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VOLUME 44 | NUMBER 10 | NOVEMBER 2017

THE INEVITABLE SURPRISE How technology will change what we do Meet the candidates for the 2018 Council elections


Volume 44 | Number 10 | November 2017

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CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

ARTICLES 06

Nominations for 2018 Council

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Contractual Drafting Issues for Machine Learning Agreements

Law Society's Unbundling Guidelines

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Whatever happened to software source code agreements

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Marking up and signing documents without printing them

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Disrupting Legal Education

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The Future of Legal Education

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The Inevitable Surprise: How technology will change what we do

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To pay or not to pay?

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Case Study: Krista McMeeken

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Getting unbundling right

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief.

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A survey of lawyers’ cyber security practises

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App-based companies in the gig economy

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Law Society added to UWA Benefactor Wall

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Brett Syme RRP $16.00 incl GST. Printed by Scott Print

Editor: Jason MacLaurin Deputy Editor: Moira Taylor Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, Robert French, Melissa Koo, The Hon John McKechnie QC, Alain Musikanth, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng Proofreaders: Ingrid Briggs, Cassandre Hubert Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact communicationsofficer@lawsocietywa.asn.au

REGULARS

President: Alain Musikanth Senior Vice President: Hayley Cormann

02 President's Report 04 Editor's Opinion

42 Professional Announcements 42 New Members

38 Family Law Case Notes 40 Law Council Update 41 Pam Sawyer

43 Classifieds 44 Events Calendar

Vice President: Greg McIntyre SC Treasurer: Jocelyne Boujos Immediate Past President: Elizabeth Needham Ordinary Members: Jocelyne Boujos, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Elisabeth Edwards, Catherine Fletcher, Rebecca Lee, Marshall McKenna, Denis McLeod, Stefan Sudweeks, Nicholas van Hattem, Paula Wilkinson Junior Members: Deblina Mittra, Jodie Moffat, Noella Silby Country Member: Brooke Sojan Chief Executive Officer: David Price

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PRESIDENT'S REPORT Alain Musikanth President, the Law Society of Western Australia

Future of the legal profession In his 2013 work, Tomorrow’s Lawyers i, Richard Susskind predicted that the legal world would change “more radically over the next two decades” than “over the last two centuries”. Alive to that prediction, and as noted in this column in the July edition of Brief, the Law Society adopted the Future of the Legal Profession as a strategic focus area earlier this year. As members would have observed, the Society has, since doing so, commenced a roll out of an increasing number of materials, CPD seminars and Brief articles focused on future themed topics. This month’s edition of Brief explores several such topics. In his cover article entitled ‘The Inevitable Surprise: How technology will change what we do’, Tony Joyner explains how artificial intelligence, in particular, is likely to affect the legal profession and the practice of law. While there will doubtless be many challenges along the way, as the author notes, “[n]ever in our profession has there been a better opportunity for adventurous, bold, innovative thinkers to make a difference.” Also in this edition, Julian Sher and Paul D Evans examine the concept of “unbundling”, the breaking down of a legal matter into its constituent parts so that one – or some – of those parts will be the subject of a so-called “partial retainer agreement”, as distinct from a “full retainer”. ii As the article makes clear, unbundling is increasingly becoming “a necessary part of delivering access to the legal system in a manner that is ‘just, quick and cheap’”. That said, and as the authors observe, unbundling is not without its risks; and a number of helpful risk management techniques are identified for consideration. The article is published along with the Society’s recently-released Unbundling Guidelines which are reproduced in full. November Brief also examines the future of legal education and the issues associated with law graduates

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undertaking practical legal experience, with articles from Kate Galloway, Kate Offer and Natalie Skead, Neville Carter and Daniel White. Also included in this edition is an article reflecting the results of a partnership between the Law Society and the Edith Cowan University Security Research Institute. The article provides an analysis of data collected from a survey of our membership, providing an insight into the habits of practitioners with respect to their use of information technology and attitudes towards cyber security.

Corporate governance In the February edition of Brief, I reported that the Society had commenced a comprehensive review of its Constitution with a view to ensuring conformity with the requirements of the Associations Incorporation Act 2015 (WA). As part of that review, active consideration was also given to possible further refinements to the Constitution to accord with contemporary notions of good corporate governance. In August this year, feedback was sought from members regarding a series of possible constitutional amendments developed as part of the review. Following completion of that process, the Society’s Council in October approved a final set of proposed amendments. Those draft amendments will be put to members at the Society’s annual general meeting on 9 November 2017. I am grateful to all members who took the time to assist the Society by providing their feedback. In addition to the proposed constitutional amendments, a number of other measures have recently been introduced to further enhance good corporate governance outcomes. One such measure, also approved by Council in October, was the variation of the Society’s standing orders to permit Council to appoint any of its members as an ex officio member of any standing committee of the Society (irrespective of whether a vacancy exists).

The purpose of this measure is to facilitate outcomes, from early 2018, to the effect that: • Every serving member of Council will also serve on at least one standing committee; and • Every standing committee has at least one serving member of Council as one of its members.

Council elections As members would by now be aware, nominations for election to Council have now closed. I once again extend warm congratulations to Hayley Cormann, who was elected unopposed as President for 2018, and to Greg McIntyre SC and Jocelyne Boujos, who were both elected unopposed as Vice Presidents. All three will commence their terms on 1 January 2018. Elections will now be held to fill the six ordinary member vacancies, three junior member vacancies and one country member vacancy on Council. Ballot papers will be transmitted electronically by CorpVote Voting & Election Services to members eligible to vote on 7 November, and voting will close on 21 November, 2017. Although voting in this particular election is not compulsory, I encourage all eligible members to exercise their democratic right by assisting in deciding who will represent the interests of the Western Australian legal profession in 2018. Members are invited to refer to pages 6 and 7 of Brief for a full rundown of the nominees for Council.

NOTES: i. Richard Susskind, Tomorrow’s Lawyers (2013), p xiii. ii. Misleading as these two expressions are for the reasons identified by the authors.


SAVE THE DATE Friday, 23 February 2018

Law Summer School 2018 Connected | Informed | Global

Friday, 23 February 2018 – All day University Club, Hackett Entrance #1, Crawley WA Our flagship CPD conference Law Summer School is close to finalisation and will provide another day of thought-provoking knowledge and discussions.

We encourage you to save the date so you can take part, along with an extraordinary calibre of speakers from Australia and beyond, in an outstanding collegial learning experience.

We are delighted to announce our keynote speakers:

Take inspiration from presentations by legal luminaries, while connecting with and learning from members of your profession.

• • •

The Honourable Justice David Stratas, Federal Court of Appeal, Canada The Honourable Justice Julie Ward, Chief Judge in Equity and Judge of Appeal, Supreme Court of New South Wales Diane Smith-Gander, Non-Executive Director Wesfarmers Limited

Programme out soon, so secure your place by sending your expression of interest to cpd@lawsocietywa.asn.au

End of Year Celebration Lamont’s Bishops House, 90 Mounts Bay Road, Perth Thursday, 7 December 2017 5.30pm – 7.30pm As the year winds down and the holiday season takes off, celebrate with us once again at the historic and picturesque Lamont’s Bishops House, as we toast to another successful year. Nestled in beautiful gardens in the heart of the city, Lamont’s promises to provide the perfect backdrop to an evening of collegiality, refreshments and delicious canapés.

Supporting sponsor

Register by Thursday, 30 November 2017 lawsocietywa.asn.au

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EDITOR'S OPINION Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

The feature cover article “The Inevitable Surprise: How technology will change what we do” by Tony Joyner is an informative and witty piece concerning a topic familiar to Brief readers, being the future of the profession in light of modern technology. It provides practical examples of the technology that will affect the legal profession, and reasons to embrace it, while also having regard to past and existing practices. Brief this year has, given it is the Society’s 90th anniversary, also taken a past, present, and future-looking approach. And it does seem, as mythology has it, that Janus had a much better time of things than Cassandra, who was cursed with the gift of prophesy but where nobody would believe her. Much like those who (accurately) predicted that Blake from Perth would not make it to the final three contenders in Channel Ten’s “The Bachelorette”.1 An article in a 1927 edition of the Yalgaloo and Murchinson Chronicle recounts the efforts of an Athenian barrister to have the Supreme Court at Athens reconsider the verdict against Socrates, on the basis it was a miscarriage of justice and judicial murder. One has to admire the dedication of any barrister who applies for an extension of time to appeal, approximately 2,326 years out of time. The Athenian Court rejected the request, saying that it would be “a waste of time and money”, which is something that Socrates may well have agreed with, if the Crito is anything to go by. Of course, most lawyers are familiar with Socrates’ defence in the Crito, not only because lawyers are famously erudite and study the classics, but perhaps more likely because way back when, many of us took Philosophy in first year Arts to try to garner higher marks to get into Law School. In any event, “a waste of time and money” is a phrase that, nine decades later, is a popular one bandied about both from, and to, Athens in relation to the EU’s bailout and austerity measures and, just last month, possible legal action (or threats to imperil England’s Brexit) over England’s refusal to return the Elgin Marbles.2 The Athenian Court also observed that the good name of Socrates had “long been vindicated by the unanimous verdict of mankind”. However, that statement was in 1927, and given “Mankind” is arguably a sexist micro-aggression3 and according to Facebook there now being 71 genders, it is possible that

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Socrates may only have been vindicated by approximately 1.41% of the population. This year is also the 40th anniversary of the breeding and introduction of the “Double Delight” rose4, which has also coincidentally given rise to the biggest controversy of 2017 and the matter that one is most often asked about, as a lawyer, at social functions. “The Bachelorette” this year (Sophie Monk)5 was, in a worldwide Bachelorette first, able to give a special “double delight” rose to one of the contestants - which (apparently) guaranteed two solo dates with Ms Monk. What followed was shambolic, and shows what goes wrong when lawyers are not involved at every point, and in every aspect, of life. It seems the double delight rose did not in fact guarantee such dates, nor could the recipient (Sam) use his rose to call for a date, it apparently (while not clear) being that the discretion lay with Ms Monk as to when such dates would take place. As it turned out Sam was booted from the show by Ms Monk. Although, in fairness, that might have been because of Sam’s man-bun. One hopes the legal status of the double delight rose is clarified. Cassandra might well foresee that in the year 4343, an AI robot barrister will ask a galactic court to re-open Ms Monk’s verdict regarding Sam, only to be told that the application is a “waste of conventional linear time and precious water currency, needed to save our dying planet”. As to the war on statues and monuments, which has been the subject of previous Editorials, one of the best reasons for the removal of a monument ever was the Dublin City Council’s decision, in 2006, to remove a plaque from the O’Connell Bridge on the basis that it did not know the person commemorated and had no idea how the monument got there. There was some suggestion that the plaque marked the spot where a priest died in 1919 when his carriage plunged into the River Liffey in “suspicious circumstances”. It would be interesting to see if a similar plaque appears at Chappaquiddick. On the local front, it seems the most likely statue to be the subject of calls to move or remove it is that bronze Kangaroo on the Terrace that protrudes onto the footpath to the point that anyone who is not vertically challenged is in grave risk of a vicious headbutt6, and which has already claimed multiple victims. In somewhat of an irony, the

Kangaroo is most dangerous and likely to injure, as far as being inadvertently run into, at dusk. There are a few notable dates to be celebrated at the UN in November. November 2 is the UN’s International Day to End Impunity for Crimes Against Journalists, and November 17 is World Toilet Day. It could be that President Trump will actually move to change the first event to delete “to End Impunity” or alternatively merge any day celebrating journalists to World Toilet Day. Also, given who is currently the Chairman of the UN’s global sanitation and water partnership, it could be that the UN’s International Toilet Day will result in a memorable (or, perhaps more accurately, a can’t really remember) night at Scores nightclub in New York. This edition of Brief includes Julian Sher and Paul D Evans on the concept of ‘unbundling’ (the Law Society’s guidelines on the topic are also published), two articles by David Stewart on ‘Contractual drafting issues for machine learning agreements’ and ‘Whatever happened to software source code agreements’, a duo of articles on the future of legal education, by Kate Galloway, Kate Offer and Natalie Skead, and Neville Carter respectively, Daniel White tackling the issues associated with law graduates undertaking periods of practical legal experience, and also the nominees for the Law Society’s Council in 2018. NOTES: 1.

While there are many lawyers who will not know what The Bachelorette is, there are surely many who are either pretending, or wishing, that they didn’t.

2.

The latter giving rise to a 201 year extension of time issue - the Elgin Marbles.

3.

Incidentally, also one of the great hardcore wrestlers from the WWE’s ‘Attitude Era’ being famously thrown off the 20 foot high Hell in a Cell by the Undertaker, in something far more than a microaggression.

4.

By Swim & Ellis in 1977 in the USA.

5.

As if you didn’t know.

6.

The Editor is not presented with this risk.

Brief welcomes your thoughts and feedback. Send all letters to the editor to brief@lawsocietywa.asn.au


SALARIED/EQUITY PARTNER OPPORTUNITIES PARTNER – COMMERCIAL/PROPERTY LAW – Take over a $1M-$1.5M+ practice from Retiring Partner. This is a rare opportunity for a Commercial and Property Lawyer at the Partner or SA/SC level to join a long established firm and take over the practice of a retiring Equity Partner. The firm is highly regarded and consists of Partners from top-tier backgrounds, with a loyal client base and proud reputation in the Perth market. This Partner, one of the firm’s founders, is now planning to transition their clients to a Senior Lawyer over the next 12-36 months. The incoming lawyer will need a strong background in Commercial/Property Law from a leading firm (either top/mid-tier or boutique), with a significant level of drive to lead and further build the practice over the next 10+ years. PARTNER – CONSTRUCTION – FRONT END – International firm. This rapidly growing international firm is looking for an ambitious and experienced Front End Construction Law Partner or SA/SC to help establish a Construction Group in WA. The firm has an outstanding reputation in the sector internationally and has become a leader in the Australian Legal market, having secured several “big name Partners” during a recent growth phase. The ideal Partner will have gained experience working at a top/mid-tier or leading boutique firm, with some form of self-established client base. You will benefit from the firm’s significant transferable contact network from the east coast offices, in building/leading a team of junior and senior lawyers. The firm has a clear plan to leverage its existing networks, with the full backing of the National Managing Partner and Lead Construction Partners in the eastern states. This position would suit an experienced Partner or high calibre SA/SC who is looking to progress ahead of their peers. PARTNER – CORPORATE/M&A/ECM – Take over existing practice. Working closely with three leading Corporate/M&A/Commercial Law Partners, as well as the wider Partnership team, the incoming Partner/Special Counsel will be experienced in advising clients across a variety of matters, including: M&A, corporate governance, ASX/ASIC compliance, IPOs, RTOs and back door listings, with some exposure to ECM. The firm acts for a diverse range of public and private companies, with international reach and exposure, and some focus on SE Asia and emerging markets. This opportunity would suit a lateral hire Partner or motivated SA/SC looking for their next career move in taking over a $300k to $400k practice from an existing Partner. The incoming Senior Lawyer will have strong client facing skills and the ability to mentor junior and mid-level lawyers. PARTNER – E&R/CORPORATE/M&A – Expanding international firm. KBE Human Capital has been briefed exclusively to secure an experienced Salaried/Equity Partner to join the E&R and Corporate/M&A practice of an award winning international team. The Partners are considered among the leading E&R/Corporate/M&A Lawyers in Australia. The existing structure is ideal for Senior Partners looking to leverage quality SA’s/SC’s to assist in completing complex work, allowing you to focus on managing and further building the practice. The incoming Partner will

benefit from well established client/referral networks across E&R, Corporate Law, M&A (both public and private) and equity capital raisings. Experience that is focused within the E&R sector across a range of resources projects/commodities will be highly regarded. The firm is open to speaking with Senior Lawyers of all levels, including those who are approaching the end of their careers and SA/SC level Lawyers who are experiencing glass ceilings, where they can demonstrate a transportable fee base of $400k+. PARTNER – LITIGATION/2IC TO SENIOR PARTNER – Inherit a $200k fee base. This new role will involve working with top-tier Partners, SA’s and SC’s who have elected to move away from traditional top-tier firms to complete exceptional work in a more relaxed environment. The successful candidate will have experience across Commercial Litigation, Construction Litigation and Property Litigation. You will advise tier-one Australian clients and join a team that regularly comes up against the national/international firms on the other side of matters, in reflecting the quality of their Senior Lawyers. In building your practice, you will benefit from referrals from other practice groups, with the firm having recognised Partners and teams across Insolvency, Litigation, Commercial Law, Property and Construction Law. PARTNER – PROPERTY – Inherit a $500k+ fee base. KBE Human Capital has been briefed exclusively to secure an experienced and driven Property Law Partner or suitably qualified SA/SC for a mid-tier firm. Our client is a large and well regarded WA firm with a strong and robust reputation across Commercial Law, Property, Litigation and Insolvency. With several of the firm’s most Senior Partners experiencing surplus work flow and as part of the firm’s strategic plan, the group now seeks an established Senior Property Lawyer to move directly into a Partnership role. You will have a $250k+ transportable fee base to add to the circa $500k in existing fees that will be transferred to you. The culture of this firm is collegiate, transparent and meritocratic, with equity available depending on the size of your transportable practice. PARTNER – TAX LITIGATION – NATIONAL FIRM – Take over existing practice. KBE Human Capital has been briefed to secure a leading Tax Litigation Partner or suitably qualified SA/SC to join a national law firm and further develop the Tax Litigation and Controversy Practice in Perth. The incoming Senior Lawyer will inherit a $500k-$1m+ local fee base and benefit from the firm’s east coast client networks. Joining as either an experienced Partner or SC, you will play a key role in further expanding the firm’s Tax Litigation practice into the WA market and building a team of juniors over the next 12-36 months. The successful Senior Lawyer will be experienced in running complex matters and be comfortable managing high profile private clients, as well as listed national and international clients.

2 YEARS’ PAE TO SA/SC LEVEL OPPORTUNITIES BANKING AND FINANCE LAWYERS for multiple national/international firms. KBE Human Capital is working with several leading Banking and Finance teams to secure B&F Lawyers with 2-4 and

4-8 years’ PAE. With opportunities at both national and international firms, the successful candidates will bring experience from top-tier/boutique firms and be accustomed to dealing with complex transactions. CORPORATE LAWYERS for national/international and boutique firms. If you are a Corporate/M&A Lawyer, then you are in very high demand. 2-4 years’ PAE and 4-9 years’ PAE to join a number of Perth’s leading Corporate/M&A teams. These client facing roles will provide the successful candidates with high levels of responsibility and extensive client contact. You will be comfortable advising senior stakeholders and dealing with boards, company secretaries, in-house counsel, regulatory bodies and managing a significant deal flow. IN-HOUSE LEGAL COUNSEL for EPCM/contracting company. This high profile ASX listed company services clients across Australia and internationally. Working closely with a senior GC and junior Legal Counsel, this position will involve reviewing, drafting and negotiating a variety of commercial agreements including hire agreements, services contracts, leases and other commercial contracts. In addition, you will assist in preparing annual reports, liaising with the ASX/ASIC in relation to all corporate governance, provide company secretarial support, and advise on general commercial law. Our client is seeking a lawyer with 6-10+ years’ PAE with strong commercial acumen, from a Corporate, Commercial, Mining/Energy/Resources or Construction background either in private practice or in house. A salary package $160,000 to $200,000 is on offer, commensurate with your experience. INSURANCE LAWYERS for multiple firms across all tiers. We are currently working with several key clients across multiple tiers to secure Insurance Lawyers with 2 years’ PAE through Partner level. These positions involve working with a range of insurers and high profile self-insureds across a variety of insurance matters. We are interested in speaking with suitably qualified Lawyers with 2+ years’ experience in some or all of: General Liability, Product Liability, Professional Indemnity, Property Liability, Public Liability, Medical Negligence, MVA/CTP claims, and Workers’ Comp. The successful candidates will possess strong legal and communication skills gained in a top/mid-tier or leading boutique firms. Both plaintiff and defendant side applicants are encouraged to apply. LITIGATION LAWYERS for top-tier international firm. These are new opportunities for both a junior (2-4 years’ PAE) and SA level Litigation Lawyer (4-8 years’ PAE) to join a rapidly growing international top-tier firm and work alongside Partners who are regarded as among the best strategic litigators in Australia. You will act for domestic and international clients across a range of industry sectors, and complete a diverse mix of energy and resources, construction and insolvency litigation within Australia and multiple foreign jurisdictions. Please contact us for a confidential discussion regarding the above positions, for information about salary levels in the current legal market, or comprehensive career planning advice.

Chris Bates

Maryann McKenna

Siemone Neutgens

Managing Director

Principal Consultant

Principal Consultant

M: 0411 645 984 E: chris@kbehc.com.au

M: 0423 867 110 E: maryann@kbehc.com.au

M: 0403 383 326 E: siemone@kbehc.com.au

KBE Human Capital P: 08 6467 7889 A: 1322 Hay Street, West Perth 6005 W: kbehumancapital.com.au 05


Nominations for 2018 Council Elected Unopposed – for a one year term President

Vice President

Vice President

Hayley Cormann

Greg McIntyre SC

Jocelyne Boujos

I seek election to Council as President of the Law Society for 2018. My experience in commercial and professional negligence litigation at Clayton Utz for over a decade, together with service on Council for 6 years, including on Executive, provide a solid foundation for my ongoing contribution to our profession. Combined with the primary care for a young family, my professional and personal roles and responsibilities place me in a unique position, through Council, to bring a relevant and important breadth of experience, diversity and pragmatism. My key priorities include continuing to help ensure women in our profession have the best opportunities to succeed, implementing reform and positive change within Council operations, advocating on behalf of our membership, and working towards achieving the benefits available to our profession and community through a national legal services market underpinned by a uniform regulatory system.

I have been a member of Council since 2008, and Vice President in 2017. I convene the Access to Justice Committee, Human Rights and Equal Opportunity Committee and Administrative, Constitutional and Migration Law Committee. I also chair the Reconciliation Action Plan Working Group.

I am a principal of Sceales Lawyers and have practiced in commercial work and taxation law for over 25 years advising various clients including indigenous charitable trusts and the Law Society. I am currently Treasurer and fully engaged in the relevant operational aspects of the Law Society and Law Mutual (WA) principally through the Finance and Audit, Professional Indemnity Insurance Management Committees. I have had a long involvement with professional education including lecturing in Master of Tax and Article Training programs. I am on the taxation committees of the Law Council and the Law Society, and, am a trustee of the Graduate Women Education Trust. I wish to continue to bring to the Council the diversity of experience which enables me to make a valuable contribution to the management of the Law Society.

Ordinary Members - Six to be elected for a two year term. Daniel Coster

Darren Renton

Stefan Sudweeks

Since my admission in November 2012 I have worked primarily in the area of personal injuries, including motor vehicle accidents, workers’ compensation, and medical negligence.

I am a member of the independent Bar practicing at John Toohey Chambers primarily in the area of criminal law and have over 20 years’ experience. I have been a member of the Law Society since 1993 and have previously served on the Criminal Law Committee. I was a member of the WA Bar Association's Council from 2015 to 2016 and have been the Chair of the Professional Standards Committee of the Anglican Diocese of Perth since July 2015. I am interested in serving on Council to make a contribution towards the future direction of the profession, to ensure that members continue to receive excellence from the Society and to foster a stronger bond between experienced and junior practitioners.

I am a partner at Jackson McDonald and practice as a commercial litigator. In the past, I have served on a court subcommittee of the Law Society and an ad hoc committee to consider legislative change.

Ante Golem

Ray Christensen

Richard Klimek

I am a partner of Herbert Smith Freehills, in the Disputes team. I seek election as an Ordinary Member of the Council. I have a longstanding passion and commitment to supporting pro bono and community work. Such work plays an important part in ensuring that the broader community can access our justice system and in enhancing the standing and authority of the legal profession. If elected to the Council I would:

I was a Junior Council Member of the Law Society in 2015 and have served as a Member of the Law Society’s Courts Committee since 2016. As part of that Committee, I have actively contributed to amendments to the Supreme and Magistrates Court Rules and submissions to the Law Council of Australia.

Outline of experience relevant to nomination:

Having worked under the guidance of a number of pre-eminent lawyers, I have gained a deep appreciation of the benefits of a collegial and mentoring environment on professional development. This is reflected in my commitment to providing assistance to law graduates and junior practitioners to develop into the future leaders of the profession. I have a keen interest in embracing technological change to economise the practice of law and to reduce our environmental footprint. I am currently implementing a trial ‘paper light’ solution in the insurance team at Kott Gunning. If elected, I will be an advocate for providing support to junior practitioners, mental health awareness, and for preparing to meet the evolving cyber security challenges facing the profession.

listen and consult with members of the Society as to their key areas of interest and concern to ensure that Council develops policies which are in the best interests of its members and reflects their diversity;

encourage Council to promote policies at governmental and regulatory levels to protect the interests of the Society’s members; and

I am a Senior Associate of Zilkens Lawyers. I practice in all fields of commercial law and civil litigation. I am focussed on ensuring that the high standards of our profession are upheld and will take steps to ensure that any Court-related issues raised by members of the profession are heard and addressed by the Law Society.

• Founding Director and In-House Counsel of Klimek & Wijay (2005 – present) • Klimek & Wijay: • Incorporated legal practice founded in 2005 • Consistently employed not less than 6 lawyers since 2010 • Approved QPS by the Law Society of WA (2013-present) • Pro Bono Partner of Northern Suburbs Community Legal Centre (2010-present) • See klimekwijay.com • Law Society of WA: • Member (2003-present) • Specialist Accreditation (2011-present) • Access to Justice Sub-Committee Member (2012-2014) • Accreditation Sub-Committee Member (2012-2014) • Board Member of Northern Suburbs Community Legal Centre (2010-2016) • Finalist of the Attorney-General's Community Law Service Award (2011 and 2012) • Acted as counsel in over 300 trials • Presented papers and served on discussion panels on various occasions for continued legal education both locally and overseas • Guest lectured at UWA and ECU law schools

support and build on the work the Society does in engaging with the broader community and the various initiatives of Law Access.

Eric Heenan

Kerstin Stringer

Having previously been a member of Council in 2006, and from 2010 to 2013, I seek election as an ordinary member so that I may again contribute to the Society and serve the profession. I am keen to ensure that the Society strongly represents the views of the profession to government and the community, and that it serves and advances the interests of its members.

Passionate, dedicated, driven, forward thinking and frank – important parts of my personality I want to bring to the Council. As a young(ish) practitioner, business owner, parent and country member of the Society I bring a different perspective with me. Knowing big firms were not for me, I started my career with a sole practitioner before opening my own firm in Mandurah in 2015. I now employ 6 staff and I am constantly learning and growing as a lawyer and business owner. I chose to nominate for Council this year as I want to be a voice for young(ish) practitioners who are taking a risk and bringing innovation to the law. It is important young(ish) lawyers are supported and guided through the jungle of the legal world whilst ensuring their mental health is kept intact. I’m an avid supporter of mentally healthy and flexible work places to enable lawyers to flourish.

Denis McLeod

Fiona Low

I am acutely aware of the professional, business and personal pressures faced daily by Society members, whether young or mature practitioners. In my own family and my firm, I see the stresses playing out for young practitioners attempting to strike a balance between professional and family life, particularly lawyer mothers of young children. And of course I know well the issues for members in the senior part of their careers. With the experience of Council membership since 2006, I would continue to emphasise the Society’s role as advocate for and protector of the interests of members at all levels, and as the voice of the legal profession in WA.

Essential for our professional community is support of and responsiveness to the different ways we each practise. Our diverse backgrounds, professional origins and social views are what makes the Law Society strong. As well as looking outward, the Society, as the voice of the legal profession in Western Australia, must also look within its ranks to remain relevant and representative.

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I have been an elected member of the Council for 12 months and now seek re-election to the Council. I would appreciate the opportunity to continue to make a positive contribution to the Society by using my 25 years experience in the legal profession and my experience gained in my executive roles at my firm. I am aware of the challenges we’re experiencing in our profession and believe I’m in a position to add value to strengthen the legal profession.

I have been a Law Society member for many years and most recently have served (and continue to serve) on the Society’s Education Committee. I have practised privately, in government and in corporate and now combine my own private consulting practice with a part-time academic appointment teaching in an LLB program. If elected, my major objective will be to strengthen our professional body and to ensure it is representative of and responsive to its membership.

Jodie Moffat I have spent the last 2 years as an active Junior Member on the Law Society Council, coming from a CBD commercial litigation background, and as a mature female practitioner with school aged children. I am now seeking election to Council as a solicitor working in the community legal sector outside the Perth metropolitan region. I intend to bring the views and experiences of community legal practitioners to Council, through a rural lens. Taking this approach, I will be building on the experience I have gained in my 2 years on Council to date.

Have your say Elections will now be held to fill the six Ordinary Member vacancies, three Junior Member vacancies and one Country Member vacancy. Ballot papers will be electronically transmitted by CorpVote Voting & Election Services to members eligible to vote on 7 November 2017. Voting will close on 21 November 2017.


Ordinary Members - Six to be elected for a two year term.

Junior Members

Karina Hafford

Emma Griffiths

Anthony James Dique

I have worked in the area of personal injury law since 1997 and specialise in medial law and catastrophic claims. I have a particular interest in assisting persons who have sustained acquired brain injuries. I regularly contribute to legal education as a speaker at seminars and am a guest lecturer in the School of Nursing at Notre Dame University.

Emma runs a small commercial practice in Perth. She was admitted in 2005 and has worked in a range of roles including at Freehills in Projects, the Financial Ombudsman Service (UK), Corrs Chambers Westgarth in Oil and Gas and in-house council for Woodside. Emma engages in pro-bono work and is interested in access to justice issues and how the profession can help. Emma is also interested in advancing flexibility in the workplace and addressing the poor mental health prevalent in the profession. In particular she would like to investigate the approach of the Legal Practice Board in requiring disclosure of mental health conditions and the impact this has on the health of lawyers. Emma has been the chairperson of a not-for-profit day care centre for 2 years and now wishes to use the skills learnt in that role to contribute to the legal profession.

I am an enthusiastic young lawyer who is seeking to be elected as a junior member of the Law Society Council. I was admitted in August 2015 and have been practising since April 2016.

I have been a member of various Law Society committees for over 15 years. In those roles I have been involved in the review of legislation and the promotion of legislative change. I consider using the knowledge and experience of the profession to assist in law reform to be an important role of the Law Society. I am interested in the issues of work/life balance and flexible work practices for solicitors, and in creating opportunities for law graduates.

Since practising my experience has largely been in litigation and family law. Prior to practising I gained experience in criminal law while doing work experience under a criminal law Barrister and for Legal Aid. In my free time I am a volunteer mentor for the Department of Child Protection and have been since 2014. Being a lawyer is rewarding and stimulating but it is also challenging and competitive. Depression and anxiety remains a serious issue for our profession. More can be done to break the stigma of mental ill-health and build confidence and resilience within the profession. I am standing for Council as I want to be a voice for all young lawyers of WA.

Junior Members - Three to be elected for a one year term. Brenton Panzich

Brooke Sojan

Sarah O'Brien-Smith

I am a young lawyer working at the Commonwealth DPP and was admitted in April 2016. I understand what an overwhelming process the transition from university to your first few years of practice can be and I hope to represent junior members of the profession in bringing their ideas, views and concerns to the attention of Council.

I work in the Pilbara Regional Office of Legal Aid practicing predominately criminal law; this work involves helping disadvantaged and indigenous people within the criminal justice system. I have been the Country Member on the Law Society Council for the last two years, I have enjoyed my time on council and I would embrace the opportunity to continue in this role. This role has also given me the opportunity to convene the Country Practitioners Committee, which has enabled me to further advocate for the issues facing country practitioners, in particular junior members of the profession. I am also a member of the Young Lawyers Committee. Throughout my time on council and these committees I have had the opportunity to advocate for, and raise awareness of issues facing both young lawyers and country practitioners. I would relish the opportunity to continue with this work.

I am an associate at HopgoodGanim Lawyers in the resources and energy team.

Zoe Bush

Noella Silby

Janie Plant

I am a first year lawyer at the State Solicitor’s Office, a tutor in Torts Law at the University of Western Australia, and former Associate to the Hon. Justice Barker of the Federal Court of Australia. I am a keen advocate for young women in the profession, as well as for Indigenous legal issues and access to justice more broadly. Recent activities undertaken that demonstrate my commitment to these issues include co-authoring Amnesty International’s Report on Indigenous Youth Justice in WA, co-writing the Society’s submissions on justice reinvestment and female Indigenous incarceration, and writing articles for Brief. I served as Women’s Officer while at Law School and have been active in Women Lawyers of WA since joining the profession. I hope to continue my advocacy on these issues as a Junior Member of Council.

I am a HR&IR lawyer at MinterEllison in my second year as a restricted practitioner. I served on the Law Society Council as a junior member for 2017. It has been an invaluable and enjoyable experience. I seek election as a junior councillor for 2018 to continue to be involved in the Society's initiatives in enhancing diversity and access to justice. As a junior councillor, I will continue to pursue my main interest – assisting graduates with their transition into the profession and continuing to offer guidance after admission.

My admission to the legal profession is on 1st November 2017 having studied part-time as a mature age student for the past 8 years, whilst raising my young family.

I was a paralegal at Legal Aid and volunteered for a CLC during my studies at Murdoch. I was employed with the State Ombudsman after graduation and spent a year working in private practice in insurance litigation and medical malpractice before joining the CDPP. I have volunteered with the mock trial program and currently tutor in criminal law at Murdoch. I believe my varied experiences in private practice, government and not-for-profit will enable me to provide a unique voice to advocate for newly admitted practitioners, law graduates and students.

Junior Members - Three to be elected for a one year term.

I am the Convenor of the Young Lawyers Committee, a member of the Law Council of Australia’s Young Lawyers Forum and a member of the AMPLA Emerging Leaders Committee. The purpose for my nomination is to advocate for the interests of young lawyers and represent the views of young lawyers on Council.

I am employed at Cullen Macleod lawyers as the law graduate providing assistance to the Liquor Licensing, Litigation, Family, Commercial and Wills & Estates teams. I am now moving more permanently into the Wills & Estates team as our Senior Associate goes on maternity leave. Previously I had an extensive career in the IT industry as an IT Project Manager, predominantly to the resources sector. My IT experience has been invaluable given the technological change the legal profession is currently experiencing. I believe my skillset and IT industry contacts would enable me to bring a unique perspective to the Law Society Council especially around legal/ technological disruption.

Country Members

Yannis Vrodos

Tegan Harrington

Brooke Sojan*

I am a solicitor at Herbert Smith Freehills, practising in the Projects team. I seek election as a Junior Member of the Council in order to demonstrate to our profession the value that junior practitioners contribute to the peak representational body of the legal profession in Western Australia. If elected to the Council, the priority areas I will focus on are improving:

I am a lawyer at Corrs Chambers Westgarth, having been admitted in 2015. Ever since my university days, I have been passionate about ensuring our law students and junior practitioners have the best opportunity to develop not only our technical skills, but our interpersonal skills and networks. The legal industry is becoming increasingly difficult to break into, making it even more necessary to make sure juniors are given the guidance and skills to help us grow and succeed.

I work in the Pilbara Regional Office of Legal Aid practicing predominately criminal law; this work involves helping disadvantaged and indigenous people within the criminal justice system. I have been the Country Member on the Law Society Council for the last two years, I have enjoyed my time on council and I would embrace the opportunity to continue in this role. This role has also given me the opportunity to convene the Country Practitioners Committee, which has enabled me to further advocate for the issues facing country practitioners, in particular junior members of the profession. I am also a member of the Young Lawyers Committee. Throughout my time on council and these committees I have had the opportunity to advocate for, and raise awareness of issues facing both young lawyers and country practitioners. I would relish the opportunity to continue with this work.

• support for graduate lawyers; • mental wellbeing and resilience in our profession; and • collegiality at junior levels of the profession, particularly given the rapidly increasing number of junior lawyers. Through my experience as the Secretary of the National Association of Women in Construction (WA Chapter), a committee member of Ronald McDonald House Perth’s young professionals committee, and as a Sessional Tutor at the UWA Law School, I have the experience and network to make valuable contributions to the Society.

I have nominated for a Junior Member position in the hope of bringing this passion to the Law Society’s Council. If elected, I will make sure that law students and junior practitioners have a voice within the broader Council. I will happily be the point of contact for law students and juniors to have their opinions heard about the issues affecting us, and to have a forum to implement positive change.

Country Members - One to be elected for a two year term. Kerstin Stringer*

Jodie Moffat*

Passionate, dedicated, driven, forward thinking and frank – important parts of my personality I want to bring to the Council. As a young(ish) practitioner, business owner, parent and country member of the Society I bring a different perspective with me. Knowing big firms were not for me, I started my career with a sole practitioner before opening my own firm in Mandurah in 2015. I now employ 6 staff and I am constantly learning and growing as a lawyer and business owner. I chose to nominate for Council this year as I want to be a voice for young(ish) practitioners who are taking a risk and bringing innovation to the law. It is important young(ish) lawyers are supported and guided through the jungle of the legal world whilst ensuring their mental health is kept intact. I’m an avid supporter of mentally healthy and flexible work places to enable lawyers to flourish.

I have spent the last 2 years as an active Junior Member on the Law Society Council, coming from a CBD commercial litigation background, and as a mature female practitioner with school aged children. I am now seeking election to Council as a solicitor working in the community legal sector outside the Perth metropolitan region. I intend to bring the views and experiences of community legal practitioners to Council, through a rural lens. Taking this approach, I will be building on the experience I have gained in my 2 years on Council to date.

Have your say Elections will now be held to fill the six Ordinary Member vacancies, three Junior Member vacancies and one Country Member vacancy. Ballot papers will be electronically transmitted by CorpVote Voting & Election Services to members eligible to vote on 7 November 2017. Voting will close on 21 November 2017.

* Preferred

07


Contractual Drafting Issues for Machine Learning Agreements By David Stewart Principal, Williams + Hughes

The media would have us believe that lawyers are lamenting the rise of artificial intelligence and how it will upend the legal profession. But with artificial intelligence implementation comes artificial intelligence contracts. At least for the moment, these contracts are being drafted by humans. Much of artificial intelligence deployment which is customer facing, whether it be a legal research tool or a telecommunications customer experience assistant, is chat-based. The information exchanged between an AI and a prospective or existing customer by chat is steered either by a cognitive virtual assistant or a human assisted virtual assistant. This is all done by employing software capable of chat automation and machine learning capabilities. This experience can over time become very sophisticated, in respect of offering solutions to complex questions by way of web-based chat conversations. Chat can be deployed in cute and disarming ways, which keeps customers happy. But chat is ideal for machine learning because it is rapid, discrete, unstructured, and in text. These factors mean chat is capable of being assimilated by an AI and otherwise data-mined. The owners/licensors of this sort of AI capability want the raw, unstructured data to assist the AI to learn. Further, licensors

08 | BRIEF NOVEMBER 2017

want the express right to use the raw unstructured data in any and all future deployments of the AI.

De-identification If that raw data relates to sales preferences by teenagers in Fremantle around clothing purchases, then retention of the unstructured chat data is not especially contentious. A bigger problem is if, for example, the raw chat data contains personal medical information or becomes a medical record. What if a person asks a cognitive virtual assistant by chat about upping their olanzapine

“unlearning is such a distasteful idea for AI systems builders that it is hardly thought of at all.� dosage (Olanzapine is used for the treatment of schizophrenia and bipolar disorders)? The Australian Privacy Principles contained in Schedule 1 of the Privacy Act 1988 immediately become a live issue, and the parties need the sorts of clauses we see in privacy policies to address this. Another scenario involves questions and answers put to a cognitive legal research virtual assistant which are the subject of legal professional privilege. Is privilege waived by way of raw data

retention? Another issue is in respect of defence secrets, which carry custodial sentences in respect of data breach. There are many regulatory environments around data which can present problems for both licensor (in the retention) and licensee (in the transmission). To deal with those sorts of concerns, raw data derived from AI chat conversations should be, and is ordinarily, thoroughly de-identified – and by a back-end script, not a human. Contracts involving raw data for consumption by an AI should address these issues and expressly require deidentification of unstructured data, for both the benefit of the licensor and the licensee.

Ownership of the Database The next issue lies in ownership over that de-identified raw data. It was established in IceTV Pty Limited v Nine Network Australia Pty Limited (2009) 239 CLR 458 and in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 that copyright does not subsist in a computer aggregated database. A database is not an original literary work. This is because for a database to attract copyright, the database must be the result of human authorship and not computer-generated. This presents obvious problems. If an agreement provides that the licensor of the AI owns the aggregated raw data, then that aggregated raw data is


a database generated by a computer and almost certainly does not attract copyright. What is there for the licensor to own? One solution to this is to have the agreement governed by the laws of the European Union, because EU Directive 96/6/EC provides for legal protection of databases. Another is to try and contract the parties into a de facto recognition of sui generis property rights in the database. Both options come with problems.

“Garbage in, garbage out” The final issue (at least, the final issue tackled in this first part of the article) is in respect of policing data input and output. It is worth noting that the AI cannot usually unlearn. As Derek Partridge notes in his book, A New Guide to Artificial Intelligence, “unlearning is such a distasteful idea for AI systems builders that it is hardly thought of at all.” This applies to the AI’s cognitive paths shaped through the machine learning exercise, but it does not apply to data. Data can be removed. There are good reasons to do this. AIs learn from having access to data describing human

interaction. No one wants the AI to pick up bad habits including the adoption of bad information provided by a human who did not have coffee the morning he or she engaged in an inaccurate chat conversation with an existing or prospective customer. Practically speaking, this is policed by a human: if there is a (variable) degree of uncertainty attaching to a question or to a draft response, the AI will flip so as to become a human assisted virtual assistant. (Typically, the more exposure the AI has to a data set – “This is a duck. This is also a duck. This is not a duck.” – then the lower the degree of certainty.) But in any event, the agreement should provide something along these lines: The information provided to the AI, including by way of a human to human interaction: a. is complete, accurate and reliable; and b. is not, in any way, incomplete, false, misleading, deceptive or fraudulent.

The Users, in using Chat, will not use language which is: a. defamatory; b. offensive; c. reasonably construed as harassment; d. scandalous; e. threatening; and f.

otherwise contrary to law.

There is the related issue that the AI might have brought to the task a bad habit learned from a previous deployment. In addition to learning profanities, what if the AI has picked up information from a previous deployment which constitutes for example a misleading and deceptive representation? The contract’s drafter should try and accommodate this possibility and mitigate the risk attached to it  “to the maximum extent permitted by law”.

Also, no one wants an AI which has learned to be mouthy.

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09


Disrupting Legal Education By Kate Galloway,* Kate Offer and Natalie Skead**

Introduction While the full impact of technology on legal practice is yet to be realised, there is no doubt that significant change is afoot and its momentum is building, both in relation to what the profession does and how the profession does it. The legal profession is at a ‘tipping’ point. As the changes, both current and impending, begin to take their effect on legal practice, it is incumbent on legal educators to think about how best to equip graduates for a future in law. We must think about the skills future lawyers will need, what we teach and how we teach it, to ensure that relevant professional skills development is embedded into our academic programs. The recent Future of Law and Innovation in the Profession (FLIP) Report includes a chapter on legal education. The Report suggests a range of skills and areas of knowledge required by law graduates, such as ‘technology’, business skills, ‘soft’ skills, project management, internationalisation, and interdisciplinary experience.1 Whether one agrees with the specifics of the recommendations or not, what is undeniable is that law schools must respond to the changing nature of law and legal practice—both to future-proof our graduates, and to provide legal professionals well qualified to meet community needs. Mindful of the recommendations in the FLIP Report, we explore four of the challenges facing law schools as they strive to meet stakeholder needs.

A disrupted profession A number of alternative models of legal practice are emerging across the globe. Washington State in the United States, for example, now has legally licensed technicians.2 These technicians are not fully licenced lawyers and while they cannot negotiate on behalf of a client or appear in court, they are able to perform basic legal work, prepare a limited range of legal documentation and give advice to clients in a particular area. The FLIP Report recognises the trend 10 | BRIEF NOVEMBER 2017

towards a range of alternative practice models finding that: •

the emergence of a ‘legal operations’ role is likely;3

there is a need for a supported transition to the ‘digital age’;4

the diverse ‘new ways of working’ dispense with the traditional practice models as to: place, task, method, product, and discipline;5

contemporary models of practice have resulted in a plethora of unmet community needs and, increasingly, limited access to justice.6

These findings suggest the need for an increased focus by law schools on preparing students for the increasingly diverse environments into which they will be stepping as graduates. Of particular interest is the trend towards the unbundling of work, a trend that may well mean that the existing extensive core knowledge component of the Australian professional law degree may no longer be relevant or appropriate. Despite the new models of practice and the possible shift towards specialist legal technicians, it seems likely that there will always be a place for the scholarly legal expert who offers a bespoke legal service requiring both the skills and humanity that cannot be delivered by a technician (or a computer).7 Law schools continue to have a critical role to play in this area, ensuring the development of the multilayered and complex lawyering skills that have traditionally been the hallmark of the law as a professional calling: how to think, to read, to analyse, to problem-solve, to communicate, to advocate. The challenge lies in how to do this in a curriculum that is bursting with prescribed content and with an increasingly diverse cohort of students many of whom are overwhelmed with (and, in many cases, by) life.

Content-focused curriculum The Australian Law curriculum typically has a very large compulsory core. At UWA the Juris Doctor comprises 17 core units out of a total of 24. Law schools

are required to teach the ‘Priestley 11’.8 Not only are the broad subject areas prescribed, so too are the specific topics to be covered within each area. This regulation of the minutiae of the curriculum brings with it the risk of a ‘content driven’ approach to legal education. At the same time, the profession demands graduates who are already ‘work-ready’ and ‘client-ready’.9 This means that Law schools are expected to equip students with a variety of practical skills, such as legal writing and drafting, research, and the ability to read and think critically, as well as the so-called ‘soft’ skills, such as professionalism and the ability to communicate effectively, and the ability to work in a team. Indeed, these broad-ranging skills are articulated in the academic standards for law in Australia.10 Developing these skills in students requires a co-ordinated, scaffolded and time intensive curriculum that focuses on more than the pure content of prescribed knowledge areas of study.

Over-committed students These overlapping professional demands exist within an environment in which students are calling for more flexibility in the way in which study is offered. The reality is that the students of today live very busy lives. The majority of students now take on paid work during their degree: some as a luxury, but most as a necessity. Unlike the 1970’s and 80s, when the cost of living was lower, degrees were free, and jobs for graduates were plentiful, students today are burdened with debt and a much publicised shrinking job market.11 The poor mental health of university students is well documented, as are the reasons behind this trend.12 Many are not in a position to sacrifice an income for a number of years while they study, in the knowledge that a graduate position will be available for them at the end of their degree. Students today, even if studying full-time, will often work not only in paid employment but also take on volunteer positions and unpaid internships in order to bolster their chances of obtaining a


coveted graduate position when they complete their studies. Together, these pressures leave students with less time each week to engage deeply with the intricacies of doctrine – if the majority of students ever really did this. Instead, however, students hone diverse and valuable skills in paid and unpaid work, all the while practising effective time management as they juggle their responsibilities.

Technologically literate graduates The traditional method of research involved physically stepping into a library. With modern technology, of course, this can all be done without moving from one’s desk, or even from one’s bed. The research methods of today are computer based and, increasingly, mobile. The legal professional has access to a myriad of proprietary databases and free access to legal information via the Internet. The issue is not finding materials but learning how to navigate the flood of information that is available, and to select judiciously according to purpose. Beyond this baseline traditional lawyering skill, artificial intelligence is now sufficiently sophisticated to undertake natural language research tasks.13 Deriving the answer to legal questions will likely affect the role of (human) legal problem solving. Additionally, the ways in which research results are presented are increasingly enhanced by technologies. Thus legal writing, the staple of the lawyer’s toolkit, is likely to be supplemented by sophisticated visualisation, produced through digital technologies. How the legal professional deals with such technologies requires us to think about these staple lawyering skills in a different way. The inescapable conclusion is that, to

negotiate the practice of law into the future, graduates must be familiar with navigating technology integral to legal practice – training must go beyond gaining isolated technology skills toward generating a deep understanding of digital environments, enabling intuitive adaptation to new contexts and cocreation of content with others.14 It is our responsibility as law schools to arm students with these digital capabilities.

Conclusion In a quote variously attributed to French author François de la Rochefoucauld and Greek philosopher Heraclitus, it is said that ‘the only constant thing in life is change’. Nowhere is this more true than in the digital realm; technology and its application changes rapidly and there is no guarantee that contemporary technologies will remain in use when our students graduate. In fact, it is much more likely that things will look substantially different. At the same time as legal practice is changing, the deployment of technologies in legal practice is uneven. Traditional lawyering skills remain in demand even as the lawyer’s work is transformed beyond recognition. The rate of change and its unevenness together pose a significant challenge for law schools seeking to prepare graduates for an unpredictable future. The tenor of the FLIP Report was cautious in the face of transformation of the profession, recognising the toll on lawyers of constant change and uncertain futures. Law schools have an important role to play in supporting the profession as it evolves. Legal academics are well placed to imagine the futures of law and legal practice. The law school can assist in the evolution of the profession by diversifying

the student experience and contributing to the development of forward-looking professional capabilities. NOTES: *

Bond University Law School.

**

UWA Law School.

1.

The Law Society of New South Wales, Report on the Commission of Inquiry into the Future of Law and Innovation in the Profession, 10.

2.

See <http://www.wsba.org/Licensing-and-LawyerConduct/Limited-Licenses>.

3.

Above n 1, 20.

4.

Above n 1, 41.

5.

Above n 1, Ch3.

6.

Above n 1, Ch4.

7.

As argued, for example, by Richard Susskind, Tomorrow's Lawyers: An Introduction to Your Future (Oxford, 2013).

8.

The Priestley 11 academic areas are set out in the Law Admissions Consultative Committee (LACC) Uniform Admission Rules 2008, Schedule 1, <http://www. legislation.nsw.gov.au/#/view/regulation/2015/240/ sch1>.

9.

Above n 1.

10.

Sally Kift, Mark Israel and Rachael Field, ‘Learning and Teaching Academic Standards Project Bachelor of Laws Learning and Teaching Academic Standards Statement’, Australian Learning and Teaching Council, December 2010, <http://www.cald.asn.au/media/uploads/ KiftetalLTASStandardsStatement2010%20TLOs%20 LLB.pdf>.

11.

See the recent report on ABC ‘Rent, debt, jobs, study: Why uni students are feeling more stressed’ Triple J Hack (3 May 2017) <http://www.abc.net.au/ triplej/programs/hack/why-university-students-arestressed/8491090>.

12.

Norm Kelk, Georgina Luscombe, Sharon Medlow and Ian Hickie, Courting the blues: Attitudes towards depression in Australian law students and legal practitioners (2009) Sydney: Brain & Mind Research Institute of the University of Sydney, <http://www. cald.asn.au/docs/Law%20Report%20Website%20 version%204%20May%2009.pdf>; Wendy Larcombe and Katherine Fethers, ‘Schooling the blues? An investigation of factors associated with psychological distress among law students’ (2013) 36(2) UNSW Law Journal 390, <http://www.unswlawjournal.unsw.edu. au/>; Wendy Larcombe, Sue Finch and Rachel Sore, ‘Who’s distressed? Not only law students: Psychological distress levels in university students across diverse fields of study’ (2015) 37(2) Sydney Law Review 243, <https://sydney.edu.au/law/slr/>; Natalie Skead and Shane L Rogers, ‘Stress, anxiety and depression in law students: How student behaviours affect student wellbeing’ (2014) 40(2) Monash Law Review 564, <http:// www.monash.edu/law/about-us/publications/monlr>.

13.

For e.g., see Ross Intelligence, <http://www. rossintelligence.com/lawyers/>.

14.

Horizon Report, 2017 Higher Education Edition, <http:// cdn.nmc.org/media/2017-nmc-horizon-report-he-EN. pdf>.

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11


The Future of Legal Education By Neville Carter

According to Vladimir Lenin, there are decades when nothing happens and there are weeks where decades happen. While Lenin was referring to the Bolshevik revolution of 1917, the quote could equally be applied to the momentous changes taking place in the Australian legal profession 100 years later.

existing lawyers as it is for new entrants to the profession who stand to benefit from their familiarity with technology.

Legal professionals no longer ask themselves when changes will come but when they will end, and what their profession will look like if the reforms ever begin to slow.

While the law degree will remain the platform for a career in law, it may not be the best place to address the educational needs of students entering a changing and technologically disrupted work environment.

Wherever you look you can see the impact of technological disruption on the legal profession. Courts in the UK now offer judgments by computers in certain cases. Advocates of technology say AI will soon be used by every lawyer in the world. Start-ups regularly appear offering better ways to deliver legal services, new legal products, and ways to automate traditional legal processes. Established law firms are spinning off their own high-tech companies in a quest to stay competitive. The revolution in the profession is impacting the way lawyers work and the way they need to be educated. Legal education has to change if it is to stay relevant. This is as true for the continuing professional development of 12 | BRIEF NOVEMBER 2017

There will always be a need to teach substantive law and Australian universities will continue to produce high-quality graduates with a detailed knowledge of the rules and procedures by which our society governs itself, as well as the elusive but important quality of being able to think and reason like a lawyer.

These changes are occurring so rapidly that few universities can be expected to constantly adapt and modify their curriculum to meet new developments in the way lawyers work. Universities are also chartered with teaching substantive law. But it is not the law that is changing, but rather how it is practised. We are not living in a period of widespread legal reform and innovative legislating. We are living in a period of dramatic upheavals in the way lawyers do their work and what work they do. This means the response of the legal education sector to disruption must be led by the institutions which teach professional practice and provide

ongoing education for practising lawyers. As Australiaâ&#x20AC;&#x2122;s school of professional legal practice, the College of Law feels a deep responsibility to provide the capabilities required to be a successful working lawyer. And in terms of the impact on legal education, we see significant trends emerging from the current period of legal disruption. First, the lawyers who will succeed in the future are those who embrace innovation and technology, and seek to understand the opportunities on offer. In doing so they will be able to reap the benefits of disruption, instead of becoming a casualty of it. The second trend is that in order to be successful, lawyers now need to master more than the law. As technology relieves lawyers of the more repetitive and mundane legal work, it will free them up to do more high-value lawyerâ&#x20AC;&#x2122;s work. They will be able to apply their skills to being business partners and strategists for their clients. Third, lawyers will increasingly work with and in a multi-disciplinary, multicultural, multi-generational and multi-talented global, flexible and virtual workforce. In response to these trends, the College of Law recently established the Centre for Legal Innovation to support legal professionals navigating the disruption currently transforming the


industry. It facilitates opportunities for professionals to discuss and debate what is taking place in their industry, share experiences, and find solutions to support their need to remain competitive in a new and evolving legal marketplace. The first challenge of surviving a period of instability and disruption is to understand what is happening. To this point, the Centre for Legal Innovation brings together leading thinkers, practitioners and legalpreneurs from around the world to identify trends, interpret their implications and propose next steps. The work of the Centre for Legal Innovation will be incorporated into the legal education offered by the College of Law. As a result, lawyers entering the profession will receive a practical education that is relevant to the contemporary legal industry and incorporates the changes driven by technology. Similarly, the opportunities for existing lawyers to gain technological skills will also be expanded by the inclusion of LegalTech courses in the College’s continuing professional development and Masters programs.

The other area where legal education is changing is the need to teach a more diverse range of skills to assist lawyers to better meet the needs of their client. Clients are demanding greater value from their legal services providers, so there is an opportunity for lawyers to evolve the role they play by acquiring more commercially focused skill sets. For example, to become an indispensable and trusted business partner a lawyer needs the ability to negotiate, collaborate, develop and manage relationships, undertake financial analysis and project management. And they need to be comfortable with the technology their clients will be using to run their businesses. These are sometimes called ‘soft skills’, but they are the very qualities that hard and effective business people use on a daily basis. While some people possess these skills inherently, there are proven methodologies for teaching them. The College of Law sees the teaching of these skills and capabilities as the next development in the professional education we provide to the legal profession. Possession of these skills

will ultimately transform the way lawyers work, deepening and strengthening their relationship with their clients. Ongoing legal education remains the key to unlocking a successful career, even in an age where technologists claim to be able to make the lawyer’s job redundant. The legal education sector needs to understand and embrace the changes taking place in the industry, and look to the Centre for Legal Innovation for opportunities to share experiences, collaborate, and find solutions on the best way to respond. Legal educators must accept they are responsible for preparing lawyers for a profession which will be very different from what it is today – a profession where the business skills of negotiation and collaboration will be as important as the legal skills of drafting and interpretation. ABOUT THE AUTHOR: Neville Carter is the Group CEO of the College of Law. He leads a team of 400 educators and is at the forefront of innovation in legal education.

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13


The Inevitable Surprise How technology will change what we do By Tony Joyner Lead Partner – Technology; Managing Partner, Perth, Herbert Smith Freehills

“The Americans have need of the telephone, but we do not. We have plenty of messenger boys.” - Sir William Preece, Chief Engineer, British Post Office, 1878

Context There is a lot of technological change happening at the moment, and that is driving lots of other change. This is going to continue for the foreseeable future. Even if you haven’t read the articles, you’ve seen the headlines. The fashionable tech development at the moment is artificial intelligence, or AI, but no doubt you’ve seen lots of breathless references to big data, advanced algorithms, cloud storage, robotics, and so on. How is all of this going to affect the legal profession and the practice of law? One view is that it won’t make much of a difference: technology evolves – typewriters, faxes, personal computers, emails, the internet, and so on – the law resists for a while, then it adapts, pauses momentarily to reflect on how modern it is, and then carries on pretty much as it always has, except now a little faster and shinier. The leaders of many now extinguished retail, media, recruitment, music, delivery, publishing, transport, travel, accommodation, entertainment and financial businesses held the same view.

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“We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology.” - Carl Sagan So, that view may be right, but there’s another one. Big disruptive shifts in business sectors happen when two factors collide: •

users wanting something better - be it cheaper, faster or easier; and

technology being able to deliver that.

Our taxi service was terrible for years - the desire for something better was always there. So when Uber put together the technology that sated the desire: bang. The other view is that these two factors also apply squarely to the legal profession and the practice of law, and that it will make a hell of a difference. Let’s break the issues down.

Do our clients want something better? Now, that’s a slightly awkward question isn’t it? It seems a little … indecorous. How could our clients want more? We do our best. We work very hard. As we may have pointed out, we’re quite clever. And our clients generally pay our bills. Can’t we talk about something else? The fact is that our clients generally think we do a good job. But increasingly many of them also think we could do things better, and they are almost certain we could do things for less. And why wouldn’t they think this – they have been chopped and changed, and outsourced and insourced, consulted and reviewed, and taken apart and put back together again several times over the last decade or so – and beneath the rhetoric of agility and sustainability and visions and values lies the brutal fact that they are all simply having to do more with less. General counsel may have some sympathy for our position, but his or her CEO simply doesn’t care. Do more. With less.

One way to look at their perspective is to break down the sort of work lawyers do into categories. Let’s say there are four. At the top of the pile is strategic legal work – as in very complex negotiation and disputes, and very sophisticated deal structuring and analysis. Services that require you to really exercise a high level of intellect, creativity and judgment. Then there is difficult legal work – as in the preparation of complicated documentation, or running messy litigation. Intellect and judgement have to be brought to bear, but success is as much about managing complexity. Next is straightforward legal work – work that has its complexities, and which requires experience and skills, but which is reasonably standard. It’s been done before many times. And finally we have basic work – you know what this is. We all do some of each of these types of work. Now, think about the hourly rate lawyers – perhaps you – charge, and think about how supportable that rate is, when applied to the different types of work you do. You may come to the conclusion that in relation to strategic and difficult work that rate is supportable; indeed, in relation to strategic work particularly, a very good lawyer may well be materially short-changing their value. But you may also come to the conclusion that in relation to straightforward work, and basic work, that weirdly identical rate is, if you really look at it, harder to justify. In an environment where there are no alternatives, the rate – or a version of it reflected in fixed fees – is unavoidable. That is the world we have all lived in for years, for better or worse, and clients have accepted that. However, the people who pay our bills are thinking that if there was another way of doing even basic work more effectively; well, they’d be very interested in that. And if you are wondering whether your clients do think about things like this, ask yourself this question: When was the last time that you heard a client say “lawyers’ rates are too low”? I speak to a lot of clients. A common refrain is: we need to do more with less. So, in short, our clients are very keen for something better.

Is anything happening with technology? This leads us to the second condition that has to be satisfied before our sector is ripe for a big disruptive shift: is anything special going on with technology? Well, yes. We are living in what is being called the fourth industrial revolution – the technology age. It is tempting to think that we are in the middle of it, and that we can continue to successfully deal with technology in the future as we have in the past – reactively. However, the advances we’ve seen in the past few years – email, social media, the digitisation of information – will not be the defining achievements of this age. They are the warm up act. The exponentially powerful and connective powers of this age have set up the groundwork for two of the most important one-time events in our history: the emergence of real, useful artificial intelligence (AI) and the connection of most of the people on the planet through a common digital network. Technology will be faster and more powerful, more intrusive, more indispensable, and with many more applications and uses – and all of these factors will continue to increase, sometimes quickly, sometimes exponentially, and in ways we cannot predict. To put what is happening in perspective, there are now more interconnected devices on the planet than humans.

“Change before you have to.” - Jack Welch You know how interconnected we all are, because you see on Facebook that it’s your Aunt in Melbourne’s birthday. Let’s talk about AI. The popular understanding of AI is something like HAL in 2001: A Space Odyssey or, perhaps less worryingly, C3PO in Star Wars. These systems are able to do anything a human can – perceive the world fully, interact using natural and complex language and make complex decisions – and do all of it better than we can. That’s a long way off. In its present form, AI is more specialised and limited. However, it is here, and it is developing quickly.

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One manifestation of AI that is pushing the current crop of technologies forward is machine learning. These systems don’t just have deep knowledge in specific areas – they also have the capability to learn. This is revolutionary. In the past, computers could do amazing things, but they were things we told – or programmed – them to do. Machine learning creates software that learns itself, and then interprets and prioritises data itself. Without wanting to harsh your mellow, this is the development that led Elon Musk to declare AI the most serious threat to the survival of the human race. He clearly hasn’t seen the Kardashians.

“But they are useless. They can only give you answers.” - Pablo Picasso, on computers

In any event, for the foreseeable future, AI is not full human intelligence, but it is a material step up from the processing that computers traditionally did. And that means that whilst traditional computers could replace a lot of processing work traditionally done by humans, now more interpretation and analysis work is up for grabs. The 5 minute primer here is Watson, the IBM AI program – named after IBM’s first president, Thomas Watson. Tom has obviously been forgiven for saying – albeit in 1943 – "I think there is a world market for maybe five computers." Famously, Watson – the AI version won the game show Jeopardy, a game in which contestants have to answer questions framed in an unusual manner. The body of knowledge that Watson was given to learn the facts to allow it to play, and win, the game, was Wikipedia. To put that in context, what we have here is a software program, that was loaded with a vast body of data, which it was able to assimilate and learn from, and which allowed it to answer quite complexly structured human enquiries. You only have to tilt your head and squint slightly to start thinking that that sounds just a little bit like what we do.

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AI is especially powerful when it uses big data. Big data is a term used to describe the consequences, or opportunities, flowing from the fact that technology has now reached the point where we can collect, store and process data on a vast scale. The human mind – well, this one anyway – cannot genuinely comprehend how much data there now is. To use a whimsical example, 30 billion pieces of content are shared on Facebook every month, though admittedly that’s mainly my children.

What’s happening in the legal space There is also a lot happening in the legal space, although, again, it is early days. The applications of AI to law are broad. There are already AI applications – in varying degrees of development – for: •

online legal services

e-discovery

due diligence

This is the part of the story where the cloud, a term you may well be tired of, is critical. The cloud is the bucket all this data lives in.

document review

document production

predicting outcomes of claims

Where Watson was given Wikipedia as its trove of knowledge to prepare for Jeopardy, big data also means that the enormous quantities of legal data being generated every day – laws, regulations, contracts, papers, emails and so on – can be fed into an AI system’s pseudointelligent process and analysed.

practice management

lawyer searching

legal research

In short, big data enables storage and processing of endless data, and AI allows synthesis and analysis of the data into answers to questions. Even legal ones.

What is happening out there The AI revolution is just starting. To give you a feel, here are some diverse examples of the sorts of things that are happening. There is a free smartphone app called DermaCompare – it uses AI to help with the early diagnosis of skin cancer. Users take photos of their skin with their smartphone camera, upload them, and the app uses comparative AI algorithms – and a database of over 50 million moles – to identify suspicious moles. It can even update the patient file and notify the assigned doctor. Blue River Technology uses algorithms and robots to recognise plants, and decide which are weeds, and eliminate them. The news industry is now using AI platforms to produce content. A system called Wordsmith uses natural language generation technology to fill in template articles. For example, it could write a match review of an AFL game using published stats. It isn’t Yeats, but it’s obvious where it’s going.

Most firms of any size have publicised an AI initiative of some sort – and some of them have actually done more than mere publicity.

“It is not necessary to change. Survival is not mandatory.” - W. Edwards Deming

I will discuss what my own firm, Herbert Smith Freehills is doing simply because I know most about it. We have actually been using AI for close to 10 years now – and, don’t tell anyone, but most of us didn’t realise it. Our e-Discovery team, which is part of our Alternative Legal Services group, uses very up to date e-Discovery systems. These systems use a mix of rules based and predictive approaches to find relevant – or, more accurately, potentially relevant – information in discovery on large litigation. The systems we use, and our general approach, have been upgraded and improved several times, as the technology, as well as our knowhow, has evolved. I referred earlier to the cost driver at the core of all this – the reality is that, without this technology, and the ability of law firms to use it in an increasingly sophisticated way, no one could undertake meaningful discovery in complex cases in anywhere near a sensible time frame at anything resembling a reasonable price.


involve employing many people with very different skill sets – that includes the lawyers. To achieve the cost savings that clients are pressing for, these different systems, and the people behind them, will not necessarily live in the same geographical space. They may not even be part of the same company. Lawyers will need to become adept at working in an environment where the solution to their client’s problem is achieved by bringing together these different systems, in different places. Collaboration and flexibility will be crucial. I cannot say what it will look like. However, look at how banks were set up in the 1980s, and look at them now. Do the same for the music industry. And the newspaper one. That, at the very least, will give you a sense of scale.

When will this happen?

We are also starting to use machine learning tools in other contexts, such as due diligence and general document review. We are also looking at how document automation and AI applications can improve what we do. Critically, these innovations aren’t just client facing – we’ve been using an AI backed initiative to crowdsource innovative ideas from our people, all around the world. It’s not here yet, but we are beginning to get a glimpse of what the future looks like. So, as you would expect, firms are driving this. As well as that, a lot of the interesting – and well-funded – work is being carried out outside of the law firms. One of the better known here is ROSS. ROSS has been developed off the Watson platform, and is an artificially intelligent legal software system. It can mine data from up to a billion text documents, analyse the information and provide answers to complicated legal questions in seconds. It is early days, but even a quick look at ROSS shows you where things are going. There is a lot of action – and investment – in this space. If you want to dip your

toes in the water, look here: www. cbinsights.com/research/legal-techmarket-map-company-list/.

The biggest change of all … The biggest mistake that lawyers can make about these developments is to think that this just means that at some stage in the next few years they are going to have to go to the shop and buy an AI machine. That is certainly how past technology developments have been dealt with. But these technology developments are different, because they are going to change our business model.

“We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten. Don't let yourself be lulled into inaction.” - Bill Gates Bill Gates is a smart man. It won’t be two years. But in 10 years we’ll be well on the way.

It isn’t enough to commit to buying an AI system. Firms will need to change their business model so that they can take advantage of AI. And the people working in these firms will have to have a different approach to how work is done.

There won’t be robots walking past our office. We’ll still need lawyers. Just like we still need journalists and bankers.

Law firms will either have to invest in this in a way they have never invested in anything before, or they will have to outsource significant parts of what they do to third parties – and of course, in reality, to be really successful they will have to do both.

So …

Different systems and processes will have to be incorporated into the law firm’s operating model, which will

It’ll be life Jim. But not as we know it.

The difference between an ordeal and an adventure is state of mind. It’s an exciting time to be in practice, especially if you are young or curious. Never in our profession has there been a better opportunity for adventurous, bold, innovative thinkers to make a difference. Go for it.

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To pay or not to pay? Issues associated with law graduates undertaking periods of practical legal experience

By Daniel White1 Special Counsel, Mills Oakley Lawyers

“Profiting from “volunteers” is not acceptable conduct within the industrial relations scheme applicable in Australia.” – Judge Riethmuller, Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140 at [45].

Overview The dramatic change in the WA economy over the last five years has seen the WA legal profession face a number of challenges. One of the biggest issues facing our profession is the ever increasing number of people graduating from WA universities with law degrees who want to become lawyers. The contraction of the WA legal market has led to fewer graduate roles being available for people as they step out of university. This is across all tiers of law firms: global, mid-tier, local and boutique. The result of lack of local graduate opportunities and an oversupply of law graduates desperate for a job is exposing people to exploitation by opportunistic firms. This is particularly the case involving law graduates who enrol in a practical legal training (PLT) course that requires them to undertake a set number of days (usually around 75 days) working under supervised legal practice in order to be issued the PLT certificate necessary to apply for admission. The author of this article sits as the Convenor of the Employee Relations Committee of the Law Society of Western Australia. The author has been asked to contribute his perspective on the industrial relations issues facing law firms in WA who are contemplating whether to pay or not to pay a law graduate undertaking a period of practical legal experience. There are 18 | BRIEF NOVEMBER 2017

limited circumstances under both State and Federal industrial relations systems where a person can lawfully engage in unpaid work (whether it be work experience, internship, volunteer position or otherwise). In summary, the author of this article is of the view that the nature of the relationship is likely to transcend “volunteer”, “intern” or “work experience” in circumstances where the firm charges the law graduate’s time to clients and enters a commercial realm. In these circumstances is it is likely that the relationship is more of employer/ employee and law graduates should be paid whilst undertaking supervised legal practice if the law graduate is engaging in chargeable or other “productive work” for the firm. As detailed below, there are however circumstances where law graduates who are genuine “volunteers”, “interns” or “work experience” placements can lawfully engage in a periods of unpaid work under both State and Federal industrial relations systems. However this needs to be carefully considered based on the facts of each individual circumstance.

Does an employment relationship exist? When considering whether an employment relationship exists in respect of a person’s unpaid activities in a workplace, one must look beyond how

the parties have chosen to describe the arrangement, to the objective character of the arrangement. Although a contract of employment may be entered into with the minimum of formality (orally or expressly), the law holds that before any contract is enforceable it must be formed so as to contain various elements of which are well known.2 If an employment relationship exists at law, the person is actually an employee and subject to the rights and entitlements under relevant industrial legislation including: 1. the applicable minimum wage; 2. statutory minimum entitlements (for permanent employees this includes maximum weekly working hours, paid annual leave, paid personal/ carer’s leave, notice of termination and redundancy etc.); and 3. any other terms and conditions of employment prescribed by any applicable industrial instrument such as an award or collective agreement (if applicable, such as casual loading).3 Neither State nor Federal industrial legislation provides any exhaustive definition of what constitutes an “employee”.4 However the legislative schemes that seek to deal with notions of “vocational placements” or “volunteers” which are excluded from the concept of an “employee” are detailed below.


2. Length of time – the longer the period of engagement the more likely it is employment. 3. Significance to the business – is the work normally done by paid employees? If so, it is likely to be employment. And do the needs of the business require the work to be done? Again, if so, more likely to be employment. 4. What the person is doing – the person is less likely to be an employee if they are not expected or required by the firm to come to work or do productive activities. 5. Who is getting the benefit – the law graduate doing the work experience should get the main benefit from the arrangement. If the firm is getting the main benefit from engaging the person (i.e. the firm charges their time to clients) it is more likely they are an employee.

The concept of a “volunteer” as distinct from an employer/employee relationship is likely to apply equally to both State and Federal legislative schemes. In circumstances where someone is a genuine volunteer, they are not an employee and can engage in unpaid work. Generally, the key aspects of a genuine volunteering arrangement include: 1. the parties did not intend to create a legally binding employment relationship; 2. the volunteer is under no obligation to attend the workplace or perform work; and 3. the volunteer does not expect to be paid for their work. Where an employment relationship does not arise (such as a genuine volunteer arrangement or vocational placement), both key pieces of legislation, being the Federal system Fair Work Act 2009 (Cth) (FW Act) and State system Minimum Conditions of Employment Act 1993 (WA) (MCE Act), permit persons to engage in unpaid work. In Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140, two employees commenced as interns after they had contacted the company seeking work experience in the media industry. One employee was a university student, the other a recent graduate. The parties agreed that the first three weeks of the employment could be

characterised as vocational placements (an exception under the FW Act as discussed below). However, after that period expired, Crocmedia accepted as part of the Fair Work Ombudsman’s (FWO) investigation that the relationship moved beyond a true vocational placement to one of employment (for a further 6 months and 12 months respectively). In particular, it was noted that in cases of genuine work experience or vocational placements, the benefit should flow to the person doing the placement. If the business is gaining a significant benefit, that itself may be an indication that there is a employment relationship. As Judge Riethmuller said at [45], “profiting from “volunteers” is not acceptable conduct within the industrial relations scheme applicable in Australia”. The Court issued Orders for back pay as well as civil penalties for multiple contraventions of the FW Act against Crocmedia. The FWO has indicated the following factors are useful for businesses to consider when determining if a “volunteer”, “intern” or “person on work experience” is in fact an employee (which presumably would be as applicable to State system employment relationships):5 1. Reason for the arrangement – if the person is doing work to help with the ordinary operation of the firm and less to give the person some experience, it may be employment.

Each individual arrangement will turn on its own facts and will need to be carefully assessed. It is recommended that firms seek legal advice from a practitioner with suitable experience in industrial relations law.

Which system applies: Federal or State? The WA government has not referred its industrial relations powers to the Federal government. As a result, there are two industrial relations systems that can apply to law firms in WA. This is a unique issue that faces the WA legal profession. Incorporated legal practices (Pty Ltd or Ltd entities) are within the Federal industrial relations system, which is primarily governed by the FW Act, but are also covered by the Legal Services Award 2010. However, even unincorporated firms may fall within the Federal system, for example where they have partnerships registered in other States and Territories that have referred their industrial relations powers to the Federal Government. For example, where a partnership is registered in Victoria, and that Victorian partnership is the employing entity of non-partner level staff in WA, then those WA based staff are likely to be subject to the Federal industrial relations system (because that employing Victorian based entity falls within a jurisdiction that has referred its industrial relations power to the Federal government).

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WA based law firms who operate as sole traders or as partnerships registered in WA and who employ WA based employees are likely to be subject to the State industrial relations system, which is primarily governed by the Industrial Relations Act 1979 (WA) (IR Act) and the MCE Act. There are situations where some WA firms have a separate Pty Ltd entity which is the employing entity of all non-partner level staff that provides services to the partnership. It is a likely possibility that, those non-partner level staff employed by the Pty Ltd will be subject to the Federal industrial relations system. Each situation will depend on its own facts. These are just examples of how law firms, depending on their structure, may fall within the State or Federal industrial relations system. This is not an exhaustive analysis of the various firm scenarios.

Federal system implications – “vocational placement” exclusion Section 15(1)(b) of the FW Act excludes a person on a “vocational placement” from the ordinary meaning of “employee” for the purposes of the Act. Under the FW Act, a “vocational placement” is lawfully unpaid if all of the relevant criteria in section 12 are met: Vocational placement means a placement that is: a. undertaken with an employer for which a person is not entitled to be paid any remuneration; and b. undertaken as a requirement of an education or training course; and c. authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory. There is no authoritative interpretation by the courts on the meaning of a “vocational placement”.6 The FWO has set out a fact sheet on what constitutes a lawful unpaid placement. The FWO has provided the following commentary: 1. There must be a placement. This can be arranged by the educational or training institution or a student may initiate the placement with an individual business directly, in line with the requirements of their course.

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2. There must be no entitlement to pay for the work the student undertakes. Where a student’s contract with the host business or organisation entitles them to receive money for the work they perform, the vocational placement will likely have turned into an employment relationship. Similarly, work arrangements covered by industrial awards or agreements are not vocational placements. 3. The placement must be done as a requirement of an education or training course. The placement must be a required component of the course as a whole, or of an individual subject or module of the course. It does not matter whether that subject is compulsory or an elective chosen by the student. Note: section 21(2)(c) of the Legal Profession Act 2008 (WA) provides that a person is eligible for admission to the legal profession in Western Australia if the person has satisfactorily completed approved practical legal training requirements. Those requirements are contained in rule 7 of the Legal Profession (Admission) Rules 2009 (WA). Only one of the several alternatives towards admission in rule 7(2) must be satisfied. 4. The placement must be one that is approved. The institution delivering the course which provides for the placement must be authorised under an Australian State or Territory law or an administrative arrangement of the Commonwealth or a State or Territory to do so. Courses offered at universities, TAFE colleges and schools (whether public or private) will all satisfy this requirement, as will bodies authorised to offer training courses under State or Territory legislation. In 2013, the Fair Work Commission considered whether a Law Graduate, Mr Upton, who completed unpaid practical legal training, had undertaken a vocational placement within the meaning of section 12 of the FW Act.7 Between 4 February and 24 February 2013, Mr Upton was placed (as part of the Practical Legal Training in Regional Rural and Remote Australia (PLT RRR Project)) with the Geraldton Resource Centre. The PLT RRR Project facilitates Law Graduates completing their practical legal training placement in one of 55 legal assistance services throughout regional, rural

and remote Australia (at [20]). In this case, Commissioner Cloghan held that Mr Upton’s placement fell within the definition of a “vocational placement” under the FW Act. His decision rested on the findings that the placement was unpaid (at [38]) and that the placement was a necessary and inherent requirement for Mr Upton to be admitted to the legal profession (at [46]). A similar approach was recently adopted by Commissioner Johns in Klievens v Cappello Rowe Lawyers [2017] FWC 5126. In this matter, Commissioner Johns found that whilst the PLT student engaged in “useful work” (at [55]) and completed “long hours” (at [55]), there was no evidence that the PLT student was obliged to help generate revenue. Commissioner Johns went on to find that “the person who is doing the work should get the main benefit from the arrangement” (at [56]). If the firm is getting the main benefit from engaging the person and their work, it is more likely the person is an employee. This demonstrates that there can be circumstances where law graduates fall within the “vocational placement” exemption in the FW Act and can legitimately be engaged in unpaid work. The firm will need to give careful consideration around the nature of the work that is being undertaken. If it is chargeable or “productive work” as detailed above, the nature of the relationship is likely to transcend beyond a “vocational placement” into that of employment.

State system implications – “volunteer” exclusion The State industrial relations system provides for a different assessment of whether a person can lawfully perform unpaid work experience. The MCE Act sets out the minimum terms and conditions of employment for State system employees. This includes an entitlement to the minimum wage rate. Rather unusually, the MCE Act is also taken to be implied in a contract of employment (including any asserted oral contract of employment) for State system employers and employees. Section 3(1) of the MCE Act adopts the definition of “employee” set out in the IR Act, and from there goes on to provide a number of exclusions to the term “employee”. One of these is “volunteer”, as set out in regulation 3 and item 4 of Schedule 1 to the Minimum Conditions of Employment Regulations 1993 (WA) (MCE Regs).


The term “volunteer” in item 4 of Schedule 1 to the MCE Regs provides:

4.

Volunteers etc.

Persons who are not entitled to be paid for work done by them but who receive some benefit or entitlement in relation to the work. I note that this provision does not prevent a person from being a volunteer in circumstances where they do not receive some type of benefit or entitlement as a result of the work, for example, undertaking relevant legal practice experience for the purposes of gaining admission as a lawyer. In Tkacz v Watson HJ & Associates [2007] WAIRC 01030, Industrial Magistrate Calder was satisfied that an articled clerk undertaking supervised practice was not an employee for the purposes of the MCE Act where it was held that the parties agreed that the claimant would not be paid for the period of the articled clerkship. The nature of the relationship was captured by the proviso contained within the definition of “employee” in the MCE Act, namely that of a prescribed volunteer pursuant to regulation 3 and item 4 of Schedule 1 to the MCE Regs. In that case, Industrial Magistrate Calder found that even if the claimant was not a volunteer within the meaning of the MCE Regs, the claimant was never in a relationship of employer and employee as defined in the IR Act. This was due to the fact that there was never an offer to pay wages, or to provide the claimant with any other benefits other than exposure to a reasonable range of work experience and having ready

access to the principal solicitor. Further, the claimant never had a reasonable expectation to be paid wages or to be entitled to any other benefit. This demonstrates that firms subject to the State industrial relations system can engage law graduates, in certain circumstances, in unpaid work experience placements so long as they meet the definition of “volunteer” under the MCE Regs. Again, the firm will need to have careful consideration around the nature of the work that is being undertaken, because if it is chargeable or “productive work” the nature of the relationship is likely to transcend to that of employment.

There could also be professional implications for firms and individuals who take advantage of law graduates in order to profit from their vulnerability, which may be the subject of complaints to the Legal Professional Complaints Committee. NOTES: 1.

Daniel would like to thank Kendra Hagan, Solicitor, Employment Law Centre of WA for her contribution to the preparation of this article. Disclaimer: This article does not constitute legal advice. It simply highlights the key industrial relations issues a firm should bear in mind when engaging law graduates for a period of practical legal experience. 2.

These include: “intention” to create a legal relationship (the terms of which are enforceable), offer and its acceptance, the contract be supported by valuable consideration, parties legally being capable of making a contract, genuine consent to the terms and that the contract cannot be rendered ineffective by reason of conduct which is illegal or contrary to public policy.

3.

This includes: for Federal system employees the Legal Services Award 2010; and for State system employees the State minimum wage or possibly the Clerks (Commercial, Social and Professional Services) Award No.14 of 1972 (depending on the type of tasks performed).

4.

See section 13 of the Fair Work Act 2009 (Cth) and section 7 of the Industrial Relations Act 1979 (WA) (which is adopted by section 3 of the Minimum Conditions of Employment Act 1993 (WA)).

5.

Note this five factor analysis was recently adopted by the Fair Work Commission in Klievens v Cappello Rowe Lawyers [2017] FWC 5126.

6.

See for example Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 1400 which indicates there is a dearth of case law on this point.

7.

Ryan Upton v Geraldton Resource Centre [2013] FWC 7827. In that case, the broader question was whether time completing unpaid practical legal training should count towards the Law Graduate’s minimum employment period. If so, the Law Graduate was protected from unfair dismissal.

Final comments This article is not to discourage firms from providing opportunities for law graduates to seek necessary supervised work experience to fulfil PLT requirements in order to seek admission. There are genuine arrangements under both State and Federal industrial relations systems that permit law graduates engaging in unpaid work, as set out above and in the case examples. However, this article highlights that firms should not be profiting from law graduates who are volunteering their time during the period of practical legal experience without paying them. There are civil penalties for firms and possible accessorial liability for individuals involved in contraventions of any breach of State and Federal industrial laws.

Daniel exclusively acts for employers in all employment and industrial relations issues and sits as the Convenor of the Employee Relations Committee of the Law Society of Western Australia.

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21


CASE STUDY

Reading, travelling, the gym, writing my own book and Disputes Specialist

Krista McMeeken Admitted: December 2012 Areas of Law: Construction Current position: Disputes Specialist – INPEX

“Don’t take the law or yourself too seriously.”

Educated at Castletown Primary School and Esperance Senior High School before completing a Bachelor of Laws at the University of Western Australia, Krista graduated in 2011. Krista began her legal career as a graduate at Corrs Chambers Westgarth where she was admitted in 2012 and settled into litigation, before later moving to the Construction team at Jackson McDonald. In mid-2016 she commenced an inhouse position at INPEX as a Disputes Specialist in the Projects Legal Team. Krista is an active member of the profession as a Convenor of the Indigenous Legal Issues Committee, member of the Reconciliation Action Plan Committee, and member of the Aboriginal Incarceration and Justice Reinvestment Working Group at the Law Society of Western Australia and member of the Indigenous Legal Issues Committee of the Law Council of Australia. She also sits on the board of Celebrate WA, the board of the Museum for Freedom and Tolerance (WA), the Western Australian Aboriginal Advisory Council, the Road Safety Advisory Body and the UWA Young Alumni Network and volunteers with a number of other organisations.

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Krista on...

Managing flexibility in your day-to-day work Flexibility in the work place is always difficult, particularly at the junior level where you are not the master of your own time and are often expected to pay your dues by spending endless hours at the desk in order to move up the ranks of the legal profession. When I first started out I was a full-time carer for my mother and younger sister and I found that there was a lack of understanding that young people, who generally don’t yet have the responsibility of children, may still have important caring or family commitments. The two important lessons I have learnt are: 1. Boundary setting: In the age of technology there is a temptation and sometimes an expectation that you will always be connected to the workplace and be in a position to rapidly respond to new issues and tasks. It is important to set boundaries around your availability in order to ensure that you are truly present with loved ones outside of work and also giving your full focus and attention to work when required. 2. The importance of saying “No”: It is difficult to juggle a work/ life balance at the best of times

and this is only made harder by committing to more than you can reasonably manage. In order to best manage expectations, have time for things other than work and an opportunity to reset and recharge, it is important to set aside time for yourself and to say no to those things that will send that balance toppling over.

Balancing family and personal life with a career Home support, whatever that may look like for you – husband, wife, close family, housemates or friends, is critical to your mental health and your ability to dedicate yourself to your work and still eat three meals a day. I struggled with this balance at the start of my career and have since learnt that it is okay to ask for help, to lean on others and to rest instead of cleaning after a hard week – just make sure that when the time comes where your loved ones need your support, you are equally there for them. I still struggle sometimes with full weeks that mean I am not home too many nights in a week or arrive home late and exhausted and head straight to bed, but I try to balance those unavoidable weeks with weeks where I am home on time, taking the dogs for a run and helping my sister with her assignments. I accept that balance will not happen on


a daily basis – but I at least try to ensure that by the end of each month there has been some balancing and compensation for those busy times.

Biggest challenges facing women in the profession There is absolutely an unconscious, if not a conscious, bias which pervades the workplace and makes it difficult for women to achieve the same levels of success in their careers – whether that means achieving a promotion to a senior role, being fully supported as an employee seeking maternity leave or returning to work either on a full or parttime basis following an extended period of leave. There are also practical struggles that women may face, which are slowly being addressed through the utilisation of technology to work from home when children are unwell or to be able to attend key meetings out of hours, the provision of parenting rooms to assist mums returning to work and consideration around making team events in hours rather than after hours, to name a few. These measures help to provide a supportive and inclusive workplace but they are currently implemented on an ad-hoc basis rather than systematically implemented as a minimum standard.

Biases against people who work part-time/flexible hours There seems to be an attitude that these individuals are less committed to their careers, that they are less relevant and that they are more difficult or burdensome because their commitments require balancing against their time in the office. It is important to continue to engage these individuals in their careers by

providing relevant and challenging work that fits within their requirements – maybe they can work from home, maybe they can make temporary arrangements to be able to address urgent matters, maybe they can swap the days they are in the office for one week or maybe it is not possible for them to work on one particular transaction but they should be at the top of the list for the next one. At the heart of these assessments is an honest conversation with the individual around their own requirements and expectations and those of the business, forward planning to delegate tasks and matters appropriately, and trust in the individual to complete the work on time. Depending on the work and the client, it may also require a conversation with the client around that individual’s availability so that the client also feels reassured that they have an accessible contact, that their needs will be supported and that they have the best people on the job.

Experiences with staff retention in the legal profession, improving wellbeing, flexible work practices and supporting diversity I think the manner in which these issues are dealt with changes depending on the culture of a firm – two firms can address all of these issues in the same way but with completely different outcomes based on the sincerity with which the issues are addressed.

Each of these issues requires genuine understanding and effort in order to improve the workplace and provide tangible outcomes for staff. If this does not occur, staff have generally proven that they are mobile and will go elsewhere to find the support that they feel that they need. This is not unique to the legal profession. As these issues become more common place and sit higher on the agenda of law firms and employees, I believe that we will achieve more positive and consistent outcomes. Unfortunately at present, some firms seem to struggle to deal with addressing these issues uniformly, rather than on a case by case basis and systematically, rather than relying on passionate individuals to drive these changes which soon fade away after the employee moves on.

Advice for lawyers Don’t take the law or yourself too seriously. The practice of the law generally provides a challenging and dynamic environment in which you can thrive but you can also feel fatigued or inadequate in such a demanding and competitive workplace.

23


Getting unbundling right By Julian Sher1 and Paul D Evans2

First steps When considering any proposed retainer agreement forming the basis of your professional relationship with a client, it is critically important to consider whether the relationship itself – and thus the retainer that would underlie it – is an arrangement to render all the relevant services relating to a particular matter, or only some of those services. Take the case of general counsel having formed a preliminary view on an issue who instructs a practitioner to compile a brief to counsel for formal advice on that issue. General counsel may have in mind that the instructing practitioner’s limited task is to give logistical support to seek counsel’s opinion on a question that is clear. In that example, a limited retainer has been proposed, but is that what has been agreed, and is that legal and ethical construct correct? Clarity around the question of whether a retainer is to be “bundled” (do everything) or “unbundled” (do specific things) is fundamentally important because the management of the relationship, especially the risks involved, will differ depending on the nature of the arrangement. Of particular concern

24 | BRIEF NOVEMBER 2017

is the practitioner’s ability to take all the instructions essential for the proper discharge of the retainer. If a practitioner is only dealing with a particular aspect, it likely follows that they will not necessarily have access to the entire context, as distinct from being instructed to handle an entire matter to its conclusion. This is a particular characteristic of unbundled matters which practitioners must address when contemplating entering into an unbundled retainer agreement.

Terminology and concepts – semantics, or getting it right from the beginning? The following discussion is not merely about semantics. The point is to illustrate the critical importance of getting it right, when taking on a retainer to perform unbundled work. “Getting it right” means firstly being clear in your own mind about the nature of the relationship the client is asking you to enter into and any risks or unusual hazards that relationship may expose you to. The next step is to manage the relationship in a such a way as to end up with a satisfied client when the unbundled task is completed.

When accepting an instruction to undertake an unbundled – or any matter, a prudent approach is to prepare a carefully written retainer agreement, ensuring that the wording of the retainer accurately represents the scope of your client’s instructions, is within your competency and minimises any risks. Unbundling literally means breaking a matter down into its constituent parts, so that one – or some – of those parts will be the subject of a so-called “partial retainer agreement”, as distinct from a “full retainer”. The phrases “partial retainer” and “full retainer” are misleading, as literally they suggest something less than a full retainer. But, confusingly, those phrases are meant to be a convenient way of distinguishing between retainers for unbundled work and retainers for work that is not unbundled. Conceptually there is no such thing as a partial retainer, because whether your instructions are to perform only a specific service (or services), or all the necessary services for completion of a matter, the retainer itself – however scoped – must be performed once accepted. It is a contract between the practitioner and


the client, so it follows that every retainer is complete in itself, regardless of the subject matter. The retainer to perform unbundled services will only be spent once those services have been performed in accordance with those contractual obligations. For these reasons, the terms “limited scope representation” and “discrete task representation” are to be preferred, as they have the virtue of being accurate and clear.3

What are the risks involved in unbundled work? A practitioner instructed to do only some tasks, not an entire matter, faces the obvious risk of not having a complete understanding of the full scenario. When taking instructions, a practitioner normally gleans background information to establish context and proportion to enable an appropriate and acceptable level of service. That process relates not only to the merits, but also to the costs and any other secondary but critical aspects, for example, strategic and reputational issues, resource constraints, insurance, warranties, impact on third parties, etc. That is important because the law recognises the practitioner’s obligation to do everything necessary to complete the retainer in accordance with its terms. It is at least reasonably arguable that the content of that duty in a particular case may include an obligation to provide additional advice or to take some additional or positive step beyond that spelt out on the face of the retainer.4 To save costs or time, the client may not want to give you the full picture, exercising their own judgment as to what it is necessary for the practitioner to know. This is where the practitioner must be particularly careful. The choices are to insist on getting the full picture, or getting on with drafting the retainer agreement so as to make it crystal clear that the scope of the legal work is limited and that the practitioner is deliberately not being given full instructions, but only those necessary to perform the specific role stipulated in the retainer agreement. It stands to reason that the practitioner must draft the retainer agreement with sufficient specificity to protect the client and to enable the practitioner to ensure clarity around the terms of the instructions. Clarity with respect to the scope of the retainer is in the interests of both the client and practitioner, reflecting the client’s desire to limit the scope of the work and the practitioner’s need to

understand with precision exactly what he or she is required to do. Exclusionary provisions will be appropriate to clearly delineate the limits of the instructions. Equally, it will be prudent to record any limitations or assumptions the client has communicated to you, so that the client is fully informed about any limitations or exclusions and acknowledges those expressly. Since the nature and circumstances of matters vary from case to case, the practitioner should avoid standard template retainer agreements having no provision for customised scoping of the tasks envisaged. In that respect practitioners should ensure that the scope of each new retainer is customised for the specific matter at hand. That is true for any retainer, but is especially acute where the unbundled services are being undertaken in part by more novel means, such as the use of technological aids which the practitioner may not fully understand, under supervision.

Examples of a limited scope retainer The diversity of unbundling is practically unlimited as almost any conventional legal activity can be broken into tasks and each task can, in theory, be briefed separately. Many law firms already do that internally, using lawyers and support staff of differing seniority and cost to undertake different parts of a retainer. The allocation of work between barrister and solicitor in a matter requiring advocacy, or formal advice, has been an established part of our legal practice for decades. That is (or should be) driven by considerations of efficiency, which inform all modern organisations. It is nearly 30 years since Ronald Coase won his Nobel prize for the theory5 that a firm will always tend to organise itself in the most cost efficient manner to reduce the costs of being in the market.6 This is the rationale for the emergence of firms themselves, as efficient and dynamic market institutions.7 Coase developed his theory by asking why firms conduct certain activities in-house, while other related activities were contracted out.8 The rather cursory Wikipedia article on Coase summarises the theory this way: … the market is “efficient” (that is, those who are best at providing each good or service most cheaply are already doing so), it should always be cheaper to contract out than to hire.

…[but] there are a number of transaction costs to using the market; the cost of obtaining a good or service via the market is actually more than just the price of the good. Other costs, including search and information costs, bargaining costs, keeping trade secrets, and policing and enforcement costs, can all potentially add to the cost of procuring something via the market. ….[so] firms will arise when they can arrange to produce what they need internally and somehow avoid these costs. If they cannot avoid these costs, or a single supplier of services cannot, deconstructing an entire project into its individual parts to minimise costs is a mechanism for achieving competitive cost efficiencies. An example close to home, is the use of paralegal staff to collate documents under supervision, for later assessment by practitioners, is an internalisation of cost efficiency typical of the benefits of a firm. But this may be done in-house, by the client itself, or be outsourced to an external firm under a limited scope retainer, or provided by a third party legal process outsourcer for the use of both. Using the conventional example of a large civil litigation or commercial arbitration matter, a practitioner might accept a discrete instruction to manage the discovery of huge volumes of documents, while the client’s solicitors on the record attend to the conduct of the action as a whole. In that example, depending upon the instructions, it would be necessary to draft the scope of the retainer to include all matters related to the discovery of the documents. But what would this encompass? Would the scope include all attendances related to disclosure in the broadest sense? That task could be far more expansive than merely collating documents, exchanging affidavits and supervising the inspection of the discovered documents. Tasks that could be encompassed include: •

Advising the client on all discovery related issues, including the deployment of technological aids to discovery (which would in turn include further outsourcing options)

Assessing relevance

Assessing privileged discovery or discoverable material

Obtaining discovery materials from third parties

25


Challenging a refusal to give discovery

Drafting submissions on discovery related applications

Court appearances on discovery related matters

Considering discovery related issues, like preliminary discovery, joint discovery, issuing subpoenas etc

Advising the client on the cost effectiveness of all or some of these aspects

Giving incidental advice on any or all of the above.

So how far do the client’s instructions to “do” discovery in aid of the other firm extend? The need for clear instructions is plain. But the client can only make a decision if the client is fully informed. How is the menu of options to be presented, and what information will the client need to make an informed decision on the costs and benefits of each option? Critical questions for practitioner, client and the firm on the record include how liability is distributed, where the work of one party contributes to the work of the others. Subsidiary, but essential, questions are whether the client has already received advice to that effect (by other practitioners, who may be the solicitors on the record) – and if not, whether the client is willing to pay for such advice prior to any work on the unbundled discovery task being carried out? By careful analysis in this fashion, what emerges is caution before agreeing too readily to a limited scope retainer. The imperative is to ensure that there is sufficient clarity and understanding, both by the client and the practitioner. Accordingly, proceeding further with our example, if the client’s instructions are to perform only one of the possible roles listed above, say, the preparation of discovery affidavits, the practitioner’s advice (before the limited scope retainer is concluded) should indicate that it is impossible to do so unless the documents have been assessed for relevance and privilege – by the practitioner concerned, by another practitioner, or by the client. If the assessment has already been completed by another practitioner, the retainer should make this clear beyond any doubt. For instance, the retainer should expressly state that the task is being on the basis that the assessment (by another practitioner) has already occurred.

26 | BRIEF NOVEMBER 2017

In the case of commercial or transactional matters, the suggested methodology is the same. Discrete tasks may include the use of contract review software, due diligence exercises, provision of second opinions, etc.

Risk management techniques for unbundled matters The most important – and most obvious - risk management technique is to think carefully about the instructions you have been asked to accept and not accept the instructions unless you can properly perform them within the limits of those instructions. Be very clear about the limits of those instructions. Be equally clear in your own mind about the scope of the actual services you would have to perform within the ambit of those instructions. Only once you have done this can you draft your retainer agreement, ensuring that the wording precisely encapsulates the instructions and the scope of the services you have agreed to perform. As a necessary corollary you must ensure that the client is fully informed and understands and agrees to the scope as expressed in the agreement. The next essential, but difficult, risk management technique is keeping your performance of the retainer within the parameters of the limited scope agreed to. In the cut and thrust of enthusiastically trying to exceed a client’s expectations, it is easy to go beyond the client’s instructions. In an unbundled retainer you have to guard against the temptation to do so! While the client would (hopefully) be appreciative of these efforts, that appreciation may not extend to paying additional costs for something the client did not ask you to do. It follows that it is critical to manage the performance of the retainer and monitor your own efforts and those of any team to ensure that you do not stray beyond your instructions. Apart from the inability to recover costs, straying beyond the scope of a retainer can lead to professional conduct complaints and areas of conflict with both the client and other professionals engaged in the overall matter. There is nothing more likely to engender a dysfunctional client relationship than the insistence on the payment of fees which the client believes is unjustified and unfair. Performance of un-scoped services poses the question of whether the practitioner’s instructions were adequate to enable the task to be

done competently, regardless of the enthusiasm with which the un-scoped work was performed. Before embarking on any work, the practitioner should bear in mind at least the following basic questions. First, does the practitioner have instructions to perform the work? Secondly, if so, are those instructions adequate, in view of the unbundled nature of the tasks? Thirdly, by undertaking additional un-scoped work, have the parties varied the retainer agreement? Fourthly, if so, has the original written retainer agreement been amended to include the additional scope of work, or should an entirely new written agreement be entered into? The obvious justification for a practitioner acting beyond the scope of a written retainer, is the expansion of the scope of the work by the parties’ conduct. Whether evidence would support this as justification in any particular case is another matter. A carefully drafted retainer may contain a provision that the parties acknowledge that the scope of the retainer may only be varied in writing. That places, again, the onus of vigilance upon the practitioner, but no one ever wants to be in a position where it is blindingly obvious that one has acted without instructions at all. Limited retainers accompanied by explicit or implicit “scope creep”, poorly recorded, are a fertile source of disputes.

Particular issues with technology Technological aids to legal practice are omnipresent. From electronic legal research services which allow keyword searches to turn up relevant literature, to sophisticated document review applications which allow discovery, particularly in modern corporations with principally electronic repositories of information to be searched almost instantaneously, and, in the nottoo-distant future AI enabled natural language algorithms which produce legal outputs (advice and documents) by assimilating questions and database of information, the modern legal professional is dependent upon technology. To that extent legal work is, already, unbundled within practice. In the authors’ experience, particularly with discovery, the difference in cost between manual and electronic review can be several orders of magnitude. But in particular in those cases where the client requires the use of technology to reduce cost, key questions arise for the practitioner: •

do you understand how it works;


do you understand its limitations, how reliable its outputs are, and at what critical points it may fail;

do you have the skills to provide meaningful inputs;

who is taking responsibility (and therefore the risk) for the outputs of that technology?

All of those are matters which must be explicitly scoped in an unbundled retainer where the practitioner is expected or required to use particular tools, and rely upon particular outputs, to provide services to the client.

Managing a client’s expectations – the importance of communication It follows from the previous discussion that a practitioner should ensure that the client knows exactly what limited scope means and what the implications are. This should be achieved by having a full and frank discussion with the client, before the parties enter into the retainer agreement. Not only must the client understand what will be involved, but the client must understand what will not be involved: the services that will not and cannot be performed because of the limitations imposed by the scope of the retainer. This calls for proactivity on the part of the practitioner. The practitioner must take the lead by explaining to the client why particular services cannot be rendered, because of the limitations the client wishes to impose. The client needs to know the limitations of the scope of the work, lest they have unrealistic expectations. A lack of precision in scoping the retainer can lead to misunderstandings, disputation and disciplinary complaints.

Ethics and professional conduct – bundling it all up There are no statutory rules of practice specifically mentioning unbundling or limited scope retainers. The general conduct rules apply equally to all forms of professional conduct, including unbundling. First and foremost, a practitioner’s paramount duty is to the court and the administration of justice.9 This proposition does not need much explanation. But in the present context its importance lies in the need for practitioners to behave with professionalism and competence, by establishing a relationship that works for the client by providing access to the legal system.10

Practitioners must act in the best interests of their clients.11 But only within the scope of the retainer. Practitioners must display integrity in all that they do.12 That in itself does not require a practitioner to do more than the retainer requires, but what is done must be done ethically, and of course competently and diligently.13 The retainer must be performed with complete professional integrity and independence.14 Yet practitioners must follow instructions (except where to do so conflicts with the paramount obligation).15 In view of the relationship of trust and confidence existing between a practitioner and a client, practitioners must treat clients fairly and in good faith.16 Their communications with clients should always be full and frank17 and timely.18 They should not accept instructions in a matter which is beyond their competence.19 They should not accept instructions unless they are in a position to carry them out to completion.20 Nor should they carry out the engagement in a manner so as to increase the proper costs to the client.21 A practitioner should keep the client informed at all times for the duration of the matter, including by informing the client of applicable rights and possible courses of action.22 A practitioner must ensure that strict confidentiality is preserved over client information.23 A corollary of these conduct rules is the rule that practitioners must never place themselves in a position of conflict of interest.24 Some particular issues will arise, specifically in litigation, where there are multiple actors in a matter (perhaps some in-house and some external). In State jurisdiction O.26 r. 16A, to continue our example, requires that “The practitioner of a party giving discovery” to certify the discovery process, while O.20 r. 7(5) stipulates that a “pleading of a party must be signed by counsel, …, and, if not, by the party’s solicitor or by the party, if he [or she] sues or defends in person”. The Rules do not contemplate multiple practitioners in different organisations responsible for the conduct of different parts of the same proceeding, although O.20 r.7(5) seems to draw a distinction between the solicitor on the record, and another practitioner. Plainly, however, there are interface issues which need to be resolved in relation to these important questions of compliance. The position may be even more acute in the federal and some interstate jurisdictions where there are more wide-ranging and onerous certification requirements.

Taking all the conduct rules mentioned above separately and together, in the context of a proposal to enter into a limited scope retainer, it is readily apparent why the practices mentioned earlier must be adopted. It is not merely a matter of common sense, or reasonable prudence. These things are a fundamental part of the regulatory framework underpinning the entire legal profession and the administration of justice.

A parting comment We are imbued from our admission, usually by the words of the presiding judicial officer and reinforced thereafter by many sources, including this journal, that the law is a profession and there are particular responsibilities because of that. Some are not compatible with the most extreme forms of economic rationalism. That does not mean that unbundled instructions cannot be performed. They may now be a necessary part of delivering access to the legal system in a manner that is “just, quick and cheap”. However, it does mean that unbundling is not something to be undertaken lightly, and without careful consideration of its implications, and with a keen eye to self-preservation, both ethically and financially! NOTES: 1.

Director of Professional Programs | Curtin Law School, Chair, Law Society Ethics Committee.

2.

Partner, Quinn Emanuel Urquhart & Sullivan, Adjunct Professor Murdoch University Law School and Member, Law Society Ethics Committee.

3.

Above, n1.

4.

The case law, in the context of the duty of care arising as an incident of the retainer, was extensively canvassed by Beazley JA in Keddie & Ors v Stacks/ Goudkamp Pty Ltd [2012] NSWCA 254.

5.

John Cassidy, “Ronald Coase and the Misuse of Economics”, The New Yorker, 3 September 2003.

6.

Professor Ronald Coase, “The Nature of the Firm” (1937) cited by Harold Desetz in “The Theory of the Firm Revisited”, (1988) 4 J.L.Econ & Org. 141,145.

7.

Keddie & Ors v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254, [145].

8.

Michael J.Meurer, “Law, Economics and the Theory of the Firm” (2004) 52 Buffalo Law Review 727, 729.

9.

Legal Profession Conduct Rules 2010 (WA) s 5.

10.

Ibid., s 6(2).

11.

Ibid., s 6(1)(a); 7(d).

12.

Ibid., s 6(1)(b).

13.

Ibid., s 6(1)(c); 7(e).

14.

Ibid., s 6(1)(d); 16; 32.

15.

Ibid., s 7(a).

16.

Ibid., s 7(b).

17.

Ibid., s 7(c)

18.

Ibid., s 8.

19.

Ibid., s 7(f).

20.

Ibid., s 7(g).

21.

Ibid., s 7(h).

22.

Ibid., s 10.

23.

Ibid., s 9.

24.

Ibid., pt 4.

27


Law Society's Unbundling Guidelines Note: These Unbundling Guidelines should be read in conjunction with the Law Society's Costs Kit.

aspects) of a matter, necessitating a limited retainer in relation to that aspect.

Introduction In connection with the rendering of legal services, the terms 'unbundling' or 'unbundled' are used to denote discrete events of legal work, as distinct from the performance of an entire retainer from beginning to end. 'Unbundling' literally means breaking down an entire matter into its constituent parts, so that each part of the total 'bundle' becomes a matter in its own right. How matters are unbundled in individual cases is a question for the practitioner and the client to agree. For instance, a number of constituent parts may be bundled together depending on the agreement. Entire retainers usually start with the taking of the initial instructions, followed by the rendering of all necessary services until the conclusion of the case or the transaction. Unbundling is a term used in connection with all types of legal services, ranging across every kind of litigation and commercial or corporate work. These guidelines use the phrase “limited retainer” as a convenient way of describing a client agreement for unbundled services, as distinct from entire retainers.

Why do clients seek unbundled services? There is a variety of reasons why clients may require unbundled legal services, including the following: •

A client may want a practitioner to deal with only an aspect of a matter because the client cannot afford the cost of full legal representation A client may want a practitioner to act on a particular aspect of a matter because the practitioner is an acknowledged expert in a particular area of law, or the client lacks the confidence to act personally A client may be seeking a second opinion on a matter (or aspect of a matter), where lawyers are already acting in relation to the entire matter A client’s existing lawyers may have a conflict of interest preventing them from acting on a particular aspect (or

28 | BRIEF NOVEMBER 2017

When might unbundling be appropriate? In areas of law where clients generally may have modest means or limited resources, e.g. personal injury, criminal law, family law, the collection of small claims and generally in relation to small business, a limited retainer may be in the client’s best interests. It may serve the client’s interests by limiting costs and providing access to justice, which they might otherwise be unable to achieve.

Examples of unbundled legal work1 •

Advising litigants in person on courtroom procedures and behaviour

Scripting appearances for litigants in person

Working with and providing support to solicitors on the record

Conducting legal research on discrete aspects of a matter

Document reviews

Drafting contracts

Drafting court documents, including pleadings, notices, briefs, witness statements etc.

Conducting aspects of a due diligence

Providing a second opinion

Making limited court appearances

Attending court as the instructing solicitor on limited court appearances

Negotiating

Organising discovery materials

Preparing exhibits

Lodging company or business forms

Lodging documents at the Titles Office

Advising on the lodgement of documents

Risk exposure The common thread running through each of the above examples is the practitioner’s lack of context or continuity i.e. the absence of complete knowledge of the entire matter. Usually a practitioner would expect to be fully instructed on every relevant aspect of a matter so that he or she can best represent the client’s interests. But where a practitioner is asked to agree to provide unbundled services, the client may be reluctant to brief the practitioner fully to save costs or time. In those circumstances, practitioners must exercise their own judgement as to the sufficiency of the instructions needed to adequately discharge their retainer. That statement begs the questions why, or whether, a practitioner should ever accept the higher level of risk that limited retainers inevitably bring, without establishing clear self-defensive measures from the outset. Bearing in mind a practitioner’s duties to the court, the administration of justice and to the client2, potential for higher exposure to risk is inherent in agreeing to limited retainers. The natural result of the limited involvement inherent in unbundled work is an absence of exposure to the full picture, focussing only on a narrow aspect, without the benefit of all facts and circumstances. Where a practitioner is being retained for only a discrete task, the client may not fully inform the practitioner – for reasons of time, cost or relevance. In such cases, the practitioner’s duties are twofold: first, to ensure that the client is fully informed about the constraints of a limited retainer; and second, to ensure that the practitioner acts in conformity with the law and the professional conduct rules. The fact that a practitioner has agreed to a limited retainer does not diminish the practitioner’s professional duties. On the contrary, practitioners must be sensitive to the fact that a limited retainer may attract an additional burden to ensure


that evidence exists on the record to show that there has been a complete and proper discharge of professional duties. This means that practitioners who take on limited retainers must be careful to ensure that those matters are always managed consistently with the retainer agreement reached with the client.

The core question The core question is how a practitioner should cope with a lesser level of involvement and awareness inherent in an unbundled matter?

The obvious risk The obvious risk of not taking measures, for the protection of both the practitioner and the client, is the rendering of inadequate services in the absence of the full picture. The consequences of a failure to take steps consistent with a practitioner’s professional obligations in relation to limited retainers would be likely to include exposure to common law negligence claims or referral to the Legal Profession Complaints Committee, or both.

meeting about the nature of their ongoing practitioner client relationship, especially the client’s expectations and requirements. 2. Practitioners should ensure that they understand the nature of the matter and the services they are being asked to render. 3. At the first conference, practitioners should ask the prospective client about the extent of the instructions or information the client is willing to provide. 4. When considering entering into a limited retainer agreement, the practitioner must consider the ethical and professional duties arising from the practitioner’s role under a limited retainer. These include: •

Advocacy obligations

Solicitor’s obligations

Special obligations with respect to criminal law matters

Special obligations with respect to family law matters

The practitioner’s ability to discharge obligations to the court and the administration of justice under a limited retainer agreement

Practitioners’ duties Whether or not there is a limited retainer, the practitioner must discharge all applicable professional and legal duties. These encompass not only the professional conduct rules, but contractual, tortious and fiduciary duties arising from the solicitor client relationship. It follows that practitioners who undertake limited retainers must take care to ensure they discharge their duty of care to their clients.

The practitioner’s ability to discharge any or all of the duties stipulated under the professional conduct rules

The practitioner’s ability to discharge contractual, fiduciary and tortious duties arising from a limited retainer agreement

In litigation matters, the obligation to explain the meaning of case management objectives

The obligation to explain to the client any costs implications, especially any liability for adverse costs orders.

Limiting the scope of a retainer Legal practitioners who undertake limited retainers must ensure that the limitation of the scope of the retainer is reasonable under the circumstances and the client must give consent: Minkin v Landsberg [2015] EWCA Civ 1152[33]. Relevant circumstances include, for example, the sophistication of the client and the nature of the services to be rendered. It follows that the practitioner’s management of the limited retainer is critical from the outset.

What practitioners must do if contemplating accepting a limited retainer 1. Practitioners must have a full and frank discussion with the prospective client at their first

The practitioner’s ability to discharge the duty of care to the client under a limited retainer agreement

5. The retainer agreement must always be in writing. The practitioner must explain this to the prospective client at the first meeting. 6. The scope of the legal services to be rendered must be accurately and precisely scoped and described in the retainer agreement, leaving nothing to doubt. The retainer

agreement must make it clear that the practitioner is only agreeing to act within the scope of services stipulated in the agreement. 7. A practitioner must reflect on and if necessary include the following matters when drafting the retainer agreement: •

Whether it is possible for the practitioner to perform the limited retainer

Whether it is necessary to incorporate provision for interacting with the other practitioner(s) acting for the client

Whether the practitioner is required to limit communications exclusively to the client, or whether communications to the other practitioner(s) acting for the client are permitted or required

Whether any special provision must be made to protect the client’s legal professional privilege

Whether any conflicts of interest are likely

Whether it is possible to limit the practitioner’s liability

The impact of proportionate liability and the Civil Liability Act

Whether the practitioner will be responsible for accepting service of process and other documents including court documents and the obligations that flow from that

In the case of court appearances, whether the practitioner will act as an advocate or an instructing solicitor

Any costs implications, including the client’s liability under adverse costs orders

Whether any proposed clauses could potentially make the proposed retainer agreement into an unfair contract and thus void under the Australian Competition and Consumer Act

The availability of a complaints procedure.

8. The practitioner must ensure that the prospective client is fully informed about the legal services that will and will not be rendered under the limited retainer agreement.

29


9. The practitioner should explain that the client is at liberty to take independent advice in relation to the provisions of the limited retainer agreement. 10. The retainer agreement should contain an acknowledgement that the client is aware of the limitations of the retainer and the possible impact on any advice given. 11. The practitioner should ensure that the explanation of the scope and terms of the limited retainer are recorded in writing in a contemporaneous file note and immediately afterwards confirmed by letter or email (or both) to the client. 12. The retainer agreement must, if possible, allow the practitioner the ability to seek further information from the client from time to time to the extent that it is reasonably necessary for the practitioner to render the services required. 13. Any request to a party for further information should be communicated to the client in writing. 14. Before drafting a limited retainer agreement, a practitioner should reflect on the implications of the unfair contracts amendments to the Australian Competition and Consumer Law.3

15. Generally, practitioners must take special care to proactively manage the limited retainer relationship from the beginning to the end, so that there is no room for a misunderstanding or a dispute later with the client. 16. As the limited retainer takes its course, the practitioner should regularly refer the client back to the terms of the limited retainer document, for example, when explaining that certain aspects of work are not covered by the terms of the limited retainer. 17. The practitioner should be wary of rendering legal services that, by conduct, without express agreement, have the legal effect of expanding the scope of the limited retainer. 18. If the client asks the practitioner to perform services not covered by the limited retainer, the practitioner should inform the client that it is not within the scope of retainer and the practitioner is not obliged to render the additional services. However, the practitioner may negotiate an additional retainer with the client to perform the additional services. 19. If a prospective or current client asks for a limited retainer, the practitioner must warn the client of any disadvantages of doing so.

Access CPD on your terms The Law Society’s eLearning provides a complete solution for CPD, offering 24/7 access and flexible delivery on your smartphone, tablet or computer. Over 40 seminars across all competencies: Competency 1, Practice Management Competency 2, Professional Skills Competency 3, Ethics and Professional Responsibility Competency 4, Substantive Law

W: elearning.lawsocietywa.asn.au

30 | BRIEF NOVEMBER 2017

20. The practitioner must consider the professional indemnity insurance implications of regularly accepting limited retainers. The practitioner should make disclosure to the insurer of this practice.

When should practitioners not accept limited retainers? 1. If you have a concern that it is inappropriate to limit the retainer in the circumstances. 2. If you think that your client does not understand the implications of entering into a limited retainer. 3. If you think that you cannot act because it would be difficult or impossible to take full instructions. Reading material: •

www.lawsociety.org.uk/support-services/advice/ practice-notes/unbundling-civil-legal-services/

www.liv.asn.au/Staying-Informed/LIJ/LIJ/May-2016/ Practice-management--Unbundling

www.americanbar.org/publications/gp_solo/2012/ september_october/law_a_la_carte_case_unbundling_ legal_services.html

www.lsuc.on.ca/unbundling/

NOTES: 1.

This does not purport to be an exhaustive list.

2.

Legal Profession Conduct Rules 2010 (WA).

3.

Introduced in November 2016.


Whatever happened to software source code agreements By David Stewart Principal, Williams + Hughes

Back in the early 2000s, when instructed to draft agreements relating to the deployment of software, technology lawyers tended to deliver a cache of three documents: a software license agreement, a software maintenance agreement, and a software source code escrow agreement. Software source code escrow agreements had their genesis in days when small developers were sometimes here one day, gone the next. If a developer changed business, became insolvent, or lost key personnel, then the developer would possibly no longer be in a position to fix that software. This inability to fix a software failure could have a catastrophic effect upon a licensee’s software-supported business. Fixing and maintaining software usually requires access to source code, which underpins software and is, unlike object code, capable of being understood by a human programmer. Original source code can involve tens of thousands of hours in creation, and so is regarded as the family jewels of software developers’ businesses. But if the developer went bust, then where would the source code be if something went critically wrong with the software? The workaround for this was, and often still is, to place the source code into escrow with a third party. If a triggering event such as the insolvency of the developer occurred, then the source code would be released to the developer’s client. In the late 1990s and early 2000s, escrow agents included banks, law firms, and accounting firms, when it was naively assumed that whatever had been deposited into escrow was complete and would be helpful. However, source code escrow deposits were often incomplete (sometimes as a consequence of developers ultimately being unwilling to relinquish control over their main intellectual property asset), or were not periodically updated as the software morphed or improved thereby rendering the escrow deposit redundant. In addition,

additional materials like programmers’ notes and lists of development tools were often not included, resulting in the task of understanding the source code, upon release from escrow, more difficult. The idea of a junior lawyer or graduate accountant/auditor looking at a list of deposited material and ticking a box once a year to confirm the material was still in the firm’s safe seems ludicrous, but this scenario occurred with surprising frequency. As a consequence of this, an industry of source code escrow agents with significant IT capability – the ability to meaningfully audit the escrow deposit – came into existence and flourished. But all of that seems to have significantly receded. What happened? First, in those dire circumstances where source code was released from escrow, a new developer picking up the pieces would much rather sell an entirely new platform than fix a broken one using strange source code. Subjectively, I can think of no occasion where released source code has been used to repair software. This is a commercial reality not envisaged by the prudence of lawyers recommending software source code escrow agreements. Second, large and reputable escrow agents were (in my experience) not willing to compromise on the terms of their

source code escrow agreements. Thick layers of disclaimers and indemnities made some of their potential customers wonder what they were actually getting by way of comfort. Third, open source software code became very fashionable amongst developers. Open source software code does not need escrow arrangements by its very nature. Finally, and most significantly, very large developers started providing esoteric solutions easily capable of extensive and bespoke modification by authorised resellers. This caused many small developers to stop using their own code, and instead work with very useful and flexible products from, for example, Microsoft, and using Microsoft’s code. Those developers might have a lot of valuable modifications to that code (especially around interoperability and GUIs, and more recently machine learning virtual assistants), but all of that is unlikely to require an escrow arrangement. The concept of source code escrow now sounds a little old school. It still obviously happens (a Google search brings up plenty of escrow providers using AdWords to tout their services), especially for large companies with a conservative risk profile on key solutions, but not for the bulk of development projects.

31


Marking up and signing documents without printing them This article was originally published in LawTalk 910 By Damian Funnell*

Portable Document Format (PDF) files have been around since the early 1990s, when Adobe had the fantastic idea of creating a standard document format that would allow people to share documents in an ‘as printed’ format that would look the same on every device. The PDF file format was an elegant solution to a widespread problem. Prior to PDF files, sharing documents was a nightmare. Even users of different versions of Microsoft Word for Windows would find that formatting would go out of whack when they opened a document saved by the other. PDF files support inline images as well as text formatting, which also made it the perfect format for scanned images. Most scanners will now scan to PDF format by default.

and change the contents of the PDF file itself. For example, they allow you to delete and replace text within the file, etc. It is a common misconception that all PDF files are read-only, but they’re not. This is worth bearing in mind if you don’t fully trust the other party not to try and modify a PDF file surreptitiously.

Here’s a snippet of my example PDF file prior to mark-up:

Marking-up PDF Files Access the markup tools in Acrobat via the ‘Fill & Sign’ or ‘Comment’ menus on the top right of the Acrobat window. Both menus give you options to insert text into your document, but the ‘Comment’ menu gives you a much richer range of options, including the ability to insert attachments, video, stamps and rich text into the document.

Here’s the same file with markups added (all using Acrobat):

This has made PDF files the defacto standard for sharing documents, particularly documents that one party needs the other to sign. The problem is that most people don’t realise that PDF files are editable, so often we print PDF files out simply so we can sign them, scan them back in again and throw away the hard copy. In this article I’ll present some handy tips for allowing you to mark-up and sign PDF files electronically without printing them.

The mark-ups have not changed the underlying file itself. They are all saved with the PDF file and remain dynamic, so they can be modified or removed completely the next time the file is opened.

Editing PDF Files In this article we look at the features of the free Adobe Acrobat Reader that allow you to annotate and sign PDF files. There are plenty of other free PDF ‘readers’ that let you mark-up PDF files – just google ‘Edit PDF files’ if you want an alternative to Acrobat. These free products don’t allow you to change the contents of the PDF file itself – mark-ups are typically added to the file as text boxes, etc. Paid products such as Adobe Acrobat Pro (which is not free), allow you to edit 32 | BRIEF NOVEMBER 2017

Inserting Signatures into PDF Files

We don’t have space to look at each tool individually, but I’d definitely recommend creating a dummy PDF file and having a bit of a play – you’d be surprised at how powerful these tools are.

The ‘Fill & Sign’ tools in Acrobat allow you to add text annotations, checkboxes, initials and signatures to your PDF document.


When you choose ‘Place Signature’ for the first time Acrobat will provide options for creating/inserting old-fashioned squiggles or for inserting a digital certificate. The latter (which can be used in combination with a squiggle) is useful for avoiding forgery or repudiation.

Have a play with these features and find out which option works best for you. The ‘webcam’ option is pretty cool – you sign a piece of paper, hold it up to your computer’s webcam and Acrobat digitises it for you. The ‘type my signature’ option also gives you several cursive fonts to choose from. Once you’ve created a digital signature Acrobat will store it for you and allow you to simply place it into the document with the click of a mouse in future.

Just don’t forget to save your annotated PDF file before sending it to the other party. Bear in mind that they can modify or delete your annotations. To prevent them from doing so, try printing the file to PDF – this will create a new PDF file that has your changes integrated into the file itself. ABOUT THE AUTHOR: Damian Funnell damian.funnell@choicetechnology.co.nz is a technologist and founder of Choice Technology, an IT services company, and PanaceaHQ.com, a cloud software company. His clients include a number of law firms.

33


A survey of lawyers’ cyber security practices By Professor Craig Valli Director, ECU Security Research Institute

The following is a review of a study by the Edith Cowan University Security Research Institute conducted in partnership with the Law Society. The Law Society’s membership was surveyed using an online questionnaire. There were 122 respondents to the questionnaire. This paper performs analysis on the collected data and provides insight into the habits of lawyers with respect to the use of information technology and more importantly their attitudes and use of cyber security to secure their information.

Accessing the Internet. There were 233 responses. Again this question allowed multiple answers. 66 use 3G/4G, 53 use ADSL fixed network, 47 use ADSL wireless, 35 Corporate Network, 15 NBN, 6 Cable and 11 did not know.

General demographics The questionnaire contained questions relating to the demographics of the cohort who responded. The age of the respondents was broken down into various strata. These are displayed in table 1. Age

All respondents except one used the Internet to conduct business. When asked what devices they used to connect to the Internet they were allowed multiple answers to cover individuals who use multiple devices. There were a total of 337 responses, 94 used a Desktop PC, 83 used a smart phone, 79 used a laptop, 40 used a tablet, 39 used a corporate network computer and 2 identified as using Internet Cafes. If we do a simple number of respondents vs responses to work out average devices per person it comes to 2.85.

18-30

31-39

40-49

50-59

60-69

70 plus

17.21%

16.39%

27.87%

24.59%

13.93%

0.00%

Table 1: What is your age range?

The questionnaire also asked respondents to identify the type of organisation they are currently working in. These details are displayed in Table 2

Cyber Security Countermeasures There were questions asked about use of traditional cyber security countermeasures on each device type used. The first question dealt with countermeasures used on a PC or a laptop device; in essence this could be viewed as “traditional business computer” use. There were a total of 312 responses again it should be noted it was possible to give more than one answer. The results are displayed in Table 3.

%

Count

A single person practice

27.97%

33

Small partnership < 10

36.44%

43

Medium size partnership

10.17%

12

Large Partnership/ Corporate

15.25%

18

National Corporate

2.54%

3

Anti-Virus

84

89.36%

Multi-National

7.63%

9

Firewall

69

73.40%

Malware Scanner

61

64.89%

Spam killer

31

32.98%

Corporate/ Managed Service

55

58.51%

Do not know

12

12.77%

Total Table 2: Where do you work?

118

Table 3: What cyber security countermeasures do you use on your laptop/PC n=94

34 | BRIEF NOVEMBER 2017

The alarming result here is that 11% of lawyers surveyed do not have basic anti-virus protection on their PC/Laptop. Equally coupled with this is that around 13% did not know what they had on their PC/laptop to protect them. When asked what they deployed on their smart phone the responses were significantly lower by comparison. The results for the question are displayed in Table 4. Anti-Virus

23

27.71%

Firewall

12

14.46%

Malware Scanner

9

10.84%

Spam Killer

4

4.82%

Managed/Restricted by Corporate

8

9.64%

Do not know

34

40.96%

Table 4: What cyber security countermeasures do you use on your smart phone n=83

The smartphone is the device that holds the most relevant and up to date information about a professional. This statement has even greater veracity if the smartphone is used to synchronise email and calendar from corporate servers. What is alarming is that 41% of lawyers do not know what countermeasures they have deployed, if any, on their smart phone. This means that one of their primary devices is left open to exploitation as a result of potential lack of basic countermeasures being applied. Many of the new operating systems in use on mobile phones by default have some of these countermeasures turned on by default. When asked what they deployed on their tablet devices, respondents answered: Anti-Virus

23

57.5%

Firewall

12

30.0%

Malware Scanner

9

22.5%

Spam killer

5

12.5%

Managed/Restricted by Corporate

8

20.0%

Do not Know

20

50.0%

Table 5: What cyber security countermeasures do you use on your tablet devices n=40


The particular standout result here is that 1 in 2 tablet users have no idea what cyber security countermeasures are deployed on their tablet device. With tablets replacing laptops for use in businesses as the primary information device this result is of significant concern. Comparative to laptops and desktops the level of corporate governance and control indicates there is some way to go to get to the same levels. Combining these results into a single representation by technology type is informative and this is represented by Table 6.

question saw that of the 101 who responded to that question 64% were in the affirmative and 36% in the negative. The second was asking about phishing scams with a perfect score with 121 respondents answering yes, with 110 of these receiving such emails. Of the 110 who responded 90 have been offered money, 73 were related to a free prize, 67 had been lottery winners and there were 60 other types of phishing email contact.

Laptop

n=94

Phone

n=83

Tablet

n=40

Anti-Virus

84

89.4%

26

31.3%

23

57.5%

Firewall

69

73.4%

13

15.7%

12

30.0%

Malware Scanner

61

64.9%

15

18.1%

9

22.5%

Spam killer

31

33.0%

11

13.3%

5

12.5%

Corporate/Managed Service

55

58.5%

17

20.5%

8

20.0%

Do not know

12

12.8%

36

43.4%

20

50.0%

Table 6: Use by countermeasure type by technological platform

It can be clearly seen in Table 6 that there is a significant and manifest change in percentage uptakes of cyber security countermeasures by broad technology category. The level of ignorance is significant in phone and tablet based deployment of standard cyber security countermeasures. The phones are at 43.4% but the zenith of this measurement is 50% for tablets. The non-deployment of anti-virus countermeasures is highest on smart phones, which is problematic on a number of levels. Couple this survey result with the fact that most new malicious codes are produced for phone platforms and there is a significant but also easily fixable issue with smartphone use by lawyers.

Cyber Security Practices There was a series of questions that surveyed actions that the lawyers would possibly undertake during a day’s work. The questions were designed to elicit responses around practices that on face value would seem harmless, however, if one considers second and third order consequences of actions these could be catastrophic in outcome. The first of these seemingly innocent actions is connection to wireless networks at home or via free public WiFi access provided by business types lawyers would frequent e.g. restaurant, airport, other business or internet café. The first part of the

The next section started a series of questions about updates and maintenance of systems which is a core requirement for cyber resilient systems. The first question in this section related to frequency of updates on laptop/PC. Automatic updates were the highest at 71 (58.7%) responses, followed by Do not know at 13 (10.74%), Once a Month 9.09% 11, 2-3 Times a Month 7.44% 9, Less than Once a Month/2-3 Times a Week both at 4.96% 6 and Once a Week 4.13% 5. These results are grim; essentially 41% of PCs/laptops do not have automatic updates – not ideal in today’s cyber space for maximum protection and resilience. Only 24% of smartphones or tablets have anti-virus installed on them, dismal. However, updates have been applied to 88% of respondents’ phones and tablets. 92% of phone or tablet owners download apps and 88% of these only download from Google, Apple or official sites. Less than 10% download from any site which is still problematic in that 1 in 10 users are engaging in potentially dangerous cyber security practices. When users download the apps 36.5% of respondents actually read the permissions, with a further 28.7% claiming sometimes. Rarely is the preferred modus operandii for 24.3% and 10.5% never read the permissions. This result comparative to other user studies is high; this may be as a result of the respondents' chosen profession.

Respondents were asked if they had accessed any cyber security initiatives by Government, the responses were bleak given that lawyers are sometimes first responders to cyber crime or cyber related crime. The lowest was Federal Government ACORN and StaySmartOnline at 5.6% each respectively. The WA State Government website ScamWatch however had a comparatively stellar outcome with 30.2% of respondents having accessed it. The grim news is that 58.8% have never accessed any of these cyber security or cyber crime initiatives. The respondents were asked who was their primary provider of cyber security for their business. 21% of respondents administer themselves, 65.4% relied on corporate IT to provide cyber security services, 8.3% employed a cyber security specialist, 3% used a trusted family member and 2.2% did not have anyone. The question relating to a “cyber attack” and its remedy by participants garnered the following responses. Self help ran at 21% consistent with primary provider response, 72.5% IT support fixed it, less than 3% either reported it to police or employed the services of a cyber security specialist. No one reported the incident to ACORN, and one respondent simply rebooted the machine and all was well. Email practices were queried and 94.1% of respondents used email to send confidential documents. The highest response was frequency of several times a day at 58.4%, followed by 4-6 times a week 17.7%, 2-3 times a week 11.5%, once a week 5.3% and rarely 7.1%. To protect this email in transit only 9.4% of respondents use any form of encryption, with 62.4% using none at all and the remaining 28.2% who do not know. It would be safe to say that 90.6% of respondents do not use any encryption to protect client data in transit. External access of email via personal devices (home computer, phone) is at 82.6% of respondents to the survey. The implication is that security of these devices will be less rigorous than corporate protections in place. It also begs the question what happens to the documents when an employee leaves the practice. The respondents were asked if they forwarded any work related emails to a personal non-business account on Gmail or Hotmail; 52.9% of users did. When asked as to the frequency of this forwarding, 69.8% said it was once a week or better, 42.9% on a daily basis, and there was some respite with 30.2% at rarely.

35


App-based companies in the gig economy Are they your regular web-footed, quacking waddlers? This article was originally published in Proctor, March 2017

Australia will soon see judicial scrutiny of the employer-employee relationship in the gig economy. Sara McRostie and Laura Regan report on the view now being taken by British and American authorities.

Companies based on digital applications (apps) operating in the gig economy1 typically categorise themselves as "technology companies", providing a platform to connect willing workers to paying customers. In Australia and overseas, workers for app-based companies are engaged as self-employed independent contractors, as opposed to employees. This classification was recently challenged in a decision in the United Kingdom (UK), which involved two Uber drivers. It was determined that the Uber drivers in this case were not self-employed but workers entitled to minimum wages, paid breaks, and holiday and sick pay. Uber UK is appealing this decision. With test cases being filed in the United States against food delivery companies DoorDash and GrubHub, and law firm Maurice Blackburn investigating the classification of Deliveroo and Foodora riders in Australia, it is only a matter of time before the status of workers engaged by app-based companies in Australia is also tested. While the app-based company business model and technology may be new, the Fair Work Commission and courts are experienced at applying the "quacks like a duck" test in circumstances in which what is documented in the contractual relationship bears little resemblance to the actual work relationship.

36 | BRIEF NOVEMBER 2017

Independent contractor or employee? As the frequently cited statement by Justice Gray goes, "the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck".2 More recently, Fair Work Commission Deputy President Gostencnik said: "That which has webbed feet, waddles and quacks is likely to be a duck. Putting a saddle on it and calling it Phar Lap will not change that fact."3 The commission and courts look beyond the contractual description of the relationship and into the real substance of the parties' roles, functions and work practices. The judiciary looks at the totality of the relationship between the parties, and does so by considering the following factors: •

the level of control over when, where and how work is performed

the worker's ability to negotiate their own rates

the worker's ability to delegate the performance of part or all of the services

the worker's ability to generate goodwill and carry on the business as a going concern

whether the worker is paid on a result or time basis

whether the worker owns and uses their own tools, equipment or premises for the purpose of performing the service, and

whether the worker is the emanation of the head company to the world at large - for instance, is the worker required to wear a uniform?4

Are Uber drivers employees or contractors? The position in the UK In the decision of Aslam, Farrar & Others v Uber B.V., Uber London Ltd and Uber Britannia Ltd,5 a UK tribunal found that Uber's written contract with its drivers did not correspond with "practical reality"6 and accused Uber UK of "resorting in its documentation to fictions, twisted language and even brand new terminology".7 Uber UK argued that it was not bound by employment obligations because, rather than drivers providing a service to Uber, Uber was providing a service to drivers by giving them access to customers and a payment system via its app.8 Uber's case was that it was not a business providing transportation services, rather a technology company providing a platform to connect willing workers to paying customers. The UK tribunal found it was "unreal" to deny that Uber was in business as a supplier of transportation services.9 It said the "notion that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds faintly ridiculous".10 The tribunal also rejected Uber UK's argument that it helped drivers grow their own businesses, saying this was not supported by the facts, based on


rules that drivers could not solicit the custom of particular passengers or contract on any terms or conditions other than those set by Uber. Arguments have now been heard in an appeal but no decision has been handed down.

Uber was in the business of providing transportation services to passengers and that, without drivers, its business would not exist. The reality was that Uber was involved in every aspect of the operation, according to the Labor Commissioner.

The position in the US

As a result, the Labor Commissioner found that the plaintiff driver in the matter was Uber's employee under the applicable US labor law. Uber has appealed the ruling and the appeal has not been argued.15

In 2015, the Labor Commissioner of the State of California reached a similar finding in Barbara Ann Berwick v Uber Technologies, Inc., A Delaware corporation, and Rasier-CA LLC, a Delaware limited liability company.11 In this case, Uber ran a similar argument that it provides a technological platform that private vehicle drivers and passengers use to facilitate private transactions,12 and that it exercised very little control over driver activities.13 Uber denied exerting control over the hours worked by its drivers and said it did not reimburse drivers for expenses relating to operating their personal vehicle.14 Similar to the finding in the Uber UK decision, the Labor Commissioner rejected Uber's argument that it was nothing more than a neutral technological platform. It found that

At the time of writing, Sara McRostie was a partner at Sparke Helmore Lawyers, where Laura Regan is a Senior Associate.

NOTES: 1.

The gig economy encompasses people working independently (freelancing) - often utilising technology - rather than in traditional employment arrangements.

2.

Re Porter; ex parte TWU (1989) 34 IR 179 at 184.

3.

National Union of Workers v ePharmacy Ply Ltd [2015] FWC 3819 at [26].

4.

See generally Stevens v Brodribb Sawmilling (1986) 160 CLR 16; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Abdalla v Viewdaze Pty Ltd (AIRCFB, 14 May 2003, PR927871).

5.

Aslam, Farrar & Others v Uber B.V., Uber London Ltd and Uber Britannia Ltd, 28 October 2016, United Kingdom Employment Tribunal, Case No.2202550/2015 & Others.

6.

Ibid at [99].

7.

Ibid at [87].

8.

Ibid at [89].

9.

Ibid.

10.

Ibid at [90].

11.

Case No.11-46739 EK.

12.

Barbara Ann Berwick v Uber Technologies, Inc, A Delaware corporation, and Rasier-CA LLC, a Delaware limited liability company Case No.11-46739 EK at page 4, line 25.

13.

Ibid at page 8, line 2.

14.

Ibid at page 6, line 5.

15.

Uber appealed the ruling on June 16, 2015 to the Superior Court of California, County of San Francisco, Case No. CGCâ&#x20AC;&#x201C;15-546378.

If it quacks like a duck ... The lesson for Australian businesses that engage independent contractors, either under the gig economy business model or through traditional arrangements, is that the courts and commission will look beyond the contractual description of the relationship and into the real substance of the relationship. If the reality is that it has webbed feet and quacks like a duck, then, technology aside, it probably is just another duck.

37


FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Property – Married man and sex worker found to be in a de facto relationship In Sha & Cham [2017] FamCAFC 161 (16 August 2017) the Full Court (Bryant CJ, Ainslie-Wallace & Cronin JJ) dismissed Mr Sha’s appeal against Johnston J’s finding that Mr Sha had been in a de facto relationship with Ms Cham. The appellant (who lived with his wife) met Ms Cham in a massage parlour where she worked. They began having sex; discussed having a baby; she stopped work at his request (Ed: cf. Kristoff & Emerson [2015] FCCA 13 where Ms K continued her sex work); he helped with her mortgage; then they entered into a s 90UC financial agreement (which at trial he claimed not to understand). Ms Cham then fell pregnant to Mr Sha via IVF and it was found that the parties did have a de facto relationship when they made their agreement. The Full Court said (from [28]): “( … ) In determining whether two people have a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship, which may include the matters to which s 4AA refers. Whether such a relationship exists will depend on an assessment of all of the circumstances of the relationship, each … to be given such weight as the court considers appropriate (see Sinclair & Whittaker [2013] FamCAFC 129; … [E]ach … element that makes up a relationship should be considered in the context of all the aspects of the … relationship (Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131) (‘Lynam’). ( … ) [50] As was said in Lynam at 131: ‘ ... [e]ach element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a

38 | BRIEF NOVEMBER 2017

question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.’ (Emphasis added)” Property – Exclusion of any property from consideration is an error of principle – Post-separation inheritance should be in one or two pools In Holland [2017] FamCAFC 166 (9 August 2017) the Full Court (Ainslie-Wallace, Murphy & Aldridge JJ) allowed the wife’s appeal against a property order in a case where the parties cohabited for 17 years and had 2 children. The husband inherited “Property W” from his late brother’s estate 3 years after separation which was worth $715,000. Judge Jones excluded Property W from the asset pool and the wife appealed. The Full Court said (from [25]): “( … ) In our view it is wrong as a matter of principle to refer to any existing legal or equitable interests in property of the parties or either of them as ‘excluded’ from, or ‘immune’ from, consideration in applications for orders pursuant to s 79. … [26] More often than not, the expression is used to indicate that particular property, or a particular category of property, or superannuation interests, are to be treated separately from other property for the purpose of a consideration of s 79(2) or for the purpose of assessing contributions. ( …) [59] If her Honour was to adopt an ‘asset by asset’ or ‘two pools’ approach to the assessment of contributions, her Honour’s task was to assess contributions across the whole of the more than 25 year period under consideration (approximately 17 years of co-habitation and approximately eight and a half years post-separation) in respect of Property W and to assess contributions separately across the same period in respect of the balance of the parties’ interests in property (and superannuation). In our view, her Honour cannot on any view be seen to have done so.” Children – Maternal grandmother wins appeal against parenting order that discharged supervision of violent father In Stott & Holger and Anor [2017] FamCAFC 152 (7 August 2017) the Full Court (Thackray, Kent & Watts JJ) allowed the maternal grandmother’s appeal against Berman J’s order that permitted a 10 year old child who lived with her to spend time with the father

who had “a history of serious violence” ([1]). At the time of the order the child had not seen the father since April 2016. The Full Court said (from [34]): “The ‘unacceptable risk’ test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed … in M v M (1988) 166 CLR 69 where the High Court said at 78: ‘In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ ( … ) [38] We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N & S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier & Hepburn [2006] FamCA 1316 … per Warnick J adopted with approval in Potter & Potter (2007) FamCA 350 … [39] We find merit in the argument that this did not occur here ( … ) [40] All the more is this so in the face of findings by the primary judge that the father seemed incapable of accepting his history and was dismissive of his propensity to violence ... the father’s trenchant denials accompanied by ‘barely restrained anger when giving evidence’ and being ‘aggressive’ and at times raising his voice ‘to a frightening level’ … and findings that the father was not a truthful witness about either his criminal history or the nature of his engagement historically with the child’s mother … ” Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com. au. He is assisted by accredited family law specialist Craig Nicol.


The Law Society’s wellbeing and resilience programme LawCare WA has a holistic approach to wellbeing and resilience. Membership of the Law Society provides complimentary access to LawCare WA to help you manage your career, life, health and wellbeing.

Member Assistance Programme

Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

Health and Wellbeing

Members of the profession connect with experienced practitioners for advice on ethical issues or complaints through the Senior Advisors Panel and Western Australian Bar Association Referral Service.

Working in the legal profession can be rewarding and challenging. It is important to find balance in your life as you juggle career, family, friends and hobbies.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

• • •

Attend complimentary Pilates classes provided by HBF twice a year Participate in sporting tournaments hosted by the Law Society’s Young Lawyers Committee Take advantage of exclusive offers through the Law Society’s member privileges programme

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

39


Law Council Update

2.86 million pro bono hours: Australian legal profession's unique contribution to the nation

Major family law review welcome, but significant funding required for meaningful reform

The Law Council of Australia is today celebrating the remarkable achievement of Australian lawyers in the pro bono sphere, with a staggering 2.86 million hours of free legal work provided over the past 10 years.

The Law Council today strongly welcomed the wholesale review of the family law system, but said that meaningful and lasting reform will require significant court and legal assistance funding.

The Law Council has thrown its support behind the Select Committee into a National Integrity Commission report and the Joint Committee on Corporations and Financial Services Whistleblower protections report.

The Australian Pro Bono Centre has today released its 10th Annual Performance Report, showing that 420,195 hours of pro bono legal services were provided last financial year, up from 402,216 hours last year.

The Australian Law Reform Commission (ALRC) was today requested by AttorneyGeneral Senator George Brandis QC to undertake the review.

Several of the recommendations contained in these reports are consistent with the Law Council’s positions that have been put forward to both Committees. These recommendations include:

Law Council of Australia President, Fiona McLeod SC, said pro bono work by lawyers was a unique aspect of the legal profession.

Law Council of Australia President, Fiona McLeod SC, said the Law Council looked forward to contributing to the review, which will cover a range of issues that have been of serious concern to the legal profession for many years.

The Senate should review the question of a national integrity commission following the release of a national integrity assessment;

“There is simply no other profession in the country with such an established culture of helping those who need it for free,” Ms McLeod said.

“The Law Council has long been warning that our family law system is in crisis, primarily due to a lack of funding and resourcing,” Ms McLeod said.

The Commonwealth, states and territories should harmonise whistleblowing legislation across Australia;

“Australian lawyers have given away millions of hours in the past decade to those who have no one else to turn to.

“For that reason we welcome this review and especially the selection of the ALRC to oversee it. It is also very pleasing to see the ‘pressures (including, in particular, financial pressures)’ on the courts included in the terms of reference.

Whistleblower protections should include remedies for reprisals and the ability for compensation against adverse action in the private sector; and

A person should be required to have a reasonable belief of the disclosable conduct to receive whistleblower protections.

“The pro bono work undertaken by Australian lawyers is a matter of enormous pride for our profession. “The hours our profession invests equates roughly to one week of unpaid work a year for every Australian lawyer. And we know the official numbers will tend to vastly under-represent the actual level of pro bono achieved by private practitioners. That’s a remarkable, and unrivalled, contribution.” However, Ms McLeod said the pro bono efforts of Australian lawyers needed to be supported by properly funded legal assistance services if the nation’s access to justice crisis was to be addressed. “The access to justice problem that has been created by the legal assistance funding crisis would be far worse were it not for the culture of pro bono ingrained deep in the Australian profession,” Ms McLeod said. “Yet remarkable though this contribution is, we know pro bono cannot ever be a substitute for properly funded legal assistance services. “Indeed, in order for pro bono to be truly effective a strong legal assistance sector is vital, especially the Aboriginal and Torres Strait Islander Legal Services and Community Legal Centres, both of which are in fact predicated on a model which relies upon legal professionals to volunteer their time and their skills for free. “It’s important the Government backs the lawyers who are backing Australians in need.”

40 | BRIEF NOVEMBER 2017

“While the number and complexity of family law cases has increased sharply in recent years, resourcing has not adequately increased to compensate. “Those on the frontline of our family law system have been sounding the alarms for years. So ‘the appropriate, early and cost-effective resolution of all family law disputes’ is a very appropriate focus of recommendations in this review. “The current lack of resources has meant that families facing the most serious family law issues are waiting for up to three years or more before a final trial. “The Law Council looks forward to contributing to this review, however we note that any significant recommendations for reform will not be able to implemented without corresponding funding. “Of course, properly funding the court system also means properly funding legal assistance services, which are still chronically underfunded according to the Productivity Commission. For this reason we are pleased to see that this review’s scope also includes instructions to consider existing reports relevant to ‘access to justice’,” Ms McLeod said. Ms McLeod also applauded the choice of Professor Helen Rhoades to lead the review saying Professor Rhoades is eminently qualified with extensive knowledge of family law.

Legal profession backs Integrity Commission and Whistleblower reports

The Law Council also supports the recommendation to establish a Whistleblower Protection Authority to have oversight of the implementation of the whistleblower regime for both the public and private sectors. The President of the Law Council of Australia, Fiona McLeod SC, said that the two reports include important recommendations which, if implemented, would assist in strengthening Australia’s national integrity framework. “Effective whistleblower protection is critical in promoting integrity, accountability and trust in our public and private institutions,” Ms McLeod said. “Efforts to stamp-out corruption globally, regionally and domestically are to be applauded.” “We urge the Government to closely consider these reports,” Ms McLeod said. The Law Council is also examining other recommendations made in the reports such as the possibility of incentives or rewards being paid for whistleblowers. Further dialogue is required as to whether this will be necessary if the other elements are implemented and work properly. The Law Council will continue to engage with Parliament on this issue.


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Professional Announcements Career moves and changes in the profession Solomon Hollett Lawyers

Leach Legal

Morgan Solomon and Craig Hollett are pleased to announce that as of 26 September 2017, Solomon Hollett Lawyers office will be located at our new address:

Leach Legal is delighted to announce the appointment of Vince Bradley as a Senior Associate of our team.

Level 3 33 Richardson Street WEST PERTH WAÂ 6005

Vice joined the firm in October and has practiced exclusively in Family Law since his admission.

Phone: (08) 6244 0985 Email: info@solomonhollettlawyers.com.au www.solomonhollettlawyers.com.au

Vince provides tailored advice to his clients in relation to all areas of family law which include non-complex and complex property matters, parenting matters, de facto and international jurisdiction disputes.

Vince Bradley

He has significant litigation experience in both property and child-related matters as well as experience in Full Court and Supreme Court appeals and is also an experienced negotiator.

New Members New members joining the Law Society (September 2017) Ordinary Membership

Associate Membership

Associate Membership

Ms Margaret Au Jackson McDonald

Ms Asmaa A-Ali

Miss Amy Pearson Edith Cowan University

Mr Nathan Eastwood Clifford Chance Ms Nadine Edwards Sparke Helmore Mrs Catherine Hopkin Clear Legal Solutions Miss Sarah Richards Sparke Helmore Mr Marnus Smalberger Fort Knox Legal Services

Restricted Practitioner Miss Ilvana Arapovic West End Legal Ms Chloe Littlewood Lawton Gillon Lawyers Mrs Kelly McKellar Techlaw (WA) Pty Ltd trading as CT Legal Mr Stephen Waddington DLA Piper Australia

Mr Benjamin Adamson Murdoch University Miss Kelly Bates Edith Cowan University Mr Keane Bourke Curtin University Miss Alice Bradshaw Clifford Chance (Sydney) Ms Isabella Bynevelt University of Notre Dame Australia Mrs Sarah Cassidy-Schroeder Macquarie Universtiy Miss Lucy Clark University of Notre Dame Australia Ms Sarah Dyer Edith Cowan University Mr Jack Fraser Edith Cowan University Ms Rosemary Jones Curtin University Mr Stephen Kobelke Edith Cowan University Ms Sharon Mitchell Central Queensland University Mr Liam O'Shea University of Western Australia

42 | BRIEF NOVEMBER 2017

Miss Sophie Pemberton Loukas Law Miss Vuma Phiri Curtin University Ms Lauren Rose Edith Cowan University Miss Jacklyn Smith Edith Cowan University Mr Mike Smith Edith Cowan University Ms Amy Stokes Murdoch University Ms Amanda Sugg Edith Cowan University Mr Jason Walker Miss Emalee Williams Edith Cowan University

Part-time Membership Ms Christina Araujo Central Desert Native Title Services


Classifieds FOR SALE WHITEFORD, Charles, late of Aegis Parkview, 6 Drummond Street, Redcliffe WA 6104, (formerly 169B, Belgravia Street, Belmont WA 6104), who died on 18 April 2016. (Date of Birth is 05/09/1925 North Perth WA 6006). Would any person holding the last Will and Testament of CHARLES WHITEFORD or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on 1300 746 116 within one (1) month of the date of publication of this advertisement quoting reference DE 19882763 EM213 adcorp WG22456A

FREE – LAW REPORTS Loose parts to Australian Criminal Reports volumes 100-250. Might suit Community Legal Centre or small criminal law practice. Available for collection by arrangement. Also, loose parts to WA Reports volume 1-40. If interested, call Simone on (08) 9218 9200.

WILLS AND PROBATE PRACTICE May also be a good opportunity for a junior Practitioner or mother wishing to work flexible hours. Please forward expressions of interest to: PO BOX 1125 Canning Bridge APPLECROSS WA 6153

BRIEF For advertising opportunities in Brief please contact: Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

Heart of Legal Precinct - Ready to Occupy CBD Location – 2 offices (2 x 16m2) Ideally located on Level 4 of the prestigious Irwin Chambers building on the corner of Hay Street and Irwin Street. The serviced offices are directly across the road from the Perth District Court and within walking distance to the centre of the Perth CBD. Enquiries to Lee on 9221 8337 or email lee@nightstyle.com.au

Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late JOAN MARY WESTERN of 42 Hampden Street, KALGOORLIE WA 6430, who died on 06/05/2017, please contact FourLion Legal located at Ground Floor, Suite 16, 185 High Street, Fremantle WA on 9335 6643 or reception@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref: 17788

Law Society added to UWA Benefactor Wall

The Law Society was added to The University of Western Australia's Benefactor Wall due to its outstanding support towards the UWA's Law Library collection. The Benefactor Wall was unveiled in 2015. It celebrates the major donors to UWA.

lawsocietywa.asn.au

43


Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

November 2017 Membership Events Thursday, 23 November Welcome to the Profession Breakfast Parmelia Hilton Hotel

Tuesday, 14 November Coronial Inquests – a guide for advocates and their instructors The Law Society of Western Australia

CPD Seminars Wednesday, 1 November Family Law Forum The Law Society of Western Australia

Thursday, 16 November Employment law forum The Law Society of Western Australia

Thursday, 2 November Law firms must manage cyber risk The Law Society of Western Australia

Friday, 17 November Cultural diversity and the bamboo ceiling The Law Society of Western Australia

Friday, 3 November Elder Law forum – addressing elder abuse The Law Society of Western Australia Wednesday, 8 November Competition law – the next big things – where are we going? The Law Society of Western Australia Friday, 10 November Ethics on Friday: Duty of Confidentiality Delivered in-house and as a webinar The Law Society of Western Australia Monday, 13 November When there’s a knock on the door… how to respond to an unannounced visit from the ATO or ASIC The Law Society of Western Australia

Wednesday, 22 November The impact of culture on ethical behaviour The Law Society of Western Australia Thursday, 23 November Artificial Intelligence (Webinar) The Law Society of Western Australia Monday, 27 November Forensic DNA evidence and how to avoid miscarriages of justice The Law Society of Western Australia Wednesday, 29 November Shifting from the practice of law to the business of law The Law Society of Western Australia

December 2017 Membership Event Thursday, 7 December End of Year Celebration Lamont’s Bishops House, Perth

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614. For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692. For all upcoming events and further information please visit lawsocietywa.asn.au

44 | BRIEF NOVEMBER 2017


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Brief November 2017  
Brief November 2017