2018 PRESIDENTIAL INITIATIVES

The President reflected on the tremendous privilege and honour it is to be able to serve the society of lawyers. 

President Humphreys acknowledged the enormous amount of time both personal and professional the Regional Presidents and their Committees give up to represent their regions.  The President also drew attention to the important role the regional law societies, the lifeblood of the profession, play especially in fostering collegiality between local practitioners, settling disputes effectively and quickly, and providing continuing legal education locally. 

Presidential Visits

President Humphreys intends to visit as many regions as possible during his term. So far this year the President has been to five regions:  Wollongong, St George-Sutherland, Blue Mountains, Central Coast and Liverpool Fairfield. 

The President noted that as lawyers and officers of the Court, we stand for the rule of law; the separation of powers; access to justice; and the independence of the courts and judiciary.  The Law Society also stands for:

• the right of the legal profession to practise law without undue government interference and regulation, and
• the right of lawyers to be able to make a reasonable living as trusted advisors to their clients.

The President’s policy agenda this term will continue to be diverse and full, reflecting the priorities of all segments of the legal profession.  President Humphreys will advocate for:

• the enhanced resourcing of the Local Courts
• proper resourcing of Legal Aid, which plays a critical role in facilitating access to justice.
• a more transparent system, than perhaps exists, in relation to appointments to Tribunals
• the appointment of solicitors to the superior courts.

Included in the President’s 2018 priorities are to:

• investigate ways to reinvigorate the role of the Solicitors’ Benevolent Fund and bolster its resources
• continue our Advancement of Women project, including roll out of the Charter for the Advancement of Women to senior roles within firms, and other organisations.
• continue our career transition support and mentoring services for women.
• implement the recommendations of our landmark Report into the Future of Law and Innovation in the Profession
• identify new ways to apply the findings of our Indigenous justice projects and challenge whether the NSW public is getting value for money by incarcerating so many people
• press for the rapid build of a large multi-court complex in South West Sydney which is a high growth area.

The President’s Charity for 2018 is The Butterfly Foundation.  Butterfly is the leading voice for those affected by eating disorders and negative body image.  This is a complex and challenging mental illness that touches the lives of many people around us, whether our family members, friends or colleagues. 

I encourage you to support the Foundation’s work by giving generously.  This year the Just Art and Just Music programs will support the Butterfly Foundation.

Express yourself with Just Art and Just Music

By popular demand, the Law Society's charity arts initiatives Just Art and Just Music are on again.

Enter your original artwork or song on the theme of justice.

Finalists will be showcased at an art exhibition and a concert later this year in support of The Butterfly Foundation.  Entries close on 31 May.

To find out more visit: https://www.lawsociety.com.au/president.

NEWS

Legal Aid fee and panel structure

The Law Society is making submissions to Government to increase the legal aid rate on a CPI basis given the rate has not increased since 2007. 

Call to Action

We are being asked to assist with the public awareness campaign by contacting local media and making representations to Members of Parliament. 

 

Solicitors’ Benevolent Fund

The President has proposed that $1 to $2 per member be allocated to the Benevolent Fund so it has capacity to help members in dire financial need. 

 

Review of Mental Health Services

Mr Tidball is leading The Law Society’s review as to whether its mental health service gives value for money and reaches those practitioners who need assistance at an early point. 

President Humphreys highlighted the strong work ethic of the profession, along with the intensity of strain.  The importance of letting people know “it’s okay that you are having a problem and it’s good to get help early” cannot be over emphasised. 

An effective suite of services will be identified by the end of the year.

 

Appointments to the Bench

Since 2012 the District Court has made 38 appointments, none of whom were solicitors.  As you would be aware, barristers have been appointed to jurisdictions where they have no experience, eg Family Law. 

The President will continue to support the appointment of solicitors and seek reinstatement of a transparent merit-based process for appointments.

 

Parramatta Court – Proposed Family Provisions List

The Chief Justice has asked the Law Society if there is sufficient demand for a Judge to be appointed to the civil jurisdiction of the Supreme Court at Parramatta to decide matters in the Family Provisions List.  There was general consensus that for solicitors in adjacent regions, it would be easier to appear at Parramatta, although this will depend on the availability of Counsel. 

Regional Presidents are working with Mr Tidball to identify how much work Parramatta and adjacent regions would generate.  Parramatta Law Society has devised a survey for practitioners to identify commitment to Parramatta filings. 

 

Parramatta Court – Local and District Court

Regional President Bide reported there are insufficient Judges in the Local Court and District Court at Parramatta to meet demand as more people are coming before the Court than previously representing 5% compound demand.

 

Proposed Court Complex – South West Sydney

The projected population growth in the South West over the next few years is phenomenal.  There are currently more sittings ready for listing at Campbelltown than at Parramatta. 

While the Government is planning to build a Court House at Campbelltown, the President believes it will be cost effective to construct a comprehensive complex comprising a minimum of two District Courts, two Local Courts, a Children’s Court and rooms for the Federal Circuit Court and NCAT to sit, rather than something which will require further work in a few years’ time. 

Liverpool, Cabramatta, Southern Highlands and possibly Penrith and the Blue Mountains will benefit from a complex in the South West.

Call to Action

Regional law societies adjacent to Macarthur will be asked to support dedication of a site and budget to build the complex. 

Regional President McGrath thanked the Law Society for taking the lead on this project and noted the South West of Sydney has the highest population growth in Australia. 

 

Indigenous Incarceration Rates

Regional Presidents were reminded that 3% of the NSW prison population is indigenous, 45% being female.  While the profession cannot solve the issue, the President noted solicitors can play a role in the solution.

 

CTP

The Law Society has worked relentlessly along with the Personal Injury Committee to mitigate the anticipated impact for motor accident victims and the profession.  The significant contributions of Councillor Terry Stern and the Personal Injury Committee in preparing submissions to Government and modifying policy were acknowledged. 

Mr Tidball indicated that while the process has been long and drawn out, the Law Society has listened to its members and done its best to achieve the least damaging outcome.

Mr Tidball reported that the current round of reform centres on working with SIRA and the Department of Finance to finalise the dispute resolution framework for CTP and again acknowledged the Committee’s efforts to identify a workable approach to this.  Mr Tidball confirmed the Law Society is seeking continuation of a system of costs for lawyers to be paid for the work they do.

 

PLEASE NOTE:

Practitioners are reminded to let prospective clients know that, under the new Act, if a claim form is not lodged within 28 days, people have to wait two years to be eligible to make a claim for back pay.  Where the injury is “minor”, the money is returned to the insurer. 

The missing link between common law claims and statutory benefits claims, which has a significant impact for clients’ workers compensation entitlements if over 10%, is being reviewed but the Government has not yet proposed a legislative amendment.

Focus groups have been established to look at the Legal Aid fee and whether or not people should continue with a legal representative or another representative. 

 

State Election Policy Platform

A working group has been established to identify issues for the State Election Policy Platform.  It is anticipated this will include funding of Legal Aid and the Courts, the number of people in custody, and the viability of legal practices.

 

On Notice

The Law Society will be publicising politicians’ responses to its Election Platform and we will be encouraged to make representations.

 

New Mandatory Data Breach Notification Scheme

In addition to the requirements for reporting breaches of client data, Regional Presidents and their Committees are responsible for reporting any breaches in respect of the member data they maintain.  Arrangements are being made for Mr Patrick Fair to give a presentation on the Mandatory Data Breach Notification Scheme to the Regional Presidents meeting in May 2018.

 

Lawcover

The rebates Lawcover has been able to provide over the past two years reflect its capital strength. 

Mr Tidball again commended Lawcover’s risk management education program the success of which, to the credit of the profession, is reflected in the level and type of claims received.

 

Uniform Law and Costs Disclosure

The new Legal Services Commissioner, Megan Pitt is engaging the Law Society to identify a workable solution to reduce reporting requirements.  Commissioner Pitt tabled draft costs disclosure forms for Estimates and Fixed Fees. 

Several concerns about the practical application of the legislation were raised with Commissioner Pitt including:

• solicitors do not have an opportunity to re-engage with clients who are incarcerated and disclose costs.
• The preparation of indictable serious offences rarely costs less than $3,000 plus GST. 
• If solicitors are required to complete a costs disclosure form when the consultation costs for example only $90, it will take additional time.
• In the Probate jurisdiction the fee a solicitor charges is fixed by the Rules depending on the value of the estate.  It may be months before a valuation is obtained.
• When a solicitor provides a full costs disclosure, they are obliged to breach the Rules.  Subsequent revisions fly in the face of the legislation which requires solicitors to “fully inform”.  Commissioner Pitt indicated she would raise this aspect with the Legal Services Commissioner, John McKenzie.
• It has been suggested that a $1,000 discount be offered to clients because this is what it will cost to argue a bill. 
• The requirement to give clients one figure should be removed from the legislation;  clients want to know the range. 
• When clients are given estimates it is uncertain that they read and understand the arrangements. 
• Clients have been known to send 30 emails a day just to make an appointment and expect this to be within the framework of the solicitor’s estimate.
• When solicitors keep discounting their bills so they can be paid, there is a systemic issue.

 

Review of the Public Purpose Fund

The size of the Public Purpose Fund has reduced over time, with current expenditure subsidised from the corpus rather than interest on the corpus.  In addition, the record low interest period has reduced fund earnings. 

A number of recommendations to minimise the impact have been made to the NSW Attorney General. 

 

Trust Account Monies

Members are reminded that the interest on monies held in trust is deposited in the Public Purpose Fund and another statutory fund.  The money in these funds is invested by the Law Society on the short term money market and safe investments, generating additional interest. 

The Public Purpose Fund funds regulation of the profession and the costs associated with prosecuting malfeasants.  There are three additional principal beneficiaries of the Fund:  Law & Justice Foundation, PIAC and Legal Aid NSW, the latter of which receives the dominant amount.

 

Review of the Legal Profession Conduct Rules

The Law Society’s Senior Ethics Solicitor, Paul Monaghan spoke to the Law Council of Australia’s review of the Conduct Rules.  While no great change is proposed, Mr Monaghan particularly drew attention to Rules 9-12 (Confidentiality and Acting Against Former Clients), Rule 42 (Discrimination, Sexual Harassment and Workplace Bullying including bullying by proxy), and Rules 27-28 (Social Media and Publication) 

Issues canvassed include:

• the Rules do not address the authorship of documents and there is not much about the identification of solicitors or those involved in matters,
• the impact of the increasing use of electronic transactions,
• the Rules have implications for the use of social media,
• some consideration may be needed in respect of changes with the LPI and Verification of Identity,
• use of affidavits and statutory declarations is becoming increasingly important, and
• there has been an erosion of courtesies and standards. 

The importance of having effective Conduct Rules given there are currently 32,000 solicitors in NSW and 8,000 in Victoria, and in the next 5 years the population will increase by between 40% and 50% cannot be emphasised enough. 

Mr Monaghan has asked for feedback on the proposed Conduct Rules.  The Discussion Paper is available here. 

Please forward your comments to me.

 

Online Registry and Online Court

The Law Society has published some Guidance for the profession here.

The Litigation Law & Practice Committee has prioritised seeking improvements to the Online Registry and Online Court in its brief. 

 

Call to Action

Please forward details of any issues you encounter to me so I can raise them at the next Briefing Day.

 

Keep the dispute local, everyone reaps the benefits!

The Law Society of New South Wales is focusing on promoting Alternative Dispute Resolution (“ADR”) and in particular, the use of the Family Law Settlement Service (“FLSS”) and Mediators Panel in regional NSW over the next few months. 

There are significant benefits for clients and the profession by keeping the work local.  The Law Society has qualified solicitor mediators on their panels in many regions who can be appointed. There is often no need for parties to travel to Sydney.

I encourage you to refer disputes to mediation wherever appropriate, so they can be dealt with in the region through the appointment of a local mediator. 

What can you do?

• Discuss alternative dispute resolution options with your clients.
• Include mediation clauses in your contracts (wherever appropriate).
• Offer and agree to mediate – not just at the start of a dispute but throughout the process. 
• Appoint a local solicitor mediator to resolve disputes.

Mediation support materials you can download:

1.      Posters (Mediation Program and the FLSS)

2.      Brochures (Mediation Program and the FLSS)

3.      Model Mediation Clause

4.      Pro-forma Consent Orders for the FLSS (PDF or editable Word doc)

The Law Society's ADR team will be visiting regional areas over the next few months to promote ADR.  Please also see the webpage.

 

Cybersecurity

The Law Council of Australia has developed some Guidance and an online Cyber Precedent.