ByLawyers News and Updates

Opportunities for law firms – All states

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Opportunities for law firms during the COVID-19 period

This time of reduced activity presents opportunities for law firms to find efficiencies, upskill staff and switch focus to diversify into other practice areas.

Despite the encouragement to self-help with the writings of such luminaries as Stephen Covey the one habit that remains rigid is the resistance to change. Covey’s advice is to work on the practice not just in the practice. This is an ideal time to do so.

Office organisation provides the basis of profitable and worry-free practice. Profit is not necessarily related to size or location or how busy a firm may be. Busy firms are often poor profit performers due to poor managerial practices. The more profitable firms simply better organise and manage their practices. This is achievable through the use of LEAP’s matter and accounts management software and By Lawyers Practice Management Guide and Office Policies, both uniquely suitable for handling matters remotely.

Accompanying work on office organisation is the opportunity to supplement the firm’s precedents, which are generally dependent on the personal knowledge and style of the practitioner and are often accessed from previously closed files or written anew each time. This practice can now be improved and supplemented with By Lawyers professionally drafted precedent packages ensuring complete subject matter coverage and consistency.

By Lawyers resources

By Lawyers have the resources to enable advantage to be taken of these opportunities for law firms. The By Lawyers precedents are presented in sequential order in a plan for the conduct of each matter from opening to closing each file from compliant disclosures and initial letters through all required documents to final letters. All of the precedents are contained within the LEAP software and have been automated with fields and codes.

To assist practitioners in the practice and law behind every precedent By Lawyers present a unique system of integrating research commentary with the precedents with outgoing links to legislation and case law when required. This system allows even the rustiest practitioner to successfully and compliantly navigate a less familiar area of law and satisfy the client by producing the desired outcomes on time. At present it is difficult to turn away any work simply because it might be outside a firm’s normal experience. All new work creates more new work. Witness the family law client that needs new wills and the sale and purchase of a home or a business purchaser who needs a company shareholders agreement or a partnership agreement.

By Lawyers daily keeps up to date with changes to law and practice removing this concern from then firm. Ideal for staff training, undertaking new work and being more productive By Lawyers guides are only available as a companion product to LEAP Legal Software and are perfect for those working from home or in the office.

Celebrating Guy Dawson’s 50 years in legal practice

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bylawyers_guy_dawson_50_years_legal_practice_founder

By Lawyers was proud this year to celebrate our co-founder and Editorial Director, Guy Dawson achieving 50 years as a continuously practising member of The Law Society of New South Wales. Guy was admitted on 31 May 1968.

Guy completed his articles at Robilliard & Robilliard and practised as a solicitor with Marsdens, Shailer Dawson, Pedley Dawson, Dawson & Butt and Our Lawyers before co-founding By Lawyers.

During this time Guy dedicated himself to general practice, developing a wealth of knowledge and experience across many areas of law.

Guy Dawson is well known for his collegiate and practical approach to his dealings with other lawyers, focusing on creating cost-effective and timely solutions for clients and building working relationships that are founded on trust and honesty.

Drawing on his experience and regard for the legal profession inspired Guy to create By Lawyers with the goal of making the practice of law more enjoyable and reducing the risk that small law firms face. Today, By Lawyers Legal Guides and Precedents are used by more than 10,000 subscribers across Australia, making Guy one of the most read legal authors in the country.

Guy’s years of dedication and hard work in bringing By Lawyers to firms across Australia is a significant contribution to the legal profession and the betterment of law and justice in the community. The By Lawyers team is proud to be a part of Guy’s bold vision.

Time management

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By Guy Dawson, CEO

 

 

Time is finite.
We all have the same quantity.
It cannot be enlarged or extended.
It is set and settled.

 

 

 

So the use of our time, effectively or clumsily, productively or wastefully, differentiates between good outcomes and modest ones. Many of us say: How can we do more when we work all day already? This fails to appreciate that it is the effective use of time, not just time spent, that counts.

So, the question is how to use time effectively?

Not surprisingly it starts with spending no time at all on work through automation.

Interactive data bases populating pre-written letters and documents with automatic entry of accounts to client ledgers. Sublime – concentrate on the law not the production. Introducing such a system is astonishingly time saving to those who have not experienced it before.

It progresses to introducing a system that provides direct access to information that may be needed to find an answer to a legal question or to a practice or procedural issue without any time spent looking for it. Information retrieval can be a major, time-consuming activity in all but the rote work in a practice, and even then there are occasions you need to look something up.

Having established a sewing machine system for handling matters, attention needs to be given to the time spent in communications with staff members, particularly in dealing with the many questions that arise each day such as customer complaints, wage increases and holiday rosters. By having in place a management system that deals with the various office policies and procedures, and that is accessible, and readily understood, by all staff is a major time saver. It also empowers staff members by providing them some independence.

The nature of legal practice is such that no one has the time to devote to administration unless it is critical. Despite good intentions the only consideration given to time usage is at best occasional, when forced on the principal, usually in situations such as a failure to meet a time constraint.

In a truly contradictory fashion time spent on the practice, which is largely seen as the most non-productive expenditure of time is in fact the most productive time saving activity of all!

Habits should be broken

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By Guy Dawson, CEO

Despite the encouragement to self-help with the writings of such as Dale Carnegie and Stephen Covey on winning friends and being highly effective the one habit that remains rigid is the resistance to change.

So as legal insurers struggle to make safe the behaviour of older practitioners, and only have hope for influencing the practice of younger ones, those heralding change from paper to digital from old language to new, from old precedents to better new ones, struggle for converts.

Admittedly change is painful – like learning the operation of a new phone or assembling Ikea furniture. A bit of time and a bit of patience is required for both, and yet neither is plentiful in the life of a practitioner. Yet the rewards are!

It seems the most successful firms welcome and embrace new technology, modernise their precedents, improve management, incentivise staff and refresh their practices each and every day. They make more money, and the practice of law becomes a little easier. Vitality is their habit.

Sounds exhausting – but much less so than the apathy of endless hours of unchanging slog.

 

De Facto – The Tension Between Family law, succession law and Superannuation

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By Guy Dawson, CEO

It is generally accepted that when two people get together there are circumstances that exist, or a period of time that has elapsed, before they can be considered life partners – before their financial lives are joined and divided in an equitable manner on separation or death.

In order to investigate whether there is in fact a de facto relationship in family, succession and superannuation law, the interpretation acts such as the Commonwealth Acts Interpretation Act 1901 section 2F sets out the matters to consider as follows:

(a) the persons are not legally married to each other; and

(b) the persons are not related by family; and

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Working out if persons have a relationship as a couple the circumstances considered may include any or all of the following:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

Registering a relationship is tantamount to deciding to marry so it is not a common practice.

Family Law

For the Family Court to make orders, under the Family Law Act 1975, the time that must have elapsed for the finding of a de facto relationship is at least 2 years.

The other circumstances that may establish jurisdiction are:

  • That there is a child of the de facto relationship; or
  • That the party to the de facto relationship who applies for the order or declaration, made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant; or
  • That the relationship is or was registered under a prescribed law of a State or Territory.

Financial arrangements before the expiration of that time are matters for consideration by the courts as partnerships or joint venture arrangements.

Succession Law

Succession Law across the States defines the term partner or spouse to include a person who was either married to or in a domestic partnership with the intestate. Domestic partnership is a relationship for a continuous period of at least 2 years prior to death, or that was registered under a prescribed law of a State or Territory, or one that resulted in the birth of a child,.

Superannuation

The relationship test of 2 years, does not apply to the determinations of Superannuation Trustees under the Superannuation Industry (Supervision) Act 1993 .

The failure to include such a time period in the SIS legislation results in some ludicrous decisions which sees large sums of money paid to a boyfriend or girlfriend in a relationship of only a few weeks, or a month or two shacked up, without children and no registered relationship. Family members such as parents and siblings are often overlooked and receive nothing at all.

The SIS Act needs to be brought into line with family and succession law to provide the minimum period of 2 years so common sense can prevail.

Common law allows for common sense

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By Guy Dawson, CEO

For reasons hard to understand, the profession seems to have gone along with the growth of regulation and the slow demise of common law.

It needs to be said loudly and clearly that common law allows for individuality, flexibility, and common sense, whilst regulation equates to conformity and rigidity.

It is time to reaffirm that personal responsibility should determine our behaviour, with resort to the good offices of the bench if we stray outside the reasonable bounds set by the laws of contract, crime and tort. The wrong worked on our freedoms, by regulating our behaviour is now ever present.

Each day I am assaulted by the mindlessly inflexible rules designed for everyone and yet suiting no one.  These well-intentioned rules are developed to comply with suffocating regulation and administered by impersonal apparatchiks in government and big business, all of whom have lost sight of everyday common manners and friendliness, and all are securing their jobs and protecting their backs against some imagined threat.  At the forefront of this unconsciousness are the privacy rules followed closely by the consumer credit rules and verification of identity rules.

It seems that we are no longer to be trusted with the discretionary freedom to choose, contract, and speak, as the imperfection of individual behaviour is no longer preferable to standardised impersonal behaviour produced by controlling regulation.

A source of anxiety

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By Guy Dawson, CEO

All of us behave to comply with the views of the group to which we belong. It is our collective mindset. We witness this in our children every day as they seek to fit in with their peers at school. Long hair short hair, shirt in shirt out, don’t drop me off in the Porsche please use the ute, can’t leave before midnight not 10 please Mum. And so it goes. As Aussies we don’t much like the way the Yanks carry on and as for the French or the Germans well what are they all about, they don’t even play cricket.

And so here we are in 2017 in a group which boasts of a 30% depression rate and twice the general population’s substance abuse. And this group has since 1970 multiplied in number 50-fold. This is us – legal practitioners.

So what goes on that makes our group have such a high level of dysfunction? Why is it that almost universally practitioners express their desire to do something else if only there was something else they could do?

Perhaps some answers.

The job is demanding – Organise the office. Use matter management software, accounting software, purchase or subscribe to reliable up to date legal support materials including precedents. Manage risk by using matter plans for the conduct of every matter.

Clients are always trouble – Learn how to ensure the monkey stays on the client’s back – not yours. Put the client’s interests in front of your own. Candour efficiency and charges that are reasonable and in line with the market, are essential in minimising trouble.

Can’t rely on the staff – Incentivise, train and have strong reliable office values. The psychology of all businesses flows down from the top. Your nature will be the nature of the practice. Ideally, light hearted, efficient and successful.

There is always conflict – speak to the other side’s practitioner. Seek compromise and agreement. Resolve arguments as quickly and cheaply as possible. Never put fee earning above quick resolutions.

My professional responsibilities and compliance requirements overwhelm me – remember the purpose of all the rules is to ensure that the relationship with clients is an honest one. Get the retainer right, do the job well and on time, charge market rates, communicate with clients. Easy really !

With the deregulation of fees our profession became a business and put us in competition with an ever-growing group of fellow members.

For the sake of the law it is time we recognised that a ‘business’ model does not work and we returned to the days when we were a profession and part of an important group worthy of the respect of the community for the role we play in the implementation of a fair and stable civil and criminal system. The practice of law is a challenge not a sentence. It has scope for great satisfaction but like all good things takes some work to achieve.

 

The search for an easy way

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By Guy Dawson, CEO

Bearing in mind that easy paths are always downhill is it possible to practice law in an untroubled way? It seems unlikely in the face of the evidence of the widespread dislike of the lawyers lot. Why is it that a serious approach to the lawyers duty to act in the best interests of their clients is assumed to be difficult and preclude good humour and a light touch. Must it be so? No. The onerous complexity of legal practice is reduced by matter and information management systems that are readily available. Why is it that, after years of study, the pursuit of knowledge stops on graduation and inertia replaces investigation of the next step of converting intellectual preparation to its practical application.

The practice of laws is not a sentence to misery but it needs effort to find the easy path which is not downhill. Systems systems systems is the answer. Spending the time and the money to introduce them is the only path to practicing happily.

Office organisation

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By Guy Dawson, CEO

The importance of office organisation cannot be overstated. It provides the basis of profitable and worry free practice. Profit is not necessarily related to size or location or how busy a firm may be. Research shows that busy firms are often poor profit performers due to poor office organisation and managerial practices. The more profitable firms simply better organise and manage their practices.

The work in a practice is usually either low margin repetitive work like conveyancing which is handled by staff members under the supervision of the principals or high margin work in which the costs are less critical to the client than the quality of the advice. Low margin work requires highly organised practices and this can be achieved through the adoption of readily available technology and systems.

Such systems establish the role of each person in the practice by allocating their responsibilities. These are defined in a position description. In performing their role staff need direction, ongoing support, and training. Office policies are the everyday rules by which the office ship is steered and must be foremost in everyone’s mind all the time. Examples include, how to answer the phone, how to behave towards clients, how to deal with complaints, on time delivery of work. This is best achieved through saving a policy manual on the desktop of each staff member and regular if not daily but brief meetings for discussion by all team members. By this means a team is created with a supportive and coherent approach to the complex work of a legal practice.

Time spent on a practice is rewarded in multiples when working in a practice.

Relationship management

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By Guy Dawson, CEO

In ordinary exchanges with fellow humans, respect, common courtesy, and respect for equality are the norms of good relationships. However, the solicitor client relationship, unlike neighbourly relationships, is multi-layered and susceptible to imbalance as clients seek to unload their problems onto their advisors – to put the monkey on their back.

The fundamental basis of the relationship is the retainer. This is essentially a contractual relationship. It is at this starting point that the scope of the work must be agreed and the nature of the relationship established and the monkey on the back notion firmly dispelled.

The solicitor also owes a tortious duty to the client.

And finally a solicitor is regarded as being in a fiduciary relationship with the client.

The Australian Consumer Law, found in Schedule 2 of the Competition and Consumer Act 2010, is generic consumer protection legislation. The Legal Profession Uniform Law and the Rules made pursuant thereto, are specialised consumer protection legislation aimed solely at regulating lawyers and the provision of legal services.

Some interesting incidents of the relationship of interest are:

–     An actual conflict of interest between solicitor and client is in breach of the solicitor’s duty to the client.

–     The duty of confidentiality survives termination of instructions and the death of the client.

–     The solicitor is authorised by the relationship to act on behalf of the client, becoming the agent of the client, but owing to the fiduciary nature of the relationship, the solicitor must exercise that authority strictly in the interests of the client.

–     Any failure to achieve the standard of a reasonably competent solicitor in the performance of the retainer will expose a solicitor to an action for negligence by the client. Specialist Accreditation results in a higher duty of care to clients.

–     A solicitor has a common law possessory lien over a client’s documents until the solicitor’s costs have been paid.

–     Upon termination of the solicitor–client relationship, and payment of costs, the client is entitled to the file.

–     Communications between solicitor and client are privileged if the communication was made for the purposes of giving legal advice, or for use in existing or anticipated legal proceedings. Privilege will rarely arise in relation to conveyancing transactions.

–     The police or other authorised persons – ATO, ASIC, et cetera – may be authorised to search and remove documents from a solicitor’s office.

Despite these special incidents, a good relationship remains founded in respect, courtesy, a sense of equality between client and advisor, and an honest and earnest application of the adviser’s special skills to achieve the outcomes sought by the client.

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