Taking an in-depth look at Practice Management - How to ensure best practice management in a fast paced environment and Advocacy - Essential Skills for appearing in the Commission or Court and Ethics in Arbitration. This presentation is for union officials, Industrial/Legal Officers and Organisers
Effective legal representation of innovators and inventors requires careful thought and consideration. Among other things, care must be taken to properly initiate communications, prepare assignments, and handle subsequent legal disputes. This webinar discusses common legal issues that often arise during the representation of innovators and inventors. It also includes valuable advice from both innovators/inventors and the IP attorneys who represent them.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/legal-issues-for-innovators-inventors-2021/
Legal & Commercial, Issues of a Cloud Servicesubtitle
This document discusses several key legal and commercial issues surrounding cloud computing services. It outlines how service specifications and levels, rights and liabilities, and standard contract terms are typically defined in cloud service agreements. It also examines important considerations regarding data protection, ownership, privacy, and the risks of data loss. Customers often have little negotiating power around liability limits and remedies for outages or data breaches.
DNS Business Development Workshop Course Overview This course is designed to provide a basic understanding of the Domain Name System (DNS) industry and business drivers to enable entrepreneurs to understand potential business opportunities in this industry. The course will focus on practical issues where appropriate, with case studies and listings of available resources and vendors in the industry. Ample time will be included for networking opportunities and identifying available resources for on-going assistance after the conclusion of the course. The course will occur over a 5 day period, with an early end on the last day to accommodate travel schedules
CPD Seminar: Ethics, Professional Skills and Practice Management for LawyersMaurice Blackburn Lawyers
Maurice Blackburn's Employment & Industrial Law Section delivered their annual seminar of which lawyers can gain CPD points for three areas: Ethics, Professional Skills and Practice Management. We were delighted to be joined by Melinda Zerner, Barrister; Rohan Tate, Lawyer; and Lauren Marr, Librarian.
Maurice Blackburn provided union lawyers and industrial officers with the opportunity to gather CPD points with content that was relative to their industries. Presenters include Barristers Bob Reed and Cate Hartigan, and Maurice Blackburn Employment and Industrial Section Principal Giri Sivaraman.
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
1) Obtain adequate malpractice insurance, as legal malpractice policies are "claims made" which require having insurance coverage at the time a claim is made, not just at the time of the occurrence. Consider policy limits and coverage details.
2) Put client interests first by avoiding conflicts of interest and breaches of fiduciary duty, as attorneys owe duties of loyalty, confidentiality, safekeeping property, independent judgment, communication, and candor to clients.
3) Use engagement agreements to define the scope of representation, implementation of plans, and parties excluded to avoid misunderstandings.
Effective legal representation of innovators and inventors requires careful thought and consideration. Among other things, care must be taken to properly initiate communications, prepare assignments, and handle subsequent legal disputes. This webinar discusses common legal issues that often arise during the representation of innovators and inventors. It also includes valuable advice from both innovators/inventors and the IP attorneys who represent them.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/legal-issues-for-innovators-inventors-2021/
Legal & Commercial, Issues of a Cloud Servicesubtitle
This document discusses several key legal and commercial issues surrounding cloud computing services. It outlines how service specifications and levels, rights and liabilities, and standard contract terms are typically defined in cloud service agreements. It also examines important considerations regarding data protection, ownership, privacy, and the risks of data loss. Customers often have little negotiating power around liability limits and remedies for outages or data breaches.
DNS Business Development Workshop Course Overview This course is designed to provide a basic understanding of the Domain Name System (DNS) industry and business drivers to enable entrepreneurs to understand potential business opportunities in this industry. The course will focus on practical issues where appropriate, with case studies and listings of available resources and vendors in the industry. Ample time will be included for networking opportunities and identifying available resources for on-going assistance after the conclusion of the course. The course will occur over a 5 day period, with an early end on the last day to accommodate travel schedules
CPD Seminar: Ethics, Professional Skills and Practice Management for LawyersMaurice Blackburn Lawyers
Maurice Blackburn's Employment & Industrial Law Section delivered their annual seminar of which lawyers can gain CPD points for three areas: Ethics, Professional Skills and Practice Management. We were delighted to be joined by Melinda Zerner, Barrister; Rohan Tate, Lawyer; and Lauren Marr, Librarian.
Maurice Blackburn provided union lawyers and industrial officers with the opportunity to gather CPD points with content that was relative to their industries. Presenters include Barristers Bob Reed and Cate Hartigan, and Maurice Blackburn Employment and Industrial Section Principal Giri Sivaraman.
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
1) Obtain adequate malpractice insurance, as legal malpractice policies are "claims made" which require having insurance coverage at the time a claim is made, not just at the time of the occurrence. Consider policy limits and coverage details.
2) Put client interests first by avoiding conflicts of interest and breaches of fiduciary duty, as attorneys owe duties of loyalty, confidentiality, safekeeping property, independent judgment, communication, and candor to clients.
3) Use engagement agreements to define the scope of representation, implementation of plans, and parties excluded to avoid misunderstandings.
BoyarMiller ACC Oct 11 2022 Presentation.pptxBoyarMiller
BoyarMiller Shareholders Chris Hanslik and Andrew Pearce, alongside Celina Carter of BWC Terminals, shared their professional corporate real estate experience regarding leasing for smooth business operations.
In this session, they covered the key aspects of leases, including:
-What is “privilege”
-Tips for preserving privilege
-Avoiding spoliation of evidence
NEWBIE LITIGATOR SCHOOL - Part I 2022 - The Federal Rules of Civil ProcedureFinancial Poise
Has it been 10 years since you took Civil Procedure in law school? Are you a business owner that’s been sued for the first time? How does litigation really move through the Federal Courts? This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the listener will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour-long discussion.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- PART 1 2022
See more at https://www.financialpoise.com/webinars/
Historically, equity receiverships trace their origin to English Common Law, where the concepts of chancery jurisdiction and equitable relief were first introduced. Today, federal equity receiverships are used in a wide variety of actions pending in federal district courts. This webinar discusses some of the basic concepts underlying the modern federal equity receivership. Learn about the statutory underpinnings, the role of equity jurisdiction and the manner in which federal equity receivers are appointed.
Part of the webinar series: FEDERAL EQUITY RECEIVERSHIPS 2022
See more at https://www.financialpoise.com/webinars/
Introduction to Commercial Litigation FinanceFinancial Poise
Litigation funding is an increasingly popular tool for attorneys and parties with legal claims to share the risk and reward of litigation or arbitration with third-party investors, and for investors to capitalize on the uncorrelated returns generated by legal-driven revenue. This webinar is intended to provide an overview of the topic generally, touching on the “who,” “what,” “where,” “when,” “why,” and “how’s” behind litigation funding.
Part of the webinar series: Commercial Litigation Funding 2022
See more at https://www.financialpoise.com/webinars/
Current Ethical Issues for Legal Professionals.pptVidyaAdsule1
The document discusses several ethics opinions from the State Bar of Arizona Committee on Rules of Professional Conduct regarding issues that commonly arise for legal professionals:
1) Opinion 09-01 found that law firm contracts restricting a departing associate's ability to represent former clients were unethical. Firms cannot impose financial penalties on an attorney's right to represent a client.
2) Opinion 09-02 addressed termination of representation and issues around withdrawal, fees, confidentiality, and conflicts of interest with former clients.
3) Opinion 09-04 discussed steps attorneys can take to maintain client confidentiality when storing electronic client files and communicating electronically. Reasonable security measures are required but extensive protections were not a minimum standard.
ALTERNATIVE DISPUTE RESOLUTION 2022_ Handling the ArbitrationFinancial Poise
The final episode will go through presenting your case and claims to the arbitrator or panel, including how to handle discovery demands and discovery disputes. When to decide if you really should make a motion and what motions are viable or make sense. Whether objections during the hearing are appropriate, various methods of testimony and the use of expert witnesses. How to prepare pre-trial statements, exhibit lists and witnesses for the arbitration. We will also cover the post-arbitration submissions and awards.
Part of the webinar series: ALTERNATE DISPUTE RESOLUTION - 101 2022
See more at https://www.financialpoise.com/webinars/
The Federal Rules of Civil Procedure (Series: Newbie Litigator School)Financial Poise
This webinar provides an overview of the Federal Rules of Civil Procedure. It discusses how a civil case is initiated through filing a complaint and serving the defendant. It also covers motions to dismiss, discovery procedures, summary judgment, and other pre-trial and trial processes governed by the Federal Rules. The panelists are experienced litigators who provide context and real-world perspectives on the Rules. The webinar is part of a series aimed at refreshing attorneys on civil litigation fundamentals.
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Financial Poise
This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real-world impact on the situations you may be involved in. Among others, the panel will address the following Model Rules of Professional Conduct: Rule 1.7-Conflict of Interest: Current Clients; Rule 1.8-Conflict of Interest: Current Clients: Specific Rules; Rule 3.8 - Special Responsibilities of a Prosecutor; and Rule 4.4(a) Respect for Rights of Third Persons.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recent-cases-decisions-2021/
This webinar discusses discovery practice in litigation. It begins with an overview of the rules governing discovery, including initial disclosures, written discovery like requests for production of documents and interrogatories, and oral discovery such as depositions. It covers topics like proportionality, preservation of electronic data, discovery from non-parties, and expert discovery procedures. The webinar provides both an explanation of the procedural rules and practical guidance about managing the discovery process.
Estate Planning: The market has moved and it's a new ball gameRedchip
Discover practical insights into Estate Planning including:
• Breaking down Estate Planning and making it easy to discuss with your clients;
• Showing you the line in the sand between what is legal advice and what isn’t; and
• Practical case studies that will help you guide your clients through their Estate Planning journey
This seminar, held in August 2014, discussing the pre, during and post stages of workplace investigations, including ways the union can assist a member during the investigative process, how to request and respond to findings, and how to use EBAs to structure investigations.
How to Successfully Resolve a CFPB Investigation: Strategies Derived from Rec...Winston & Strawn LLP
The document discusses strategies for successfully resolving investigations by the Consumer Financial Protection Bureau (CFPB). It outlines the anatomy of a CFPB investigation, which typically involves receiving a Civil Investigative Demand, negotiating its terms, producing documents and information, participating in investigational hearings, and submitting position papers. It emphasizes the importance of effective advocacy and developing a relationship with CFPB staff in order to obtain a successful outcome such as closure of the investigation.
This document discusses professionalism and civility in electronic discovery. It summarizes standards relating to competence, confidentiality, and fairness when handling e-discovery. It notes the duty of competence requires lawyers to properly assess e-discovery needs, understand client systems, ensure preservation and search procedures are proper. Confidentiality requires protecting privileged information from inadvertent disclosure. Fairness means complying with discovery requests while balancing disclosure obligations and confidentiality protections. Lawyers must advise clients that civility and fair dealing are expected.
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All REALTORS® regardless of their specialty in the real estate business (appraisal, property management, etc.) are bound by the duties in the REALTORS®’ Code of Ethics.
This episode will cover the arbitration process beginning with how to prepare and file claims, and review thoughts on picking an arbitrator (or arbitrators). From there we will cover preparing for the preliminary conference with the arbitrator. Understanding the Order that will flow from the preliminary conference and knowing what to ask for or have considered. We will review some thoughts on discovery requests and motion practice as well as types of awards as well as a few other miscellaneous matters that may be covered during the preliminary conference.
Part of the webinar series: ALTERNATIVE DISPUTE RESOLUTION - 101 2022
See more at https://www.financialpoise.com/webinars/
Privacy Best Practices for Lawyers: What Every Law Practice Needs to Know Abo...Diana Maier
No matter what kind of law practice you have, you need to comply with privacy laws generally and lawyers' ethical duties with respect to privacy, specifically. In this presentation, legal ethics counsel Sarah Banola (Cooper, White and Cooper, LLP) and employment and privacy attorney Diana Maier (Law Offices of Diana Maier) deliver a primer on privacy law and teach you the key areas of privacy law and associated ethical obligations.
LEGAL ETHICS – BEST PRACTICES 2022 - How to Avoid Malpractice & Disciplinary ...Financial Poise
This webinar presents basic practice pointers to avoid malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior if they arise. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules addressed may include: those that govern the client-lawyer relationship (Rules 1.1 through 1.10; 1.13; and 1.16); those that that speak to transactions with persons other than clients (Rules 4.1 through 4.4); those that govern the responsibilities of managing and supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice (Rules 5.1 through 5.5); and those that govern communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).
Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022
See more at https://www.financialpoise.com/webinars/
Best Practices Regarding Technology (Series: Legal Ethics - Best Practices)Financial Poise
Technology is rapidly changing the way lawyers provide services. This is so especially in light of the Covid-19 pandemic, which creates new and different ethical challenges to confidentiality, cyber fraud and securing data, marketing and advertising concerns, and client communications. This webinar will address a myriad of new problems lawyers are facing and some practical suggestions and solutions that arise out of the changing manner and pace of the practice of law. This webinar will also cover several ABA Model Rules of Professional Conduct.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/best-practices-regarding-technology-2021/
This document summarizes a presentation on developments in unfair dismissal law given on June 13, 2018. It provides an overview of legislative changes, trends seen at conciliation and hearings, and updates on key case law regarding costs orders, permission to appear in unfair dismissal matters, treatment of high income earners and casual employees, medical incapacity, health and safety, dishonesty, and other issues. The presentation covers legislative definitions, available remedies, conciliation and hearing statistics, and summaries several important unfair dismissal cases from recent years.
This document provides a summary of recent developments in unfair dismissal and general protections law from a seminar presented by Giri Sivaraman of Maurice Blackburn Lawyers. It discusses three significant unfair dismissal decisions regarding performance management and sexual misconduct. It also summarizes four general protections cases involving adverse action in retaliation for workplace rights, refusal to hire a union official, failure to offer shifts after declining a contract, and making a complaint through another person. The document concludes with notes on bringing multiple claims to fair work commissions and industrial relations courts.
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BoyarMiller Shareholders Chris Hanslik and Andrew Pearce, alongside Celina Carter of BWC Terminals, shared their professional corporate real estate experience regarding leasing for smooth business operations.
In this session, they covered the key aspects of leases, including:
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-Tips for preserving privilege
-Avoiding spoliation of evidence
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Has it been 10 years since you took Civil Procedure in law school? Are you a business owner that’s been sued for the first time? How does litigation really move through the Federal Courts? This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the listener will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour-long discussion.
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Historically, equity receiverships trace their origin to English Common Law, where the concepts of chancery jurisdiction and equitable relief were first introduced. Today, federal equity receiverships are used in a wide variety of actions pending in federal district courts. This webinar discusses some of the basic concepts underlying the modern federal equity receivership. Learn about the statutory underpinnings, the role of equity jurisdiction and the manner in which federal equity receivers are appointed.
Part of the webinar series: FEDERAL EQUITY RECEIVERSHIPS 2022
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Introduction to Commercial Litigation FinanceFinancial Poise
Litigation funding is an increasingly popular tool for attorneys and parties with legal claims to share the risk and reward of litigation or arbitration with third-party investors, and for investors to capitalize on the uncorrelated returns generated by legal-driven revenue. This webinar is intended to provide an overview of the topic generally, touching on the “who,” “what,” “where,” “when,” “why,” and “how’s” behind litigation funding.
Part of the webinar series: Commercial Litigation Funding 2022
See more at https://www.financialpoise.com/webinars/
Current Ethical Issues for Legal Professionals.pptVidyaAdsule1
The document discusses several ethics opinions from the State Bar of Arizona Committee on Rules of Professional Conduct regarding issues that commonly arise for legal professionals:
1) Opinion 09-01 found that law firm contracts restricting a departing associate's ability to represent former clients were unethical. Firms cannot impose financial penalties on an attorney's right to represent a client.
2) Opinion 09-02 addressed termination of representation and issues around withdrawal, fees, confidentiality, and conflicts of interest with former clients.
3) Opinion 09-04 discussed steps attorneys can take to maintain client confidentiality when storing electronic client files and communicating electronically. Reasonable security measures are required but extensive protections were not a minimum standard.
ALTERNATIVE DISPUTE RESOLUTION 2022_ Handling the ArbitrationFinancial Poise
The final episode will go through presenting your case and claims to the arbitrator or panel, including how to handle discovery demands and discovery disputes. When to decide if you really should make a motion and what motions are viable or make sense. Whether objections during the hearing are appropriate, various methods of testimony and the use of expert witnesses. How to prepare pre-trial statements, exhibit lists and witnesses for the arbitration. We will also cover the post-arbitration submissions and awards.
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This webinar provides an overview of the Federal Rules of Civil Procedure. It discusses how a civil case is initiated through filing a complaint and serving the defendant. It also covers motions to dismiss, discovery procedures, summary judgment, and other pre-trial and trial processes governed by the Federal Rules. The panelists are experienced litigators who provide context and real-world perspectives on the Rules. The webinar is part of a series aimed at refreshing attorneys on civil litigation fundamentals.
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Financial Poise
This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real-world impact on the situations you may be involved in. Among others, the panel will address the following Model Rules of Professional Conduct: Rule 1.7-Conflict of Interest: Current Clients; Rule 1.8-Conflict of Interest: Current Clients: Specific Rules; Rule 3.8 - Special Responsibilities of a Prosecutor; and Rule 4.4(a) Respect for Rights of Third Persons.
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This webinar discusses discovery practice in litigation. It begins with an overview of the rules governing discovery, including initial disclosures, written discovery like requests for production of documents and interrogatories, and oral discovery such as depositions. It covers topics like proportionality, preservation of electronic data, discovery from non-parties, and expert discovery procedures. The webinar provides both an explanation of the procedural rules and practical guidance about managing the discovery process.
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Discover practical insights into Estate Planning including:
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This seminar, held in August 2014, discussing the pre, during and post stages of workplace investigations, including ways the union can assist a member during the investigative process, how to request and respond to findings, and how to use EBAs to structure investigations.
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The document discusses strategies for successfully resolving investigations by the Consumer Financial Protection Bureau (CFPB). It outlines the anatomy of a CFPB investigation, which typically involves receiving a Civil Investigative Demand, negotiating its terms, producing documents and information, participating in investigational hearings, and submitting position papers. It emphasizes the importance of effective advocacy and developing a relationship with CFPB staff in order to obtain a successful outcome such as closure of the investigation.
This document discusses professionalism and civility in electronic discovery. It summarizes standards relating to competence, confidentiality, and fairness when handling e-discovery. It notes the duty of competence requires lawyers to properly assess e-discovery needs, understand client systems, ensure preservation and search procedures are proper. Confidentiality requires protecting privileged information from inadvertent disclosure. Fairness means complying with discovery requests while balancing disclosure obligations and confidentiality protections. Lawyers must advise clients that civility and fair dealing are expected.
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This document summarizes a presentation on developments in unfair dismissal law given on June 13, 2018. It provides an overview of legislative changes, trends seen at conciliation and hearings, and updates on key case law regarding costs orders, permission to appear in unfair dismissal matters, treatment of high income earners and casual employees, medical incapacity, health and safety, dishonesty, and other issues. The presentation covers legislative definitions, available remedies, conciliation and hearing statistics, and summaries several important unfair dismissal cases from recent years.
This document provides a summary of recent developments in unfair dismissal and general protections law from a seminar presented by Giri Sivaraman of Maurice Blackburn Lawyers. It discusses three significant unfair dismissal decisions regarding performance management and sexual misconduct. It also summarizes four general protections cases involving adverse action in retaliation for workplace rights, refusal to hire a union official, failure to offer shifts after declining a contract, and making a complaint through another person. The document concludes with notes on bringing multiple claims to fair work commissions and industrial relations courts.
The document summarizes key aspects of two recent Australian laws:
1) The Fair Work (Registered Organisations) Amendment Act 2016 establishes an independent watchdog called the Registered Organisations Commission to monitor unions. It increases financial disclosure requirements and penalties for noncompliance.
2) The Building and Construction Industry (Improving Productivity) Act 2016 re-establishes the Australian Building and Construction Commission with broad investigative powers over unions. It prohibits certain industrial actions and expands the definition of unlawful coercion.
The document discusses criminal law and employment law issues that can arise when an employee's criminal conduct outside of work impacts their employment. It provides information on:
1) The test for determining if an employee can be dismissed for criminal conduct outside of work, which requires that the conduct damages the employment relationship or the employer's interests.
2) Examples of cases where employees were or were not dismissed based on this test.
3) Rules around workplace drug testing and policies, and cases related to drug use and driving under the influence.
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Delivered by our Queensland EILS team, this seminar explored the manipulations of investigations by employers and the common issues and deficiencies of investigations. Case studies, tip and traps are covered.
Taking an in-depth look at the federal and state
discrimination laws and general protections provisions in the
Fair Work Act and comparing the scope of each scheme, procedural elements of each jurisdiction, outcomes available and possible risks. Focusing on recent case law and practical applications for union members. The presentation is for Union Officials, Industrial/Legal Officers and Organisers.
.
In our seminar, we look at the three big r's of workplace change: restructure, redeployment and redundancy, and the obligations of employers under relevant legislation.
Presentation by Maurice Blackburn head of Superannuation John Berrill to the Association of Superannuation Funds of Australia (ASFA) National Conference, Melbourne, 2014.
View John's profile: http://www.mauriceblackburn.com.au/our-people/lawyers/john-berrill/
The document outlines the new workplace bullying laws in Australia, including amendments to the Fair Work Act that allow employees to make anti-bullying applications to the Fair Work Commission. It discusses the elements required for a bullying application, the orders the FWC can make, and factors considered. The laws aim to provide a mechanism for early intervention to stop bullying and complement existing occupational health and safety laws.
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Maurice Blackburn's Queensland Employment and Industrial Law Section delivered a seminar on Emerging Issues in Workplace Privacy on August 22, 2013. Topics included Surveillance in the workplace, Privacy Laws, issues surrounding social media and more.
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The document summarizes new workplace bullying laws in Australia that take effect in January 2014. Key points include:
- The laws allow workers who have been bullied to apply to the Fair Work Commission for an order to stop the bullying.
- To make a claim, a worker must reasonably believe they have been repeatedly subjected to unreasonable behavior at work that poses a health and safety risk.
- The laws are intended to provide early intervention for bullying and complement existing occupational health and safety laws. They do not provide for compensation.
- Certain exemptions apply, such as for the military, and claims can only be made against businesses covered by federal law, not state laws.
How to deal with workplace bullying remains contentious. This speech by Josh Bornstein, examines the myths and misconceptions about workplace bullying.
The document discusses two proposed national insurance schemes in Australia: the National Disability Insurance Scheme (NDIS) and the National Injury Insurance Scheme (NIIS). The NDIS would provide long-term care and support for all Australians with significant and permanent disabilities. The NIIS would cover lifetime care needs for people who acquire a catastrophic injury from an accident. Both schemes aim to reform and improve upon the current fragmented disability support system. The document provides details on eligibility, coverage, funding, and implementation considerations for each proposed scheme.
This document discusses social media use in the workplace and related legal issues. It provides examples of employees being dismissed or facing legal consequences due to inappropriate social media posts. While employees have the right to express private opinions, courts have generally found dismissals justified if posts damage the employer's reputation or brand. The line between private and public is blurring, so employees must be careful about all social media use, both during and after work hours. Workplace social media policies aim to educate staff on appropriate usage.
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Business law for the students of undergraduate level. The presentation contains the summary of all the chapters under the syllabus of State University, Contract Act, Sale of Goods Act, Negotiable Instrument Act, Partnership Act, Limited Liability Act, Consumer Protection Act.
Capital Punishment by Saif Javed (LLM)ppt.pptxOmGod1
This PowerPoint presentation, titled "Capital Punishment in India: Constitutionality and Rarest of Rare Principle," is a comprehensive exploration of the death penalty within the Indian criminal justice system. Authored by Saif Javed, an LL.M student specializing in Criminal Law and Criminology at Kazi Nazrul University, the presentation delves into the constitutional aspects and ethical debates surrounding capital punishment. It examines key legal provisions, significant case laws, and the specific categories of offenders excluded from the death penalty. The presentation also discusses recent recommendations by the Law Commission of India regarding the gradual abolishment of capital punishment, except for terrorism-related offenses. This detailed analysis aims to foster informed discussions on the future of the death penalty in India.
2. We wish to acknowledge the traditional owners of
the land and pay our respects to elders past, present
and emerging.
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3. TODAY’S AGENDA
Agenda:
Introduction
• Practice Management: How to ensure best practice management in a fast-
paced environment. Presented by Giri Sivaraman, Maurice Blackburn.
Short break
• Advocacy: Essential skills for appearing in the Commission or Court.
Presented by Cate Hartigan, Barrister.
• Ethics in Arbitration: Dealing with your union’s officials and other witnesses, as
well as opposing witnesses. Presented by Bob Reed, Barrister.
Closing and questions
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4. PRACTICE MANAGEMENT:
HOW TO ENSURE BEST
PRACTICE MANAGEMENT IN
A FAST-PACED
ENVIRONMENT.
Giri Sivaraman
Principal, Maurice Blackburn
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5. PRACTICE
MANAGEMENT
Topic One: Professional Conduct
Topic Two: Case and Client Management
Topic Three: File Management
Topic Four: Resources and Staff
Topic Five: Risk Management and Compliance
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7. PROFESSIONAL
CONDUCT
In managing a practice, it is important to have policies and guidelines with
respect to:
• Conduct toward clients (members);
• Conduct toward opposing parties;
• Conduct toward counsel;
• Conduct toward the Court.
Solicitors’ conduct is governed by the Legal Profession Act 2007 and the
Australian Solicitors Conduct Rules.
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8. CONDUCT TOWARD
CLIENTS
• Solicitors’ obligations in respect of their conduct towards clients are dealt with in the
Australian Solicitors Conduct Rules, Rules 7 to 16.
• Rules 7 to 11 deal specifically with advice to clients, instructions from clients, and
dealing with conflicts.
• The remaining Rules deal with terminating engagements, exercising liens over
documents and charging for storage, which are not relevant to today’s presentation.
• Rule 7 requires solicitors to provide clear and timely advice to clients, so that the client
understands the relevant legal issues and is able to make an informed choice about
action to be taken.
• Rule 7 also requires a solicitor to discuss alternatives to trial with clients, such as
mediation or other forms of alternative dispute resolution.
• Rule 8 requires solicitors to act on their client’s instructions, provided it is lawful, proper
and competent.
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9. CONDUCT TOWARD
CLIENTS – WHO IS THE
CLIENT?
There is no authoritative answer to the question:
“Is the Union my client or is the Member my client?”
This question does not appear to have been formally answered by a court or
tribunal.
However, a Union’s legal officer’s role is analogous to that of in-house counsel,
who provides advice and assistance on the instructions of his/her employer.
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10. CONDUCT TOWARD
CLIENTS – WHO IS THE
CLIENT?
For in-house counsel, the client is the entity as a whole. Therefore, the solicitor’s
paramount obligation, including in relation to confidentiality, is to the employer.
• If assisting a member, can do so, as long as it does not impinge on duties to
employer.
• If member’s instructions or interests are in conflict with the union’s interests,
the solicitor should decline to accept the instructions.
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11. CONDUCT TOWARD
CLIENTS
• Rule 9 deals with confidentiality requirements:
A solicitor must not disclose any information which is confidential to a client
and acquired by the solicitor during the client’s engagement to any person
who is not:
a) a solicitor who is a partner, principal, director, or employee of the
solicitor’s law practice; or
b) a barrister or an employee of, or person otherwise engaged by, the
solicitor’s law practice or by an associated entity for the purposes of
delivering or administering legal services in relation to the client.
• There are exceptions to the confidentiality requirements, which relevantly
include where the client has authorised the disclosure.
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12. LEGAL SERVICES
COMMISSIONER V SMITH [2014]
QCAT 518
• Smith took instructions from client to file personal injuries claim against a
hospital.
• Smith served the notice of claim on the hospital in 2002. Between 2002 and
2005, Smith received several letters from the hospital’s lawyers asserting the
notice did not comply. Smith did not respond.
• Prior to the expiry of the statutory limitation, Smith attempted to get the matter
back on foot in the District Court, however, took no substantive action.
• In 2006, Smith provided the hospital’s lawyers a copy of the claim and
statement of claim. The hospital’s lawyers said they were still non-compliant.
• Despite not communicating with the hospital’s lawyers at all, Smith wrote to
the client advising that he had asked the hospital for a compulsory
conference. A few weeks later, he told the client he had not had a response to
his request (which had not actually been made).
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13. • Smith faced a number of adverse findings. Relevantly, his dishonesty toward
the client, and failure to act on the client’s instructions with a reasonable
standard of competence and diligence led to a finding of professional
misconduct pursuant to s 419 of the Legal Profession Act 2007.
• Smith was publically reprimanded, fined $6,000.00, and required to engage
advice as to the improvement and implementation of appropriate
management systems of his practice
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LEGAL SERVICES
COMMISSIONER V SMITH [2014]
QCAT 518
14. CONFLICTS WITH
MEMBERS
Rule 10 requires solicitors, and a practice, to avoid conflicts between duties owed
to current and former clients.
If the solicitor or practice is in possession of a former client’s confidential
information, and such information, if disclosed to the new client, would be
material to the new client’s matter but detrimental to the former client’s interests,
the solicitor and/or practice cannot act for the new client unless:
• They have obtained written consent from the former client; or
• They have developed an effective information barrier.
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15. CONFLICTS WITH
MEMBERS
Rule 11 requires that solicitors and/or practices, not act for two or more clients in
the same or related matters where their interests are adverse and there is
potential or real conflict of the duty to act in each client’s best interests.
▪ Exception is where each client is aware of, and has given informed consent
about, the solicitor and/or practice acting for the other client
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16. INFORMATION
BARRIERS
Initially, Australian courts were wary of information barriers – Bryson J in D & J
Constructions Pty Ltd v Head (1987) 9 NSWLR 118 at [123]:
“it is not realistic to place reliance on such arrangements in relation to people with
opportunities for daily contact over long periods, as wordless communication can
take place inadvertently… even by people who sincerely intend to confirm to
control”.
Courts have adopted a more accepting, but still cautious and scrutinising,
approach.
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17. INFORMATION
BARRIERS
Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC
550 – Bergin J found an information barrier to be effective to protect the clients’
confidential information and avoid a conflict.
However, in Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd
[2007] NSWSC 350, Bergin J found the same information barrier to be
ineffective, after the plaintiff brought evidence that it had been breached, albeit
inadvertently, and in circumstances where no confidential information was leaked
from the barrier.
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18. AVOIDING CONFLICTS
• It is important to have a system in place that assists with the identification and
avoidance of potential conflicts.
• Member databases and records (especially electronic) should contain full
details of any disputes in which the member has been involved, including
details of other relevant parties.
• Prior to opening a case for a member, the practice should be able to check
that there is no apparent conflict with respect to assisting the member.
• If the union’s database and electronic records are detailed, this check should
be fairly streamlined.
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19. AVOIDING CONFLICTS
• If there is a conflict, but the union is minded to assist the member, it may be
necessary to outsource assistance for one of the members. This avoids the
need for an information barrier.
• It is important that the union has a policy and guideline for identifying and
assessing conflicts, as well as the actions to be taken in response to potential
conflicts.
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20. CONDUCT TOWARD
OPPOSING PARTIES
Rule 22 prescribes how a solicitor is to communicate with his/her opponents.
• The Rules are mainly concerned with ensuring solicitors do not provide
opposing parties false information, or knowingly make false statements.
• The Rules are also concerned with ensuring solicitors provide one another
proper notice when communicating with the court, including in respect of
seeking adjournments.
• The Rules require solicitors to promptly tell their opponents about
communication that passes between the solicitor and court.
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21. CONDUCT TOWARD
OPPOSING PARTIES
• If a solicitor is going to communicate with the court, in the absence of his/her
opponent, the solicitor must only do so if:
• The court has communicated with the solicitor first, and the
communication was in such a way that it required a response from the
solicitor; or
• The solicitor’s opponent has consented beforehand, and the
communication is in accordance with that consent.
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22. CONDUCT TOWARD
COUNSEL
• Sometimes union’s directly brief counsel, as opposed to engaging solicitors.
• The Rules do not prescribe the way in which solicitors are required to
communicate with counsel.
• Instructions for counsel include:
• the clients’ instructions and evidence;
• The status of the matter (i.e. has it been filed? Has a first court date been
set down?)
• The nature of the work required of counsel (i.e is counsel just amending
draft pleadings? Is counsel engaged to represent?)
• Due dates and dates for court appearances.
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23. CONDUCT TOWARD
COUNSEL
• It is not usually necessary for counsel to have all documents provided by the
member.
• Providing counsel all documents, without first filtering them, or organising
them, can lead to the union incurring unnecessary costs.
• This needs to be balanced with counsel being fully informed of the relevant
circumstances.
• Having a template brief will assist industrial and legal officers with ensuring
counsel is provided relevant and ordered information.
• It is important that you are clear with the member that they are not to contact
counsel directly, and all communication is to go through the union.
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24. CONDUCT TOWARD
COURT
• Rules 17 to 21 deal with how a solicitor is to deal with the court.
• Rule 17 requires a solicitor exercise forensic judgment and not to act as a
mere mouthpiece for the client.
• Rule 17 also provides that a solicitor must not make submissions or express
views to a court on any material evidence or issue in the case in terms which
convey or appear to convey the solicitor’s personal opinion on the merits of
that evidence or issue.
• Rule 18 provides that a solicitor must not, in the presence of other parties,
deal with the court on terms of informal personal familiarity, which may give
rise to the perception that the solicitor has special favour with the court.
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25. CONDUCT TOWARD
COURT
Rule 19 is extensive and deals with solicitors’ obligations about being honest and
frank with the court. These obligations are far reaching. For example, Rule 19.6
provides
A solicitor must, at the appropriate time in the hearing of the case if the
court has not yet been informed of that matter, inform the court of:
• any binding authority;
• where there is no binding authority, any authority decided by an
Australian appellate court; and
• any applicable legislation,
known to the solicitor and which the solicitor has reasonable grounds to
believe to be directly in point, against the client’s case.
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26. CONDUCT TOWARD
COURT
Rule 21 deals with the responsible use of court process and privilege.
• Documents produced by unlikely to be considered privileged for the purpose
of court proceedings. They are also unlikely to be protected from discovery.
• A practice, policy or guideline about written communications is important.
• Rule 21 is also aimed at ensuring the court’s processes are not abused, in
that they are not being used to serve some improper purpose.
• While it is important for unions to have legal processes available to achieve
industrial goals, it must not amount to an abuse of process, and a solicitor
must not knowingly engage in an abuse of process.
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27. CONDUCT TOWARD
COURT
Consequences for failing to be frank and honest toward court, and for engaging
in abuse of process, can be significant.
• Puryer v Legal Services Commissioner [2012] QCA 300:
• Convicted of misleading the Supreme Court;
• Found to have failed in obligation of frankness and candour;
• Name removed from roll of practitioners.
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28. CONDUCT TOWARD
COURT
Michael Harmer in Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411
and Ashby v Slipper [2014] FCAFC 15:
• Federal Court found Harmer’s conduct was an abuse of process;
• Federal Court dismissed Ashby’s case on that basis.
• Ashby and Harmer both appealed – Ashby’s was upheld, Harmer’s was
not
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29. Topic 2:
Case and Client Management
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30. CASE MANAGEMENT
It is important for unions to have a structured and accessible case management
system.
System should:
• Efficiently identify apparent conflicts
• Allow the union to track trends across:
• specific employers
• Industries
• member demographics.
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31. CASE MANAGEMENT
There should be a central system for recording key dates, especially limitation
dates for initiating proceedings.
Also consider systems for tracking or reviewing:
• The number and type of matters allocated to industrial officers or legal
officers, to ensure they are operating within their capacity.
• All documents provided to the union.
• The conduct of casework by an experienced practitioner, who should conduct
periodic file reviews.
Structure and format of files should be consistent.
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32. CLIENT MANAGEMENT
Initial contact
• Managing members, and their expectations, can be very difficult if boundaries
are not established from the outset.
• A checklist of matters to go through with the member at the initial contact
stage can be helpful.
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33. CLIENT MANAGEMENT
• Checklist inclusions:
• The extent to which the union is willing to assist, at this stage;
• The union may not continue to provide assistance, particularly if the
member refuses to follow advice;
• The union will endeavour to return calls and emails efficiently, this may
take up to 3 days;
• The union is not in a position to provide financial advice about taxation
arrangements on settlements;
• The union is only able to take instructions from the member, not any third
parties;
• The spectrum of risks, including costs risks, of pursuing a matter.
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34. CLIENT MANAGEMENT
Conducting the matter
• Ensuring the member is fully aware of the nature and risks associated with
proceedings is important.
• Consider a written agreement with the member, which acknowledges:
• The members’ rights and responsibilities;
• The union’s right to terminate the engagement;
• Who is liable for any costs;
• The member’s understanding of the assistance that is going to be
provided.
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35. CLIENT MANAGEMENT
Conducting the matter
• Keep the member informed:
• Contact details of the IO or legal officer assisting them
• Relevant dates
• The role of all parties in the process
• All material received from the opponent or court
• Progress and status of the matter
• Prior to any conference, the member should be aware of the union’s position
on taking the matter further if it does not settle.
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36. CLIENT MANAGEMENT
Finalising the matter
• If the matter is finalised by negotiated outcome, the union should keep a copy
of the deed on its files.
• Ensure the member fully understands the effect of the deed.
• Comply with record keeping requirements
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38. FILE MANAGEMENT
• Rule 4 states that ‘A solicitor must also deliver legal services competently,
diligently and as promptly as reasonably possible.’
• File management is one mechanism that can be adopted by unions to ensure
systems are in place to keep track of files, to ensure matters are actioned
without unreasonable delay and to avoid exposure to liability.
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39. FILE MANAGEMENT
• File management can include:
• Standardised procedures for opening of new files;
• An up to date file/matter register listing files and member’s details (as well
as the allocated industrial officer or legal officer );
• Procedures for locating files and documents and for monitoring activity in
all open files;
• Central system for critical dates to be recorded, monitored and complied
with;
• Reviewing files ready to be closed to ensure all steps have been taken to
complete the matter;
• Appropriate mail opening and distribution processes (inc. electronic mail);
• Document retention policy for files and records.
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40. ORGANISATION OF
FILES
The file should contain a complete record of all aspects of the matter.
Organisation of files may include placing contents into sub-files according to
class or type of documents. For example each file may contain sub-files for:
▪ Member details;
▪ Communications, including: correspondence; memorandums to file or notes
of conversations; meetings; or telephone calls arranged chronological;
▪ Original documents;
▪ Legal research;
▪ Statements;
▪ Court documents.
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41. IMPORTANCE OF
KEEPING FILE NOTES
Bakovski v Lenehan [2014] NSWSC 671 (27 May 2014)
Two very different versions of events:.
• The couple said they were just told to sign the documents with no advice
about them provided by the solicitor.
• The solicitor said he gave advice about the documents and that the couple
should not enter the transaction. However, the solicitor had no file note or any
correspondence to the clients confirming his advice.
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42. IMPORTANCE OF
KEEPING FILE NOTES
Bakovski v Lenehan [2014] NSWSC 671 (27 May 2014)
Justice Hall concluded that:
▪ The failure to make a file note or other record is contrary to the expected
practice of an experienced solicitor;
▪ The failure to do so in the circumstances of the case, calls for explanation;
▪ The non-existence of a file note or of any other document recording the
“strong” advice allegedly given . . . is, at least, consistent with the conference
of 13 August 2004 having proceeded in the way in which (both clients) said it
proceeded.
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43. KEEPING GOOD FILE
NOTES
Keep detailed file notes of all conferences and telephone conversations with
members and the other side in court proceedings.
File notes should be:
▪ Dated;
▪ Identify the author;
▪ Record the duration of the attendance;
▪ Record who was present or on the telephone;
▪ Be legible to you and someone else;
▪ Record the substance of the advice given and the members
response/instructions.
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44. FILE AUDITS
Unions should implement a file review/audit process.
Audits should:
• Review substantive legal aspects
• Check key tasks have been completed and actioned competently and in
accordance with file management procedures.
Taking steps to address issues that emerge from file audits helps ensure that
processes can be developed and improved over time.
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46. KNOWLEDGE
MANAGEMENT
Knowledge management involves establishing effective processes, for all types
of knowledge, including:
▪ Creation or capturing knowledge;
▪ Storage;
▪ Version management; and
▪ Archiving or deletion.
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47. KNOWLEDGE
MANAGEMENT
Precedents / templates are one aspect of knowledge management.
Why have precedents?
• Tools for risk management
• Drive efficiency and productivity
• You do not have to ‘reinvent the wheel’ every time.
Precedents should be properly organised, categorised and named in a central
location for all industrial officers and legal officers to access.
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48. TRAINING AND
DEVELOPMENT
Unions should have appropriate arrangements in place including policies to
ensure that:
• There is an induction process for new staff;
• All staff are qualified and trained to a level of competence in order to perform
their role satisfactorily;
• Individual training and development needs of staff are reviewed regularly.
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49. CONTINUING
PROFESSIONAL
DEVELOPMENT
Rule 47 of the Queensland Law Society Administration Rule 2005 deals with
obligations of legal practitioners and provides that:
In each CPD year in which a practitioner holds a practising certificate as a
solicitor, a legal practitioner must, unless exempted in whole or part, complete
ten CPD units.
• CPD Year begins 1 April and ends on 31 March the following year
• Three compulsory CPD core areas including practical legal ethics, practice
management and business skills and professional skills.
• Must complete a minimum of one CPD unit for each of the three core CPD
areas.
• Required to declare whether you have complied when renewing your
practicing certificate.
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50. SUPERVISION
• Section 56 of the Legal Profession Act 2007 provides that a regulatory
authority may impose a condition on a practicing certificate limiting the holder
to ‘supervised legal practice’.
• It further provides that ‘it is a condition of a local practicing certificate for a
solicitor that the certificate holder must engage in supervised legal practice’
only until certain conditions and time limits have elapsed.
• The period of supervised legal practice are set out in section 8 of the Legal
Profession Regulation 2007 (ranges between 18 months to 2 years from first
holding a practicing certificate).
• Rule 37 further prescribes that a solicitor with designated responsibility for a
matter must exercise reasonable supervision over solicitors and all other
employees engaged in the provision of the legal services for that matter.
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51. SUPERVISION – IN
PRACTICE
Supervision should include:
▪ Observing and reviewing the solicitor’s professional skills;
▪ Giving feedback and guidance on work;
▪ Identifying and providing any necessary support (including through training
and development opportunities);
▪ Managing staff as well as the file.
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52. SUPERVISION – IN
PRACTICE
Duty goes beyond direct supervision, but includes:
• Creating and maintaining appropriate systems and procedures
• Preventing, detecting and correcting misconduct or mistakes by staff
File audits/reviews can be used as part of the supervision of solicitors.
Challenges in relation to effective supervision:
▪ Time pressures, particularly in a fast paced environment;
▪ Lack of resources and training;
▪ Culture; and
▪ Complacency.
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54. RISK MANAGEMENT
Risk management is about introducing systems and arrangements that seek to
limit both the likelihood and impact of mistakes, omissions and oversights.
Why have risk management strategies?
• Help avoid professional indemnity claims (or at least manage them when they
arise).
• Standardise the entire process before and after the member’s file is opened.
• Minimise the threat of the risk, limit the effect of a risk, transfer risk to another
party and/or manage the risk.
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55. RISK MANAGEMENT
How to implement risk management strategies:
1. Union must first identify areas of risk and perform an assessment of the risks.
2. Once risks are identified, assessed and understood then appropriate risk
management strategies can be put in place.
3. Once risk management strategies have been implemented – they must be
communicated to staff to be effective.
4. Ongoing process that needs to be continuously monitored, evaluated and
improved.
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56. RISK MANAGEMENT
Common risk management strategies include:
▪ File audits;
▪ Workload monitoring;
▪ Procedural checklists;
▪ Increased supervision;
▪ Central processes for identifying recording and alerting the need to action
time sensitive tasks;
▪ Conflict of interests arrangements.
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57. COMPLIANCE
All organisations must meet certain compliance requirements, i.e.
• Employment compliance (renewing practicing certificates, engaging in CPD)
• Risk management (professional indemnity insurance):
• All unions should take and hold applicable insurance
• Check carefully what is covered
• Who?
• What?
• Legal v non-legal advice
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58. CONTACT DETAILS
Giri Sivaraman
Principal, Maurice Blackburn Lawyers
Address: Level 8, 179 North Quay, Brisbane Q 4000
Phone: 07 3016 0345
Email: gsivaraman@mauriceblackburn.com.au
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59. Morning Tea
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Please enjoy refreshments on us, and we’ll see you back in ten minutes.
62. ETHICS IN ARBITRATION:
DEALING WITH YOUR
UNION’S OFFICIALS AND
OTHER WITNESSES, AS WELL
AS OPPOSING WITNESSES.
Bob Reed
Barrister
62
63. CONTACT DETAILS
Bob Reed
Barrister
Address: Level 9, 95 North Quay, Brisbane Q 4000
Phone: 07 3236 5844
Email: rreed@qldbar.asn.au
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64. This information is prepared for the purposes of the seminar conducted
on 4 November 2015 only. The content of this seminar and any
takeaway materials is not legal advice. It is information of a general
nature. Attendees requiring legal assistance for their specific
circumstances should not rely on the content of the foregoing but
should take appropriate legal advice.
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67. Preparation, preparation,
preparation
• Be familiar with the procedural rules
• Carefully prepare evidence
• Persuasive communication – effective written
and oral advocacy
68. Effective advocacy
• Tells the story of the matter – why you are there and
what you want out of being there
• In order to advocate your matter effectively you must
know:
– The facts;
– The law; and
– The relief you seek (and why the other side should not be
entitled to the relief they seek)
69. Introduction byThe Hon Michael Kirby AC CMG delivered on 20
August 2007 to a speech given byThe Hon Michael McHugh at the
New SouthWales BarAssociation
• His submissions commenced, as I recall, with a vivid description of the beauty of theWik country in the northern
part of Queensland. On 1 April 1915, in that country, he said, theWik people were going about their daily lives as
they and their ancestors had done for aeons.The men were getting their bark boats ready to fish because it was a
clear day.The women were sitting with the children, teaching them about their traditions. Some older children
were running off into the bush. At the very same moment, in the LandTitles Registry in Brisbane, the
representatives of the Mitchelton Pastoral Holding were registering a pastoral lease under the Queensland Act. In
the old measurements, it laid claim to an area of 535 square miles, approximately 1385 square kilometres6.
• Sofronoff took our minds up to the Holroyd River district.The Wik people continued to live after their traditions.
They went about their daily lives, untroubled and unconcerned by the happenings under white man's law in the
LandTitles Office of which they had no knowledge.They rarely came into contact with the leaseholders. A vivid
picture was painted of two communities, each with legitimacy according to its own perspective and laws. But
could their legal claims live so quietly together?
70. In practice
• Provided a descriptive narrative to create a connection
with the subject matter
• In doing, so provided a real and very clear picture of
what the tension in the matter was – a few vivid
sentences were used at the outset of the submission
to describe the quandary the High Court was facing –
did the registration of the pastoral lease extinguish
native title?
71. In practice
• Opening of the case – key opportunity to put
your case simply and effectively
• Create an opening that is informative but also
tells a story
• Which takes us back to ….
73. Fair Work Act 2009
• Division 3—Conduct of matters before the FWC
Subdivision A—Applications to the FWC
• 585 Applications in accordance with procedural rules
An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind. Note 1:
Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).
Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.
• 586 Correcting and amending applications and documents etc.
The FWC may: (a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any
terms that it considers appropriate; or (b) waive an irregularity in the form or manner in which an application is made to the FWC.
• 587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with this Act;
or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. Note: For another power of the FWC to dismiss an
application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A. (2) Despite paragraphs(1)(b) and (c), the FWC must not dismiss
an application under section 365 or 773 on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC
may dismiss an application: (a) on its own initiative; or (b) on application.
75. Unfair dismissal benchbook
• How to determine if a person is an employee or an independent contractor
• To help determine whether a person is an employee or an independent contractor, there are a series of factors,
referred to as ‘indicia’, which generally help decide what a person is.
• There are no rules as to the weighting given to the indicia in the decision making process.23The indicia are just a
guide, with the ultimate question being whether the worker is acting for another or on their own behalf.24
• In considering the criteria, it is necessary to consider the following questions (posed by Bromberg J) in On Call
Interpreters andTranslators Agency Pty Ltd v Federal Commissioner ofTaxation (No. 3):
• ‘Simply expressed, the question of whether a person is an independent contractor in relation to the performance
of particular work, may be posed and answered as follows:
• Viewed as a “practical matter”:
• (i) is the person performing the work an entrepreneur who owns and operates a business; and,
• (ii) in performing the work, is that person working in and for that person’s business as a representative of
that business and not of the business receiving the work?
• If the answer to that question is yes, in the performance of that particular work, the person is likely to be an
independent contractor. If no, then the person is likely to be an employee.’25
76. Federal Circuit Court
• Federal Circuit Court of Australia Act 1999 and
Federal Circuit Court Rules 2001
77. Preparing evidence for trial
• In preparing evidence be aware of the rules of
evidence
• Collate the facts by reference to the issues in dispute
• Witnesses - evidence orally or by statement/affidavit
• Documents to be relied on
83. Written submissions
• Applicable legal principles
– Develop the statement of law into a proposition
which can be applied in the analytical section of
the submission
Topic One: Professional Conduct
Topic Two: Case and Client Management
Topic Three: File Management
Topic Four: Resources and Staff
Topic Five: Risk Management and Compliance
Other exemptions:
A solicitor may disclose confidential client information if:
9.2.1 the client expressly or impliedly authorises disclosure;
9.2.2 the solicitor is permitted or is compelled by law to disclose;
9.2.3 the solicitor discloses the information in a confidential setting, for the
sole purpose of obtaining advice in connection with the solicitor’s legal
or ethical obligations;
9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable
commission of a serious criminal offence;
9.2.5 the solicitor discloses the information for the purpose of preventing imminent
serious physical harm to the client or to another person; or
9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity.
This is a case where a lawyer was disciplined for, among other things, failing to act on instructions and engaging in misleading conduct toward his client.
Orders
[42] The tribunal orders that the respondent be publicly reprimanded, and pay
a fine of $6,000 within 90 days of these orders.
[43] If the respondent has not already done so, the respondent is also required
to engage Dr Peter Lynch to provide advice as to the improvement and
implementation of appropriate management systems of his practice, to
enable the provision of legal services by the respondent in accordance
with the professional obligations of Australian Legal Practitioners under
the Legal Profession Act 2007. The respondent should provide a report by
Dr Lynch to the Legal Services Commissioner within 3 months of these
orders.
Difficult in union offices – often have members in dispute – particularly unions which cover most, or all, classifications in the hierarchy (i.e. teachers).
If using information barriers between IOs or legal officers, need to have a very clear policy and guideline about how it will operation. Would be best practice to also let both members know that the union is representing both, but is taking measures to ensure their confidentiality is maintained. Should get member to give consent to arrangement in writing.
While sometimes unavoidable, it is preferable to not need to rely on an information barrier to discharge duties in respect of avoiding conflicts and maintaining confidentiality.
A general rule of thumb is that you should not be writing to courts or tribunals without the other side copied in. This avoids any allegation of untoward conduct and ensures the other party has reasonable notice of any matters you intend to raise.
It is preferable to, where possible and appropriate, write to the other side, or call the other side, to let them know what you intend to say to the Commission, and to seek their consent. This avoids the other side being surprised, but it is also easier to get what you want from a court or tribunal when you present a consent position.
It is important to provide training to IOs and legal officers, and where possible, have a policy, about dealing with opposing parties. It is particularly important to have training on ensuring information provided to the other side is accurate, and, if it is later found not to be accurate, the steps to be taken to notify the other side.
However, in the interests of managing an efficient industrial practice, which complies with its obligations to members and courts, it is important to have standards and practices related to the engagement of, and communication with, counsel.
It is important that counsel are, as early as possible, provided clear and comprehensive instructions. This requires correspondence to counsel, summarising
Even if you had worked with the Commissioner for 5 years before she was appointed.
Obviously if the opposing party has already drawn the court’s attention to such authority, there is no need to do so again.
If unsure about whether there is a need to inform the court of such an authority, it is important you get advice, as you do not want to engage in conduct that unnecessarily prejudices your client, however, your duty to the court is paramount.
Obviously if the opposing party has already drawn the court’s attention to such authority, there is no need to do so again.
If unsure about whether there is a need to inform the court of such an authority, it is important you get advice, as you do not want to engage in conduct that unnecessarily prejudices your client, however, your duty to the court is paramount.
Firstly, communications and other documents produced by industrial or non-practicing legal officers are unlikely to be considered privileged for the purpose of court proceedings. Accordingly, they are unlikely to be protected from discovery.
Therefore, it is important that the union has a practice, policy or guideline about written communications by and to industrial and legal officers in respect of legal proceedings.
Rule 21 is also aimed at ensuring the court’s processes are not abused, in that they are not being used to serve some improper purpose.
While it is important for unions to have legal processes available to achieve industrial goals, it must not amount to an abuse of process, and a solicitor must not knowingly engage in an abuse of process.
Penalty for Harmer = public humiliation, which can be worse than disciplinary proceedings!
This is why it is important that the union’s industrial practice, while there to assist with furthering the union’s industrial and social goals, is also clear about ensuring that engaging in legal processes do not amount to an abuse of process.
Case management is particularly important for ensuring the union maintains a quality service for its members. It is also important for avoiding exposure to liability associated with missing deadlines or failing to provide comprehensive and knowledgeable advice.
While resources in unions are limited, there are some basic, practical measures, which should be adopted by all unions.
These measures ensure matters are run efficiently and effectively, and also ensure that if an IO or legal officer is unexpectedly absent, the practice can pick up a file and get a good idea of where it is at and what needs to happen
This will assist the union with ensuring its resources are appropriately directed and that systemic issues with employers and industries are addressed.
There should be a central system for recording key dates, especially limitation dates for initiating proceedings. This is particularly important in industrial law, because we deal with tight timeframes.
Also consider systems for tracking or reviewing:
The number and type of matters allocated to industrial officers or legal officers, to ensure they are operating within their capacity.
All documents provided to the union.
The conduct of casework by an experienced practitioner, who should conduct periodic file reviews.
Structure and format of files should be consistent.
There may be several IOs or legal officers working on the matter
Conducting the matter
Ensuring the member is fully aware of the nature and risks associated with proceedings is important.
If the union is to engage in proceedings on behalf of its member, or is going to fund solicitors to engage in proceedings, it may wish to have a written agreement with the member, which acknowledges:
The members’ rights and responsibilities;
The union’s right to terminate the engagement;
Who is liable for any costs;
The member’s understanding of the assistance that is going to be provided.
Conducting the matter
Keep the member informed:
The member should be provided contact details of the IO or legal officer assisting them, relevant dates, the role of all parties in the process, and all material received from the opponent or court.
The member should be kept fully briefed of the progress and status of the matter.
Prior to any conference, the member should be aware of the union’s position on taking the matter further if it does not settle.
Finalising the matter
If the matter is finalised by negotiated outcome, the union should keep a copy of the deed on its files.
Prior to a member signing a deed, the industrial officer or legal officer should carefully talk through the contents of the deed with the member, and ensure they fully understand the effect of the deed.
Once the matter is closed, the union must make sure it complies with its record keeping requirements.
To enable efficient retrieval of file contents or information, files should be maintained in an organised and standard manner.
In Bakovski v Lenehan [2014] NSWSC 671 (27 May 2014), the Supreme Court of New South Wales considered the circumstances surrounding a solicitor that had acted in a loan transaction and failed to make a file note.
In this case a couple was approached by an acquaintance who indicated he was interested in purchasing two waterfront properties they owned, however he needed to complete construction and sale of a property development in order to fund his purchase of their properties. He paid some money to the couple as a form of deposit.
Later, the acquaintance asked the couple for financial help in order to finish his development. The couple agreed and provided him with one certificate of title for the properties in question as security for a further loan by the acquaintance.
The couple were later driven by the acquaintance to the offices of a law firm with which they had no previous dealings for the purpose of executing some documentation. They thought they were to be guarantors to the acquaintance’s loan when in fact they were entering into a two-month loan on terms that included compound interest of 60 per cent per annum with penalty interest of 96 per cent.
The solicitor witnessed the couple’s execution of the loan and security documents including an ‘Acknowledgment of Legal Advice by Borrower’.
When the claim against the solicitor came before the Court the couple and the solicitor had very different versions of events. The couple said they were just told to sign the documents with no advice about them. The solicitor said he gave advice about the documents and that the couple should not enter the transaction.
However, he had no file note or any correspondence to the clients confirming his advice.
The court found the solicitor failed to advise the couple on the legal effect of the mortgage, its harsh and oppressive terms and the risks of entering into the transaction.
This is a good example of the attitude of the court where solicitors have no contemporaneous file notes or correspondence to support their recollections.
Always confirm legal advice in writing to the member or alternatively confirm that you are not providing legal advice if this is the case.
Audits should focus on both substantive legal aspects and checking key tasks have been completed and actioned competently and in accordance with file management procedures.
Taking steps to address issues that emerge from file audits helps ensure that processes can be developed and improved over time.
Time spent searching for precedents/templates defeats the purpose of having them in the first place.
When renewing your practising certificate, you will be required to declare whether or not you have complied with Part 6 (Continuing Professional Development) of the Queensland Law Society Administration Rule 2005. This will require you to make a declaration which is subject to s 231 (2) (e) of the Legal Profession Act 2007.
Queensland Law Society conducts an audit each year of up to 20% of practising certificate holders to ensure CPD requirements are being met.
The duty to supervise goes beyond direct supervision but includes having appropriate systems and procedures in place which prevent, detect and correct misconduct and/or mistakes made by staff.
Solicitors are vulnerable to not only claims of professional negligence but also compliance complaints, member dissatisfaction and other risks.
Risk management is not only concerned about the delivery of the advice or the assistance provided to the member but the entire process before and after the member’s file is opened.
Risk management is used to minimise the threat of the risk, limit the effect of a risk, transfer risk to another party and/or manage the risk.
For example, an area that must meet compliance requirements includes the employment of legal practitioners. Compliance requirements include renewing their practicing certificates, and their engagement in continuing professional development.
Another area is risk management. Unions should take and hold the applicable professional indemnity insurance in place.
As a legal officer and/or industrial officer you should be aware of the coverage of the policy including who is covered, and most importantly what is covered.
Note: unions should be aware if insurance covers legal and non legal advice – and if so ensure staff acting within scope of the coverage.