ByLawyers News and Updates

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.

Matter management

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By Guy Dawson, CEO

All practices use technology to a lesser or greater extent to run client matters, produce documents, keep accounts, and access information on ever changing law and practice.

In their guides and precedents, By Lawyers have responded to law office needs by providing practitioners with a system for running all common matters encountered in practice. They have brought together all the ingredients needed for the conduct of most matters in matter plans, taking practitioners from file opening to finalisation with all required letters and documents provided in sequential order accompanied by practical guides and research materials.

These guides and precedents are practice based not academic. Accompanying the precedents are the research materials relevant to each matter. If preparing a contract the law relating to such matters as disclosure requirements or GST are a click away. If conducting a family law matter the rules on pre-action procedures are again a click away. The information runs with the precedents. The precedents themselves run sequentially from starting to ending every matter.

Behind the straightforward commentary is further research material in the 101 series. Alternate precedents are found in libraries so for example the terms of a testamentary discretionary trust are found in the wills library of clauses. As the law changes, so the commentaries are updated on a daily basis relieving the practitioner of the need to keep abreast of changes in the law. If a precedent is not provided then users are welcome to contact By Lawyers and discuss their requirements, which will be met. This pro activity is central to our ethos of providing all that is necessary for practices to conduct all common matters.

By the use of this system it makes little sense for any member of staff including the principal to dictate a letter, or make written notes, or write time sheets to be put on the file later, by someone else. Uniform practices are established throughout the office and immediate and substantial increases in production and profits are achieved.

By Lawyers also provides a subscription based mentoring service to assist with answers that arise in general practice in most areas of law.

Research management

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By Guy Dawson, CEO

A general practitioner rarely requires an in-depth consideration of a matter of law but rather needs to access the law, practice and procedure relevant to a transaction in hand.

For a specialist, these are well understood but for the general practitioner, who may only conduct such a matter occasionally, ready access is a necessity.

This challenge was met by the development of the By Lawyers system of integrating research commentary where needed amongst the precedents with outgoing links to legislation and case law. Behind the straightforward commentary is further research material so for example in real property sale and purchase there is 1001 Conveyancing Answers

The other highly recommended research management initiative is to nominate, at a team meeting, an area of law for a member of staff to take as their area of expertise. This generates a team involvement and an education interest in every staff member. So for instance if a will interpretation question arises the nominated will expert staff member does the research and reports back at a team meeting. Very good for overall morale and individual satisfaction.

Accounts management

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By Guy Dawson, CEO

There are many practitioners who through fear of mistake and the weight of responsibility do not run a trust account. This makes client transactions difficult for them as for example they are asked on short notice to provide bank cheques for settlements. It prevents money being held in trust on account of the practitioner’s future fees for counsel, consultants and contractors. It makes management of getting in estate cash assets cumbersome.

The fear is not really justified as the rules are readily understood and managed.

The simplest way to comply with state trust account regulations is to use an approved accounting software package with appropriate written delegations and procedures. All accounting records are required to be accurate, up to date and regularly monitored. The trust account department of all Law Societies and Institutes is available to assist with any questions. The Handbook on Trust Money and Trust Records, is a comprehensive guide to the statutory trust accounting requirements contained in the Legal Profession Uniform Law Application Act 2014, and the Legal Profession Uniform Law Application Regulation 2015.

By Lawyers provides a comprehensive straightforward appreciation of trust accounting in its Practice Management Guide.

Precedent management

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By Guy Dawson, CEO

It takes time and no one has any!

Lawyers were once bound to their precedents but much of the content was lifeless dross, added to increase the mystic and bamboozle the client. Over time we have been leaving behind our personal writing style, which typically included repetition and tautology, the lawyer’s favourite mistake, to be replaced by precedent packages. 

In a perfect world, a precedent would be drafted and created in advanced software that automated documents. The precedent would have fields and codes added to it so that the next time one needed to use it those details would ‘drop in’. The precedent would be given an easily identifiable code and stored in a system that allowed for ready accessibility by all members of the team at the exact moment in any matter when they might need it.

Typically however most of us cobble together a precedent from a variety of other precedents and then use it. When required again the trick is to remember the name of the matter in which it was created.

In reality it is but a handful of practices that keep a library of precedents organised by area of practice and subject matter which is readily available to all staff.

The system required is a matter type specific series of precedents organised in the sequence in which they are used and populated by the software in which they are created. Such systems are available and should be the first port of call for those practices that do not have the time and resources to provide their own.

There are of course limitations as for instance letters provided as part of precedent packages are often far too impersonal and do nothing to build the lawyer client relationship. Likewise, specific deeds contracts and agreements may not deal with all the issues at hand. But with a well organised library and some drafting skills the best of the practices of the past and present can be combined.

Systems allow us to make time.

Spend time on the system and time then grows and grows.

Retirement villages in NSW

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A complete guide on the law and practice as it applies to Retirement Villages in New South Wales including  a comprehensive treatment on obtaining accommodation and services within a retirement village, living there, and ending a residency including on sale, on termination, and on death.

This guide is available through the Conveyancing (NSW) publications as well as Leases (NSW).

– Precedents in the guide include:
– Retainer Instructions;
– To-do List;
– Checklist for prospective residents;
– Various letters of advice on commencing residency, completion and moving out;
– Various letters to the operator; and
– NCAT application forms.

The commentary includes information on the fundamental terms of the statutory regime, the standard contracts and mandatory documents, duties taxes and rates, taking occupation, living in a village and ending a residency including death and termination, payment of refund by the operator and dispute resolution.

SA – Changes to Cats and Dogs legislation

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Some amendments to the Dog and Cat Management Act 1995 came into effect 1 July 2017 including new registration categories: Standard Dog  – for a de-sexed and micro-chipped dog; and Non-standard Dog – being all other dogs including dogs for breeding and working dogs on farms.

Coming in on 1st August new minimum welfare conditions that must be met.

Further requirements associated with de-sexing and micro chipping will come into force  1st July 2018.

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