Practice & Risk Management Systems Mandatory 6.1 CPD RULES - - PDF document

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Practice & Risk Management Systems

Mandatory 6.1 CPD RULES

December 2018 Presenter Glenda Carry Solicitor - Professional Standards Department, Law Society of NSW Email: regulatory.compliance@lawsociety.com.au

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Ten objectives identified

The Office of the Legal Services Commissioner (OLSC) working collaboratively with the Law Society of NSW, LawCover and the College of Law, has identified a set of 10 objectives covering the areas that are considered to be fundamental to ensure compliance with the Uniform Law, the Uniform Rules and other professional obligations.

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The ten objectives are:

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Negligence

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Communication

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Delay

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Liens/file transfers

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Cost disclosure/billing practices/termination of retainer

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Conflict of interest

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Records management

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Undertakings

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Supervision of practice and staff

• 10. Trust account requirements

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Discuss the 10 objectives and appropriate management systems

Looking specifically at:

• Communication;
• Supervision.

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“The single biggest problem in communication is the illusion that it has taken place” ~ George Bernard Shaw

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Causes of Lawcover Notifications

Main cause is poor communication with clients:

• A lack of common understanding between

solicitor and client;

• A lack of, or failure in, office systems

designed to assist solicitors to process work and avoid oversights.

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Communication

• Poor communication is a common factor

in the breakdown of client-lawyer relationships; and

• Is the basis for a large percentage of

client complaints/claims.

• Good communication with clients builds

strong professional relationships.

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Building the foundations of a sustainable business…..3 R’s

• Relationships;
• Repeat business;
• Referrals.

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Communication of Advice

Rule 7 Uniform Law Australian Solicitors’ Conduct Rules 2015

7.1 A solicitor must provide:

• clear and timely advice to
• assist a client to understand relevant legal

issues and to

• make informed choices about the action to be

taken during the course of a matter.

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Communication Health Check

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• 1. At the beginning of the relationship:
• Are you retained?
• Who? What? And how much?
• Is the retainer clearly defined and agreed (scope)? Note:

just as important to clarify (in writing) any related area that you will not be advising upon;

• Managing expectations;
• Discuss Costs.

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• 2. During the retainer:
• Are client instructions clear and confirmed in writing?
• Is the advice clear and confirmed in writing?
• Explain in detail the client’s proposed course of action;
• Prepare template documents to ensure compliance and

consistency;

• Set internal reminders for critical dates and confirm what is

needed from the client to ensure these deadlines are met (client responsibilities)?

• What is the policy surrounding keeping your client informed on

progress? When can they expect to receive a return phone call?

• Update client retainer/costs disclosure (as necessary);
• Use contemporaneous file notes.

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• 3. At the end of the retainer:
• Build relationships with clients – have procedures in place for

closing a retainer (e.g. standard final letter, thanking the client for instructing you, asking for feedback and referrals, options for ongoing contact.)

• Remember building relationships is how you build a business.
• Without clients there is no cashflow and without cashflow

there is no business. Repeat business and referrals are the cornerstones of building a sustainable business.

• Remember the 3 R’s.

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Rule 37 –Uniform Law Australian Solicitors’ Conduct Rules 2015

37. Supervision of Legal Services

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Rule 37 –Uniform Law Australian Solicitors’ Conduct Rules 2015

37. Supervision of Legal Services

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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What is reasonable supervision?

> No exhaustive definition > Legal Services Commissioner v

Baker [2005] LPT2

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Legal Services Commissioner v Baker [2005] LPT2 at [42]

“…………a practitioner’s legal and fiduciary duties to a client are not avoided or reduced by delivering that client into the care of an employee, whether or not that employee is legally qualified. The supervision required however varies according to the employee’s experience, qualifications and role and with the type and complexity of the work”.

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Section 34 Legal Profession Uniform Law (NSW)

Responsibilities of Principals:

• Each principal is responsible for ensuring that

reasonable steps are taken to ensure that –

• All legal practitioner associates of the law practice comply

with their obligations under the Uniform Law/professional

• bligations
• The legal services provided by the law practice are provided

in accordance with (the Uniform Law)/professional obligations

• A failure to uphold that responsibility is capable of constituting

unsatisfactory professional conduct/professional misconduct

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Section 35 Legal Profession Uniform Law (NSW)

Liability of Principals:

• If a law practice contravenes any provision of the

(Uniform Law) imposing an obligation on the law practice, a principal of the law practice is taken to have contravened the same provision, if -

• The principal knowingly authorised or permitted the

contravention; or

• The principal was in/ought reasonably to have been in a

position to influence the conduct …and failed to take reasonable steps to prevent the contravention

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Are you a supervisor? Areas to consider……

• Important for senior lawyers to set the tone;
• Ensure policies and procedures are in place

(management systems) and all staff have appropriate training in use of systems;

• Understand the capabilities of the supervisee when

allocating work;

• Keep a keen eye on workloads;
• Question supervisee’s understanding of instructions;
• Procedure for managing incoming and outgoing mail;

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Are you a supervisor? Areas to consider……

• Weekly meetings to discuss work in progress and

any issues;

• Regular file reviews (not just verbal update);
• Stress the importance of diarising important dates

(not just for litigious matters) and follow ups;

• Stress the importance of making contemporaneous

file notes;

• Procedure for noting and reviewing inactive files;
• Complaints handling procedure;

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Are you a supervisor? Areas to consider……

• Seek feedback and suggestions from staff.

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Are you a supervisee? Areas to consider……

• Speak up…..don’t suffer in silence;
• Ask questions if you do not understand the

instructions clearly;

• Diarise all important dates (not just limitation periods);
• Plan your workload – urgent v’s important;
• Ask for feedback;
• Take the initiative to schedule meetings;

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Are you a supervisee? Areas to consider……

• Make contemporaneous file notes of all client interaction;
• Ensure all correspondence is checked by your supervisor before it leaves

the office;

• Regularly carry our your own file reviews for important dates, inactive

files, follow-ups.

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Eat the frog first!

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Time Management

URGENT NOT URGENT

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Quadrant 1

Important and Urgent Deadlines

Quadrant 2

Important but Not Urgent Strategy and Planning

Quadrant 3

Not Important but Urgent Interruptions

Quadrant 4

Not Important, Not Urgent Distractions

NOT IMPORTANT IMPORTANT

Remote supervision

Issues to consider:

• Effective management of retainer;
• Confidentiality;
• Logistics of daily contact;
• Approving correspondence and advice;
• Client meetings;
• Court appearances;
• Conducting file reviews, monitoring work in progress

and arranging face to face meetings.

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