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Access DenIeD

Barriers blocking women in law

prActIce profIle

openIng Doors wIth urAnIum Australian law firms eyeing India


thIs week

The ingredients for happiness

Uncertain future for Mallesons

hAvIng It All

the chInA questIon $4.95 inc. GST


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Friday 9 December 2011

The 10 biggest issues catching the profession

For a full list of our vacancies and new Salary Survey please visit our website:

In-house Sydney | Construction

Sydney | Funds

Perth | Construction & Projects

A dynamic junior lawyer is required to advise on a wide range of construction and commercial matters including tenders and proposals, risk and litigation matters. A top-tier commercial law background is required, preferably including some front-end construction experience either in practice or as a rotation. Rare and exciting opportunity for a junior lawyer to make a first in-house move! Ref: SYD/4579/DS

Major player in the financial services sector have a new, Senior Legal Counsel role suitable for a dynamic funds management lawyer from a major firm or respected in-house team. High level experience required in advising on complex wholesale & retail Funds & Investment products (Australian & International) and related legislation including Corps Act (Ch 7). Excellent career prospects! Ref: SYD/4556/DS

Two exciting new roles exist for dynamic projects lawyers to work on this high profile, globally recognised resources project. These roles have a front-end focus including multi-billion dollar EPC contracts and other agreements but will also involve some dispute work. Major firm background, commerciality and the ability to handle complex work are all required. Excellent packages on offer to attract the best candidates! Ref: PER/4592/DS & PER/4593/DS

2 – 4 years

4 – 8 years

5 and 10 years+

International Singapore | Project Finance

Singapore | M&A, Energy & Resources

Tokyo | Project Finance

Join the Asian infrastructure and project finance practice of a highly regarded growth oriented U.S. international law firm. A solid background and expertise in syndicated finance transactions will be viewed favourably. The work on offer is outstanding. Recent projects include an expressway in the Philippines, a stadium in Singapore and power and water projects in Vietnam and the Middle East. Ref: SIN/4512/RL

Our client’s market leading corporate practice continues to expand in order to meet its strategic regional growth plan. A seasoned M&A associate with a broad background preferably in either oil & gas, mining or other natural resources to draft agreements and advise on transactions and projects in power and infrastructure development such as road, rail or ports is needed by this top global firm. Ref: SIN/4512/RL

An associate experienced in project finance or who has demonstrable solid general lending experience with a desire to work on project finance transactions gained from a top or quality international mid tier firm is sought by a leading UK law firm. The work primarily represents Japanese corporates on cross-border matters in China and Asia. Japanese language ability is NOT required but would be helpful. Ref: TOK/3720/RL

4 years +

4 – 7 years

4 – 6 years

Private Practice Sydney | Energy & Resources

Sydney | Property

Perth | Commercial Litigation

To be a success in this well respected national mid-tier firm, you will have previous experience working on a range of matters including joint ventures, merger and acquisitions, shareholder agreements, corporate structuring, private equity transactions and project finance, information technology, capital raising and IPOs for both public and private entities. A clear career path is provided within a collegiate and supportive team. Ref: SYD/4582/GG

An opportunity has arisen for a mid level lawyer with expertise in commercial real estate property transactions to join this busy group. The role will involve advising on all aspects of property transactions including assisting clients with: acquisitions and disposals, joint venture arrangements, property management, development projects, leasing and property financing arrangements. Highly competitive salary and benefits on offer. Ref: SYD/4366/AM

Are you ready to branch out and help establish a dispute resolution team? This firm is a leading international player which is setting up a litigation practice. They require senior commercial litigators and arbitrators who have the drive and vision to help create what will be a leading litigation practice. Those with strong advocacy skills and solid academics are encouraged to apply. Ref: PER/4591/OH

4 years +

3 – 5 years

Senior Associate

Sydney | Insolvency/Restructuring

Sydney | Banking & Finance

Perth | Construction (back end)

Excellent experience to be gained with this leading national firm. You must have a solid background working on large and complex insolvency and restructuring matters, including due diligence, drafting and negotiations, equity capital markets together with a sound knowledge of the Corporations Act and other relevant legislation and regulations. You will also possess top-class technical and drafting skills and a commercial approach. Ref: SYD/4583/GG

This firm has one of the most pre-eminent Banking & Finance practices in the Australian market and is seeking a savvy senior banking and finance lawyer for its expanding team. You will act for domestic and international banks and major financial institutions on a range of banking & finance areas including acquisition/leveraged finance, project/ infrastructure finance, and corporate financing. Strong academics and a commercial approach are essential. Ref: SYD/4353/OH

Join this top-tier firm and gain experience working on a range of high level and complex contentious construction and projects matters. It is essential that you will have previous experience working on high level and complex matters. You will build on your experience in this practice area and be exposed to large litigation and arbitration matters. Excellent training and mentoring on offer. Ref: PER/4587/GG

3 – 4 years

Senior Associate

2 – 3 years

Sydney | IP Litigation

Sydney | Commercial Litigation

Brisbane | Property

This premier international firm is seeking an experienced IP litigator to join its first rate practice. You will work on a range of complex IP disputes related to trade marks, copyright, patents, confidential information and know how, designs and misleading and deceptive conduct and the growing field of social media. The client base includes corporates from the financial services, FMCG, retail and media sectors. Ref: SYD/4514/AM

This leading international law firm has taken on one of the big wig litigation partners and is looking to establish a dispute resolution practice. They are looking for outstanding senior commercial litigators and arbitrators to establish the team. This is a rare opportunity to become part of what will become a leading litigation group in the Australian market. Ref: SYD/4590/OH

Top-tier opportunity for a senior associate working with four partners. You will be working as part of a wider team on high profile and complex matters for a wide range of clients, which include developments, retail and commercial ventures, on an assortment of commercial property and land transactions. This group has a great reputation with a cohesive and friendly team culture. Ref: BRI/4589/AM

3 – 5 years

Senior Associate

For further information please contact one of our consultants for a confidential discussion: Olivia Harvey, Gail Greener, Ralph Laughton, Daniel Stirling and Alex McIntyre Sydney (02) 9231 3022 Melbourne (03) 8637 7317 or email For more job opportunities please go to

Senior Associate

“Our terrific national firms are not doing what they’re doing for no reason. I think firms have got to accept that we’re part of Asia and that we’re global – those firms that don’t do so at their own peril”

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John Chisholm, consultant, John Chisholm Consulting – see page 18


IN-DEPTH: When it comes to the advancement of women in the profession, a new report shows the need for change in both structure and attitude. Claire Chaffey reports

06 12 14

16 24

26 COVER STORY: In 2012 the Australian legal profession faces a number of key challenges which, if disregarded, pose a significant risk to the performance and sustainability of the industry. Briana Everett looks at the top 10 risks to the future of Australia’s A D _ L WQ U E N O V 1 1 _ 1 1 . p d f law firms

“QUT’s PLT helped prepare me for real practice and set me up to make the transition into the work force.” Melissa Cable QUT graduate

THIS WEEK: A round-up of the latest legal news IN-DEPTH: A new app can condense thousands of pages of documents into a 600 gram device. Stephanie Quine reports PRACTICE PROFILE: The Labor Party’s momentous decision last weekend to back Prime Minister Julia Gillard’s plans to export uranium to India could have significant results for Australian law firms. Claire Chaffey reports OPINION: Whether or not lawyers can “have it all” is a question often debated by those in the profession. Matthew Stutsel shares his thoughts on what lawyers need for satisfaction and success CAREER COUNSEL: While those who are into fitness will appreciate having a medical or physical fitness check-up to ensure they are in good shape, the same type of check-up is relevant to having a law practice, writes Dezz Mardigan FOLKLAW: The lighter side of the law


Pa ge


1 / 1 1 / 1 1 ,

9 : 3 5


Practically, the only choice for PLT is QUT. QUT is a leading provider of Practical Legal Training in Queensland, with an enviable reputation for its practical approach. With recently refreshed course content, the program offers problem-solving scenarios and reflects the realities of a daily modern legal practice. And if you need a work placement, we will provide it.

The only choice for PLT is QUT. Full-time, part-time and online. Apply now, or phone Liz Clark on (07) 3138 2211 or email

LAW-11-691 CRICOS no. 00213J

l aw y e r s w e e k ly 9 D e c e m b e r 2 0 11



Editor, Justin Whealing

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l aw y E r s w E E k ly 2 D E c E m b E r 2 0 11

What’s in a name? That is the question the partners of Blake Dawson and Mallesons Stephen Jaques had to grapple with when they voted on their respective merger proposals recently. While the Blake Dawson merger with UK firm Ashurst was tied up months ago, discontent with the merger lingers. A number of current and former partners of the firm have told Lawyers Weekly they are incredulous that Blakes, a top-tier firm with one of the most well known brand names in the local legal industry, has handed over its name to a UK second-tier firm. If Blakes was looking to compete with the likes of Allen & Overy and Clifford Chance in Australia, then it s lawyers will do so under a moniker that does not have the clout or recognition of well known global rivals in the Australian marketplace. Given the relatively small size of the Australian global market when compared to that of the UK, any domestic firm that hooks up with a British firm can expect to lose its name in the process. After quite a long courting process with more than one possible suitor, Mallesons has finally found a merger partner, with a formal announcement of its linking with Chinese firm King & Wood expected very shortly. It is also expected that the merged firm will be called King & Wood Mallesons. While both firms are in the top-tier in their home jurisdictions, as the name attests, Mallesons needs King & Wood more than King & Wood needs Mallesons. In a nutshell, for a global firm, the Chinese market is more important than the Australian market. King & Wood sits at the top of the table in a burgeoning legal market that has well in excess of 100 global law firms. That is a lot of clout to bring to the merger negotiating table. In a fascinating cover story on the Top 10 legal risks (see page 18), senior journalist Briana Everett looks at the threat global law firms pose to the market share of the top and mid-tier Australian firms. Room certainly remains for a large national firm or two to operate at the top level in Australia and not diversify overseas. However, by adopting that strategy, the words of consultant and former Middletons head John Chisholm, that “you’d better be pretty good at what you do”, are an understatement. Top Ten sTories online this week 1 Styles case settles 2 Mallesons Beijing head walks 3 Women lawyers need self belief 4 Corrs launches virtual briefcase 5 Future of Mallesons lawyers in China uncertain 6 More Storm Financial probes ahead 7 UK firms put brakes on charge out rates 8 Four lawyers recognised as future leaders 9 The road to partnership 10 Better the devil you know nexT week In the final issue of Lawyers Weekly for 2011, we take a look at the year that was with a wrap up of all the big issues affecting Australia’s legal profession. We’ll look back at the year’s biggest scandals, the game-changing global firm onslaught, the influence of social media, the growing momentum of legal process outsourcing, diversity in the profession, and who said what throughout the year.

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 Publisher: John Nuutinen editor: Justin Whealing Deputy editor: Claire Chaffey senior Journalist: Briana Everett Journalist: Stephanie Quine Designer: Ken McClaren sales executive: Toby Chan subscribe toDay Lawyers Weekly is published weekly and is available by subscription. Please email All subscription payments should be sent to: Locked Bag 2999, Chatswood D/C, Chatswood NSW 2067 aDvertising enquiries: Advertising enquiries: John Nuutinen (02) 9422 8931 (mob) 0402 611 177 Toby Chan (02) 9422 2545 (mob) 0404 652 800 Stephen Hogan (02) 9422 2290 (mob) 0425 270 832 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

Average Net Distribution Period ending Sep ‘11 11,449 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 is a division of Reed Business Information, ACN 000 146 921 Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067 tel (02) 9422 2203 fax (02) 9422 2946 Important Privacy Notice: © 2010 Reed Business Information Pty Ltd (ABN 132 719 861).

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A stellar opportunity exists within this well respected Adelaide firm for a specialist tax lawyer to join an impressive team with a renowned reputation for their quality of work.

This reputable mid-tier firm has a warm, friendly and social culture that doesn’t come at the expense of career progression. With a national presence and relationships spanning internationally, their technology team continues to secure high quality work from large corporate organisations and government clients alike.

With more than two years of specialist tax experience, preferably gained within a top or mid-tier firm, you are striving for a better platform to further expand your practice. You will already have ideally developed some of your impressive taxation acumen in South Australia and any immediate client following would of course be looked upon favourably. This is your opportunity to be part of a firm that places high importance on career progression and a healthy work/life balance.

You will enjoy the benefits of working with a high calibre team and be given access to an enviable list of clients. To be successful you will have a proven career as a Senior Associate within a reputable technology team and are striving for a more enriching work environment to practice in.

Contact Layla Firth at or 08 8231 0820.

Contact Renee Turner at or 03 9604 9669.




This market leading player is part of a group of companies, well known across Australia and New Zealand, for some of the most innovative products in their sector. They design, construct and maintain bespoke systems that are renowned for minimising their impact on the environment.

This international top-tier firm has been leading the way on some of Queensland’s largest projects to date. Their construction, infrastructure and projects team are led by a highly-experienced partner and are held in high-regard across Australia. An exciting opportunity to join the Brisbane team exists for an experienced Construction Lawyer offering between 3-7 years PAE.

Sydney (West). Maternity contract.

The role will involve a mix of front and back end work including contracting drafting and negotiation, construction law advice and regulatory issues along with various litigation and dispute cases.

An opportunity exists to undertake a 6 to 12 month contract from January. With ideally over four years relevant experience, you will focus on the review and identification of contractual matters and associated risks, be part of the leadership team in the bidding or execution of projects, contract management of projects, dispute resolution and other adhoc matters.

Contact Shane Badman at or 07 3243 3033.

Contact Craig Poole at or 02 8226 9753.





This high calibre boutique practice has carved out a niche in one of the most exciting growth sectors in Australia. With an already impressive team of lawyers/ corporate advisory specialists in water and agricultural law, an opening exists to further complement this Chambers Directory recommended team.

This professional services group operates internationally and provides a variety of business services exclusively to its members. A Legal Counsel with 3-5 years PAE in corporate and commercial law is required to join this friendly and close knit team.

You will assist in providing expert legal advice to corporations, governments, statutory authorities and non-government authorities in Australia and overseas. Already possessing over four years experience in a corporate/commercial legal role, ideally you will have gained exposure to work in this truly exciting area of law, but this is not a prerequisite.

You will advise senior management and all business areas with regards to corporate, commercial, compliance and finance law issues. You will draft, review and negotiate a range of commercial documents and provide company secretary support. Essential to your success is your understanding of financial services legislation and regulations, as well as company secretarial and compliance experience.

Contact Mhairi Morrison at or 02 8226 9664.

Contact Stacey Back at or 08 9254 4598.


The Web

Legal relief for cancer sufferers Sparke Helmore Lawyers and the Cancer Council NSW launched a legal referral service for cancer sufferers. The Cancer Council Legal Referral Service, based in Newcastle and the Hunter Region, is aimed at helping cancer patients and carers receive pro bono legal assistance when cost, illness or other barriers may affect access to such services. “Being diagnosed with cancer can be extremely traumatic and most patients are primarily concerned with getting through treatment,” said Shayne Connell, regional manager of Hunter North West Cancer Council NSW. Sparke Helmore will be a pro bono partner and handle referrals through its pro bono assistance program. Law firm wins green award Lavan Legal became the second law firm in a fortnight to win a major environmental award. The West Australian firm took out the CitySwitch WA Signatory of the Year Award at an event in Perth on 29 November. Perth Lord Mayor Lisa Scaffidi announced the winner when tabling the CitySwitch Progress Report. She said Lavan Legal won the award for its desire to become a carbon neutral firm, and cited projects the firm has recently undertaken, such as the installation of after-hours lighting sensors and the replacement of PCs and LCD monitors with “thin” client machines and LED monitors. New book sehr gut A special counsel from DibbsBarker launched a unique book aimed at fostering stronger relationships between Germany and Australia last week. Dr Wolfgang Babeck, the European counsel at DibbsBarker and adjunct professor at Bond University, penned an Introduction to Australian Law (or Einführung in das australische Recht).


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Clayton Utz takes large law reins CLAYTON UTZ’S Stuart Clark (pictured) will succeed Mallesons Stephen Jaques’ Robert Milliner as chairman of the Large Law Firm Group (LLFG). Milliner, who will also step down as Mallesons’ chief executive partner at the end of the year, held the inaugural role for five years. “It has been a privilege to work with my colleagues amongst the large law firms on the further development of the Australian legal profession,” said Milliner. “I am looking forward to the implementation of the National Legal Profession Reform project after the legislation is passed next year and to the ongoing development of the Law Council of Australia as the peak body representing Australia’s lawyers.” The LLFG’s principal aim is to push for an integrated Law Council of Australia, as the umbrella organisation for Australia’s legal profession, and reform of the national legal profession. Clark is the chief operating officer and managing partner, international, at Clayton Utz. “I am pleased to have the opportunity of continuing to pursue the LLFG’s reform agenda,” said Clark. “Over the coming months the LLFG will be working with government, the profession and the business community to ensure the successful implementation of the national legal profession reform package.”

Spreading their weight around

LARGE LAW FIRM GROUP MEMBERS Allens Arthur Robinson – Michael Rose Blake Dawson – John Carrington Clayton Utz – Stuart Clark Corrs Chambers Westgarth – John Denton DLA Piper – Tony Holland Freehills – Gavin Bell Mallesons Stephen Jaques – Tony O’Malley Minter Ellison – John Weber Norton Rose – Wayne Spanner

R E W IND Federal Labor MPs will be allowed a conscience vote next year on the issue of same-sex marriage after the party amended its policy platform to advocate for the cause. Left MP Stephen Jones will propose the change in federal parliament in a private members bill in the first half of 2012. The Victorian Government dismissed the prospect of koranic courts for Muslim offenders with similar aims to Koori courts. However, Melbourne defence lawyer Rob Stary said Koori courts were set up to counter high rates of imprisonment and recidivism among Aboriginal offenders, and that any moves to introduce sharia law principles would fail. Tobbacco giant British American Tobacco (BAT) announced it will take the Gillard Government to the High Court to challenge plain packaging rules passed this month. BAT is expected to argue that the packaging legislation is unconstitutional due to the fact it allows the acquisition of intellectual property without compensation. A free community legal website, The Law Handbook, will remain funded by the Victorian Government until at least early next year despite government calls for a sustainable business model to be introduced. The handbook was first published in 1977 as a guide to common legal problems and is accessed today by around one million Victorians.

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Freehills pushes Peabody over line to win macarthur Deal name: Peabody acquires 100 per cent of Macarthur Coal Key players: Freehills, Corrs Chambers Westgarth

Freehills has advised Peabody energy Corporation on its $Us5 billion ($4.95 billion) acquisition of Macarthur Coal limited. Despite the bid initially being hostile, it was completed quickly, with Peabody reaching the 90 per cent compulsory acquisition threshold within 13 weeks of the offer opening. The transaction represents a milestone in the australian coal industry and involved a number of complex elements, including making a joint hostile bid (of $4.7 billion) with existing Macarthur shareholder arcelorMittal, the world’s largest steelmaker. Tony Damian told Lawyers Weekly that Peabody’s preparedness to give arcelorMittal “a lot of flexibility to start off with” saw the two become bidding partners and arcelorMittal have the option to opt out. “That’s quite a new and novel feature,” said Damian, adding that, ultimately, arcelorMittal exercised that option, ensuring Peabody gained 100 per cent of Macarthur. Macarthur previously rejected a $3 billion takeover bid by Peabody in March 2010, claiming it undervalued the Brisbane-based company. This then spurned another offer by australian coal mining rival New hope the

following month. “Three different parties tried to acquire [Macarthur] in 2010 so it was obviously a popular asset,” said Damian. “i think there was so much interest in it because you don’t often come across assets … for steelmaking. There aren’t a lot of them.” Macarthur is the world’s largest producer and exporter of low volatile pulverised coal injection (PVi). Corrs Chambers Westgarth was the legal adviser to asX-listed Macarthur Coal, with the lead partners including Teresa handicott, Braddon Jolley and Jeremy horwood. The Freehills team was led by M&a partners Tony Damian, andrew rich and Matt FitzGerald, supported by senior associates Nicole Underhill and stacia super, and solicitors Ben Jones and Mark Nam. lawyers from Freehills’ competition, employment relations, and banking and projects practice groups also assisted in the transaction. “This is a landmark deal for the australian coal industry,” said Damian “it highlights the continued strength of crossborder M&a in the resources sector. “That interest spans not only coal but iron ore, oil and gas, and coal seam gas, and it’s not just from China.”


Tony Rein

Jim Boynton

Russell Philip


Clayton Utz (State of Tasmania)

Mallesons Stephen Jaques (Pola Orbis Holdings); Minter Ellison (shareholders)

Freehills and Corrs Chambers Westgarth (Murchison Metals Ltd)

Deal name

Sale of TOTE Tasmania Pty Ltd to Tattsbet Limited

POLA’s acquisition of Jurlique International

Sale of Murchison’s Crosslands Resources Ltd and Oakajee Port and Rail projects






$118 million

$300 million (expected)

$325 million

Key players

Clayton Utz’s Tony Rein

Mallesons’ Jim Boynton

Corrs’ Russell Philip

Movers & Shakers

D E A L o F T HE W E E k

Cowell Clarke poaches from Finlaysons Adelaide firm Cowell Clarke has appointed Paul Bradley as special counsel. Bradley, a senior corporate and commercial lawyer and former special counsel at Finlaysons Lawyers, has been tasked with further developing Cowell Clarke’s energy and resources practice. He has expertise across Australia and overseas, having spent seven years working in London and for Scottish firm Maclay, Murray & Spens LLP. Landerer & Company recalls director Landerer & Company has recruited a former partner with the firm as its director. Michael Gough has returned to the firm as a director, and was most recently with RigbyCooke Lawyers. He takes up the appointment on 16 January next year and will specialise in commercial and residential property development. DibbsBarker poaches HWL Ebsworth counsel DibbsBarker has appointed Craig Singleton to its property industry group. Singleton joins DibbsBarker in Brisbane as special counsel after practising as a special counsel for over a year with HWL Ebsworth. He was a senior associate with DLA Phillips Fox for five years prior to that. DLA Piper poaches from Blakes and Clutz DLA Piper has poached two intellectual property (IP) partners from Clayton Utz and Blake Dawson. Melinda Upton (pictured) joins from Blakes, while Nicholas Tyacke joins from Clutz. Both lawyers will be based in DLA’s Sydney office from early 2012.

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More Storm Financial probes ahead A fuller exploration into the collapse of Storm Financial and the liability of Macquarie Bank and the Commonwealth Bank of Australia will now go forward. On 22 November, the Federal Court’s Justice Reeves allowed amendments which introduce additional claims on behalf of the Storm investors against CBA. The amendments – which allege breaches of the Code of Banking Practice, a new breach of contract claim, misleading and deceptive conduct and unconscionable conduct – expose how far the “rot” had set in “all the way up to the highest echelons” of the bank’s players, said Stewart Levitt, the lawyer acting on behalf of former Storm Financial clients. “I think it’s a huge win for optimising the prospects of possible settlement or of a fully cathartic experience in the court process, because now everything will come out in the open and whatever the outcome ... there can be a full exploration of what occurred, to some extent assisted by ASIC,” said Levitt. The CBA’s counsel, Robert Hollo SC, described the new claims against CBA as “tectonic”. Levitt said that when the bank initially suffered a verdict against it, after the joint parliament committee inquiry in 2009, “heads rolled” – but, he pointed out, they were the heads of “fairly minor and quarantined players of the banks”. “Now we’re able to flesh out and canvass matters such as misleading and deceptive conduct that go to ethics in the practice of banking,” said Levitt. Mediation is expected to take place by the end of February next year and the trial will run from September 2012.

Foster’s deal all over, bar the shouting Allens Arthur robinson and Allen & Overy are set to crack open the celebratory tinnies as the Foster’s takeover nears completion. On 1 December, Foster’s shareholders overwhelmingly voted to approve the $12.3 billion sale to the British-based brewing behemoth sABMiller. In september, Foster’s management accepted a revised offer from sABMiller after the Australian brewing company’s legal advisors, Allens (whose team was led by senior partner ewen Crouch and capital markets co-head robert Pick) helped to persuade sAB Miller to increase its previous bid of $9.5 billion to $9.9 billion. After factoring in Foster’s debt, the sABMiller bid values Foster’s at $12.3 billion. speaking to Lawyers Weekly shortly after the supreme Court of Victoria gave final approval for the sale, Allen & Overy partner Aaron Kenavan, one of four partners from the firm advising sABMiller, said that getting the revised offer to the table involved a great deal of complexity. “the novelty and complexity from our perspective centered on not so much the value of the transaction, but changing it from a takeover bid to a scheme,” he said. “It was the first time AsIC has allowed someone to do that, and getting the relief we needed to do that required quite a bit of work.” Kenavan was assisted by fellow M&A partner Michael Parshall, with antitrust partner Dave

accc loses again in metcash stoush FReeHILLS HAS once again successfully acted for Metcash in its ongoing fight to acquire Franklins. Last week (30 November), a full bench of the Federal Court unanimously rejected an appeal by the Australian Competition and Consumer Commission (ACCC) in its bid to stop Metcash’s $215 million proposed takeover of over 80 Franklins stores in NSW. Freehills acted for Metcash in the appeal hearing, after successfully acting for the company in August before Federal Court Justice Arthur emmett. Freehills commercial litigation partner Grant Marjoribanks (pictured) and competition partner Michael Gray led the firm’s team. Barristers Peter Brereton SC


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Poddar and banking partner Adam stapledon also advising. While the Foster’s deal is all but put to bed, Kenavan and senior associate ratha nabanidham are also involved in sABMiller’s decision to buy out its joint venture partner in Australia, Coca-Cola Amatil. In Australia, this joint venture operates under the name of Pacific Beverages. It is expected that this transaction, valued in excess of $300 million, will be finalised by the middle of next year. Foster’s shareholders voted to approve the takeover of the iconic Australian brand less than one week after treasurer Wayne swan gave the deal the Federal Government’s seal of approval. Clifford Chance acted for the financial institutions involved as the lead arrangers and book runners on the deal, which included Barclays and Morgan stanley, with sydney-based partner scott Bache and london partner Geeta Khehar leading the firm’s team. hogan lovells advised sABMiller on the international aspects of the transaction.

and Declan Roche provided counsel. The ACCC used barristers Allan Myers QC and John Halley SC, and were instructed by Matthew Blunn, national group leader, dispute resolution, with the Australian Government Solicitor. Pick N Pay, the South African company that owns

Franklins, engaged Blake Dawson partner and competition and consumer protection team head Peter Armitage. Barristers John Griffiths SC and recently appointed senior silk Cameron Moore SC also advised Pick N Pay. The ACCC objected to the takeover on the grounds that Metcash’s sale would lessen competition on the wholesale side. Metcash argued that on the retail side, the acquisition would in fact enhance competition in a grocery market that is dominated by Woolworths and Coles. In August, Justice emmett found that the ACCC argument ignored commercial realities. The ACCC is considering whether to seek special leave to appeal to the High Court.

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With two Mallesons Stephen Jaques senior partners leaving for DLA Piper less than a week after the firm voted to merge with King & Wood, Stephanie Quine asks what will become of Mallesons lawyers in China The incoming head of mallesons Stephen Jaques has told Lawyers Weekly that the future of the firm’s lawyers in china is still to be determined. Stuart Fuller, who will become the firm’s chief executive partner in 2012 after the retirement of Robert milliner, said the longterm role of staff at the firm’s offices in Shanghai, Beijing and hong Kong was still being analysed in the wake of the expected merger with King & Wood. “it’s early in the piece ... a role and a position for everybody will be one of the critical pieces that the firm will want to put in place in any combination,” said Fuller. he would not comment on the prospect of job losses if the merger is accepted by King & Wood’s partners. Fuller was speaking to Lawyers Weekly in light of Beijing chief representative John Shi and m&A partner nic groffman leaving the firm to join DLA Piper, less than one week after the firm’s partnership voted to merge with King & Wood. it is believed that partners from the almost 1000 lawyer-strong King & Wood voted on the merger last week, but the results are yet to be disclosed. Fuller said it was not a concern of his that more mallesons partners would leave the firm for reasons to do with the expected merger. “We never like to lose anybody, but it’s a decision limited around those two partners largely for personal reasons,” said Fuller. “You get into some instances where personal preferences diverge from what the firm wants to do itself. if you look at any firm you lose partners for various reasons, we lose partners every year for personal reasons, performance reasons and then we lose partners like Ashley Black and Julie Ward who get picked off by the Supreme court bench.” currently mallesons employs four partners and 13 lawyers in Beijing, one partner and nine lawyers in Shanghai, and 13 partners and 76 lawyers in hong Kong.

“a role and a position for everybody will be one of the critical pieces that the firm will want to put in place in any combination,” STUART fUllER, InCoMIng MAnAgIng PARTnER, MAllESonS

DLA employs four partners and 20 lawyers in Beijing; five partners and 31 lawyers in Shanghai; and 29 partners and 83 lawyers in hong Kong. in an official statement, DLA Piper said Shi and groffman would start “in the near future” but the firm declined a request to interview the new recruits, and could not confirm whether Shi and groffman would be starting at the firm this year or in 2012. Phone calls by Lawyers Weekly to the mallesons Beijing office numbers of both partners went through to voicemail, and their respective profiles and details were still available on the mallesons website. A mallesons spokesperson told Lawyers Weekly that both Shi and groffman are on “gardening leave”. Liu Wei, chairman of china group and DLA Beijing office managing partner, said both former mallesons partners have a “significant” track record of achievement in china.

Australian top-tier firm offices in china Allens Arthur Robinson: Beijing, Shanghai and Hong Kong Blake Dawson: Shanghai Clayton Utz: Hong Kong Mallesons Stephen Jaques: Beijing, Shanghai and Hong Kong Minter Ellison: Beijing, Shanghai and Hong Kong

US/UK Update

Future of mallesons lawyers in china uncertain

Ashurst nabs global HR director Ashurst has recruited a senior human resources (HR) leader from Allen & Overy (A&O) to fill its new role of global HR director, reports The Lawyer. The associate director of A&O HR, Sasha Hardman, worked for the global firm for six years and was previously at PricewaterhouseCoopers. Her new position is intended to formalise Ashurst’s international HR operations as it merges with Blake Dawson. Sullivans hires five partners Sullivan & Cromwell LLP will have five new partners from 1 January 2012. In New York, William Monahan and Matthew Schwartz were appointed to the firm’s litigation practice. In Paris, Nicolas de Boynes was appointed in the tax group. In Washington DC, Amanda Davidoff was hired in litigation and Samuel Woodall III, who represents clients before the US Congress, was placed in the firm’s general practice. Tweets not immune from law The Attorney General of the UK, Dominic Grieve, has warned that publishers in cyberspace, including bloggers and tweeters, are not immune from the law. The Guardian reports that in a speech to journalism students at London’s City University, Grieve expressed concern that the press had been pushing the boundaries of acceptable crime reporting, especially since changes to the Criminal Justice Act 2003. Bingham McCutcheon poaches from Jones Day US firm Bingham McCutcheon has recruited Jones Day Beijing partner Xiaowei Ye to help launch its new Beijing office, reports The Lawyer. Ye will manage the office alongside corporate partner Brian Beglin, who will relocate from Tokyo. Ye previously practiced in Washington DC and Shanghai. He has worked in Beijing since 2006.

l aw y e r s w e e k ly 9 D e c e m b e r 2 0 11



women lawyers need self belief When it comes to the advancement of women in the profession, a new report shows the need for change in both structure and attitude. Claire Chaffey reports

Sharon Cook (Centre) with Justice Julie Ward and NSW Law Society President Stuart Westgarth at the launch of The Advancement of Women in the Profession: Report and Recommendations, last week


major investigative report into the status of women in the legal profession has been launched by the Law Society of New South Wales. The Advancement of Women in the Profession: Report and Recommendations is the culmination of a thought leadership project launched earlier this year and spearheaded by Law Society president Stuart Westgarth. The report is based on discussions held during 12 roundtable sessions with both men and women within the


l aw y e r s w e e k ly 9 d e c e m b e r 2 0 11

Photo by: Katsu Nojiri

profession, as well as demographic data identifying trends pertaining to female lawyers in NSW. At a breakfast held in Sydney on 1 December, the only female managing partner of a top 30 Australian law firm, Henry Davis York’s Sharon Cook, reminded the audience of the progress women have made in the legal profession over the last 30 years. “In 1998, only 20 per cent of solicitors in NSW were women. In 2010, it is almost 46 per cent,” she said. “There are more than five times the number of women lawyers than there were in 1988 ... Female solicitors

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have made real inroads in the government sector and the corporate sector, and women can confidently wear trousers to work!” Cook relayed an anecdote about when she and fellow speaker Justice Julie Ward started out as young lawyers. “There was an unspoken rule that women did not wear trousers to the office, lest there be a need to race up to court where one might not be ‘seen’ [by the judge] if so attired,” she said.

breaking down barriers One of the primary conclusions of the report is that while many women are now finding fulfilling careers in the law, there are still numerous barriers and impediments for women wanting to advance their careers. While Cook referred to “structural barriers”, such as the cost of childcare, a slow shift in parental leave benefits and the availability of flexible work practices, she said women must also overcome so-called “belief barriers”. “Women need to change the way we think,” she said. “Men expect power to be part of their lives. They expect to succeed. Women are more circumspect and less confident. We have to stop doubting ourselves so profoundly.” The report also found that while the number of female partners in private practice has increased by five percentage points in the past five years, women are still greatly outnumbered by men in senior positions. Cook believes this has much to do with how women perceive themselves. “Ralph Norris (the former CEO of Commonwealth Bank of Australia) likes to tell this story,” said Cook. “When a senior leadership position is advertised, it might state that there are 10 competencies required. A male candidate will look at the ad and say; ‘Well, I meet three of the competencies. I might as well give it a go’. A female candidate will look at the ad and say; ‘I only meet eight of the competencies and so I won’t apply for the job’. Or the woman presents at the interview and focuses on what she can’t do rather than what she can do.” Cook said law firms could learn much by looking at the strategies adopted by those in the banking sector. “When Bob Joss arrived [at Westpac] and said, ‘Where are all the women?’ he set about making structural change within Westpac,” she said. “Now, Westpac has a good number of women in leadership positions – not as many as they would like – with Gail Kelly as the CEO. Ralph Norris did the same at CBA. Law firms have much to learn from the excellent work which has been done at both Westpac and CBA on the advancement of women.”

Time for change In his address, Westgarth pointed out the particular difficulties faced by women in private practice, as figures in the report indicate a greater proportion of junior women are leaving private practice than junior men. “This is different to the profession overall, where there is little variation between the rates at which men and women solicitors leave the profession,” he said. “It is also very

Judging the figures in NSW

9,808 Number of female lawyers in 1988

23,760 number of female


Estimated income of 1st year male lawyers


Estimated income of 1st year female lawyers

lawyers in 2010


Percentage of female lawyers in-house in 2010


Percentage of female lawyers in private practice in 2010


percentage of female lawyers in government in 2010 Source: Law Soc of nSW

“Men expect power to be part of their lives. They expect to succeed. Women are more circumspect and less confident. We have to stop doubting ourselves so profoundly” Sharon Cook, Managing parTner, henry DaviS york

different to corporate and government practice, where it appears there is an increase in the proportion of women over time.” Westgarth also said he believes there is now a genuine desire to confront this issue. “We believe that there is an appetite for continued change in the profession which can be further stimulated by the facilitative recommendations in our report,” he said. “It is recognised, however, that there is a need for continued monitoring of progress. The Law Society will therefore report on the implementation of the recommendations and publish updated statistics in around 18 months and will conduct an evaluation in three years’ time.” The report concludes with 12 recommendations emanating from the research, including a continuation of thought leadership events throughout 2012, the provision of business development training, assisting workplaces to develop flexible workplace options, and sharing “tips” put forward by practitioners during the roundtable sessions. Of these “tips”, said Westgarth, there was one which stood out to him as being particularly valuable: “Be brave, work out what you want, and ask for it”. The report was authored by Heather Moore and Kate Potter, with Lauren Hann coordinating the project. It is available on the Law Society’s website. lw

l aw y e r s w e e k ly 9 d e c e m b e r 2 0 11



corrs launches virtual briefcase A new app can condense thousands of pages of documents into a 600 gram device. Stephanie Quine reports


orrs Chambers Westgarth has developed a new iPad app which allows lawyers to organise, transport and review thousands of documents outside the office. The app, called Corrs Briefcase, was developed by the firm’s legal technology solutions team in order to allow lawyers to access thousands of documents when away from the office. Corrs’ legal technology manager, Graeme Grovum, told Lawyers Weekly the app is especially useful for litigation lawyers, and is designed to make it easy for lawyers to quickly locate specific information and documents in court or elsewhere. Grovum, who developed the app with legal technology solutions director Brian Borskjaer, said he is not aware of any similar app for lawyers in Australia. Last week, just one day before Corrs revealed the app to the public on 1 December, America’s Law Technology News (LTN) reported that “painless document review” is missing from the “lawyer-iPad symbiosis”. “Despite all manner of PDF reader apps ... not much document review is done on tablets. The open-source legal technology community should consider building such

Cutting edge Corrs causes controversy

“[This is creating] a new way for lawyers and professionals with document intensive needs to practice flexibly and efficiently” John DenTon, Chief exeCuTive offiCer, Corrs Chambers WesTgarTh

Corrs briefcase is the second time in just over one month that the firm has introduced new technology. In November, the firm found itself mired in controversy when it purchased automatic time billing software with the ability to track and report a lawyer’s daily work activities. The Time Builder monitors the key applications lawyers use throughout the day, including email, calendar, document creation, phone and mobile devices. “It is beyond funny and into the field of surreal,” said Marque Lawyers managing partner Michael Bradley. “If I was working at Corrs, I’d be feeling more than a little creeped out right now.”


l aw y e r s w e e k ly 9 d e c e m b e r 2 0 11

applications,” LTN reported. Corrs’ new app weighs a little over 600 grams when viewed on the latest iPad, and has the potential to see trolleys and briefcases – transporting thousands of documents to court – made redundant. The plan is also to have an iPad available for the judge should they need to review a particular document in court. Grovum and Borskjaer said a major function of the app is to significantly cut down the time spent looking for and organising documents, thus improving work/life balance. “If a document or email all of a sudden becomes an exhibit in court, the lawyer can straight away locate it, and make notes on it, through the app. Likewise, [a lawyer] can search to find all the documents which a person is mentioned in, which is helpful, for example, for witness statements,” said Grovum, explaining the app’s ability to categorise documents as “confidential”, “priority” and “favourite”. According to Corrs, the app has been road tested by litigation lawyers, including one who would ordinarily have had to take more than 18,000 documents to a client’s premises. Grovum said the team would continue to update the app in line with lawyer feedback and eventually develop further app functions to suit different practice groups. “I think we will see lawyers who have to travel using the app more and more,” he said. Corrs partner and CEO John Denton welcomed the product, saying it “will create a new way for lawyers and professionals with document intensive needs to practice flexibly and efficiently”. “Our lawyers have the app at their finger tips to review, tag and make notes on documents anywhere and anytime,” said Denton. The idea was formulated in March this year and the app was fully operational by September. It is currently being rolled out within the firm. lw

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The allure of India The Labor Party’s momentous decision last weekend to back Prime Minister Julia Gillard’s plans to export uranium to India could have significant results for Australian law firms. Claire Chaffey reports


his is the Asian century. We’ve all heard the catch cry which has become part and parcel of Australia’s growing push to engage in business and strengthen diplomatic ties with our Asian neighbours. Last weekend, Julia Gillard took this to a whole new level, convincing the Australian Labor Party (ALP) to endorse her plans to lift a ban on the export of uranium to the world’s fifth-largest economy: India. “We are at the right time in the history of the world to seize a new era of opportunity in this, the Asian century,” said Gillard at the ALP’s national conference in Sydney. “We need to make sure that across our regions we have the strongest possible relationships we can, including with the world’s largest democracy, India.” While the controversial move has been fiercely opposed by numerous Labor ministers, who say exporting uranium is dangerous because India is not a signatory to the Nuclear Non-Proliferation Treaty, there is talk that any such deal could have beneficial outcomes for the Australian business community – and thus Australian law firms.

You’re not welcome here At present, foreign law firms are not permitted to practise law in India. Despite a barrage of law firms from various jurisdictions eager to do so, the Indian legal profession – led by the Bar Council of India – has thus far stood firm against mounting pressure from the United Kingdom, United States and Australia to relax their legal services market restrictions. Late last month, the head of the Society of Indian Law Firms, Lalit Bhasin, told India-based legal news site Bar & Bench that the entire Indian legal profession is against the entry of foreign law firms. “I always ask, ‘Why should we open?’ There has to be a good reason, some rationale – what is the rationale? Who needs the legal services industry to be opened up? Does the Indian business industry want it? Does the Indian legal profession want that?” he said. “Foreign law firms should consult Indian law firms if they need advice on Indian law. There is no need for them to set up offices here in India … The entire legal profession in India is completely opposed to the entry of foreign law firms.”

Pressure points Despite such overt opposition, there have been recent indications from the Indian Government that the


L AW Y E R S W E E K LY 9 D E C E M B E R 2 0 11

“The standing of Australia was considerably assisted by the Prime Minister calling for Australia to export uranium to India” NICOLA YEOMANS, PARTNER, FREEHILLS

restrictions in the Indian Advocates Act 1961 and Bar Council Rules 1975 (which provide that, with certain exceptions, foreigners are restricted from offering legal services to the Indian market) might be relaxed. On 26 September this year, Indian Law Minister Salman Khurshid said, at a seminar on UK-India cooperation on emerging legal issues, that the Indian and UK Governments were in the throes of working towards enhancing “the level of … cooperation and contribution in the most meaningful way for advancement of legal services in our two countries.” And things might be about to change for Australia too. According to Sydney-based Freehills partner Nicola Yeomans, the decision to go ahead with negotiations regarding the export of uranium to India could significantly strengthen relationships between the two countries. “The standing of Australia was considerably assisted by the Prime Minister calling for Australia to export uranium to India,” she says. “We may see this flow through to a closer diplomatic connection between the two nations and a greater Indian interest in Australia as a business destination.” Co-head of Clayton Utz’s India practice, Stuart MacGregor, agrees with Yeomans and says the deal may even go some way to opening the doors to Australian law firms. “The opening up of the legal services [market] in Australia and India has been discussed in the proposed Free Trade Agreement (FTA), including in the July 2010 FTA feasibility study,” he says. “There is recent speculation in the press that the FTA will again be fast-tracked if the Government agrees to change their current policy on selling uranium to India. So it will be interesting to see if professional services are dealt with in the FTA.”

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practiceprofile a beautiful friendship

Indian specialist firms do the work in their While Australian firms are currently forbidden jurisdiction.â€? from practising in India, numerous firms have Insatiable India developed long-standing relationships with Undoubtedly, Australian firms are being Indian firms. lured to India by the prospect of working “Our Indian Services Group was launched on significant energy and resources deals as in 1995. We have strong relationships with India aggressively pursues Australian and key government stakeholders, leading legal Indonesian natural resources. and accounting firms, and have represented “Our main role is to provide commercial a number of India’s largest corporations in advice to Indian clients seeking to invest in relation to their Australian and Asia-Pacific Australia and South East Asia,â€? says Yeomans. projects,â€? says MacGregor. “For example, we acted for Tata Steel on its “We regularly have partners on the ground investment in ASX-listed Riversdale Mining, on in India establishing new, and strengthening its Mozambique joint venture with Riversdale existing, contacts ‌ We have sent solicitors to Mining, and on Tata Steel’s response to the $3.6 India on secondment and in return we have billion takeover bid of Riversdale Mining by Rio Indian lawyers on secondment at Clayton Tinto.â€? Utz. We currently have a senior associate Given the rate of India’s growth, these deals from Amarchand & Mangaldas in Delhi in our are likely to continue for some time yet, even Brisbane energy and resources group.â€? in the face of global economic meltdown. “The Despite a significant interest in India, Indian economy continues to display very however, MacGregor insists that the firm is not substantial growth and given so much of it is looking to open an office there, should the doors internally generated I think it should continue be opened in the future. A D _ L WL D Elooking C 9 _ 1to1practise . p d f in P a g eto grow 1 in 3 0 / face 1 1 of / 1any 1 slowdown , 2 : 0 in 2 the PM the “Clayton UtzEisXnot European or US economies,â€? says Yeomans. India,â€? he says. “We prefer to let our local

According to MacGregor, India is becoming an increasingly significant piece of the energy and resources pie for Clayton Utz. “India is a very important market for us,� he says. “Exports only represent 15 per cent of India’s economy so most of India’s growth, like China, is from domestic markets. India is the second largest importer of Australian Coking Coal after Japan and there is a significant short fall in thermal coal supplies for India.�

On the same page As well as a huge demand for energy and resources in the region, working with or within India also makes sense for Australian firms from a cultural point of view. “Australia and India have much in common, including their British common law heritage,� says MacGregor. “We see more similarities than differences.� And as Gillard forges ahead with her plans to implement the uranium deal – which Labor Senator Doug Cameron has labelled “one of the worst decisions the Labor Party has ever made� – Australian firms will be keeping a close eye on the Indian legal services market. lw

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a formula for happiness Whether lawyers can “have it all” is a question often debated by those in the profession. Matthew Stutsel shares his experience from both a top-tier law firm and a big four accounting firm to define just what lawyers need for satisfaction and success


he 2011 Tristan Jepson Memorial Foundation Annual Lecture proposed the question: “Profit, Success & Happiness: Can you have it all?” I was in the audience but was asked by the MC, Julie McCrossin, for three recommendations I would make to managing partners to improve resilience in the legal profession. My suggestions were collegiality, leverage and education, and my answer to the lecture’s question is below. Having been a partner of a major law firm for more than 10 years before moving to KPMG in the middle of this year, I want to draw from some of my experiences in both those practices and the way they reflect on my suggestions.

collegiality One of the great things about being a solicitor is spending time with colleagues: building networks within teams and with people from other teams throughout the firm helps to strengthen a firm’s culture and develop a young lawyer’s understanding of the firm’s whole practice. The pressure of achieving billable hour targets makes that interaction more difficult for employed solicitors. As a partner, the pressures are different and encourage different behaviour. Lawyers are judged on their contribution to the firm. One of the difficulties with any remuneration system is measuring and rewarding behaviour that the firm actually wants to encourage. Consequently, many firms assess partners using a complex series of financial metrics (where the data is relatively easy to collect and compare objectively) with an overlay of ‘softer’ contributions (such as profile with clients, contribution to knowledge management, impact on staff). While employed solicitors argue that their billable hours don’t properly reflect the whole of their contribution in determining their salary, partners argue about a whole range of these metrics. The message partners believe they hear is that they need to maximise the relevant financial metric in order to maximise their own share of partnership profits; and usually these metrics are based on individual performance. Ultimately, this can put partners in competition with each other: a competition that can result in claims of client ‘ownership’, ‘squirreling’ work and promoting ‘silo’ behaviour. This isn’t a problem with the metrics themselves, and I don’t mean that a lockstep model will answer all these problems, as it can create its own problems. But using the metrics as part of a remuneration system that better considers team, rather than individual, behaviours could


l aw y e r s w e e k ly 9 d e c e m b e r 2 0 11

drive performance at the same time as encouraging collegiality. This requires more than merely looking at the metrics of the individual. I have a t-shirt from a team building function many years ago that has on one side, ‘The strength of the wolf is the pack’ and on the other side, ‘The strength of the pack is the wolf’. Rather than sitting in your office alone, going to client meetings alone and trying to solve all their issues alone, aren’t the more satisfying times when you are working as a team to solve issues, or presenting to a client as the “A” team not just the “A” type?

leverage At “baby partner” school my left brain was suckled on David Maister’s model of profitability: (1 + L) x (BR) x (U) x (R) x (M), where L = Leverage (ratio of solicitors to partners) BR = ‘Blended’ hourly billing rate U = Utilisation (billable hours recorded) R = Realisation rate (revenue divided by ‘standard value’ of recorded time) M = Profit margin (another formula that takes account of costs) The large law firms have generally focussed on “M”, improving profit margin by reducing costs, including reducing the lawyer headcount. Unfortunately, this also reduces “L” (leverage). Without leverage, the easiest factor

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to manipulate to improve profitability is “U” (utilisation), potentially giving staff impossible targets for recording billable hours. Increasing leverage allows a trade-off against such high utilisation targets. Larger teams also maintain a similar average hourly billing rate despite higher ‘rack’ rates because clients and partners encourage delegation, giving junior team members more involvement in matters and more interesting work. This feeds into more work within a team; more collegiality.


Did Ally McBeal (from the television show) spend years locked in a room doing litigation discovery, proof reading banking documents or comparing product disclosure statements? While it still may not satisfy Ally McBeal, my observation as a stamp duty partner at a major law firm and now as the national head of state tax at KPMG, is that the solicitors in revenue law seem to start with a narrower gap between expectation and experience: the work they do is more like what they are trained to do in law school. When you add the greater leverage that advisory firms typically use and the impact that has on collegiality, I am surprised I didn’t make the move years ago. Partly it was my arrogance in thinking that real lawyers work only in law firms, whereas at KPMG I am surrounded by people with legal qualifications. My daily experience now involves detailed discussion about complex legal issues. My personal observations of working at KPMG so far are: better legal work, better life because of the impact of leverage on utilisation and collegiality, and therefore better work-life balance. And, yes, I do think you can have it all. lw

“I am surprised I didn’t make the move years ago. Partly it was my arrogance in thinking that real lawyers work only in law firms, whereas at KPMG I am surrounded by people with legal qualifications”

Now something for those waiting for me to be more controversial. I think that to help promote resilience in the profession it is critical that we educate our colleagues about the issues of depression and anxiety. I was delighted that the Australian Human Resources Institute recently recognised the work of Freehills, Mallesons, Blakes, Allens and Clayton Utz in developing the Resilience@law educational program as the most outstanding initiative to promote the health and wellbeing of employees. But I think there is an earlier educational step we A Dtake: _ L WH E R law D E students C 9 _ 1 narrow 1 . p d the f gap P abetween ge 1 5 / 1 2 / 1 1 , 1 0 : 1 5 AM could to help Matthew Stutsel is the national head of state tax at KPMG their expectations and their experience of legal practice.





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Perils the profession can’t ignore In 2012 the Australian legal profession faces a number of key challenges which, if disregarded, pose a significant risk to the performance and sustainability of the industry. Briana Everett looks at the top 10 risks to the future of Australia’s law firms.


l aw y e r s w e e k ly 9 d e c e m b e r 2 0 11

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Mental health It comes as no surprise that mental illness is one of the biggest threats to Australia’s legal profession. Over the last few years, countless reports in the media have revealed the devastating effects of depression and anxiety and the high incidence of mental illness in the legal profession, compared to any other. But despite the increasing willingness amongst members of the industry to speak openly about mental illness, as well as the significant efforts made by organisations such as the Tristan Jepson Memorial Foundation (TJMF) to increase education about mental illness, it remains a huge issue and threat to the legal profession in 2011 and beyond. InDSeptember A _ L WWOthis R Oyear, C T 2members 8 _ 1 1 of . pthe d profession f Pa ge 1 gathered in the Federal Court of Australia to hear a

seven-member panel address the ongoing issue of mental illness in the profession as part of the TJMF’s annual lecture. Discussing his own battle with depression, panel member and managing partner of HopgoodGanim, Bruce Humphrys, highlighted the need to address ways of preventing the illness, rather than focusing on alleviating the symptoms. “The key is to work out how to prevent the disease rather than how to deal with it once it has occurred,” he said. Consultant and former Middletons chief executive John Chisholm says mental illness represents a huge risk and cost to the profession. “I think it’s much more open now in terms of talking about it and recognising it, reflecting society in general, but I do think, unfortunately, we’re still dealing with many he says. 2 4 / of 1 0the / symptoms 1 1 , 1 1and : 2not 4 the A cause,” M “That’s something we risk as a profession if we don’t start

“Not having specialisation puts the practice at risk in terms of their relevance to their market” BILL SHEW, PARTNER, GRANT THORNTON

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My personal opinion is that I’m uneasy about it. I can certainly see the sense of it from a commercial point of view. My worry would be the work that is normally done by younger people is not done here” ALEXANDER WARD, PRESIDENT, LAW COUNCIL OF AUSTRALIA

looking at the causes and stop dealing with the symptoms.”

The billable hour While agreement is yet to be reached as to exactly why the legal profession suffers a higher rate of mental illness than any other profession, the billable hour is a recurring theme underlying talks about the causes of depression and anxiety amongst lawyers. “When you treat people on the basis of only measuring their time and not by the value they give to a particular client … you’re reducing that person to a very low common denominator,” said Damian Sturzaker, partner of Marque Lawyers, at TMJF’s annual lecture this year. “It’s a very lonely experience.” But whether or not it’s the major contributing factor to mental illness amongst lawyers, timebased billing continues to be categorised as an obsolete and inefficient way of doing business, and as a result, a major threat to the progress of the legal industry in the future. “We continue to fail to recognise that clients don’t actually buy our time and that really, what we do, is sell intellectual capital,” says Chisholm. “We’re not digits or widgets … We’re actually knowledge workers … [Time-based billing] is just a dumb and outdated business model.” Chisholm says while he is seeing some change within the industry with a number of firms embracing alternative methods, many firms are still “clinging to old” ways. “[Time-based billing] is a big issue and there are much better ways for lawyers to sell their value to their clients than just by time,” he argues. While more and more firms are adopting value-based pricing methods, such as Marque Lawyers and Slater & Gordon – which this


L AW Y E R S W E E K LY 9 D E C E M B E R 2 0 11

year rolled out fixed fees in its family law practice – other firms are utilising new software to automate the process – a decision which has received significant criticism from some members of the industry. After Corrs Chambers Westgarth announced in November that it had purchased automatic time billing software to help track and report on lawyers’ daily work activities, Michael Bradley, the managing partner of Marque Lawyers, voiced his concern that the legal profession had “finally jumped the shark” in an opinion piece for Lawyers Weekly. “Of all the steps our profession has been taking, by progressive inches, to dehumanise lawyers over the years, this just screams out for someone to say, ‘Enough!’” said Bradley. “I’m outraged that this software even exists. But that’s different to being surprised. I’m not surprised.”

Workplace bullying/ harassment The toxic workplace culture of a number of law firms in Australia and the resulting bullying and harassment cases that have surfaced over the years continue to pose a threat to the recruitment and retention of lawyers. Closely linked with the time-based billing methods of law firms and associated mental health issues, in many cases the negative environment of some law firms has resulted in the decision of many lawyers to leave the profession. Speaking at the TJMF 2010 annual lecture, professor Patrick McGorry likened the law firm environment to a Victorian era workplace. “[A law firm is] a 19th century working environment. Twenty-first century working environments promote autonomy, mastery and purpose,” he said.

Talking to Lawyers Weekly earlier this year, Freehills partner and TMJF board member Peter Butler also discussed the toxic nature of law firm culture. “There are some that say the culture of law firms at worst can be toxic and, even if that’s not true, they can lead to stress levels which aren’t helpful to someone who may have a predisposition to anxiety or depression,” he said. This year, behaviour experts at The University of Queensland (UQ) Business School joined forces with law societies across Australia to confront the “unacceptable workplace behaviour and toxic organisational structures” of the profession. According to UQ, low employee retention and potential exposure to legal action arising from workplace mistreatment, such as harassment and bullying, are just some of the signs of a toxic working environment. “Cut-throat cultures such as those common to the legal profession can either encourage or simply allow employees to overwork, exposing them to well above average stress levels and a critically poor work-life balance,” says UQ Business School PhD candidate Rebecca Michalak – a former human resources director at a large Queensland law firm. “With a number of workplace mistreatment, intimidation, harassment and bullying cases recently coming to light in the media and elsewhere, the legal industry, and employers in general, can consider themselves on notice.”

Legal process outsourcing In October this year, Mallesons Stephen Jaques made the big announcement that it will be using 200 trained lawyers in India for legal work after signing a legal process outsourcing (LPO) contract. As the first large law firm in Australia to sign a formal agreement with an international LPO provider, with Blake Dawson soon following, Mallesons managing partner Tony O’Malley described it as a “watershed moment” for the Australian legal sector. But while LPO has, for a number of years, been at the hub of developments regarding the delivery of legal services internationally, many Australian law firms have stood by and watched, reluctant to jump on the LPO bandwagon. For some industry members, while it makes business sense, LPO presents a threat to the development of the country’s young lawyers. “My personal opinion is that I’m uneasy about it. I can certainly see the sense of it from a commercial point of view. My worry would

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things, but there are some firms in some areas for which the work hasn’t come. Having said that, there are some firms doing really well, but I’d be surprised if most firms are not at, or under, their targets at this time of year.”

Arrival of global law firms

be the work that is normally done by younger people is not done here,” says Law Council of Australia (LCA) president Alexander Ward. “If it’s getting someone to do transcription services [much] cheaper, then of course it’s a sensible thing to do, because that’s not going to be the work of the young lawyers anyway. But if it’s to the extent to which it’s actually legal work, even if it’s low level, then that would be of more concern to me.” For Chisholm, LPO is something that can’t be ignored. And to those firms that don’t embrace it, he says “do so at your own peril”. “There is an element of work that is commoditised. I don’t like the word but it happens. Get used to it and learn to deal with it,” says Chisholm. “Those firms that are embracing it and acknowledging it will do really well. But for the firms pretending it’s not happening … or that there’s no benefit to it, then good luck.” In response to concerns about the effect outsourcing agreements will have on the recruitment and retention of young lawyers, Chisholm says the “smarter firms” will give their young lawyers “much more interesting work” instead of “mind-numbing discovery”. “Firms are embracing LPO much more now. Mallesons and many other firms are doing it,” he says. “Much of this legal process outsourcing is much more effective than what we’re doing.”

Global market uncertainty During the global financial crisis, the Australian

legal industry certainly underwent a great deal of change, with new developments such as LPO gaining momentum thanks to its cost-cutting benefits for law firms. But despite the world economy’s recovery from the GFC, the Australian legal industry is not out of the woods in 2011. As the European debt crisis unfolds and the United States struggles to avoid another recession, the performance of the Australian legal industry – while in a better position than many others – faces the threat of further global market turmoil. In October, Foreign Affairs Minister Kevin Rudd conceded that Australia is not immune to the market turmoil in Europe. “What happens in Europe in the financial markets and the stability of those markets affects Australia,” said Rudd at a CHOGM press conference. “It affects Asia, it affects the rest of the world, including Africa, Latin America and all the countries represented here at this Commonwealth Forum.” For Chisholm, while the Australian legal profession is “very well managed” compared to many other professions, the global market uncertainty is unquestionably a risk. “We are going to reflect how our clients are travelling and our clients reflect how the economy is travelling,” he says. “Nearly six months into this financial year I’m seeing many firms that have not reached budget. They geared up again for work at the end of the last financial year, with salary increases and all these sorts of

The influx of global firms in the Australian market over the last few years has undoubtedly had a considerable impact on the competitiveness of the industry, but according to some industry members, their arrival poses a considerable threat to local national firms which choose to ignore the globalisation of the industry. “I think rival global firms are a threat,” says Chisholm. “Our terrific national firms are not doing what they’re doing for no reason. I think firms have got to accept that we’re part of Asia and that we’re global – those firms that don’t do so at their own peril.” For Sydney-based Jones Day partner Matthew Latham, who spoke to Lawyers Weekly in September, the recent merger between Blake Dawson and Ashurst put the spotlight on the future of national firms in Australia. “What looked like a trend on the international global side is starting to look like a tsunami,” he said. “The Blakes and Ashurst merger will put additional pressure on the other big national firms to determine what their international strategy is.” Recognising that some firms will aim to differentiate themselves from those firms taking the global path, Chisholm says those firms need to have a very strong alternative strategy. “There is certainly room for focused, strong firms that just concentrate on their own market,” he says, “but if you’re not well connected or networked, then you’d better be pretty good at what you do.” In contrast, Allens Arthur Robinson partner Paul Quinn told Lawyers Weekly in September this year that the global firms have not had the huge impact the industry was anticipating. “We have not seen a significant impact from Allen & Overy or Clifford Chance in Australia because they don’t have the scale that we have,” said Quinn. “In Australia, we don’t see them as a significant threat yet.”

L AW Y E R S W E E K LY 9 D E C E M B E R 2 0 11


Finding support The Foundation’s objective is to decrease distress, disability and the causes of depression and anxiety in the legal profession


Our terrific national firms are not doing what they’re doing for no reason. I think firms have got to accept that we’re part of Asia and that we’re global – those firms that don’t do so at their own peril” JOHN CHISHOLM, CONSULTANT, JOHN CHISHOLM CONSULTING

Similarly, for Corrs Chambers Westgarth chief executive officer John Denton, the threat of partners being lured from national to global firms is of no concern. “[Global firms] are not a great concern for me in terms of recruitment because we haven’t actually seen a lot of that luring of top partners away,” he told Lawyers Weekly last month. “It’s not a priority concern for me at all.”

Shortage of lawyers in rural, regional and remote Australia Attracting and retaining lawyers in rural, regional and remote (RRR) Australia has been an issue confronting the country’s legal profession for some time. The LCA’s 2009 RRR Area Lawyers Survey revealed that RRR law firms and community legal centres are unable to find suitable lawyers to fill vacancies and that the problem will worsen in the next five to 10 years as experienced country lawyers retire. But despite the efforts of the Commonwealth Government and organisations such as the LCA and the states’ law societies, the recruitment of lawyers into RRR areas remains a huge issue for the profession and a threat to the sustainability of regional legal practices. “It is certainly a challenge that needs to be addressed and if we don’t address the challenge of getting more people out there, [law firm owners] are getting to the point where they’ll retire and won’t have anyone to take over their firm,” says Ward.

No-one to take the reins Closely linked to the issue of retaining lawyers

in RRR areas is the lack of succession planning amongst law firms across the country – an issue that continually arises as a key threat to the sustainability of legal practices. Despite talk in recent years about succession planning and the elements required to implement an effective business strategy, a number of law firms and sole practitioners still fail to recognise the importance of planning for the evolution of their business and the ongoing effort that is required to ensure its longevity. “Every firm I work for, succession planning is high on the list,” says Chisholm. “More than 10 per cent of private practice lawyers are over 60 [years old] and more than 30 per cent are over 50. I think it’s a huge issue, [aggravated] by the fact that we’ve still got too many people leaving the profession by the time they get to third or fifth year.” Similarly, partner at business advisory firm Grant Thornton, Bill Shew, says succession “is absolutely a risk for practices, given the changing dynamic of individuals”. “Younger partners don’t have the same mindset as older partners and what they’re willing to step into is not what partners used to [step into] 10 years ago,” he says.

Lack of innovation Underlying the number of challenges facing the legal profession in 2012 is a lack of innovation amongst Australian law firms. According to Chisholm, one of the greatest risks for law firms is complacency and inertia, and a lack of innovation. “I haven’t been into a law firm that doesn’t say that they’re innovative on their website. Some firms genuinely are but, for most, what we think in the profession is innovative, other industries look at us and go, ‘What? You’re kidding’,” he says. “A lot of innovation we’re seeing is unfortunately coming from people outside the law. The disruptors to our profession are non-law firms. [We must] realise that one of the biggest threats to private law firms is

competition from non-lawyers or non-law firms.” Chisholm says the legal profession needs to stop dividing its business from others in ‘legal’ and ‘non-legal’ terms, and says it could learn from the accounting profession, which long before the legal profession differentiated itself and established consulting businesses. “Accounting firms thought outside the square. We still, at times, just think we’re lawyers. I think the value law firms add is their business skills or being able to give commercial advice. Legal skills are just one little part of it really. Many organisations can do that and you don’t have to be a lawyer. I think that’s a real threat.” While he says law firms must innovate to survive, Chisholm recognises that innovation is not easy within the legal profession as it is now. “We penalise innovation and penalise creativity, and we reward command and control,” he says. “Most firms don’t reward innovation and it’s a big risk.”

Losing relevance Coinciding with the lack of innovation amongst the profession is the risk that the relevance of some firms will disappear unless they differentiate themselves and specialise. “If a practice remains all things to all people, then their relevance can be called into question when their peers around them are becoming specialists,” says Shew. “Clients, certainly the larger ones, are just as likely now to buy a certain service from one firm and another service from another … Not having specialisation puts the practice at risk in terms of their relevance to their market.” Chisholm agrees and says generalist, undifferentiated, full-service firms are “dying, if not dead”. “The trouble is, in our profession, too many firms go for anything that moves,” he says, noting the ‘I have never met a billable hour I don’t like’ mentality amongst law firms. “Smart firms have a focused strategy and stick to it.” LW

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The Lawyer’s Business Plan Getting your practice “bizz-fit” While those who are into fitness will appreciate having a medical or physical fitness check-up to ensure you are in good shape, the same type of check-up is relevant to having a law practice, writes Dezz Mardigan LegaL practitioners should have a Lawyer Business plan (LBp), just as they would have a chart analysis from their medical physician or a physical fitness chart from their gym. i am willing to bet that if i surveyed a lawyer’s client network and asked them; “How did you come to have the lawyer you have represent you?”, they would all pretty much say (in concerto), “He/ she knows and understands my business”. What is the LBP? the LBp represents your business x-ray and serves as an essential adjunct complimentary to your professional profile. the LBp should form the ultimate communication piece (for you, your clients and constituents alike) in summarising your business strategy for

maintaining and developing your practice. i pose the question, “are you bizz-fit?” The LBP design the LBp design should comprise your objectives, area of specialisation, relevant market intelligence, existing and prospective clientele, your competitive edge, business development initiatives and revenue (historical and projected). The value-add in having an LBP Having an LBp is not only useful when contemplating a lateral transition to another law firm but throughout your career as well. it is a self-branding tool, shows that you take your law practice seriously and that you have an official strategy around grooming/growing

my multitasking


of workers plan to spend time doing Christmas shopping online at work this season.



Of workers send nonwork related emails during their typical workday, while 19 per cent send more than five personal emails a day.

Source: CareerBuilder Survey, 27 November 2011


Dezz Mardigan is the manager of partner and practice group acquisition at JLegal

next move

Daniel Stirling, general manager, Dolman

50 %


your business. secondly, having an LBp communicates the message that your clients pay, which ultimately serves as a measurement tool in determining your market worth. the LBp shapes your client network and guides your focus, networking strategy efforts, budget and energy. simply said, it represents a ‘to be done’ checklist. in conclusion, lawyers must bear in mind that the LBp is not the miracle healing drug; just an organised communication piece to chart and play out your business strategy for a superbright “professionally healthy” future.

l aw y e r s w e e k ly 9 D e c e m b e r 2 0 11


How do I decide which is the best company or role to choose when I move in-house?

This can be a difficult question for a lawyer looking to move in-house for the first time. The role itself is different and there is a greater variety of organisations and sectors to consider, which differs greatly to private practice where there are generally a small number of firms and partners that you would consider working for in your practice area. It is important to consider your own strengths and technical legal skills before planning this type of move. Some practice areas lend themselves towards roles in certain sectors, such as construction and banking and finance. Others with a corporate or commercial law background would have the option of moving into a broad in-house role, which is available in most sectors, or a specialised corporate

position, which tends to be available within the largest listed companies in sectors such as resources or banking. You should also think about the type of role or company which suits you and your working style, taking account of team size/structure, industries of interest, culture, future opportunity and the range and type of work available internally and what is outsourced. However, it is best to be open-minded, if possible, because if you focus too narrowly on a particular industry you may miss out on opportunities elsewhere which have better work, pay and team environment. The key point is that it’s down to personal choice and preference but it is well worth the time spent researching the market and planning before making this important transition. Speak to a good recruitment consultant who specialises in the in-house market and can give you an honest appraisal of your skills and experience and the likely opportunities available to you.

w w

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


solicitors become pawn stars A teAm of solicitors defeated lawyers representing the bar and bench in a keenly contested legal chess challenge on 30 November. Lawyers faced off across the chess board over 18 singles matches in the Sydney digs of Allens Arthur Robinson, with the solicitors gaining a narrow 10 games to eight victory to retain the terrie Shaw memorial Shield. Last night’s legal grudge match was the latest battle in a long simmering chess war between opposite sides of the legal profession. the first match was held in 1993, with the annual chess challenge being named after barrister and Chess Olympian terrie Shaw in 1998 after his untimely death from cancer the year before at age 51. Although the bar and bench team had the upper hand in the early days of the competition, winning the first five contests, the solicitors team has fared well recently, winning the last two tournaments. the captain of the solicitors team, sole family law pracitioner Chris Dimock, said this year’s location in the Allens boardroom, with sweeping views of Sydney Harbour, worked to his team’s advantage. “When I set up the boards, I take care to ensure the solicitors have their backs turned to the view, so they are not distracted,” he told Folklaw. “It seemed to work last night.”

Dimock, who plays regularly as he is also the captain of the Harbord Diggers Chess Club, said it is the level of camaraderie that exists amongst the legal chess players that makes the evening as much a social event as a competitive one. “Last night I was facing off against an opponent for one-and-a-half hours, not talking to him,” he said. “When the game is over, it is nice to talk about the game over a glass of red.” While the event used to be hosted on a rotational basis, it has now found a permanent home at Allens. Allens litigation partner malcolm Stephens, who recently acted pro bono for a group of malaysian refugees in the High Court case that helped to scuttle offshore processing in Australia, played in the first contest in 1993 when he was a paralegal with the firm. He said there is some overlap between the practice of law and chess. “As a chess player you need to be objective - you need to understand what the other person is doing as much as what you are doing,” he said. “this is true in law as well as in negotiation and litigation.” In addition to Stephens, Allens taxation partner Adrian Chek also played for the solicitors side last night. the solicitors team also included lawyers from mallesons Stephen Jaques, minter ellison, Kelly & Co and

better the devil you know

tHe AuStRALIAN Corporate Lawyers Association (ACLA) didn’t need the real Kylie minogue at its annual knees up in melbourne in late November. Folklaw was in attendance at the ACLA In-house Lawyer Awards


in melbourne’s Regent theatre. there was a great degree of anticipation in the room about what the entertainment could be, given that hints had been dropped by the ACLA folk that we were in for what Bruce mcAvaney would

l aw y e r s w e e k ly 9 d e c e m b e r 2 0 11

Caption? in-house lawyers from KPmG and the AttorneyGeneral’s Department. the solicitors also included a retired lawyer, which shows there is also a certain degree of skullduggery to the proceedings. “that is an indication that it is not an event where the rules of law are applied rigorously, as over the years, I think both teams have been allowed ring-ins,” said Dimock. “But there needs to be some connection with the bar or with solicitors.” Dimock refused to reveal whether any law firms or barristers chambers have recently opened up positions to Russian chess playing lawyers to bolster this year’s ranks. the bar and bench chess elite, captained by barrister Rob Colquhoun, featured Stephen epstein SC, Federal Court Justice Steven Rares, who went down in a tight tussle in his context, and a number of junior barristers. Last night’s proceeding commenced with a tribute to the late Family Court Justice John Purdy, who died in August. Justice Purdy was an Australian chess champion in 1955 and 1963, and a stalwart of the bar and bench team for many years.

call a “very special evening”. With that famous melbournian, Kylie minogue, being in Australia at the time, speculation was rife that the sister of Dannii might be dropping in to loosen the vocal chords. While it was not to be, what we got was almost as good: 100% Kylie, a Kylie minogue tribute show. 100% Kylie, whose real name is Lucy Holmes, went through many of the hits, including “Spinning Around” and “On a Night Like this” - all the while managing to show poise and look glamorous while balancing what looked like a massive fascinator on her head. However, Folklaw ’s personal favourite was “Better the Devil You Know”. Dressed in a fetching red

leotard with devil horns, “Kylie” was supported by two very fit young men who looked like they got lost on the way to a gridiron game from Folklaw ’s vantage point in the cheap seats. In Folklaw ’s opinion, the only thing the show lacked was someone from the Nick Cave tribute show, “Caveman”, to perform the duet, “Where the Wild Roses Grow”. With so much excitement provided by the entertainment, it was no wonder that many lawyers, with a full day of work ahead of them the next day, took the option to take a cab home shortly after 100% Kylie finished her set. We were all spinning around by the denouement. w w


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Lawyers Weekly, December 9, 2011  

Australia's leading publication for the legal industry. This issue: The top 10 risks facing Australian law firms in 2012; Corrs Chambers We...