryant. “While bachelor degree employment figures have fallen by around nine percentage points over the past two years, employment figures for postgraduates have only fallen by four percentage points over the same period.”

Postgraduates who studied part time were more likely to be in full-time employment four months after graduation than those who studied full time.

Postgraduates in their first full-time jobs earned less, on average, than those postgraduates who had previous full-time employment experience.

Male postgraduates earned more, on average, than their female counterparts ($80,000 compared to $65,000).

The median age of a new postgraduate is 34 compared with a median age of 23 for bachelor degree graduates.

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coverstory

suggest that there is more demand and that [postgraduate study] is becoming more of the norm,” says Zandstra. “What it does for people is show their commitment to a particular area of law and a commitment to their career. In that sense, as more people do it, it becomes obvious if there are two candidates and one hasn’t and one has [completed postgraduate study].” As a result of this increasing desire amongst lawyers to develop specialist expertise, universities and colleges throughout Australia have experienced a surge of interest in their specialist postgraduate law programs and have had to continually update their offerings to keep pace with the demands of a rapidly changing profession. “Lawyers need to develop their skills and be prepared for what is an increasingly complex and cross-disciplinary area of law,” says Triggs. “We’ve just developed a new course on energy and resources law and the tax aspects of energy and resources, as well as the global and environmental aspects. These are subjects I couldn’t possibly have introduced 10 years ago.”

Establishing global credibility Aside from the obvious benefits of postgraduate study, including the greater depth of understanding gained in a particular area and the ability to contribute to a business in a more specialised way, it can also provide lawyers with a more international focus – a particularly good move as the legal industry globalises. “To make a huge generalisation, anything with the word ‘international’ attached, you get double your enrolments,” says Triggs. “International commercial arbitration is another subject which has attracted enormous interest, because it’s outside the traditional bar / bench kind of route and it gets lawyers out into the region – particularly China, Singapore, Indonesia, Vietnam – doing international commercial litigation work but litigation within the international commercial arbitration realm. That’s one of the hotspots at the moment.” Adding to the benefits of developing specialist expertise and an international perspective, forming industry networks is another key advantage to be gained from postgraduate study, according to Melbourne University’s Law School dean Carolyn Evans.

“Anything with the word ‘international’ attached, you get double your enrolments” GILLIAN TRIGGS, DEAN, SYDNEY LAW SCHOOL

Combining law and management

Australian universities such as the University of Technology Sydney (UTS) and the University of Melbourne have introduced postgraduate programs which combine a Juris Doctor with a Masters of Business Administration – an increasingly valuable qualification as more law firms demand management expertise. “The JD/MBA was introduced in 2006. It appeals to a sub-group of students but there’s been a steady interest,” says Melbourne Law School dean Carolyn Evans. “It’s quite an intensive course and people that come out of it are very well qualified but it does also mean that it appeals only to a few.”

JD/MBA Snapshot: Melbourne University JD/MBA 3.5 years 37 subjects 10 core MBA subjects plus five electives 17 core JD subjects plus five electives University of Technology Sydney JD/MBA Four years full time (3.5 years accelerated) 13 core JD subjects Eight core MBA subjects Four JD/MBA business law sub-major subjects Practical legal training or four law options

“People who decide to pursue postgraduate study locally are getting the benefit of being able to apply that learning to their work immediately” KATHRYN WHYTE-SOUTHCOMBE, HEAD OF RESOURCING AND DEVELOPMENT, ALLENS ARTHUR ROBINSON

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coverstory

“Postgraduate study helps [lawyers] develop an understanding of particular areas of law in-depth after they’ve had a chance to develop some practice experience … you certainly look at the subject in a new light,” she says, adding that overseas employers increasingly expect people with postgraduate qualifications. “Another thing that students tell us is that it helps them create a network with other people working in the area – it might be other people in law firms, governments or non-government agencies, or management consultants.” As to whether it’s best for lawyers to do their study locally or overseas, Allens Arthur Robinson’s head of resourcing and development, Kathryn Whyte-Southcombe, says there are advantages to both. “There’s obviously great value that comes with studying at institutions like Cambridge, Harvard and Oxford. What comes with that is the opportunity to really focus solely on your subject matter expertise and really invest time in building that. And, on top of that, you’re also building an international way of thinking and really impressive networks,” says Whyte-Southcombe. “People who decide to pursue postgraduate

study locally are getting the benefit of being able to apply that learning to their work immediately. So while they’re not making the deep investment of taking time off to focus solely on study, they’re putting it into practice every day.”

Keeping a foot in the door While the need for postgraduate qualifications is growing, so is the demand for flexibility when it comes to managing further study with work commitments. As a result, universities and colleges are increasingly offering new ways of providing education, including shorter, intensive formats to accommodate the demands of working lawyers. “The old days when you’d sign up for a Masters and you’d doggedly go to lectures every week are gone,” says Triggs. “For our domestic market, our so-called ‘intensives’ are enormously popular … Flexibility is the name of the game and [lawyers] do it almost invariably part time, whereas 20 years ago, people would take a year off and do it. Now that almost never happens.” Aside from wanting to get things done quickly, another reason lawyers are increasingly attracted to the more intensive courses, according to Triggs,

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“The College of Law Masters program has provided me with not only a better understanding of various legal concepts, but also the practical and procedural steps that apply to those principles. It appealed to me because it is not just a purely academic course, but one which is relevant to every day

practice that complements my specific area of work. The online learning platform provides me with great flexibility in my studies.” Choose from Commercial Litigation, Family Law, In-house Practice or Wills & Estates. For further information call 1300 856 111 and move your career forward.

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coverstory

“Every year we see more and more students coming into the program” AngiE ZAndstrA, dirEctor of AppliEd lAw progrAms, thE collEgE of lAw

is because of their reluctance to miss out on career-advancing experience and opportunities. “People can’t afford to and they don’t want to get off the career opportunity experience. If they’ve got a good job, they never want to leave,” she says. “Employers seem amazingly open-minded about this … They end up with a motivated person who can see a career opportunity with the organisation.” lw

Taking MBAs in-house In an effort to improve the management expertise and commerciality of their lawyers, some international firms, such as Eversheds and Debevoise & Plimpton, have introduced their own version of an MBA. In October 2010, Eversheds launched its “Commercial Academy” which includes a “mini MBA” program to develop its junior lawyers. The Academy is made up of five optional subjects, including the mini-MBA, which are taught in workshops and on the job. “We have devised a program of training to develop commercial business lawyers from a junior level with skills fully aligned to the firm’s strategy. Lawyers are increasingly required to expand their capabilities. They are not simply fee earners but also business winners, client managers and team players,” said Eversheds’ human resources director Angus Macgregor.

Similarly, Debevoise & Plimpton is set to launch its mini-MBA program in September, during which all first-year associates will receive four weeks of intensive training. As reported by Legal Week, the firm has engaged business education provider The Fullbridge Program, which is headed by a senior lecturer on Harvard’s MBA program, Peter Olson. The head of the firm’s talent steering committee told Legal Week: “The program is part of a broader lawyer development framework at the firm, the purpose of which is to ensure that our lawyers are effective and efficient in solving our clients’ business problems with commercially sound legal solutions. “Especially in the current climate – but really in any climate – we find that clients highly value a deeper appreciation for the business context of their legal needs.”

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career

counsel Bad hiring decisions bring big losses Talent shortages and a competitive employment market are taking their toll as under-resourced businesses make bad hiring decisions, resulting in substantial financial and productivity losses. According to new research released this month by Hudson, 44 per cent of new hires are considered “not good”, demonstrating the need for businesses to improve their recruitment processes. the research, which forms part of the Hudson 20:20 Series white paper Next Generation Recruitment: Battle Strategies for the Talent War, revealed how businesses make the wrong hiring decisions while operating under the multiple pressures of time and cost constraints. in particular, the research revealed the failure of employers to adapt to a market defined by low unemployment and a mobile workforce. “the current employment landscape is complex and there is increasing pressure on organisations to both find the right people to fill

particular roles and improve the overall quality of new hires,” said Mark Steyn, chief executive officer, Hudson Australia/new Zealand. “it’s particularly tough to source the right people at the senior end of the market.” According to Steyn, the cost of a bad hire can be enormous – not just to productivity but also to employee engagement, staff morale, as well as wasted resources and investment through the recruitment process. “organisations are clearly feeling the effects of skills shortages with over half (53 per cent) of all organisations saying they are very or somewhat under-resourced and 92 per cent saying that shortages are placing increasing amounts of pressure on existing staff and their businesses,” said Steyn.

my

Of Australian workers feel that nobody cares for them and fear for their physical or emotional safety at work

40 %

13 %

Source: R U OK? Survey, August 2011

24

next move:

Dianne Duncan, private practice consultant, Naiman Clarke

Feel bad factor Of Australian workers feel medium to high levels of stress on a typical day at work

Adding to these shortages, according to Steyn, is a “restless and mobile workforce”. “People are now increasingly confident they can move, with six in 10 employees seeking a new job and over 80 per cent saying they plan to leave their current role within the next two years. these figures are incredibly high and potentially, employers could begin to lose talent faster than they can hire.” to improve the quality of new hires, employers must change their hiring processes. “Evaluating a potential employees’ attitudinal, motivational and cultural fit with an organisation pays significant dividends in the longer term,” said Steyn. “our research shows that when formal procedures are used to measure motivation or cultural fit, 91 per cent of hires were regarded as excellent or good.”

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Q A

Q: How do I decide whether to accept a new job offer?

A: When deciding whether or not to accept a firm’s job offer, there are a number of factors to take into consideration. Salary, quality of work and the firm’s location top the list, however, there is another significant consideration – the culture of the firm. Specifically, will you be well-suited and happy working there or will you want to jump ship within weeks? This is not a decision to be taken lightly. While a great salary and location may be tempting, accepting a job offer would be unwise unless you know you will fit in with the rest of the firm. Factors to take into consideration include the size of the firm, staff retention, the clientele, leadership and, of course, lifestyle. When it comes to the size of the firm, generally the larger the firm, the more bureaucratic it is. You will be expected to pay your dues by working on research and

analysis before you get to dive into more exciting work.  By contrast, smaller firms tend to rely more heavily on every employee, meaning you could well be expected to pitch in on important projects. It’s also important to find out how many employees leave the firm within the first couple of years and if the firm inspires loyalty. Are lawyers happy and loyal to the firm or do they jump ship within a few years of signing on? Is the firm’s leadership style democratic or is the power held by just a few partners?  A firm’s clients can also provide valuable insight, with those retaining the same clients since inception signifying a conservative outlook. In contrast, a firm with a mix of clients that is willing to take on younger, riskier clients may be less conservative and more inclined to grow. When it comes to considering the lifestyle of the firm, you must also consider whether most lawyers meet minimum billable hours benchmarks and whether employees are encouraged to have a life outside the office.

w w w.law yersweekly.com.au


folk

R e a d t h e l at e s t Folklaw online

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www.lawyersweekly.com.au/folklaw

Peter Strain prepares for a legal conference Is walking 100km more painful than an interlocutory injunction?

Legal conference ebbs and flows with the tides a legal conference that sets its agenda based on when the surf’s up? Welcome to the australian lawyers surfing association (alsa) annual Conference 2011. speaking to Folklaw after the 10-day conference in sumatra’s telo islands concluded on 28 august, one of the association’s founding fathers, barrister Peter strain, reported that the timing of the various conference sessions is made in accordance with the tides. “as luck would have it, we found time to go surfing,” he said. “the day is planned at the behest of the tide, wind and swell. Why hold a conference session at 10am when the tide is rising and the swell is on the way in?” this is Folklaw's kind of conference. in case anyone out there thinks this was a junket for the 30 lawyers who attended, the agenda marks it out as a bona fide legal conference. there were sessions on caveats, criminal papers,

Mallies stallies bring home the bacon trademarks, evidence and aboriginal land rights, to name but a few. alsa also kicked $25,000 into the east Bali Poverty Project to assist with the building of a teaching centre and does a whole heap of pro bono work for international charity surf aid. alsa has grown to have around 200 members from all around australia since it was first started six years ago, with informal gatherings throughout the year. strain said the surf is a great place to discuss tubes and torts. “i enjoy the fact that we could get together as lawyers, share our thoughts about the law and enjoy each other’s company doing what we love,” he said. “if i was to compare law and surfing, i would say that there are rules in the surf, just as there are rules everywhere. surfers are a nomadic and anarchistic group of people generally, who prefer the common law to statute law.” Profound stuff man.

We all scream for ice cream there’s obviously not a hell of a lot going on in the Us town of salem if this little incident is the talk of the town ... even with a torrid history of burning the odd witch or two at the stake, the news that one of its bestknown lawyers has been questioned in relation to the disappearance of several ice cream signs from the front of a local business is these days enough to make headlines. The Salem News reports that police have questioned Raymond Buso, a well-known criminal defence lawyer, in connection with the disappearance of the signs from outside the popular Rita’s italian ice. Five signs, worth at least $35 each, were snatched from the area in front of the shop, with three of the thefts being caught on camera. during one of the incidents, the shop’s owner confronted a man who police later recognised as Buso, and followed

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him home with her mobile phone camera rolling. a nearby ambulance crew witnessed “the commotion” and, no doubt in shock, called police. Meanwhile, the owner continued to follow and film the suspect through downtown salem until he went into his condo and locked the gate. Unfortunately for Buso, he was recognised on the footage by numerous people, and police knocked on the door to his condo to have a wee chat. the case, which Buso says is “strange”, has been referred to the detective’s unit for further investigation. “i wish i could talk to you, but i can’t,” he said. no doubt the good folk of salem are in for a few sleepless nights until the mystery of the stolen ice cream signs is resolved.

a team of hardy blokes from Mallesons stephen Jaques has won the battle of the chafe in this year’s gruelling sydney oxfam trailwalker, held at the end of august. despite conflicting online information about just which team took the top honours in the law category of the infamous 100km fundraiser, Folklaw can confirm that Mallesons’ Mad Men came in at a time of 15 hours and 57 minutes (not bad, considering the team had set a goal of 16 hours and eventually came in at fifth overall). the team consisted of Benjamin sloman, James ellsmore, Chris Parks and darrel Robins, with all team members crossing the finish line except for the perhaps aptly-named sloman. next in line was back-office legal consultancy business ongoing Concern, who came in at 17 hours and 48 minutes, followed by henry davis York’s hdY limpers, who staggered across the line in 20 hours and 47 minutes. While they didn’t make it onto the fastest finisher’s list, norton Rose team nortified took top honours in the fundraising stakes, managing to collect over $11,000 for the oxfam coffers. the ambitious Chooks (who were indeed a little too ambitious and pulled out after spending more than 43 hours on the trail - ouch!) came in at second on the money scales, with team members (including anna Katzmann) raking in more than $10,000. team Watson Mangioni also cracked the $10,000 mark. in all, 21 teams competed in the law category, raising more than $125,000. But Folklaw, having previously dipped its blistered toe into the oxfam trailwalker pool, knows all too well that the real winners out of all of this are the manufacturers of Vaseline and the various physiotherapists whose services will no doubt be required over the next few months ... w w w.law yersweekly.com.au


INSIDE , A H A ND CR A F TED CA BIN INF USED W ITH T H E L A T E S T I N T O U C H S C R E E N T E C H N O L O G Y. O U T S I DE , P ION E E R I N G S U P E R-F OR M E D A L U M I N I U M B ODY WOR K T R A N S P OR T S T H E N E W G T T O N E W L E V E L S OF AT H L E T IC S C U L P T U R E . U N D E R T H E S K I N A 6 . 0 L T W I N -T U R B O C H A R G E D W 1 2 E N G I N E P R O D U C E S 4 2 3 K W O F U N A D U LT E R A T E D P O W E R .

T H E N E W C O N T I N E N T A L G T. A U T O M O T I V E A R T.

Bentley Adelaide

Chellingworth Bentley

Bentley Brisbane

Lance Dixon Bentley

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570 Wickham Street Fortitude Valley, 4006 Queensland 07 3257 7222 Overseas model shown.

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101 Stirling Highway Nedlands, 6009 Western Australia 08 9273 3131

565 Doncaster Road Doncaster, 3108 Victoria 03 9848 9000

Bentley Sydney

52-58 William Street Sydney, 2000 New South Wales 02 8338 3988

www.bentleymotors.com


Penny Parker In-House Sydney

taylorroot.com.au Australia Front-End Construction

Sydney

Litigation

Brisbane

Corporate Counsel

Sydney

Terrific mid-tier team seeks a new senior associate to assist with a range of new work from the private and public sector. The firm are known for paying salaries above and beyond market rate and they offer a career development path to match. Apply now for more information. Ref: 648452. 5+ years

The Brisbane office of this top-tier team actively seeks 2 lawyers to take on a range of new work and stake their claim to accelerated career development. Top of the market salaries and unrivalled career development on offer. Full relocation paid. Apply immediately. Interviewing now. Ref: 643772. SA

Exciting transactional role for a senior lawyer with this leading FS organisation. This team is responsible for originating, managing and closing transaction liability insurance opportunities. Work on big ticket corporate M&A deals in a forward-thinking and collegiate team environment. Ref: PP644525. 3+ years

Property Finance

Partner - IP

Banking & Finance

Sydney

Melbourne

Sydney

This leading banking practice has a new role in property/development finance. You’ll require relevant experience or a strong interest in focusing your broader banking background. Relatively lean, you will enjoy a less cluttered path to progression and excellent rewards. Ref: 255488. 3+ years

Global law firm is seeking to offer a partner position to a senior IP litigation specialist. Some portability of client base would be preferred, depending upon the ‘level’ of partnership being sought and then offered. Outstanding culture within the existing leading CMT team. Ref: 643118. 8+ years

Leading international investment bank requires an experienced banking and finance lawyer to join its dynamic in-house team. Broad range of work with exposure to high-calibre debt and equity financial markets transactions. Upskilling and real career opportunities available. Ref: 644229. 4-8 years

Construction

Banking

Legal Counsel

Brisbane

Excellent opportunity to join this market leading team. Work under the tutelage of a market leader. Front and back-end construction lawyers will be considered. Top of the market salary on offer. Our client is interviewing now. Apply in confidence. Full relocation paid. Ref: 644347. 2 years - SA

Melbourne

Sydney

One of Australia’s finest banking and finance practices has an exciting new position available in its Melbourne office. Candidates with a strong academic and transactional background at the mid-level are encouraged to apply. A rare opportunity to join a market leader. Ref: 644211. 2-4 years

This leading blue-chip organisation is seeking a legal counsel to join its experienced Sydney team. It will involve drafting and reviewing marketing material, advertising copy, IT and sponsorship agreements. Offers career progression and competitive remuneration. Ref: 644563. 3-5 years

Insolvency/Restructuring

Associate Competition

International Legal Counsel, Shipping

Doha, Qatar

Hong Kong

Brussels

We are currently working with a major Qatar client in their shipping and transport business. They lead the market in their industry and their business connections means they work globally. They require a strong commercial shipping lawyer to handle a wide variety of work. Ref: MA24433. 3-6 years

Top offshore law firm seeks a mid to senior-level associate for its market leading insolvency and restructuring team. The team currently deals with both contentious and non-contentious work and acts for major financial institutions and funds. No Chinese language skills required. Ref: 143900. 4-7 years

Magic Circle firm in Brussels is looking to strengthen its competition team with a junior lawyer with 1-2 years’ PQE and a strong competition background. Brussels is the place to be for competition work and you will get exposure to high profile cases. Great opportunity. Ref: 850250. 1-2+ years

Projects

Capital Markets

Litigation

Dubai

Hong Kong

Cayman

Leading banking and projects firm in the Middle East is seeing significant activity and is keen to acquire a top mid-level lawyer who has had some exposure to projects contracts experience. Exposure to only the best work in the market. An excellent opportunity for a talented individual. Ref: 20923. 4-6 years

Magic Circle team covering equity, debt, regulatory capital and equity-linked bond issues, structured finance transactions and the full range of derivative and securitised products. You must have experience in some, but not necessarily all, of these areas. Chinese language skills not required. Ref: 165700. 1-4 years

An opportunity has arisen for a mid-level litigator at a top-tier offshore firm. Broad commercial work with elements of trusts and insolvency is on offer. Exposure in all those areas is not essential. Advocacy experience useful. In return, tax-free earnings on a Caribbean island. Ref: 802430. 4+ years

Corporate

Banking

IP

Abu Dhabi

This high quality firm with a stand out Abu Dhabi presence is keen to hire two more excellent corporate lawyers for its office in the emerging Emirate. Opportunity to work on some of the leading deals in the Middle East and a highly reputed team. Ref: 23023. 2-5 years

Singapore

This UK law firm is losing a couple of associates to other global offices of the firm and is therefore looking for additional staff. Work is a mixture of syndicated lending, project finance, acquisition finance, trade and commodity finance and asset finance. Only 15% tax. Ref: 134701. 1-6+ years

London

A rare opportunity to join one of the Magic Circle firms in the City. Working alongside rated experts you will enjoy a broad mix of contentious matters. A genuinely stand-alone team in a fantastic working environment. Experience from a top-tier firm is essential. Ref: 796240 3+ years

For International roles, call Karlie Connellan on +61 (0)2 9236 9000 or email karlieconnellan@taylorroot.com.au For Australian Private Practice roles, call Matt Harris or email mattharris@taylorroot.com.au For Australian In-House roles, call Brian Rollo or email brianrollo@taylorroot.com.au For Melbourne roles, call Tim Fogarty on +61 (0)3 8610 8400 or email timfogarty@taylorroot.com.au Please note our advertisements use PQE purely as a guide. However we are happy to consider applications from all candidates who are able to demonstrate the skills necessary to fulfil the role. THE SR GROUP . BREWER MORRIS . CARTER MURRAY . FRAZER JONES . PARKER WELLS . SR SEARCH . TAYLOR ROOT LONDON . DUBAI . HONG KONG . SINGAPORE . SYDNEY . MELBOURNE


Lawyers Weekly September 9, 2011