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Winning battles, but war continues

A&O and Allens help Foster’s go global

Twitter is a law firm’s best friend

Ashurst the new global entrant






Friday 30 September 2011

Print Post Approved 255003/05160


New Zealand still open for business

Get your career across the line International Vietnam | Corporate 4 – 6 years

This role involves a mix of public and private M&A, joint ventures, private equity and securities offerings from complex transactions to smaller deals providing greater responsibility. You will deal directly with multi-national corporations and financial institutions assisting on structuring, documenting, negotiating, licensing and post-licensing aspects of projects. You will be expected to mentor and supervise junior lawyers on relevant matters. Top or highly regarded mid tier background. Ref: VTM/4471/RL

Bangkok | M&A/Private Equity Mid Level

Jakarta | Corporate M&A

Junior Partner or Senior Associate

Rare opportunity to work on cross border deals from the Bangkok office of this international firm. You will have at least 3 years of relevant experience gained from a top tier or similar quality law firm. You will act for clients within a range of sectors on private and public company acquisitions and JVs. You need to be Commonwealth qualified but Thai language ability is not necessary. Ref: BAN/4452/RL

A leadership opportunity is available for an M&A practitioner interested in relocating to one of the top performing economies in the world and the largest economy in SE Asia. To be successful you will need a broad M&A background, strong technical drafting expertise and the ability to take the lead on complex negotiations and transactions. Industry sectors include natural resources, oil and gas, mining, water and power. Ref: JAK/4474/RL

Sydney | Commercial / IT

Sydney | Competition/Marketing

Sydney | Corporate/Commercial

This highly regarded blue chip corporation is on a lookout for a savvy commercial/IT lawyer. You will be providing a mix of general commercial and specialised IT advice across a range of customer focused businesses. At least 5 years commercial and IT experience gained at a top tier or recognised industry player, a high degree of commerciality and excellent communication skills are essential. SYD/4428/OH

Exciting new opportunity with a focus on handling consumer law and marketing issues within this listed technology business. Varied work includes contracts, marketing & advertising advice, dispute resolution, Competition/TPA and regulatory advice. You will have around 4–6 yrs pae in Commercial Law and Competition/TPA or Marketing Law, preferably with IT, IP or Telco experience at a major law firm or in-house. Ref: SYD/4477/DS

This highly recognised global corporate has a new role for a senior commercial lawyer to join their team. There is a broad range of work on offer including corporate advice, company secretarial, commercial contracts, TPA etc. You will be working as part of a cohesive team with plenty of support and close business alignment. SYD/4469/DS

In-house 5 – 9 years

4 – 6 years

7 to 10 years

Private Practice Melbourne | Insurance

Sydney | Corporate/Commercial

Sydney | Employment

3 years +

4 – 7 years

2 – 4 years

Excellent opportunity for an experienced insurance lawyer to join this national mid tier firm. The firm has an excellent reputation and is known for their quality service offering. They are seeking a lawyer with at least 3 years experience to work across a range of professional indemnity, medical negligence, public and product liability with first class Partners in a down to earth team. Strong academic background and interpersonal skills are essential. MEL/4146/AM

This well respected national mid tier firm seeks an experienced lawyer to join their collegiate and supportive team. You will possess excellent drafting skills and have previous experience working on shareholders’ documents, sales and purchases, joint ventures and commercial contracts. You must have full knowledge of the Corporations Act and have the ability to assist with the business development of the practice and mentor junior lawyers. SYD/4426/GG

Excellent opportunity for an employment lawyer to join this top tier firm and work with leaders in the field. You will work on a diverse range of contentious and noncontentious matters including industrial/employment disputes, drafting a variety of employment agreements, and advising on equal opportunity and OH&S matters for blue chip clients. Clients include corporates from a range of industry sectors SYD/4022/AM

Brisbane | Construction

Sydney | Commercial Litigation

Perth | Property

3 – 6 years

2 – 4 years

Senior Associate

This premier Queensland firm is seeking an experienced construction lawyer to work on primarily front end matters. You will have previous experience working on either front or back end from a renowned construction practice. Working with this friendly, down to earth and collegiate team. You must have excellent interpersonal and technical skills and solid academics. Great opportunity and genuine career progression. BRI/4107/GG

This very strong firm, with an outstanding reputation, has an opening for a talented and energetic litigator. You will have first class experience working on a range of contentious matters. Offering exposure to a high calibre client base, you will gain top class experience. Excellent opportunity to work with leading partners and be part of a growing practice. SYD/4473/GG

Excellent opportunity for an experienced property lawyer to join this top tier firm. Work with two first rate partners across a range of commercial property matters including various land transactions, large scale developments complex leasing work and property trusts. You will work with some of the firm’s most key property clients and hands on mentorship from Partners and senior lawyers together with real opportunities for career advancement. PER/4159/AM

Sydney | TMT lawyer

Sydney | Banking & Finance

Perth | Energy & Resources

Senior Associate

2 – 5 years

Senior Associate

This international firm are currently seeking and experienced Technology and Communications lawyer. You will work on major IT outsourcing, software development, systems acquisition and integration, licensing, distribution, agency and teaming agreements or regulatory advice, network/ IT infrastructure projects, product development and customer terms as well as telecommunications-related M&A matters. SYD/4344/AM

A new role has arisen in our client’s fast growing b&f team. This is a great opportunity to work amongst market leaders within a supportive team environment. Teamwork is the key to succeeding in this amongst this collegiate Group. The successful candidate will have at least two years experience advising on project or infrastructure finance, takeover/ acquisition financing or large syndicated loan transactions. Strong academics essential. SYD/4376/OH

An exciting opportunity has arisen for a talented energy and resources lawyer to join this premier national practice. Previous experience working on high level acquisitions and disposals, regulatory approvals, due diligence, joint ventures, contracting and procurements and projects is essential. High calibre client base primarily in the oil and gas industries makes the work both challenging and interesting. You will have previous experience mentoring junior lawyers. PER/4415/GG

For a full list of active roles that Dolman is working on throughout the worldwide visit For further information please contact one of our consultants for a confidential discussion: Daniel Stirling, Alex McIntyre, Olivia Harvey, Gail Greener and Ralph Laughton. Sydney (02) 9231 3022 Melbourne (03) 8637 7317 or email


“There’s a lot of capital sitting on the sidelines waiting to be re-invested” Jack Porus, joint managing partner, Glaister Ennor – see page 18



IN-DEPTH: The NSW Women Lawyers Association Achievement Awards 2011 celebrated the best of the profession, but the fight for equality continues. Justin Whealing reports


THIS WEEK: A round-up of the latest legal news

12 14

16 24 26

IN-DEPTH: Social media and non-lawyers are becoming an increasingly important part of the legal profession, something that law firms are still coming to grips with. Justin Whealing reports PRACTICE PROFILE: With more and more information being catapulted into cyberspace and fast-improving technologies, intellectual property law is an increasingly dynamic and busy field. Stephanie Quine asks IP lawyers how they keep up OPINION: He might not look or behave in a lawyerlylike manner, write Louise Woodbury and William de Ora, but Richard Branson can teach lawyers a thing or two about how to build a client base MY NEXT MOVE: I have been advised that an interstate move can advance my career. How does this work?


COVER STORY: New Zealand is most associated with the All Blacks, its beautiful scenery as depicted in Lord of the Rings and more recently, the response to the devastating earthquake in Christchurch. Darise Bennington reports that its people and its law firms remain optimistic about the future

FOLKLAW: The lighter side of the law

Minter Ellison moves ahead in Perth We have moved to: Allendale Square 77 St Georges Terrace Perth WA 6000

GPO Box 2550 St Georges Terrace Perth WA 6831

T + 61 8 6189 7800 F +61 8 6189 7999


Our Perth team, backed by the full resources and strength of Minter Ellison’s extensive network, will ensure our clients in Western Australia have access to the technical excellence, innovation and industry knowledge that are our hallmarks.

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Editor, Justin Whealing


Tweet, tweet Get your 140 characters of must-know legal news via @lawyersweekly Friendly faces Follow Lawyers Weekly on Facebook at www.facebook. com/lawyersweekly

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LAST WEEK I had the pleasure of attending two distinct legal events. The first, the Janders Dean Law Firm Knowledge and Innovation Conference, showcased the rising influence and importance of knowledge managers and legal support staff within private practice (see page 12). Pete Williams, the CEO of Deloitte Digital, took aim at the conservative nature of law firms and said that firms that don’t embrace social media will become irrelevant. “Your customers, staff and potential graduates all use it,” he said. “The problem I see most of the time is from the attitude of leadership and management to its usage.” Even relatively forward thinking senior members of the profession, such as Baker & McKenzie managing partner Chris Freeland, remain reticent to embrace social technology under the current law firm model, where clients, particularly at the high-end often choose firms that are judicious with their means of communication. That attitude will change over time. The modern business catchcry of “innovation” means that it will be hypocritical for law firms or any business organisation to claim on the one hand that they are “innovative” and “modern”, while still sticking with traditional forms of communication and imposing strict rules on the types of social media that can be accessed by staff. While the use of social media is a relatively new fight, the struggle for women to receive appropriate recognition in the profession is ongoing. Last Friday I attended the Women Lawyers Association of NSW Achievement Awards 2011 Gala Dinner (see page 10). Why are there masses of female judicial officers at the lower levels of the judiciary, but not at the highest level? And why is there still a relative paucity of female law firm partners when compared to their male colleagues? These were just some of the questions put forward by Justice Margaret Beazley in her address last Friday. Despite the enormous amount of advocacy from within the profession, the upper echelon of the legal sector remains one of the most inherently conservative and risk-averse professions within the Australian economy. As Williams noted the day before, “not everything has to be a big risk”. It is time the profession reflected the attitudes and diversity of its members through its senior leadership and the way it interacts with members of the public. TOP 10 STORIES ONLINE THIS WEEK 1 Don’t be afraid of social media 2 Blake Dawson launches new practice 3 A&O and Allens toast Foster’s deal 4 Mallesons lawyer rewarded for Friday night drinking 5 Minters and Clifford Chance act on billion dollar deal 6 Govt reacts like “spoilt brat” 7 Boomtown: Is all that glitters really gold for Perth firms? 8 The race for legal honours 9 The rise of the non-lawyers 10 Justice born of universal ethics NEXT WEEK

Global financial markets have bared their fangs and the spectre of another recession is once again being discussed. Lawyers Weekly asks whether there will be a new round of insolvency and restructuring work associated with the current levels of financial instability and whether there is still any restructuring or insolvency work kicking around from the last GFC.

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 All subscription payments should be sent to: Locked Bag 2333, Chatswood D/C, Chatswood NSW 2067 ADVERTISING ENQUIRIES: Adrian Fellowes (02) 9422 2134 (mob) 0407 489 060 Stephen Richards (02) 9422 2891 (mob) 0429 305 836 EDITORIAL ENQUIRIES: Justin Whealing (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 © 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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FINANCE • Sydney – Broad Finance – Transactional – 2-6 pqe

3-7 pqe – Top Tier Firm

• Sydney – M&A/ECM 2-6 pqe – International Firm

• Brisbane – M&A/ Transactional 3 + pqe

International Firm


• Sydney – Energy & Resources – 2-7 pqe International Firm

• Sydney – Banking & Finance • Perth – Corporate Energy Partner – Top Tier Firm

• Melbourne – Project Finance – 4 + pqe – Premier Firm

Top Tier Firm

• Melbourne – Private


• Brisbane – General Banking

Equity/M&A 3-7 pqe

& Finance – 2-5 pqe – Top Tier

Premier Firm


1-4 pqe - International Firm

• Brisbane – Energy & Infrastructure 2-7 pqe – Leading Firm

• Melbourne – Projects &

• Sydney – Front End Construction Partner - National Firm

• Sydney – Construction & Infrastructure – 2-6 pqe – Top Tier Firm

• Brisbane – Non-Contentious Construction – 3 + pqe – Top Tier Firm

• Perth – Non-Contentious Construction/Projects – 3 + pqe International Firm

Energy – 1-6 pqe – Top Tier Firm

Now is the perfect time to position your career in the Australian market. The Australian economy remains strong and firms are continuing to grow. In this rapidly changing legal landscape it is advisable to take stock of where your career is heading and to make sure you are on track for the right career within a firm that offers the right prospects and culture (for you), in a location within Australia that which matches your personal as well as professional goals. We have one of the most senior legal recruitment teams and offer you professional advice in making a local or interstate move. For a confidential discussion about your current options in Australia please contact one of our consultants:

Jonathan Walmsley

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Greg Plummer 02 8014 9052

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02 8014 9050

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To search Australian and global job opportunities go to or download our free iPhone App (search iTunes – Marsden Job Search) - legal job searching just got easier.


The Web

AG attacks “complex” anti-discrimination laws A public discussion paper to seek community views on the consolidation of federal antidiscrimination laws was launched on 22 September. According to Attorney-General Robert McClelland, the five pieces of legislation which support the government’s anti-discrimination policy - the Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act, the Age Discrimination Act and the Australian Human Rights Commission Act - are “inconsistent and unnecessarily complex”. Submissions on the discussion paper can be made until 1 February 2012. Drink-driving judge escapes jail term Retired New South Wales judge Roderick Howie has been sentenced to 100 hours of community service and received a six-month licence suspension for mid-range drink-driving. Magistrate Daniel Reiss noted how “painfully ironic” it was to sentence the retired judge for drink-driving given Howie, as an acting judge for the NSW Court of Appeal, had written the guideline judgement for high-range drink-driving. Charter review not credible The head of the Law Institute of Victoria (LIV) told a forum on 20 September that the Scrutiny of Acts and Regulation Committee (SARC) report that rejected the argument from the LIV that the Victorian Human Rights Charter should be expanded to include social and economic rights was not credible. “It does not reflect the overwhelming support for the Charter,” said LIV president Caroline Counsel. “Of the almost 4000 submissions made to SARC, 95 per cent were in favour of retaining it.” Other speakers at the forum included Ben Schokman, the director of International Human Rights Advocacy with the Human Rights Law Centre, and Cath Smith, the CEO of the Victorian Council of Social Service.


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Ashurst gobbles up Blake Dawson Blake Dawson will soon be known as Ashurst under plans to merge the two firms by 2014. Announced on 26 September following months of speculation, Ashurst and Blakes will combine their businesses in Asia and merge their operations globally, under the Ashurst brand. The merger announcement follows a positive vote of both partnerships, which took place on 23 September. The combining of the firms’ Asian practices and the rebranding of Blake Dawson is planned to take effect by March 2012, while the full merger is conditional on a further vote of the partnerships. According to a statement released by Blake Dawson, the merger will be considered in early 2014. “There is great deal of synergy between Ashurst and Blake Dawson in terms of practice area expertise and growth strategy,” said Ashurst senior partner, Charlie Geffen. “We are confident that the initial combination will materially strengthen our businesses in the Asia-Pacific region and also allow us to create significant momentum in achieving our goal of being among a small group of premier global firms.” Blake Dawson chairman Mary Padbury [pictured] said combining the firm’s operations with Ashurst will help deliver a “greatly expanded international capability” and “exciting career prospects” for Blake Dawson staff. Ashurst’s Geoffrey Green, a partner of the firm since 1979, has been appointed as chair of the

combined Asian business. “Our firms have worked together successfully in Asia for nearly 10 years,” said Green. “The combination is a natural development of our relationship, giving Ashurst scale and depth of resource in Asia.” Ashurst currently has 230 partners and 900 lawyers, bringing in A$462 million of revenue in 2011.


Treasurer Wayne Swan, who received Euromoney magazine’s Finance Minister of the Year award in Washington on Sunday, warned that economic problems in Europe and the United States will affect Australia and the Asian region, making a return to surplus by 2012/13 harder. Palestine looked to Australia for constitution insight as five deans from Palestinian law schools toured Australian law faculties. AusAid funded 50 scholarships for Palestinian postgraduate students to study at Australian universities with the aim of helping Palestinians strengthen their new laws. The Federal Government responded to the Australian Law Reform Commission’s proposal to allow Australians to take civil legal action if their privacy has been seriously invaded. Privacy Minister Brendan O’Connor said it is vital that privacy laws keep pace with technological changes but not at the expense of freedom of expression. Finance Minister Penny Wong initiated an overhaul of pension arrangements for federal judges to provide greater financial security for the former partners of divorced judges. The overhaul comes after a seven-year reform campaign by Mary Barry, former wife of retired Family Court judge James Barry.

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a&O and allens toast Foster’s deal

Deal name: Foster’s sale to SABMiller Key Players: Allen & Overy; Allens Arthur Robinson; Hogan Lovells

Allens Arthur Robinson has helped to negotiate an extra $400 million on behalf of Foster’s in its proposed $9.9 billion sale to SABMiller. Foster’s has accepted the $9.9 billion sale of its beer business, which includes the iconic Australian brands VB and Carlton Draught, after rejecting a $9.5 billion bid in August. By factoring Foster’s debt, the bid values the brewer at around $12.3 billion. Robert Pick, the firm’s capital markets co-head, led the Allens team advising Foster’s with senior partner Ewen Crouch. Allen & Overy acted for SABMiller. The firm’s team was led by M&A partners Aaron Kenavan and Michael Parshall, with antitrust partner Dave Poddar and banking partner Adam Stapledon also advising. Hogan Lovells also advised SABMiller on global aspects of the transaction. The deal represents a coup for both Allens and A&O, as they received the nod to act on this transaction ahead of other law firms that have had extensive links with both companies. “We have a long history with Foster’s and were delighted to act for them on this transaction,” said Pick. He provided no comment about

whether Allens actively courted Foster’s to trump Corrs Chambers Westgarth, usually Foster’s law firm of choice, in acting on this deal. The chairman of Foster’s, David Crawford, also sits on the advisory board of Allens. Crawford described the increased offer by SABMiller as “compelling”. The British-based SABMiller – which has beers including Castle Lager, Grolsch and Peroni in its portfolio – has previously used Baker & McKenzie for much of its international legal work. London-based A&O partner Richard Brown was a key figure in enabling his firm to be involved in one of the largest Australian M&A deals of the last few years. While the deal represents good value to Foster’s shareholders in a shrinking Australia beer market, some politicians and union groups have questioned the takeover, concerned by possible job losses and the loss of an Australian connection with brands such as Cascade, VB and Foster’s. The Foster’s stable also includes international brands Asahi, Corona and Stella Artois. Foster’s is hoping that the shareholder and court approvals required to have this deal signed off will be completed by Christmas.


Rod Howell

Tony Ryan

Philippa Stone


Allens Arthur Robinson (ANZ, UOB, Sumitomo Mitsui Banking Corp)

Ryan Lawyers (Nadathur Fareast)

Minter Ellison (Ivanhoe Australia), Freehills (underwriters UBS AG, Morgan Stanley Australia Securities Ltd)

Deal name

Syndicated term loan to Sinochem International Overseas

Singaporean firm purchase of Australian hotel assets

Equity capital-raising of minerals exploration and development company.


Banking and Finance




$185 million


$180 million

Key players

Allens’ Rod Howell

Ryan Lawyers’ Tony Ryan

Freehills’ Philippa Stone

Movers & Shakers

D e A L O F T He W e e K

Victoria picks Champion as new DPP Senior counsel John Champion is Victoria’s new director of public prosecutions (DPP), following his stint as acting DPP which began in June this year. Appointed a senior counsel in 2003, Champion has practised as a barrister for more than 33 years across all aspects of criminal law. Allens boosts Brisbane projects practice Allens Arthur Robinson appointed construction and infrastructure specialist Adrian Baron as a partner in the firm’s Brisbane office. Baron will join Allens next month after seven years at construction contracting business John Holland Group, where he was general counsel between 2004 and 2010. Thynne & Macartney scores former Sparkes man Brisbane law firm Thynne & Macartney appointed former Sparke Helmore practice manager, Rod Groch, as general manager. Groch was practice manager and financial controller at Sparkes in Newcastle from 1994 to 2000 and general manager of Lander & Rogers in Melbourne for four years. Gilbert + Tobin loses CIO Gilbert + Tobin’s chief information officer, Andrew Mitchell, joined Lander & Rogers as its director of technology and innovation. Mitchell has over 20 years of IT-industry experience in the legal, telecommunications, consulting, consumer goods and pharmaceutical sectors.

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blake Dawson launches new practice Blake Dawson has launched an employment law practice across South-East Asia to be led by former Freehills practice group leader George Cooper. Announced on 22 September, Singapore-based Cooper will head the firm’s new regional employment law practice from mid-October. Cooper joins Blakes from Freehills, where he has led its workplace law and advisory - Asia practice in Singapore since 2007. “We have offices in Singapore, Jakarta, Shanghai, [Tokyo and Port Moresby], but we don’t have specialists in the [employment] field in that area,” said the head of Blakes’ national employment practice, Richard Bunting. “We have quite a bit of work needing to be done on instructions from Singapore or relating to issues in the region, so we will now be establishing a broad employment law advisory practice in the region, based in Singapore, with George Cooper leading it.” Bunting said the new practice will initially entail Cooper as lead partner, a senior associate and a solicitor. “There will also be an integration and cooperation with our employment law specialists here in Australia and there will be an integration with the other players we have in the region,” he said.


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Patent bill rejected On 22 September a Senate Committee found that a bill to ban the patenting of biological materials should not be passed. The private member’s bill, sponsored by senators Bill Heffernan, Nick Xenophon, Rachel Siewert and Helen Coonan, sought to ban the patenting of all biological materials, including genes, which are identical or substantially identical to those found in nature. The committee found that the bill did not provide an effective solution to the problems articulated by the wider community in terms of access to healthcare. Dr Tania Obranovich [pictured], a patent partner at Davies Collison Cave and member of the Institute of Patent and Trade Mark Attorneys of Australia (IPTA), welcomed the Senate Committee’s finding and said the bill’s proposals did not correlate with the issues articulated by the public, especially in relation to regulating the abuse of monopolies. “Banning the patenting of all biological material isn’t going to change, in any way, access to method patents like diagnostics ... If we don’t have patents available in Australia when the rest of the world does, there could be some very detrimental consequences,” said Obranovich.

In their submissions to the Senate Inquiry, some pharmaceutical companies said if they could not patent in Australia, they would seek regulatory approval for their products overseas. The companies said they would then consider bringing it to Australia. “This is really concerning,” said Obranovich. “It’s not that investment would dry up - the investment would just shift overseas. If there’s no patentable protection available in Australia, but there continues to be in Europe and the US, development will be sent overseas and our researchers will go where the development is, where the money is, where the protection is.”

Govt reacting like a “spoilt brat” The Government’s proposed migration legislation is a “spoilt brat” reaction which fails to show true leadership, according to the president of the Australian Lawyers Alliance. Tasmanian barrister and ALA president Greg Barns said that Prime Minter Julia Gillard’s reaction to the High Court decision and subsequent attempts to amend the Migration Act show dictatorial contempt for the courts and that she is pandering to minority public opinion. “The legislation is an undermining of the rule of law and the right of the High Court,” Barns told Lawyers Weekly. “It’s a spoilt brat reaction; a reaction that says ‘we want to be able to lock the courts out, we don’t want lawyers and judges protecting the rights of the individual against an overbearing executive, we want complete control of migration policy in relation to asylum seekers’”. On 19 September Gillard presented the Tony Abbott led opposition with proposed amendments to the Migration Act in attempt to overturn the High Court ruling. Her proposed legislation amended the public interest test to a broader ‘’national interest’’ test in a bid to save the Malaysia plan, empower the government to return unaccompanied minors, and include some human rights guarantees which were not legally binding. “This is a really good example of our so called leaders pandering to a bunch of marginal seats in Australia where they think it’s popular to play god

with the lives of refugees and asylum seekers,” said Barns. A Herald/Nielsen poll of 1400 people this month revealed that more than half the population (54 per cent) wants refugees arriving by boat to have their asylum claims processed onshore. Abbott declared the Coalition would only support changes that allowed asylum seekers to be sent to countries that had signed the United Nations Convention on Refugees - this ruled out Malaysia but kept in play the Coalition’s Pacific solution policy of Nauru. Stephen Keim SC, President of Australian Lawyers for Human Rights (ALHR), said the proposed amendments “represent the first time Australia has been explicit in seeking to flout its obligations to protect refugees through the passing of new legislation”.

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At a forum to discuss “universal ethics” and the law, the former Chief Justice of the High Court of Australia reflected on the ideals of a justice system. Stephanie Quine reports At the Centre for Universal Ethics and Society in Sydney last week, the Honourable Murray Gleeson AC and Rabbi Dr Shimon Cowen discussed the relationship between the administration of justice and traditional universal ethics. “These ethics ... have been endorsed by the US Congress as the ‘bedrock of society from the dawn of civilisation’ and similarly by former Australian Governor-General Michael Jeffery, and were already seen by the Renaissance jurists Hugo Grotius and John Selden as foundational for law,” said Cowen, the son of former Governor-General Sir Zelman Cowen and director of the Institute for Judaism and Civilisation. Gleeson said universal ethics do and should inform the adjudication of positive law – the actual law made by legislatures, and noted that the implementation of the law by courts and judges was subject to an obligation of legitimacy. “A stream can’t rise higher than its source, and the authority of the judges can’t rise above the constitution,” said Gleeson, adding that problems of judicial authority in the regimes of Fiji and Pakistan highlighted the fact that judges had to decide whether to continue to sit in the courts and implement the law. “Most Australian judges would approach such issues in relation to universal ethics … Most judges would say that if they can’t apply the law according to their conscience, they would resign,” said Gleeson, explaining that universal values inform the content and the practical application of positive judgemade law, as well as statute. “Respect for human life, for example, informs the content of the criminal law. Respect for life and human dignity informs sentencing laws that are enacted.” But Gleeson also noted that there are variations on the practical application of common values throughout the world. “In some societies that are very familiar to us, the law permits capital punishment. In some societies less familiar to us, the law permits corporal punishment,” he said, adding that specific problems of public

US/UK Update

Justice born of universal ethics

US firms in London join diversity project The London offices of several US firms are joining the social mobility initiative launched by 23 major law firms in the UK earlier this month, reports Legal Week. White & Case and Shearman & Sterling are among the US firms joining the cause as well Mayer Brown and Baker & McKenzie. The initiative involves a commitment to providing a minimum number of work experience places each year to under-privileged children in a bid to improve diversity. Death penalty challenged The death by lethal injection of a man in Jackson, Georgia – despite evidence casting his 1991 conviction in doubt – provoked an outburst of protests against the death penalty, reports The Guardian. Relatives of Troy Davis and activists vowed to continue the campaign to have the death penalty abolished. Richard Dieter, director of the Death Penalty Information Centre, said it was a clear wake-up call to politicians across the United States.

“A stream can’t rise higher than its source, and the authority of the judges can’t rise above the constitution” The honoUrAble MUrrAy GleeSon AC

policy, like abortion, therefore have a legal response in positive law that varies from place to place. “I think all societies accept that practical access to justice is an ideal to pursue and try to make the civil justice system available to citizens,” he said. However, according to Gleeson, cost structure is the “greatest blot” on the legal system. In terms of access to justice, he noted a lack of political support for legal aid in Australia. “An effective and fair legal aid system is so far the best method that has been devised in dealing with this problem of inequality of [legal representation] … But widening the provision of legal aid doesn’t seem to be a very popular political issue,” he said.

Freshfields pair bound for boutique Two associates from Freshfields Bruckhaus Deringer’s Paris office have left to establish their own financial regulatory boutique, reports The Lawyer. Jean-Baptiste Poulle and Nicolas Spitz are so far the only lawyers at the two-partner firm, Spitz & Poulle, which launched earlier this month. The pair worked together for five years in Freshfields’ French finance practice and during that time identified a need for a dedicated financial regulatory law firm in the French market. US firm hires Obama insider US firm Wilmer Cutler Pickering Hale and Dorr has appointed a prominent federal prosecutor and an Obama administration insider, reports The AM Law Daily. Boyd Johnson III, deputy U.S. Attorney for the Southern District of New York, and Thomas Strickland, a former chief of staff to Interior Secretary Ken Salazar, are set to join the firm in New York and Washington DC, respectively.

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women take centre stage

The NSW Women Lawyers Association Achievement Awards 2011celebrated the best of the profession, but the fight for equality continues. Justin Whealing reports


nide remarks, institutionalised bias, an old boys club. Margaret Beazley faced and overcame all of this as a young woman from south-western Sydney, rising through the legal profession to become a Queen’s Counsel, judge of the Federal Court and in 1996, the first woman appointed to the New South Wales Court of Appeal. Beazley was the guest speaker at the NSW Women Lawyers Assocition Achievement Awards 2011 Gala Dinner in Sydney last Friday night (23 September). Far from dwelling on her own achievements, Beazley looked towards the future in a speech to a room full of the brightest young lawyers in the country, male and female, and a selection of its established leading lights, including Greg James QC, Stuart Westgarth and 3 Janet Coombs. “These days we have just huge numbers. I mean, look at this room. We used to have just one table,” she said. “That’s important because it means we don’t have to prove ourselves as a section of society that once didn’t have a voice.” Awards were presented across five categories, with Elizabeth Evatt, a 60-year veteran of the profession, taking out the Life Achievement Award.




And the winner is... 5 NSW Women Lawyers Association patron Justice Jane Mathews is pictured with the following award winners: 1. woman lawyer of the year in private practice Anna Walsh –director, principal, head of the medical negligence department NSW, Maurice Blackburn


2. woman lawyer of the year in a Community Organisation Emma Golledge – Principal Solicitor, Kingsford Legal Centre 3. Up and Coming woman lawyer of the year Claire Hammerton – Acting senior legal officer, NSW Aboriginal Land Council 4. In House woman lawyer of the year


Kate Perumal – General Counsel, Abigroup Limited 5. life achievement award Elizabeth Evatt 6. Justice margaret beazley being presented with flowers from NSW Women Lawyers Association president Rebecca Barry 7 woman lawyer advocate of the year Julia Baird SC – Chair, Women Barristers Forum, with Justice Jane Mathews


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“The only prize I had ever won before 1951 was a prize for long attendance at my school, for 13 years’ servitude at PLC,” said Evatt in accepting the award. “That is 60 years ago now [leaving school], and in the meantime, I have had one or two awards, and I am very much hoping that this award, which has the same sort of long attendance in it – 60 years’ servitude – reflects more about some of the things that have been achieved rather than the longevity of it all.” The niece of former Australian Labor Party leader, Herbert “Doc” Evatt, Elizabeth Evatt has been a well known advocate for human rights throughout her legal career. Evatt has held numerous senior positions throughout her career, including being the deputy president of the Commonwealth Conciliation and Arbitration Commission, chief judge of the Family Court of Australia, president of the Australian Law Reform Commission and the chair of the United Nations Committee on the Elimination of Discrimination Against Women. She is currently a commissioner with the International Commission of Jurists. While Beazley stressed that the awards

night was an event that is for “celebrating, for supporting, for rejoicing, the achievements of a group of top lawyers, all of whom happen to be women”, she reminded everyone in attendance that the fight for gender equality was far from over. “I still have to ask the perennial question: Why aren’t there more female partners in law firms?” she said.

“Why aren’t there more female judges on the Supreme Court? Why are there masses of [female] judicial officers at the lower levels of the judiciary, but not at the highest level? “There must be something operating there which is not just the old structural argument of, ‘Oh, we had to wait for them to come through’. “We are all through, we are all highly competent, so I think there is an issue.” LW

A woman’s work is better than that “There was one particular occasion when we were dealing with a contract where Justice Roderick Meagher was presiding. Justice Ken Handley was on the far right and I was on the far left,” said Beazley, pausing at this juncture in the story, to great effect. “The now justice, but then Mr Michael Slattery, was counsel on one side and he was being very concerned to be very gender aware. It was an absolutely atrocious contract and he was making these submissions. Justice Meagher was quite a stickler for “good English”, which he would consider meant not gender neutral language. So Michael was saying, ‘and so the draughtsperson in clause five’ and Roddy would say, ‘draughtsman’. “You could see Michael look at Roddy, then he looks at me, like, ‘What am I going to do?’, then he looks at Ken, and wonders who he will stand up for. “He would go and say, ‘Yes, Your Honour, you would see, um, in clause, um, 51B, the umm, draughtsperson, umm, and Roddy would say, ‘draughtsman, draughtsman’, and this went on for several clauses until I said, ‘Don’t worry Mr Slattery, no female would have drafted a contract like that’.

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embrace social media and non-lawyers Social media and non-lawyers are becoming an increasingly important part of the legal profession, something that law firms are still coming to grips with. Justin Whealing reports


ete Williams took aim at the legal profession – and he didn’t miss. The Deloitte Digital CEO told the Janders Dean Law Firm Knowledge & Innovation Conference in Sydney on 22 September that law firms that don’t embrace social media will become irrelevant. “If what you are doing in IT or knowledge management doesn’t have social [media] in it then stop and start again. It is as simple as that,” he said. Williams relayed the story of a seminar he was conducting at a large financial institution that had banned employees from using Twitter. “I am constantly surprised by large organisations using blanket bans with this stuff,” he said. “I was with a large bank the other day. I was doing a thing for their investment managers, which manages billons of dollars of funds, but they weren’t allowed to use Twitter. ‘Okay, so you can manage billions of dollars, but shit, you can’t have a Twitter account or watch a YouTube video. That might be dangerous’.” Rather than ban Twitter, Williams told the room full of knowledge managers and law firm partners that “Twitter is your best friend”. “Twitter is the greatest way of amplifying your message,” he said. “Twitter users are


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almost the most important users you have. The networks they have - you need to tap into.” Williams believes that law firms “need to employ people that are younger and better than them” with their use of social media, and that knowledge managers need to be more active in changing the culture at law firms to promote its use and benefits. “Not everything in the world is a massive risk. Get the guy who is the great guru in an area of law that you work in and stick an iPhone in his face and get one minute of his views.”

law firms are more than lawyers Law firms are increasingly looking to outsource work and using non-lawyers to pitch to clients. Baker & McKenzie Australia managing partner Chris Freeland, who spoke at the conference, told Lawyers Weekly that law firms and their clients are increasingly looking to outsource “simple” legal work. “Clients are interested in outsourcing because of the benefits of timeframes,” he said. “Internally, at Bakers, we have the Global Services Manilla (GSM) facility which provides a shared services function to support the Bakers offices globally.” Freeland said the Manilla arm of the Bakers empire assists Australia with issues including IT, knowledge management and marketing. “Where outsourcing makes sense is with regard to commoditised types of work,” he said, “including due diligence work and e-discovery matters pertaining to litigation.” After Freeland spoke, Nicole Bamforth, the chief information officer (CIO) at Freehills and Tom Baldwin, the CIO at American firm Reed Smith LLP, spoke about the growing importance of knowledge management within law firms.

Bamforth nominated fee arrangements between a law firm and its clients as an area where the input of support staff was becoming increasingly important. “Alternative fee arrangements, and the need to get crisper and clearer about pricing and what they mean and what the levers are at a very simple level,” said Bamforth. “Just using that information and knowledge to be able to manage client expectations, these are part of the common themes that are going on in the knowledge management space about the differing roles knowledge managers can play in an organisation.” Baldwin agreed with Bamforth about the increasingly important role of knowledge managers. He said he was now being used with lawyers to pitch the wares of his firm to prospective clients. “The head of litigation will call me on Monday to say, ‘Tom, I need you to fly out to New York with me on Friday to do a pitch’ and it will be her, the number one rainmaker at the firm, and the number three rainmaker at the firm to do the pitch,” he said. “I am not there to talk about precedents, research and checklists. “My shtick is how we are managing price, and that is where the market is headed.” lW

“Where outsourcing makes sense is with regard to commoditised types of work” Chris Freeland, australia managing partner, Baker & mCkenzie

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the information game With more and more information being catapulted into cyberspace and fast-improving technologies, intellectual property law is an increasingly dynamic and busy field. Stephanie Quine asks IP lawyers how they keep up the pace


his April, Sony’s PlayStation network shut down after a hacker accessed over 100 million users’ account information. The Australian Privacy Commissioner investigated the security breach, which affected 1.5 million Australian users, and expressed its concern that Sony kept credit card details on an outdated database. Only weeks before, at least 10 parliamentary computers, including those of Prime Minister Julia Gillard and Foreign Minister Kevin Rudd, were reportedly hacked by Chinese intelligence agencies. The consequences of these breaches extend past the risk of identity theft, fraud and SPAM into threats to national security and defence – made clear this month when Australia and the United States formally wrote cyber attacks into an international defence treaty. The ease with which people can obtain and use devices that store large volumes of information in the 21st century is unprecedented. Head of the forensic technology practice at boutique advisory firm McGrathNicol Forensic, Mark Garnett, says this is the challenge facing intellectual property (IP) lawyers today. “You can store more on just a tiny memory stick that you can buy for $10 than you could probably fit into a skyscraper,” he says. When Garnett first started in the industry he saw the theft of electronic IP three or four times a year. Now, he gets an inquiry once a week. Part of the problem is that organisations and companies aren’t adequately prepared. “Most organisations today have a love affair with electronic information. They create huge amounts of data – a lot of it commercially sensitive – and they just lose control of it,” says Garnett, who analyses and recovers data for banking, technology and telecommunication companies. Much attention is paid to protecting IP from external sources, but companies often neglect to protect it from internal theft, he says. “They would outnumber 10 to one in terms of internal to external engagements we deal with,” he says, adding that people use a whole range of devices to steal IP to avoid raising suspicion.


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“iPods, cameras, anything they can lay their hands on to make it look like they’re innocuously showing photos to somebody and in the background their copying 10,000 documents onto their camera to remove or take to a competitor.” On the upside, the small amounts of knowledge most people possess of such devices, causes them to make mistakes. “People think that by deleting files and formatting this drive that they’re erasing that activity because they saw it on CSI last week, but it doesn’t work like that … So that little bit of knowledge can be dangerous, for them at least…[but] great for us,” says Garnett.

Valuing intellectual property The value of intellectual property and its protection is a hotly debated topic around the world, especially when creative content and design are concerned. In August, Mallesons Stephen Jaques won a six-year legal battle for Danish home wares company, BodumGroup, to have its coffee plunger design protected. Additionally, Brisbane mid-tier firm Bennett and Philp is currently fighting the 52nd trademark case for European maker and exporter of Irish whisky, Wild Geese. Director of the firm, Ken Philp, explains that his client Wild Geese has been pursued by Wild Turkey for over ten years, through over 50

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“Most organisations today have a love affair with electronic information. They create huge amounts of data – a lot of it commercially sensitive – and they just lose control of it”

“There’s a real concern for inventors at the moment. There’s talk about getting rid of innovation patents, which i think would be a really big retrograde step”

“in some cases it’s a definite advantage [to have a technical or science degree] but the flipside is we’re doing the lawyering and it’s the stitching of that all together”

ken PhilP, direcTor, BenneTT and PhilP

kaTe hay, senior associaTe, GriffiTh hack

distil very clearly what the issues worth fighting for are and move much further away from the ‘boil the ocean approach’,” she says. With cost recovery in litigation so difficult, such an approach could soften the financial blow for clients and prevent them incurring further costs in order to recover costs, as often happens. Hay, who previously worked at Freehills, says that almost everyone she works with at Griffith Hack has come out of a top-tier firm. Not only does the specialist firm benefit from having lawyers with “big firm” experience and training, it also reaps the rewards of having a “pure IP” focus, according to Hay. But it also comes down to the individual lawyer, how well they present evidence in court and how well respected they are as an expert, says Garnett. “This sort of work has an element of reputation, and regardless of how good your firm’s reputation is, if the individual doesn’t have the CV to back that up it’s not going to get any traction,” he says. Garnett’s technical background, including 14 years’ experience as a qualified forensic technology detective with the Queensland Police, certainly helps him in his work. And more and more of today’s IP lawyers can say the same, having science or engineering degrees. But Hay doesn’t have a technical or science background and nor does Philp. “It all depends on how closely you work with your patent attorneys and subject matter experts. We have patent attorneys with technical backgrounds and they bring that expertise into the some cases it’s a definite advantage but the flipside is we’re doing the lawyering and it’s the stitching of that all together,” says Hay.

a little bit about a lot

Mark GarneTT, head of forensic TechnoloGy, McGraThnicol forensic

pieces of litigation and trademark proceedings in countries all around the world. “IP knows no boundaries,” says Philp, who also acted on copyright claims for the Jimi Hendrix family, through referrals from American and European attorneys. Kate Hay, a senior associate patent litigator with Griffith Hack, says that although Australia is a small market it is a very innovative one, which values its inventors. “Australia is seen as a patent-friendly jurisdiction,” she says. The Raising the Bar bill, designed to strengthen and improve Australia’s IP system, was introduced in the Senate in late June. While IP lawyers are still watching to see how it unfolds, Hay expects the bill to make it easier to obtain patent, trade mark, copyright, design and plant breeder protections. Philp however, is more wary, believing the changes will make it more difficult, expensive and time-consuming for inventors to get their patent protected. “There’s a real concern for inventors at the moment. There’s talk about getting rid of innovation patents, which I think would be a really big retrograde step because they are brilliant things for people who’ve got an innovation as opposed to a full blown invention,” he says. “There are lots of things that don’t qualify for a patent but which are genuinely innovative and deserve protection.”

Boutique versus top-tier In terms of competing for work, Philp says specialist IP firms compete “fairly evenly” with the top tier, especially due to their cheaper rates. Hay agrees, but believes that maintaining affordability for clients calls for efficient IP advisory and litigation. “There is an opportunity to be more agile in our approach to litigation so that you really

For the myriad technicalities there are to decipher in IP cases, and for all the complications that arise in multi-jurisdictional cases, this is what IP lawyers love most about their job. “Every day is different,” says Garnett. “I like the fact that we need to keep up with the technology. It’s always interesting to find out the new wonderful ways that someone has tried to steal information,” he says. “It’s also good to see organisations that turn the corner and go from somewhere that is very easy to take information from, to somewhere that learns from its mistakes and tightens up its own systems.” Mary Padbury, the chair of Blake Dawson and an IP lawyer of thirty years, agrees, and says the best thing about being an IP lawyer is that “you can know a little bit about everything and nothing about anything”. “You get to dip into all different sectors and deal a lot with non-lawyers, scientists and commercial people who are focused on the market, which I think is fun and quite broadening,” she says. “I worked with a lovely Italian inventor for five years, and with a client in Sweden. I’ve been to the mid-west US and a lot of places you wouldn’t otherwise visit, so I think it’s a great area of practice – possibly a good one for people who are not natural lawyers.” Hay, who has worked on everything from anti-cancer drugs to “the magic of the post-itnote”, agrees. “You may know all about smoke detection, CO2 sequestration, a particular medical device – and it’s exhilarating. It sort of feeds into that natural curiosity that I think we have,” she says. “The spectrum is enormous and you look at those technologies and think, ‘Gosh imagine life without this’.” lw

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Lawyers need to channel Branson He might not look or behave in a lawyerly like manner, but Richard Branson can teach lawyers a thing or two about how to build a client base, write Louise Woodbury and William de Ora


hen you think of Richard Branson, you think Virgin. Virgin Atlantic. Virgin Records. Virgin Cola. But you probably also think of Sir Richard shimmying down the bed sheets from a cage suspended high in the air. You might think of him driving a battle tank into New York’s Times Square to declare war on Coca-Cola and Pepsi. You might think of him (a little reluctantly) doing a “Full Monty,” dropping his pants to promote the launch of Virgin Atlantic in Canada. Branson has made an art of the outrageous. But behind the publicity stunts are good business decisions, albeit often risky ones that usually pay off. He is the head of about 400 companies giving him a net worth of £2.58 billion or $4.2 billion or... does it matter? He’s incredibly rich. At first blush, there seems to be nothing in common between this crazy-ass knight and you, a staid lawyer. Think again. Branson describes himself as shy and reserved, an image at odds with the public persona we know. Which is exactly the point. He has to push himself to give speeches, to shave his beard and squeeze into a wedding


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“If you’re going to strive to be the very, very best and at the top of your profession, you’re going to have to make sacrifices”

gown, to jump off a hotel roof. He does it because he knows the publicity is far better than any advertisement. Far better than doing nothing. The same is true for lawyers. Why? Well, take a look. You work hard, you take good cases. And clients are beating down your door to hire you, right? If not, keep reading. Think about some of the famous attorneys, like F. Lee Bailey, Alan Dershowitz, Johnnie Cochran. How do you even know about them? Because they took on high-profile cases. But also because they seek attention. And because they seek attention, they land high-profile cases. It’s true for all lawyers. The more you promote yourself, the more clients you will have, the more selective you can be and the higher fees you can charge. In other words, publicity equals money. So how can you unleash your invisible Branson?  Well, you could risk your life by flying across the Atlantic in a hot air balloon. You could ride a camel across the desert. You could hop in a submarine and go to the farthest depths of the ocean. I know you’re thinking, I can’t do any of

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Leadership might be inherent in a person’s DNA from day one but I think it also comes about from learning from your environment and from other people” that. I’m a lawyer, not a stuntman. So, you could take a somewhat less risky approach and still get results. Take a page from Branson’s book by writing one. That’s right: write. Write a book about what you know - practising law. By now, you know at least a little about the topic. The best thing you can do is to position yourself as an expert. Talk about the latest developments in your field. Share your expertise. Do it in the way that is most comfortable for you. Don’t look at it as just self-promotion, but as a way to educate your peers and the general public. Write your book, then promote it. Give talks about the subjects in your book and build networks with others in your field. The more you do so, the more others will start to look to you as an authority. Your book, and your name, will come up in search engines, and you will have greater exposure for your practice. You’re the only one who can do this. And once you put yourself out there, people will start to come to you. TV reporters will be clamouring for interviews on celebrity cases. OK, that might take a little more work, but you have to start somewhere. You could also take some notes from Branson about the way he runs his 400-plus businesses.  Branson has made an enemy of convention. He believes you have to take huge risks to reap huge rewards. This is why he bought an

ageing railway (British Rail). It is why he took on British Airways by starting a new, and perhaps better, airline. It is why he spat in the face of Coke and Pepsi and came up with his own cola. It is why he is taking people on space holidays with Virgin Galactic. At the outset, his business ventures seem foolish, even suicidal. But perhaps we all need a little Branson within us to succeed. So, think huge like Sir Richard. Step outside your courtroom. Look up to the highest building and imagine building a giant waterslide from the top window to the ground, on which you will slide down in a Speedo with your firm’s name on your backside. You don’t want to seem ridiculous. After all, you’re a serious lawyer. Be serious about your work.  But in promoting what you do, think of shy Richard splitting his pants as he plays Spiderman. Think of him as a blushing bride. Think of him dropping his drawers. All of this seems outrageous, but you know who he is.  And if you’ve always had a secret yearning to flash people in public, Full-Monty style, go for it. You’ll certainly get publicity. And hey, if you get arrested, at least you know a good lawyer. LW Louise Woodbury and William de Ora are the authors of  The Invisible Branson: The Definitive Guide To Becoming A Business Rock Star.

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New Zealand is most associated with the All Blacks, its beautiful scenery as depicted in Lord of the Rings and more recently, the response to the the devastating earthquake in Christchurch. Darise Bennington reports that its people and its law firms remain optimistic about the future


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ooking back, 2011 will be a year marked by two momentous occasions for New Zealand: the Rugby World Cup 2011 (RWC2011) and the devastatingly tragic earthquake that struck Christchurch at 12.51pm on 22 February. As I write, we are in the throes of RWC2011 fever. Like 200,000 others, I crammed into Auckland’s waterfront on opening night to be part of the action, and

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while things got decidedly messy as the night wore on, it was something I would not have missed. Watching the Tongans perform their sipi tau, followed by the All Blacks haka, on a building towering over a street teeming with thousands of excited rugby fans from all over the world, I felt proud of a country that only months before had watched with horror as one of its most beautiful cities crumbled and fell.

The impact of the Canterbury earthquakes For New Zealand’s legal profession, the tragedy that hit Christchurch had an

enormous effect. With most of the Canterbury legal profession based within the decimated central business district (CBD), as well as its courts, the rest of New Zealand wondered how their businesses would survive it. Not surprisingly, some of those based in Christchurch, especially those who had spent harrowing hours stuck in buildings waiting to be rescued, also wondered the same. But what New Zealand quickly came to realise was that Canterbury is our most resilient of provinces. Within days (and in some cases, hours) of the quake, Canterbury’s law firms had set up offices

and were ready to provide whatever assistance they could to their clients. It is something that has come up time and time again in the nominations for the 2011 New Zealand Law Awards, which I also oversee. Having lost their offices, their infrastructure, access to their clients’ files, and sometimes even their homes, the lawyers of Canterbury, almost without fail, have put the needs of their clients and their staff first. The Canterbury earthquake of 22 February also illustrated the true collegiality of New Zealand’s legal profession, with firms all over the country


“They tell you there’s been loosening, but the only time you know there’s been loosening is if the deal’s done” DAVID QUIGG, PARTNER, QUIGG PARTNERS

– large and small – offering assistance to those whose practices had been badly affected by not only the quake itself, but by the cordon – a red zone that has more or less shut businesses out of their offices for the past seven months. In August, the Christchurch City Council released its draft Central City Plan, in which the Mayor of Christchurch, Bob Parker, said, “Out of adversity comes an unprecedented opportunity. We are embarking together on one of the most exciting projects ever presented to a community in New Zealand, perhaps the world”. That opportunity is the rebuilding of a city from the ground up. With that opportunity will come even more opportunity for New Zealand’s legal profession. Andrew Logan, a partner with Christchurch firm Mortlock McCormack, a mid-sized city firm, admitted that initially, straight after the earthquake, there were great fears about whether law firms would survive. However, when I spoke with him recently, he told me he was excited about the future and about the opportunities that Christchurch was now offering. “Christchurch is currently a demolition site, and eventually it will become a building site, but it won’t become a building site until insurance issues have been

New Zealand top-tier The top five law firms in New Zealand: 1 Russell McVeagh 2 Bell Gully 3 Chapman Tripp 4 Simpson Grierson 5 Minter Ellison Rudd Watts

Darise dissects: “Of the ‘big firms’, the top three are Russell McVeagh, Bell Gully, and Chapman Tripp, with Simpson Grierson hot on the heels of the top tier, and Minter Ellison Rudd Watts coming in fifth.”


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resolved,” he says. “Everything is linked to everything else.” For the first time in a long time, therefore, law firms are actively seeking property and commercial lawyers, as they prepare for the influx of work that will come as Canterbury deals with issues relating to leasing, construction, resource management, and most definitely, insurance. Nor are these opportunities restricted to those who practice in New Zealand’s South Island. As one Auckland law firm partner pointed out, resources will be absorbed by Christchurch, which creates a fight for resources in other parts of the country. Already, the Christchurch-related insurance cases, which are expected to dominate the litigation landscape in the foreseeable future, are providing work for firms all over New Zealand – not just those based in Christchurch.

New Zealand’s legal profession As at 1 September 2011, New Zealand’s legal profession numbered 11,271 practising lawyers, the majority of which practise law in small to mid-sized firms [most with between one to 24 partners] spread throughout the country. Only a handful of firms can truly be described as “national”, with offices in all the major cities, and, for the most part, these firms have a partnership of less than 100 partners. Of the “big firms”, the top three are Russell McVeagh, Bell Gully, and Chapman Tripp, with Simpson Grierson hot on the heels of the top tier, and Minter Ellison Rudd Watts coming in fifth. While all firms were affected by the downturn in the property market that heralded the recession, the top-tier remained relatively insulated from the negative impact [a 40 per cent drop in property transactions led to a similar drop in revenue for those smaller firms, whose ‘bread and butter’ work has been predominantly private client conveyancing]. Chapman Tripp, in particular, has benefitted

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“There’s a lot of capital sitting on the sidelines waiting to be re-invested” JACK PORUS, JOINT MANAGING PARTNER, GLAISTER ENNOR

from a decision made in 2003-2004 to establish a restructuring / insolvency group, under the leadership of partners Michael Harper, Michael Arthur, and Michael Anderson. At the time, it was a bit countercyclical, says Chapman Tripp corporate and commercial partner Barry Brown. But that move certainly paid off, with the firm acting for a significant number of the receivers of the major finance companies that collapsed prior to and during the recession. On the back of that insolvency work has come a steady stream of transactional work for the firm. For the big firms, much of the litigation work has centered on regulatory matters, with regulators like the Commerce Commission, the Financial Markets Authority, and the Serious Fraud Office all actively pursuing noncompliant corporates. In addition, firms in the top-tier have been concerned with the proposed criminalisation of cartel behaviour, currently being worked on by the Ministry of Economic Development.

Where’s the money? One of the biggest impacts on the New Zealand legal market in the recession and the months following it has been the perceived lack of capital. As a result of finance company collapses that began in 2007, and restrictive lending practices introduced by banking institutions during the recession, those seeking to embark on major construction projects found themselves unable to do so. Following the collapse of the finance company sector, the newly established Financial Markets Authority (which replaced the New Zealand Securities Commission in 2011) is currently investigating 16 collapsed finance companies with the estimated losses to investors said to be in the vicinity of NZ$3.45 billion ($2.75 billion). In addition to these losses are the ones caused by the finance companies that are now being investigated by the Serious Fraud Office.

In February 2010, a panel of bankers and economists predicted that the collapse of the finance company sector would be especially problematic for small to medium-sized enterprises. This was generational money that was now lost to the economy forever, they stated. It was the money invested by ‘ma and pa’ investors, and which had been the traditional pot to which troubled family businesses looked to in order to get by in times of economic strife. With that pot depleted irreparably, it was expected that 2010 and 2011 would be marked by downstream insolvencies in the small to medium enterprise market. However, that did not happen; and, in fact, some within the insolvency industry are now saying that they do not expect any further major collapses in the foreseeable future. Despite the losses brought about by the finance company collapses, lawyers I have spoken with from Auckland’s mid-sized firms, who had previously been through the recession that followed the 1987 crash, believe the big difference between the two recessions is that there is not a lack of cash this time round. “After the recession in the late 80s, early 90s, New Zealand was bereft of capital,” says Jack Porus, the joint managing partner at Glaister Ennor. “There was just no cash anywhere, and we saw an influx of Asian investors buying up properties around Auckland at quite high yields. It was really difficult to move forward because of the lack of capital.” This time, however, Porus believes things are completely different. There’s a lot of capital sitting on the sidelines waiting to be reinvested. It’s just waiting for the right conditions to occur, and then the money will flow. “Already, I’m aware of clients who are eyeing up opportunities and just waiting for the right moment to take that opportunity to buy another company, buy a struggling competitor out, or to expand their activities in some way.”

The M&A market Although there have been stories abounding that the M&A markets around the world are picking up, the evidence appears patchy. For the firms who have managed to secure the high profile, bespoke work, life at the end of 2010 and the beginning of 2011 has been anything but quiet. David Quigg of Wellington boutique commercial firm Quigg Partners, reported to me that he had noticed a huge difference in the market from that he experienced prior to the recession. “Private equity is not fighting over everything,” he says. “If anything, they’ve reversed sides. They’re the seller. And the activity is in someway driven by them as to when they’ll sell or if they can sell.” Quigg also describes the market as having changed significantly over the past two to three years. In particular, he mentioned the lack of big deals and public M&A deals. Instead of private equity dominating the scene, it’s a return to the days of yore when trade dominated. “They’re trade, they know the business, so they’re not getting into something that they don’t know,” he says. It’s also an uncertain market, with logical acquirers much harder to predict. Quigg also noted a significant increase in outbound deals – also trade-related. “I think that is a sign of confidence,” he says. But he warned that there would not be a rush of them, as they require careful planning and “steady hand

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implementation, because the implementation of any of those things is by far the most critical aspect”. Another trend in the market this year, noted by Quigg, is the treatment of business units not considered to be at a company’s core. If the seller can’t find a trade purchaser, or can’t do an IPO, then spinning it off may provide better value for the seller, says Quigg. Barry Brown, a partner in Chapman Tripp’s corporate and commercial team, has also noticed the trend, with firms reviewing what is and is not their core business. Brown worked on the Shell deal, which resulted in the company divesting its retail operations and downstream operations, choosing instead to focus on its “core” upstream business. In Quigg’s opinion, the market is still quiet. He believes the real issue is whether private equity will be able to get the finance to do the deals they want to do. When I asked him whether there had been any “loosening” in the gearing ratios offered by banks, he commented that the jury was still out. “They tell you there’s been loosening, but the only time you know there’s been loosening is if the deal’s done… They certainly seem to indicate that they are more amenable, but the proof of the pudding is in the eating.” Like Quigg, Cathy Quinn, Minter Ellison Rudd Watt’s chair and head of the firm’s private equity and mergers and acquisitions teams, said that in recent years it had been much harder to get deals completed. “Nothing is done until it’s done,” she says. However, she was seeing an increase in activity – even if the deals were taking longer. “Terms and conditions are now more buyer friendly. It’s taking longer to document, and buyers are more cautious,” she says.

“Terms and conditions are now more buyer friendly” CATHY QUINN, CHAIR, MINTER ELLISON RUDD WATTS

What of the future? It has certainly been a year of ups and downs for the New Zealand legal profession. Just as the market starts to pick up – albeit slowly and cautiously – with high-end, bespoke deals concluding just as the year began, the country was brought to a standstill by a 6.3 earthquake centered under Christchurch’s

CBD. The effect of the earthquake and the subsequent aftershocks were devastating. Since then, Christchurch has continued to rumble, with the number of recorded earthquakes and aftershocks now totalling over 8,600 (since 4 September 2010); and 182 people have died as buildings in which they worked or were having lunch in failed and collapsed on top of them. In recent months, over 1,000 CBD offices have been scheduled for demolition – many of which still hold within their crumbling walls law firm files that cannot be accessed. Despite the tragedy of 22 February, and another 6.3 earthquake that hit the city on 13 June, the lawyers of Christchurch have shown amazing tenacity in getting their firms back up and running, so that they could provide full legal services to the people of Christchurch – and around New Zealand. It is expected that the demolition and rebuilding of Canterbury will attract work in the previously sluggish property and commercial markets. However, just as the return of M&A work has been slow and cautious, so is the rebuilding of Canterbury. With insurers debating with the Earthquake Commission and insurers over who should fund the repairs, and whether cover accepted for the very first earthquake on 4 September 2010 will be continuing for the subsequent earthquake events on 22 February and 13 June, any real growth in these markets will be slow and long-term. But firms are cautiously optimistic. They have determined that the outlook is positive – even if slow – and it is with that in mind that they are now planning for the future. And at the moment, wherever you look, firms are embracing the spirit of the RWC2011, using it as a reason to bring together staff and clients to enjoy the celebrations as 20 different nations exhibit their sporting excellence in New Zealand. Whether this will have a long-term effect on the work that comes the way of the legal profession remains to be seen. However, those who are coming to the country to party are seeing a country energised by the challenges of 2011, and looking forward to the future. LW

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Weighing up multiple offers When a lawyer receives multiple job offers they should be honest with their potential employers, according to Hays Recruitment. Despite an increasing unemployment rate in australia – 5.3 per cent in august – recruiters are seeing an increase in the number of candidates receiving multiple job offers. and according to Hays director nick Deligiannis, the number one thing a candidate should avoid is accepting and then retracting an offer if a better one comes along. “Retracting your acceptance will ultimately damage your reputation with the company and everyone involved in the recruitment process,” said Hays director nick Deligiannis. “When you accept an offer it sets in motion a chain of events. the other applicants are notified and the job posting is removed. When you retract at this stage, you cost the company as they have potentially lost other candidates they were considering to another role.” according to Deligiannis, candidates with more than one job offer need to be

upfront. “Most employers and recruitment agencies will ask you if you are interviewing with other companies,” he said. “Feel comfortable to explain that you are taking your search very seriously, it is not often that you look for a new role and you want to make sure you explore all of the options available to you.” With more than one offer on the table, Deligiannis believes that in most cases it is okay to ask for two working days to consider. “Most companies will accept this and it allows you time to make a fully informed decision,” he said. “this is also why many companies are now speeding up their interview processes to secure their preferred candidate before a competitor makes an offer too.” When presented with a number of job offers, Deligiannis says lawyers need to firstly ask for time to consider each

offer. secondly, lawyers should look at their longterm objectives. “is this a company you want to be working for in five years’ time? Does it provide you with opportunities to advance your career?” Deligiannis then advises candidates to consider salaries. “a higher paying salary is always an attractive incentive but it should not be your main motive for choosing one job over the other,” he said. “the lower paying role could offer greater challenges or career advancement potential.”

next move

the home office


35 %

Samantha Cowling, director, Marsden Group, Sydney

31 %

of US employees who work from home do eight or more hours of work a day of US telecommuters said their biggest distraction when working from home is household chores, while pets came in as the second biggest distraction (23%)

Source: Career Builder survey, 15 September 2011


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I have been advised that an interstate move can advance my career. How does this work?

Promotion prospects An interstate move can provide you with genuine career prospects that you may not have at your current firm. The growth in the energy and resources sector in Perth and Brisbane has resulted in a surge of recruitment for lawyers within these cities in areas including corporate, finance, energy, construction and employment. Top-tier, mid-tier and boutique law firms with existing offices in Perth and Brisbane are expanding their teams to ensure they have talented lawyers to lead this growth. Additionally, international and national firms, previously without offices in Perth and Brisbane, are opening offices in these cities. These firms are interested in lawyers

from Sydney and Melbourne who want to step up to a more senior role. For lawyers who are facing a top heavy practice at their current firm, or who are not getting the career progression they want, a strategic move to Perth or Brisbane is a good way of securing this step up. Stepping up to a top-tier firm Making a move interstate can be a great way to move from a smaller or mid-tier firm into one of Australia’s top-tier or national firms. Leading firms in Sydney and Melbourne are always keen to see lawyers from Brisbane and Perth particularly in the finance, corporate, construction and energy sectors. The experience gained at a top-tier firm can lead to career opportunities within the firm itself and can also assist with in-house opportunities and roles overseas where only lawyers from top-tier firms will be considered.

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


will the partners visit me in jail?

in a depressing attempt to impress his fellow partners, a United states lawyer will spend the next six years of his life in jail. as reported by Rollonfriday, a former partner at Us firm Greenberg traurig has been found guilty of overcharging a client by $100,000. lawyer Mark McCombs was providing tax and financial advice to the local authorities in the Chicago suburb Calumet Park – also McCombs’ hometown

lawyer steals from hometown to impress partners – and reportedly charged Calumet Park for a large amount of unperformed legal work. When the fraud was uncovered by local officials, it is alleged that McCombs also offered to pay $100,000 of his own money to make sure the investigation was dropped. McCombs was immediately fired by Greenberg, which has now paid back $3.2 million of legal fees. the firm said in a statement: “We pledged full cooperation with the investigation and we pledged full restitution of any fees that were not properly billed.” While Folklaw realises the lawyer’s overbilling was undoubtedly wrong, the saddest part of the story seems to be the fact that McCombs did not overcharge the client for personal financial benefit, but rather to impress his partners. according to Rollonfriday, the partner funnelled the money back to his firm, hoping it would improve his standing amongst his fellow partners. While he will certainly be talked about around the water cooler, Folklaw is pretty sure it won’t be in a good way. last week McCombs started his six-year sentence after pleading guilty to a single count of thieving $100,000 of government money.

Prosecutor dominates at night a PRoseCUtoR in new York’s attorney-General’s office has been suspended without pay “pending an internal investigation” into her moonlighting activities. as the New York Post reports, while the state attorneyGeneral’s office would not release details of the investigation into 36-year-old alisha smith, it’s most-likely her night-time performances as a dominatrix will be the focus. Quoting a “fetish source” (Folklaw is not sure what that entails), The Post explains how the prosecutor heats things up after-hours, performing at s&M events for pay as “alisha spark”. the source told The Post: “they pay her to go to the events. she dominates people, restrains them and whips a new york them.” prosecutor relaxes Working in the area of out of the office securities fraud by day, smith was suspended


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from her $78,825-a-year job on 16 september, after The Post inquired about her s&M lifestyle. “the employee has been suspended without pay, effective immediately, pending an internal investigation,” said a spokesperson for the state attorney-General, eric schneiderman. smith declined to speak to The Post and her attorney would not comment. sources of The Post said smith’s punishment is not necessarily about her s&M lifestyle but the fact that she may profit from it. “it is common in the s&M community for dominatrixes to receive payment for appearances at fetish parties, where they unleash tawdry torments on eager submissives,” The Post explained. “sources cited a standing executive order in the attorney General’s office that requires employees to ‘obtain prior approval from the [employment Conduct Committee] before engaging in any outside pursuit ... from which more than $1000 will be received or is anticipated to be received’.” in light of this rule, some may suggest that smith volunteer her services to escape the wrath of the aG’s office. however, Folklaw is not so sure her activities will be excused by the profession - profit or not. having said that, Folklaw appreciates that given smith’s relatively small salary (for a lawyer), and the cost of living in the “Big apple”, perhaps she was forced into her s&M lifestyle just to get by.


Mallesons lawyer rewarded for friday night drinking a ViCtoRian lawyer has been awarded for his proficiency in celebrating the end of the working week, providing a valuable guide to his thirsty colleagues on how to appropriately navigate the challenges thrown up on a typical Friday night. With his speech;“Friday night drinks: the lawyer’s guide to scoring a touchdown”, which provided a comical “what-not-todo” list at Friday night drinks, Mallesons stephen Jaques lawyer nick Russell beat seven other finalists across the country to win the 2011 national Golden Gavel award on 16 september. With only 24 hours to prepare his speech, Russell, although “petrified”, was able to call upon his Friday night expertise gained during his fledgling legal career at Mallesons to come up with the winning material. Unfortunately, Folklaw was unable to attend the Golden Gavel competition this year, but is hoping, for the sake of the profession, that the judge and recently qualified barrister, Mark holden, from australian idol fame, was able to contain his apparently persistent need to do enact a “touch down”. hopefully fellow judges, Justice Betty King of the supreme Court of Victoria and Matthew Keogh from the australian Young lawyers Committee, were able to save the audience from holden. While not suggesting lawyers need help in the Friday night drinks department, Folklaw is also interested to see if the impact of Russell’s advice is felt by the likes of Ryan’s Bar or hemmesphere, which have, up until now, relied upon Fridaynight tomfoolery to keep them afloat. w w

It’s time for a change. LONDON (Ref: UK1292)

HONG KONG (Ref: AS0287)


Transactional Finance Associate

Derivatives & Structured Finance Associate

Banking Associates

We are looking for mid level to senior experienced transactional lawyers who are keen to expand and complement existing skills and experience for our finance practice. We welcome applications from those currently based within Corporate, General Finance, Structured/Project Finance or Real Estate practices. Previous finance experience although desirable is not a prerequisite.

The International Capital Markets group in Hong Kong is seeking a mid-senior level associate to join the Derivatives and Structured Finance practice. Mandarin or Korean language skills are advantageous but not essential.

SYDNEY (Ref: AS0332)

Senior Associate AMSTERDAM (Ref: WE0529)

Junior ICM Derivatives Associate We are looking for English law qualified lawyers for our ICM Derivatives group. Speciality: derivatives, structured finance or a general finance background with an interest in developing knowledge in the area of derivatives and structured finance. At least 2 years PQE. The ICM derivatives team has a growing client portfolio and undertakes a broad range of work within the market.

HONG KONG (Ref: AS0226)

General Securities Associate The International Capital Markets group in Hong Kong is seeking a mid-level associate with up to 5 years post qualification experience to join the International Capital Markets practice. The ideal candidate should have general securities experience including exposure in areas of debt capital markets and equity capital markets and drafting disclosures.

We are continuing to see major opportunities for high-end finance work in the private and public sectors. Our practice is growing and we are looking for a top-tier, experienced Senior Associate to join the International Capital Markets/Securitisation team.


Corporate Associates We seek mid- to senior-level associates who are fluent Mandarin and English speakers with qualifications from top universities, excellent academics, and experience at top tier firms. Previous experience with China-related matters is a must; added experience with M&A (outbound / inbound), private equity, real estate and RMB fund work a plus. We have three vacant roles: one M&A lawyer (BJ) and two M&A/PE lawyers (SH). Send cover letter and CV to:

We seek mid-level associates with common law backgrounds who are fluent in Mandarin and English. Candidates must have qualifications from top universities, excellent academics, and experience at top tier firms. Work on Chinarelated matters is a must. We have three vacant roles: one PF/finance lawyer (BJ) and two mainstream banking lawyers (BJ and SH). Send cover letter and CV to:


Intelltual Property Associate We seek a mid-level associate with a scientific background and at least three years of core PRC IP experience in top tier firms. Fluency in Mandarin and English are a must. Candidates must also have qualifications from top universities and excellent academics. In addition, interested applicants must have passed the Chinese bar and Chinese patent bar. Send cover letter and CV to:

For more information please visit and search for the relevant reference number Š Allen & Overy LLP 2011

Karlie Connellan International Sydney

Expect the market leader to know the market No-one knows the legal job market better than Taylor Root. After all, we’ve been leading the way in specialist legal recruitment for more than 20 years. And with offices in Europe, the Middle East, South East Asia and Australia, we can advise on the widest range of opportunities across global firms, niche practices and in-house. So whether you’re recruiting legal talent or looking for your next career move, talk to the experts. Contact Matt Harris at our Sydney office on +61 (0)2 9236 9000 or Tim Fogarty at our Melbourne office on +61 (0)3 8610 8400. Alternatively visit


Lawyers Weekly, September 30, 2011  

Australia's leading publication for the legal profession. This issue: We showcase of the rising influence of knowledge managers and legal su...

Lawyers Weekly, September 30, 2011  

Australia's leading publication for the legal profession. This issue: We showcase of the rising influence of knowledge managers and legal su...