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

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 1

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5 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. 6 3

The ten objectives are: Negligence 1. Communication 2. Delay 3. Liens/file transfers 4. Cost disclosure/billing practices/termination of retainer 5. Conflict of interest 6. Records management 7. Undertakings 8. Supervision of practice and staff 9. 10. Trust account requirements 7 Discuss the 10 objectives and appropriate management systems Looking specifically at:  Communication;  Supervision. 8 4

“ The single biggest problem in communication is the illusion that it has taken place” ~ George Bernard Shaw 9 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. 10 5

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. 12 6

Building the foundations of a sustainable business…..3 R’s  Relationships;  Repeat business;  Referrals. 13 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. 14 7

Communication Health Check 15 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. 16 8

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. 17 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. 18 9

Rule 37 –Uniform Law Australian Solicitors’ Conduct Rules 2015 37. Supervision of Legal Services 19 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 20 10

What is reasonable supervision? > No exhaustive definition > Legal Services Commissioner v Baker [2005] LPT2 21 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”. 22 11

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 obligations 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 23 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 24 12

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; 25 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; 26 13

Are you a supervisor? Areas to consider……  Seek feedback and suggestions from staff. 27 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; 28 14

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. 29 Eat the frog first! 30 15

Time Management URGENT NOT URGENT IMPORTANT Quadrant 1 Quadrant 2 Important and Urgent Important but Not Urgent Deadlines Strategy and Planning NOT IMPORTANT Quadrant 3 Quadrant 4 Not Important but Urgent Not Important, Not Urgent Interruptions Distractions 31 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 . 32 16