obiter | ByLawyers News and Updates

Anti-money laundering – All states

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Anti-money laundering policy

Commentary on the importance of law firms having an anti-money laundering policy has been added to the By Lawyers Practice Management guide. This new section of commentary assists firms to deal with the risk of money laundering and suggests procedures that can be adopted to reduce those risks.

This new commentary contains links to the Anti-Money Laundering Guide for Legal Practitioners published by the Law Council of Australia. There are also links to helpful guidance materials published by the various state Law Societies.

By Lawyers Practice Management guide

The Practice Management guide provides assistance for all firms, whether start-up, breakaway, or well established. It covers the following main areas:

  • How to perform a Legal Practice Health Diagnostic Check – a very useful tool for identifying existing strengths and areas where the firm can improve, or as a check-list for start ups.
  • Business planning for a law firm – including a SWOT analysis and environmental scan.
  • Ethics and professional responsibility – crucial to establishing and maintaining reputation and managing risk.
  • The solicitor/client relationship – how to value and manage client relationships.
  • The essentials of managing the work performed by law firms including, matter and data management, financial management and trust accounting.

The publication also contains many helpful precedents, such as:

  • Example costs disclosures.
  • Example invoices.
  • An example mission statement for a law firm.
  • A risk management plan.
  • Employment forms – including an application for employment and a new employee check-list.
  • An example asset register.
  • Forms for conducting file reviews.
  • Document safe custody records.
  • An example law firm client satisfaction survey.

Costs agreements – All states

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Enhanced automation of Costs agreements for LEAP users

As part of By Lawyers ongoing objective to provide seamless and intuitive entry of information in our precedents, the automation of all Costs agreements has been enhanced.

With the use of the ‘LEAP for Word’ add-in and the creation of new LEAP fields, the By Lawyers Costs agreements precedents now offer LEAP users the following features:

New Questions – LEAP for Word add-in

Intuitive questions for inserting applicable fee scale, fixed fee and initial amount to be held in trust. The questions appear in the LEAP for Word panel:

Simply complete the required information and click the ‘Update Document’ button for this information to populate in the correct location:

 

 

 

 

For further information on using the LEAP for Word add-in, see the document ‘Working with By Lawyers precedents’ available in Folder A on all By Lawyers Guides.

Hourly rates – New LEAP fields

When charging professional fees on an hourly rate, the rates for relevant staff members now populates automatically from the ‘Rates’ information completed for each staff member in the ‘Staff Members’ section of your firm setting:

Disbursements – New LEAP fields

The ‘Disbursements’ section now populates from the information completed in the ‘Disbursements’ tab within ‘Firm Details’:

 

Estimate of total professional fees and disbursements – New LEAP fields

The ‘Estimate of total professional fees and disbursements’ section now populates from the information completed in the ‘Accounting’ tab within ‘Matter details’ in each matter:

Please do not hesitate to get in touch if you have any questions: askus@bylawyers.com.au.

Lawyers doing immigration work – FED

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Removal of dual registration requirement

Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.

Amendments to the Migration Act

Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.

Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.

Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.

The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.

Regulation

‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.

To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.

A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.

Forms

From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.

Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.

Invoice recitals – All states

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The precedent invoice recitals from the By Lawyers reference publication 101 Costs Answers have been added to various other matter plans. This makes an enormous amount of valuable, drafted By Lawyers content more readily available to all users.

The useful library of invoice recitals provides assistance to practitioners and support staff when preparing invoices in any matter. These recitals, which detail the work usually completed in a variety of matter types, are now available on each relevant matter plan. The appropriate recital appears directly below the invoice precedent.

Invoice recitals are provided for the following areas of law:

  • Conveyancing
  • Criminal
  • Employment
  • Enduring guardianship NSW
  • Estates
  • Family law
  • Injuries, works compensation, victims support
  • Insolvency
  • Leases
  • Mortgage
  • Power of attorney NSW
  • Retirement villages NSW
  • Sale and purchase of business
  • Security of payments NSW
  • Wills

101 Costs Answers is located in the Reference materials folder on every By Lawyers matter plan. It contains practical, detailed commentary on all aspects of legal costs and disbursements. It also contains fully compliant costs agreement precedents for all common areas of law.

Certificates of title – NSW

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The NSW Government has approved the cancellation of all remaining paper certificates of title as part of the implementation of electronic conveyancing. All remaining paper certificates of title are expected to be cancelled in April 2021. Certificates of title will then no longer be evidence of indefeasible title. The By Lawyers Conveyancing and Property guides will be amended accordingly at that point.

Implications

  • For solicitors and conveyancers any lien held over a certificate of title as a form of security for payment of costs will become ineffective.
  • Equitable mortgagees holding certificates of title as security will need to make alternative security arrangements.

Alternative security for professional costs 

  • A solicitor’s lien over all client documents created or obtained in the matter.
  • Creating a charge for the repayment of costs over the client’s real property which entitles the firm to lodge a caveat on title until all costs are paid.
  • Authority to pay professional fees and disbursements from client funds held in the trust account.
  • Guarantee clause for the performance of the agreement by a guarantor, and creating a charge over the guarantor’s real property.

All By Lawyers Costs Agreements provide for these methods of security.

Alternative protection for lenders 

  • Lien over other documents or assets held by the borrower to secure the repayment of the loan.
  • Ensuring that loan agreements contain a right to register a mortgage.
  • Lodging a caveat.

The By Lawyers Mortgages (NSW) Guide contain a ‘Mortgage Linked Loan Agreement’ that is linked to the mortgage and incorporates the provisions found in the By Lawyers ‘Registered Memorandum AJ843928’. A copy of the memorandum of common provisions is recorded at NSW Land Registry Services and can be used at no additional cost by our users.

The By Lawyers Mortgages (NSW) Guide also covers caveats and contains an ‘Acknowledgement of debt – Caveatable Interest’ that creates an interest in the borrower’s real property entitling the lender to register a caveat on the property to secure repayments.

Cancellation of ALL certificates of title

Keep an eye out for the upcoming cancellation of ALL certificates of title, paper and electronic, in NSW. This will see the removal of the requirement to lodge consents and changes to the requirements relating to verification of identity, right to deal and retention of proper evidence.

There will be another Obiter post from By Lawyers when our guides are updated for these developments.

Retainer instructions – Practice management – All states

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A folder containing ALL of the By Lawyers Retainer Instructions precedents has been added to the Practice Management guide.

One of the most important tasks when acting in all areas of law is taking the initial instructions. At the commencement of the engagement with the client it is crucial to take accurate, comprehensive instructions covering every necessary aspect of the matter, so the scope of the retainer can be agreed, the issues identified and understood and the client properly advised.

Every By Lawyers matter plan has these Retainer Instructions precedents, drafted and refined by experienced practitioners to make this critical process as efficient as possible. They assist practitioners to obtain all relevant information up-front.

To make it easier to access these key precedents, especially when seeing new clients where a file has not yet been opened, all 123 of them are now available from a dedicated Library of retainer instructions in the By Lawyers Practice Management guide, under Folder A: The Practice.

This enhancement will greatly assist our website subscribers, making all the Retainer Instructions available via a single subscription to the Practice Management guide, at no additional cost. For users accessing By Lawyers via the exclusive arrangements with LEAP Legal Software, the availability of these precedents all together in one guide makes it very easy to save or print the relevant Retainer Instructions for any matter type to use in the initial conference with a client even before a dedicated client file is opened.

Staff handbook – All states

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The By Lawyers 101 Policies & Procedures guide has been re-named 101 Staff Handbook.

101 Staff Handbook is part of the By Lawyers Practice Management publication.

The handbook provides numerous policies and procedures to assist with management of a legal practice. These can be adopted or adapted by the firm as required.

Practitioners can also use this resource to assist their commercial clients with implementing appropriate policies and procedures in their businesses.

The extensive, practical content in the handbook covers all areas of legal practice. It includes the following most recent additions:

  • Managing client communications – Policies and procedures covering all aspects of firm communications including phone, email and written correspondence, plus a comprehensive complaint handling procedure.
  • Confidential information – A policy on protection of confidential information, which includes breaches.
  • Intellectual property – A simple policy for protecting the firm’s existing IP and dealing with any new IP created by team members in the course of their employment.
  • Working from home – A policy which clarifies the rights and obligations of team members and the firm in relation to working from home arrangements.

 

JobKeeper scheme – FED

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Details of the Federal government’s JobKeeper scheme have been added to By Lawyers Dealing with COVID-19 legal issues – Some practical information publication.

JobKeeper payment stimulus package

The purpose of the JobKeeper package is to assist employers to retain their employees and improve the viability of businesses during the COVID-19 pandemic.

Under the scheme, employers will receive $1,500 per employee fortnightly. Employees must be paid a minimum of $1,500 fortnightly before tax. The JobKeeper payment will be available from 30 March 2020 until 27 September 2020.

Employers pay their employees as usual and then get reimbursed by the ATO, monthly in arrears.

The new commentary covers the important aspects of the scheme. These include the eligibility criteria for both employers and employees. There are also answers to frequently asked questions.

A link is provided to the ATO website which sets out how to Enrol for the JobKeeper payment.

New powers for employers under the JobKeeper scheme

The Federal parliament has complemented the JobKeeper scheme by giving new powers to employers covered by the scheme. The Fair Work Act has been amended by the insertion of Part 6-4C that allows an employer to temporarily modify employment terms and conditions, if they are eligible for the JobKeeper scheme. This is referred to as an employer giving a ‘JobKeeper enabling direction’ to a particular employee.

The new powers include options for workforce flexibility and reducing workforce costs. This gives eligible employers the ability to stand down employees or reduce their hours, change the duties they perform, or change their location of work. The amendments also allow an eligible employer to make an agreement with an employee about work days or times, as well as the employee taking annual leave, including at half pay.

Before a JobKeeper direction can be given, employers must meet minimum requirements. For example, employers need to satisfy consultation requirements which includes notifying the employee at least three days before making a JobKeeper enabling direction, or a lesser time by agreement. No forms have been prescribed for this purpose. By Lawyers has provided example content letters, which are available from within the commentary.

These amendments enable the Fair Work Commission to conciliate and arbitrate disputes about a JobKeeper direction or request.

For more information about the JobKeeper scheme refer to Dealing with COVID-19 legal issues – Some practical information, which is available in all By Lawyers guides.

Policies and procedures – All states

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New content has been added to the By Lawyers reference manual 101 Policies and Procedures, after a recent author review.

The new content covers:

  • Managing client communications – Policies and procedures covering all aspects of firm communications including phone, email and written correspondence. In addition, a comprehensive complaint-handling procedure has been included.
  • Confidential information – A policy on protection of confidential information has been added, which includes breaches.
  • Intellectual property – A simple policy has been added for protecting the firm’s existing IP and dealing with any new IP created by team members in the course of their employment.
  • Working from home – A policy which clarifies the rights and obligations of team members and the firm in relation to working from home arrangements.

The By Lawyers 101 Policies and Procedures manual makes it easy for law firms to adopt, modify and enhance their in-house policies and procedures. Practitioners can also use this resource to assist clients with implementing appropriate policies and procedures in their businesses.

In these difficult times it is more important than ever to ensure that all team members are clear about their obligations and are on the same page when communicating with clients, handling confidential information and working from home. These enhancements can assist all law firms with their practice management.

Remote signing – All states

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Practical issues relating to the remote signing of documents such as agreements, deeds, wills and powers of attorney by companies and individuals

Remote signing of documents has become an important issue for solicitors and their clients due to the coronavirus pandemic. Face to face meetings are now largely excluded meaning clients are unable to attend at their lawyer’s office to sign documents.

Documents which must be signed need to be mailed or emailed to clients and then signed remotely.

Signatures

Signatures establish the identity of the person signing and their intention to create legal relations.  It is this intention indicated by placing their mark on a document that gives it its legal character or functionality, not the mark itself. There is no real distinction made at law between handwritten signatures, marks or electronic signatures. Signing a document electronically might be done by typing one’s name, pasting an image of one’s usual signature, using a stylus or finger on a touchscreen or using e-signing software.

Agreements

An agreement can be in electronic form and executed electronically, if witnessing is not required.

Most contracts, such as the contract for the sale of land, do not require a witness.

If witnessing is required, it can be done electronically provided the witness is present when the deed is signed. If witnessing is not possible this way due to virus related isolation, then the counterparty will need to agree to another method.

Electronic conveyancing requirements

A Client Authorisation Form may be electronically signed, subject to specific jurisdictional requirements. Whilst the Verification of Identity Standard requires a face-to-face in person interview, compliance with the standard is not mandatory and taking ‘reasonable steps’ to verify the identity of the client, such as by video meeting, is sufficient.

The By Lawyers Contract for Sale of Land in NSW and in VIC allows for electronic exchange and electronic settlement in compliance with electronic transactions legislation and the Verification of Identity Standard rules.

Deeds

Deeds usually require signatures to be witnessed and to be in writing.

An electronically-signed deed that is immediately printed out on paper may satisfy the common law requirement for paper with the first printed version being the original deed rather than a copy. However, parties to a transaction are better served to agree in advance to the acceptability of a particular form of deed and its electronic signature. Similarly, checking before execution  the requirements of organisations such as registries with whom the deeds must be registered will ensure their acceptability.

As mentioned above, witnessing can be electronic provided the witness is present when the deed is signed. If this is not possible then the counterparty will need to agree to another method.

An acceptable method might be by video attendance of the party’s lawyer who on return of the signed deed certifies it to be identical to the one submitted for signing and that the signing was witnessed by video.

Wills

The issue with executing wills remotely given social distancing, is the availability of two witnesses who are not themselves beneficiaries.

Where the required two disinterested witnesses are not available, the will may be executed informally, by the testator, who after signing it, returns it to their solicitor with a statement that they intend it to be their last will and testament. Accompanied by an affidavit explaining the signing in the prevailing circumstances, perhaps with video witnessing, a grant of probate of the informal will is likely to be made if required. Once the pandemic ends the will can be properly signed.

Powers of attorney

A general power of attorney does not need a witness and can be signed remotely.

However, an enduring power of attorney must be witnessed by a prescribed witness – usually the principal’s solicitor – who must also certify that they explained the effect of the document to the principal and that they appeared to understand it. On that basis remote signing is technically impossible.

Where a face to face meeting – even one at an outdoor location with appropriate distancing – is not possible, the document could be sent to the client by post or email for their written or electronic signature. Their lawyer could hold a video conference with the client and explain the document and see it signed by their client. When returned the lawyer can certify that they gave the explanation and were satisfied as to the principal’s understanding, but whilst unable to personally witness the document being signed, they witnessed the signing in video conference.

In this practical way the power is likely to be acceptable in most cases where there is no issue raised.

Where this approach is taken, the risks that the document may not be effective need to be explained to the client and appropriate file notes made.

Appointments of enduring guardian and Advance medical directives

The same witnessing and certification procedures apply to these instruments as for enduring powers of attorney. Similar practical, emergency measures might be undertaken.

Company execution

It is arguable whether a company can execute a document electronically under s 127 of the Corporations Act 2001.

However, in this busy world of commerce it is common for documents to be signed by duly authorised officers, or one director, or by a duly appointed attorney.

Generally

The ongoing response to Coronavirus means that emergency measures are rapidly being introduced to modify the usual signing and witnessing requirements. For example, some courts will currently accept unsigned affidavits on the basis that they will later be formally executed if necessary. The website of each court should be referred to as required.

 

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