Crowdfunding Community Legal Centres– saviour or saboteur?

by Phoebe Churches

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Sitting at work in my pleasant corner office a few weeks ago, one of my staff came to the door and said, “I need some help replying to an email in the general inbox”. The subject line read ‘Potential new funding model’. The email was basically a ‘cold call’ invitation to support and promote a new crowd funding project to help fund community legal centres (CLCs). A quick look at their site discloses only moderate activity so far.

I manage a tiny CLC based at the Student Union at Melbourne University. We are as vulnerable to the vagaries of public funding as the next not-for-profit, although our tenuous grant comes from the pockets of students via the (currently) compulsory Student Services and Amenity Fee. We are therefore not subject to the present round of fund slashing that the razor happy Commonwealth Government has enacted and threatens to further enact on most CLCs. So it was from a slightly arm’s length seat that I read the email asking us to support Lawfunder.org.

Proponents of crowd funding say that the goodwill of the online community can be harnessed to plug the gaps left by receding Government support. However critics regard ceding responsibility to private individuals for access to justice as backdoor privatisation.

Crowd funding as a model clearly has efficacy and a positive contribution to make in some areas. In many ways it is a modern, internet enabled form of traditional financing models used in the social economy – commonly called co-operatives and mutuals. These models all rely on an interested community who is willing to collectively fund joint ventures and to share the profits. In general social enterprises are characterised by a not-for-profit ethos and emphasise democratic governance and collective ownership.

Similarly the litigation funding model is not new. The most common model of litigation funding is as a business enterprise predicated on securing a satisfactory investment return. Crowd funding of legal actions is therefore potentially a community-based version of something with which those involved in class-action work are already familiar. Yet the question remains – how will crowd funded litigation be free of bias or interest in a return of some kind? Crowd funding has the disturbing potential to be a populist funding model.  It is hard to see how it might avoid becoming a system which funds only well-regarded or high profile individuals or fashionable legal causes seen as ‘worthy’. How will this help the most vulnerable in society?

Moreover, when the model is used to effectively replace shrinking government funding, there are real risks that it is simply another form of privatisation in the public domain. Directly seeking to fill funding gaps left by the Government will not only cement the loss of that funding permanently but also risks giving a green light to further withdrawal of responsibility for the provision of social services.

What is wrong with privatisation as long as there are funds? I am of the view that privatisation of services providing social welfare benefit to the community at large is not in the public interest for a range of reasons.  History and the experience of many privatised economies tell us that privatisation of public services tends to create unregulated monopolies – in direct contradiction to the free market argument that privatisation increases competition and gives consumers better choice and quality of service. Consider the current state of job seeking networks and the vocational education and training sector for example.

Rather, the privatisation of public services aligns with a neoliberal agenda of centralisation, managerialism and bureaucracy. This is totally at odds with the purported ethos of crowd funding and social enterprises.  A crowd funding initiative in this context has the potential to end up being another mechanism for the State to shift the burden of community legal funding.

Ultimately I replied to the email indicating that, while the initiative sounded interesting, we were wary of actively supporting a shift to private funding of CLCs or moves towards the privatisation of access to justice. We suggested however that we would wholeheartedly support a crowd funding campaign to raise funds to lobby governments to increase funding to the sector.

I was pleased to see a thoughtful response indicating the feedback was well-received and thought would be given to using the platform to crowd fund campaigns to increase Government funding.

Additionally there are some absolutely critical services, such as the Asylum Seekers Resource Centre (ASRC) which deliberately and almost comprehensively eschews Government funding because of the highly politicised nature of their work. The ASRC is dependent on donations, fundraising and philanthropy because one of its core values is to remain an independent organisation at all times and not to accept funding that will compromise their independence or quality of their work.

Accordingly, campaigning and lobbying for appropriate government funding levels to the sector and the funding of politically sensitive services which must operate free from governmental influence, such as the ASRC, is the logical milieu of crowd funding.

Perhaps this is where independent community funding – free of Governmental or business interests – could really come into its own.

Victoria and NSW join arms in regulation

by Pamela Taylor-Barnett
red tape

From 1 July 2015, there will be new laws and regulations governing the legal profession in Victoria and New South Wales. The Legal Profession Uniform Law is found in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic), and the NSW equivalent. This replaces the current Legal Profession Act 2004 (Vic).

This change is significant for lawyers in Victoria and New South Wales. Other states and territories are yet to adopt the legislation.

The changes mean that:
1. New Uniform Law will apply.
2. New Legal Profession Conduct Rules will apply.
3. New Legal Practice Rules will apply.
4. New Continuing Professional Development Rules will apply.
5. A new Legal Services Council will come into operation to implement the Uniform Law.
6. A new Commissioner for Uniform Legal Services Regulation will be brought into existence. The Commissioner will oversee compliance, dispute resolution and professional discipline under the Uniform Law. The Commissioner is also the CEO of the Legal Services Council (point 5).
7. The Legal Services Board and Commissioner in Victoria (LSBC) will continue to carry out regulatory and operational functions.

We suggest you familiarise yourself with the changes and the new rules. Whilst the changes may appear only slight in some areas, you should familiarise yourself with them as you must meet your professional legal obligations.

For more information, visit:
– The Legal Services Council website.
– The Law Institute of Victoria website.
– The NSW Law Society website.

How to Handle Difficult Clients in Family Law Proceedings

by Richard Mackenzie

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The most difficult part of the family lawyer’s occupation is handling clients’ feelings and emotions during law proceedings, especially dealing with clients in high conflict divorces or child custody cases. As a family lawyer, you accept to take on a difficult client intentionally or without knowing. Such clients may push you to the breaking point if you do not know how to calm them. However, taking certain measures can be used to avoid possible disagreements, conflicts or complaints.

Make your role clear

You are expected to be clear in your representation, but if you are dealing with volatile client your role may not be that clear to them, and therefore you should be ready to explain yourself in a simple and easy to understand way. It is always prudent to be very clear when explaining the roles in order to reduce the chances of misunderstanding arising. Note that people going through these situations can be very angry and emotional and you are required to assist them find the way to overcome the tough moments. You should not take any upset personally, so long as you are doing the job to the best of your abilities. However, volatile and threatening clients should be reminded that this sort of behaviour will not help their case, and may lead to you refusing to represent them.

Be ready to explain things more than once

Be patient when handling a client who is difficult to work with. Always do your best to be clear and calm with them regarding every detail they would like to know. Avoid giving scant information in writing because the more you do so, the more likely there will be conflicts. Therefore, you need to disclose everything to your clients in order to avert possible misunderstandings. Let them know in advance what they should expect concerning their connections with you and your team. This will help them understand when to come to you or your staff whenever they need assistance. Surprisingly, clients of this nature want only to deal with their lawyer on every issue, but not the staff. However, this approach is very expensive and time consuming, not very effective and in most cases unnecessary.

Make Use of Your Staff

Your staff can help you deal with difficult clients, as they can be empathetic and may be a voice of reason, explaining legal terms in laymans language. However, do also make sure your staff are able to handle the client and they are not put in a position where they feel under threat. This happens sometimes because complicated clients are more often hard with the staff than they are with a legal representative. Deal with the matter without delay and openly with the individual you are representing regarding the unsuitable treatment to make sure that the client understands clearly the duty of staff in the representation and to ensure that such behaviour is not repeated in the future.

Be ready to manage the Expectations from the Start

Several clients have expectations that go beyond the services you are offering or the results they expect from you. It is advisable to have a forthright discussion with your clients from the start in order to know their expectations. Sometimes the clients’ expectations are not realistic and thus you should be clear from the beginning that you cannot offer that kind of service. In a situation where you cannot meet the expectations of a client, you can transfer the client to another lawyer or even ask the client to look for another family lawyer.

It is more crucial to be honest with the people you represent if you find that their goals cannot be achieved. When a client cannot accept your evaluation of the issue, then he or she should find another legal representative.

 

Richard Mackenzie is a senior partner at Eales & Mackenzie, a reputable legal firm in Melbourne, specialising in the areas of commercial law and property law, commercial litigation, wills, estates and estate disputes and family law. He employs a personalised approach to his cases and holds an unrivalled reputation for establishing long-lasting relationships with his clients.

The Good Fight

Chan and Sukumaran

Photo: Anita Kesuma courtesy of The Age

We are so saddened to hear of the executions of Andrew Chan and Myuran Sukumaran. Our thoughts are with their families and friends.

We would also like to acknowledge and applaud the tireless work of the legal teams who fought – right to the final moment – to save these men’s lives.

It is a none too subtle reminder of why our work as lawyers is so vitally important. Sometimes politics prevails over the rule of law – but we should never give in.

Suits – real lawyers or just real entertainment?

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By Amy Eager

I must confess that I am guilty of binge watching TV series and what would be considered bad TV series… including Made in Chelsea and Keeping up with the Kardashians. I know, I know they are far from intellectually stimulating material, but it is relaxing, you actually don’t have to think about anything and often is a mindless stress-free escape from my day to day routine.

Like many other lawyers, I am also partial to the sensationalised legal drama, that glamourises our profession in many ways, but nonetheless are still entertaining dramas. Law & Order SVU has always been my favourite, I mean who isn’t impressed that you can deliver an Oscar winning, closing argument with 5 minutes preparation, until I discovered Suits.

Suits follows the legal lives of it’s main characters, Harvey Specter (the best closer in New York), Louis Lit (the scariest senior associate you have ever seen), Jessica Pearson (the fearless Managing Partner), Mike Ross (the graduate lawyer), Rachel (the best paralegal ever) and Donna (the legal secretary every lawyer wishes they had) at the elite New York based commercial law firm Pearson Hardman.

The legal eagles of Suits

The legal eagles of Suits

Of course, Pearson Hardman only recruits their graduate lawyers from Harvard and the story follows the legal adventures of young Mike Ross, who is a genius but a complete fraud and SPOILER ALERT actually never went to Harvard or any other law school but suddenly finds himself employed as Harvey’s associate.

Harvey and Mike become a legal dynamic duo as they battle with billable hours, malleable legal ethics and generally the lonely lives of narcissist lawyers that are battling it out for supreme legal domination. All of this occurs in a funny and entertaining way of course.

However, like many legal dramas, I feel there is some gigantic leaps between the life of lawyers as portrayed on Suits and the every day life of a lawyer that I have experience.

Whilst viewing hours and hours of Suits, it has crossed my mind, that this maybe what people actually think I do at work and why has no one ever gifted me a $12,000 bottle of scotch and some Tiffany’s glassware as a starting gift, like Scotty got from Harvey? Maybe I should start expecting such gifts… Alas this is where Suits and the portrayal of lawyers is grossly misleading.

Here are my top 3 issues with how Suits portrays the life of lawyers:

1. Harvey Specter

Harvey Specter

The Best Closer in New York!

Well firstly, isn’t he dreamy. Secondly, Harvey is kind of a jerk, even if he is the best “closer in New York”.

That’s before you forgive Harvey for his unprofessional and sometime unethical behaviour due to the fact that he is an emotional complex and brilliant lawyer and is the king of inappropriate one-liners and legal speech including  “My advice is hold tight and enjoy the ride” the exact words you want to hear from your lawyer!

Harvey Specter

But really, Harvey’s behaviour as a lawyer is some what unrealistic and flies in the face of everything any graduate lawyer has even learnt about professional courtesy, legal ethics and general life lessons about how to be a decent human being in the workplace.

Harvey Specter

Harvey really smashes all these social/workplace boundaries in almost every episode. On that note, so does Louis Litt when telling opposing Counsel they just got “Litt up” in negotiations.

Louis Litt

Whilst Harvey and Louis are fictional character, perhaps a disclaimer should come with each episode just reminding viewers that if lawyers actually behaved this way, they would quickly be sued, unemployed or probably punched in the face.

2. A lack of any actual paperwork

Lawyers generate a lot of paperwork. I know it is terrible for the environment and I am all for using biodegradable paper and moving to an electronic legal world, however despite these efforts lawyers generate a lot, and I mean a lot of paperwork.

Rachel & Mike

Rachel & Mike…. backdrop of files!

Whether it is in the form of briefs, letters, emails, to do lists, mind maps, case plans, file notes or research. There is a lot of paperwork. In Suits, apart from a brief view of the file room or a pile of briefs for a really big case, paperwork is usually just the background scene or a content-helpful prop for some intimate moment or fight between Mike Ross and Rachel, or Jessica and Harvey or Louis and everybody…

So my real criticism is that there is a distinct lack of any paperwork or actual work being generated throughout the 4 seasons of Suits. It is unrealistic.

Harvey’s desk is always so neat and empty (except maybe for Donna).

Donna at Harvey's desk

Donna taking over Harvey’s desk

Where are the coffee stained draft letters, the disorganised stacks of important documents that your client thought may be useful, but failed to give you months ago, where is the endless stack of post-it notes on every empty desk surface?

Perhaps this contrast is illustrative of my office and working style and sure Rachel walks around with the odd file or Donna is standing at the photocopier for some unknown reason, but you never actually see the lawyers writing a letter or file note or surrounded by a mass of unfinished to do lists or draft letters.

So please, Suits writers start weaving in some actual legal work and paperwork into Season 5, I feel it would really add to a realistic portrayal of office life.

3. Looking like an A list celebrity at work

Jessica looking fabulous

Fearless Jessica looking so fabulous

Depending on where you work, the professional dress code differs from smart casual if you work in the legal community sector to high end designer suits if you work in a top tier commercial firm, however Suits seems to suggest that all lawyers dress like they have their own personal stylist, designer wardrobe and hair and makeup team every morning before they walk into the office. Yes yes, I know it is a HBO show and they are all beautiful people, but please let’s get realistic.

No actual functioning lawyer can wear 6 inch stilettos for over 8 hours a day, the pain in your feet actually reduces your intellectually ability to problem solve. Also where are the coat racks of emergency Court jackets, ties, robes and the pile of various shoes (ranging from stilettos, pumps, flats and slippers) under everyone’s desk??

Please don’t tell me it is just me that has such emergency items on standby in my office?

Also on this tangent, all the characters on Suits pull all nighters all the time when they are working on the most urgent big case. For someone who values sleep, I just don’t see these all nighters as necessary, however of course in reality they do happen.

Where Suits is misleading, is after pulling an all nighter everyone still looks put together, still with their suit jacket or heels on. This is grossly inaccurate. No one could actually keep their 6 inch stilettos on all day and all night. That’s crazy talk. Where is the messy hair, the crinkles in your shirt and walking around barefoot in a mad dash to the photocopier?

Rachel looking great after an all-nighter

Also there is a distinct lack of diet Coke, empty take away coffee cups and plastic takeaway containers littered across the lawyer’s desk after an all-nighter. Again grossly inaccurate.

Recommendation

If you haven’t already binge watched Suits, then set aside a weekend, or a couple of week nights when you don’t have Court at 9 am and sit back and enjoy, what legal life should be like according to Hollywood!

You may even pick up some dramatic negotiating skills and good one liners to use when talking to the other lawyers and therefore binge watching Suits may even be considered a broad approach to your continuing legal education.

Play “PHILLIPESE” today!

Play Phillipese

Philipese

[click to see full size]

 

Barristers, who spend a lot of their time communicating with other lawyers or with judges, often lapse into jargon.  A few years ago, concerned that most of my colleagues were incomprehensible to normal people, I came up with the attached tongue-in-cheek poke at legal jargon.  Almost all entries were taken verbatim from things said by my colleagues.

There is a serious side to this. Several years ago, I was coming down in a lift in a building containing barristers’ chambers. The lift stopped before it reached street level and a young couple got in.  They looked at each other and the young woman turned to me and asked, “Excuse me sir, what does ‘reasonable prospects of success’ mean?”.

I was very taken aback but answered her as best I could.  The lift reached street level, she thanked me, and they got out.

I stood there in shock as I realised what had happened:  The young couple had been to see their barrister, no doubt with their solicitor present, and had received advice about legal proceedings they were involved in.  They did not understand the legal advice.  Neither lawyer had checked that the clients understood the advice they had been given, and the clients themselves apparently were too shy/scared/intimidated to ask for an explanation.  So, no doubt in desperation, they had asked a total stranger in a lift what the legal advice they had received from their lawyers meant.

Every barrister I tell this story to scoffs and says something like, “But everyone knows what ‘reasonable prospects’ means.”  They forget that, for non-lawyers, “prospect” makes them think of (if anything) looking for gold.  The phrase is pure legal jargon and it was indefensible that the lawyers had not checked that their clients understood the advice they had been given.

Robert Angyal SC Barrister, Mediator and Arbitrator

Sorry but being a ‘standout’ doesn’t come with a guarantee

by Bernadette Healy

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How to thrive and make a difference?  It may be surprising to find that there is an answer to this question. It is to be yourself.  As you are likely to know already, this is not easy, particularly at work because work contexts, in general, are about persuading those within them to mould themselves according to an organizationally-defined template.  The ongoing efforts to do so which necessarily includes continual comparison between employees (and even with those outside the organization) –can lead to feelings of inadequacy, failure and isolation – and is known to impacts on both personal and organizational wellbeing.

At the recent Wellness for Law forum at ANU  (for a sample of the program offerings, please see:  http://wellnessforlaw.com/2015/01/2015-forum-presentations/)  a lawyer on a panel considering the issue of workload used the expression “the magnetic force to conform.”  This wonderful and accurate description helps to explain why  many people are prepared to routinely work hours that must inevitably lead to burnout -for the majority – and not uncommonly, an exit from study or an organization (accompanied all too often by a belief that they were a failure).   As many of you will know, the practice of using up and then replacing young bright legal hopefuls is cynically built into some organization’s practices.

In another presentation, we heard about a young female lawyer who successfully negotiated work / life balance issues for herself at the hiring stage and continued to maintain her negotiated practices while also gaining management recognition and promotion.   This would no doubt have taken courage both when initiated and also on an ongoing basis as she faced questioning and possible pressure to conform (as it was not a generally accepted practice within the firm). The oversupply of lawyers makes this kind of behaviour seem all the braver and it is easy to understand that many would choose instead to refrain from making any demands of the organization – at least at entry level – for fear that it upset their desperate bid to get the proverbial foot in the door.  But perhaps for the young lawyer above the balance issue was the ‘must have’ factor for any role and known to her, to be a critical ingredient for success.  (perhaps you are saying to yourself as you read this ‘she must have been a real ‘standout’ .  But aren’t most of you ‘standouts’- at least in terms of the prevailing societal definition of success?  Being someone who has generally succeeded up to the point of entry to your chosen profession or a few years in or even in the middle of your career, won’t necessarily lead to personal satisfaction or wellbeing at work.  For those experiences you can’t avoid paying attention to yourself and who you are, both in terms of your relationship with yourself and with others)

What is your critical ingredient?  What is your ‘must have’ in terms of the thing that is a pre-requisite in order for you to be able to thrive in the work context?  Have you given thought to what contributes to your thriving compared to what is a ‘its nice when it happens ’ kind of issue?    Where does workload and work hours fit in the above for you?  Where does respect and a climate free of bullying fit for you?  What are you prepared to ignore, tolerate, or even turn a blind eye to for the sake of your professional goals?  Are you prepared to risk anything for the sake of your values?  Is your desire to conform and be accepted the number one thing that drives you?

These issues need to be faced by all of us.  I have found in my profession listening to countless dilemmas that the object of your choice will generally be less significant in terms of personal wellbeing than is the action of you consciously choosing and importantly being prepared to take responsibility for that choice.

Thankfully there is increasing recognition and some signs of action[1] around the reality that organizational policies and practices impact the individual wellbeing of its members.  However bureaucracies are inherently slow-moving and unwieldy beasts – if there is something that really matters to you, that you know is impacting your professional and personal wellbeing – don’t hang around too long waiting for change – (either in the organization or you!) make a decision and act.

[1] (for example as suggested by law firms and associations who have become signatories to the TJMF psychological wellbeing best practice guidelines for the legal professions – see http://www.tjmf.org.au/raise-the-standard/the-guidelines-at-a-glance/

Gone Girl

By Arna Delle-Vergini

Gone Girl

GONE GIRL (2014, 149 mins)
DIRECTOR: DAVID FINCHER
ARNA’S RATING: 4/5

Loosely described, Gone Girl is a film about a wife who goes missing, a husband whose innocence is increasingly called into question, and a police investigation that is oh so right but which ultimately gets it oh so wrong. Like pregnancy, murder won’t save a bad marriage, but this film somehow does in fact manage to make murder seem like an agreeable option. Or, if not murder, at least death. And yet, for the accused husband, Nick Dunne (Ben Affleck), this is not terribly apparent at first. A good deal of the film is spent watching Nick trying to hopelessly worm his way out of the murder investigation. He doesn’t do a very good job. The film is narrated by missing wife, “Amazing Amy“ (Rosamund Pike). Her calm narrative, juxtaposed with Nick’s complete mismanagement of his own behavior whilst under investigation (his cheesy smile; his selfie with a local housewife, and his difficult to conceal for very long affair with one of his young students) leaves little doubt about Nick’s innocence.

Enter Tanner Bolt (Tyler Perry) – attorney extraordinaire. Tanner Bolt, said to be based on the famous Johnnie Cochran (O.J. Simpson’s Attorney) is known as the “Patron Saint of Wife Killers”. There is no such thing as an unwinnable case, providing you pay his $100,000 retainer. And you will. Because you don’t want to go down for killing your wife, particularly in Missouri where the death penalty applies.

Tanner Bolt’s role is limited in the movie but the part he does play is lawyer gold. He knows that image is everything – the details of the case can wait until later. He counsels Nick on how to make a plea to the American people via popular news shows using the unforgettable “gummy bear” method – whereby every time Nick comes across as smug or disingenuous in practice, Bolt gets to throw a gummy bear at his face. He attends the police interview with Nick and gives him the standard excellent legal advice pre-interview, (“give them nothing”), all of which Nick blithely ignores and yet he still manages to get him out on bail after his arrest – much to the chagrin of the Watchhouse officer: “Dunne, you’ve got one hell of a lawyer!”

 But what I really love about Tanner Bolt, is not his legal prowess but his humanism. When Nick gives his instructions to his lawyer – and they are weird as hell instructions – Bolt doesn’t bat an eyelid. It’s not his job to question his client, it’s his job to advocate for his client and he backs him, laughing all the way. Bolt – who deals with “fucked up people” doesn’t mind telling his client that as far as fucked up people go, Nick’s right up there. But all of this is done in good humour and with the confidence of an attorney who knows that after this alleged killer, there will be another and then another and then another. Same shit. Different smell. What remains the same is this lawyer’s unshakeable belief in the importance of his role and his ability to do it better than anyone else.

Lawyers are often treated negatively in film. This is not one of those films. As a lawyer you finish watching the film with a little inner glow you reserve for times when you feel you have made a difference or when you see other lawyers make a difference. It’s gold.

I’d give this movie 4 stars out of 5 for what it is.

Image from IMDB

Adam Bandt

by Maille Halloran

 Adam Bandt

Adam Bandt is one of a kind. He remains the only Greens MP in the Australian lower house, the first Greens MP to win the historic seat of Melbourne, and the first Greens MP to spend more than a term in the House of Representatives.

Bandt studied Law and Arts in Perth and practised for a decade as an Industrial lawyer, mainly representing lower-paid workers.

Bandt later moved to Melbourne to complete a PhD at Monash University. In the midst of the ‘War on Terror’ Bandt sought to understand the trend of 21st century governments suspending the rule of law in a climate of increasing globalisation. His conclusion was that governments have begun to ignore the existence of immutable human rights, such as equality before the law and the right to seek asylum.

Politics seems a foreseeable move from industrial advocacy and a thesis which argued for government’s promotion of inviolable human rights. Bandt’s term in parliament has been characterised by strong support for the Science and Research communities of Melbourne as well as Melbourne’s young student population.

 

Image: http://archive-vic.greens.org.au