Lawyers Weekly September 16, 2011

LEGAL SPOTLIGHT

IN-DEPTH

The money behind litigation

Recruitment leaves its Marque

OUR FUNDING FATHERS

TWEET TO YOUR SUCCESS

OPINION

THIS WEEK

Lawyers and the court of public opinion

The man protecting privacy

PILGRIM’S JOURNEY

TRIAL

BY MEDIA

www.lawyersweekly.com.au

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Friday 16 September 2011

Print Post Approved 255003/05160

BOOMTOWN Is Perth’s image a facade?

Contents

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“The war for talent in Perth is definitely a war – it’s not a battle” Nick Nichola, managing partner, Middletons – See page 21

18 6 10 12

International Private Practice Vietnam | Corporate 4-6 years

This role involves a mix of public and private M&A, joint ventures, private equity and securities offerings from complex transactions to smaller deals providing greater responsibility. You will deal directly with multi-national corporations and financial institutions assisting on structuring, documenting, negotiating, licensing and postlicensing aspects of projects. You will be expected to mentor and supervise junior lawyers on relevant matters. Top or highly regarded mid tier background. Ref: VTM/4471/RL

Bangkok | M&A / Private Equity

Jakarta | Corporate M&A

Mid Level

Junior Partner or Senior Associate

Rare opportunity to work on cross border deals from the Bangkok office of this international firm. You will have at least 3 years of relevant experience gained from a top tier or similar quality law firm. You will act for clients within a range of sectors on private and public company acquisitions and JVs. You need to be Commonwealth qualified but Thai language ability is not necessary.

Ref: BAN/4452/RL

A leadership opportunity is available for a dynamic M&A practitioner interested in relocating to one of the top performing economies in the world and the largest economy in SE Asia. To be successful in this role you will need a broad M&A background and strong technical drafting expertise and the ability to take the lead on complex negotiations and transactions. Industry sectors include natural resources and commodities, oil and gas, mining, water and power. Ref: JAK/4474/RL

THIS WEEK: A round-up of the latest legal news

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IN-DEPTH: An international conference in Sydney put the criminal justice system under the microscope. Justin Whealing and Stephanie Quine report IN-DEPTH: This year, Marque Lawyers decided to recruit their summer clerks via Twitter. Now, managing partner and chief judge of tweets Michael Bradley tells us how it went and what they learned

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LEGAL SPOTLIGHT: Draft regulations for litigation funders are set to apply from next month. Justin Whealing looks at whether this will inhibit access to justice or make them more financially accountable OPINION: As the number of cases receiving significant media attention grows, Joe Murphy and Alana Paterson ask where lawyers need to draw the line when it comes to engaging with the press

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COVER STORY: With global firms moving in and local firms bulking up in the face of the resources boom, it seems the streets of Perth may well be paved with gold.

But are things really as good as they seem? Claire Chaffey finds out CAREER COUNSEL: Male managers are the greatest ally of working mothers, according to a study on the advancement of women in the workforce FOLKLAW: The lighter side of the law

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Editor’sNote

Editor, Justin Whealing

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THE GOOD times in Perth will keep rolling along.

That is the common perception of the Western Australian capital as the resources boom continues to fuel the Australian economy, with six international law firms moving to the city over the last two years to take advantage of the riches on offer.

However, while there might be lots of work for energy and resources lawyers, Claire Chaffey’s cover story on Perth (see page 18) shows that for many people in Western Australia, including lawyers, the wealth generated from that sector is not trickling down.

Hylton Quail, the president of the Law Society of Western Australia, told Lawyers Weekly that many members of his society are “going through tough times”.

“This is a story of a two-speed economy,” he said. “There is no doubt that in some practice areas there is, if not a crisis, a real tightening of the market.”

An international survey in July found that Perth is the 13th most expensive city in the world – cheaper than Sydney and Melbourne, but more expensive than London and New York.

Steepling prices for amenities, such as water and electricity, as well as rent increases at a higher rate that in Sydney, Melbourne and Brisbane, are making it harder for the many people in Perth, such as the surplus of graduate lawyers in the city, to reap the rewards of the boom times.

Despite the massive contribution the energy and resources sector makes to Australia’s export share (piquing the interest of global law firms), the reality is that Australia is still a services-based economy.

Law firms, which make a significant contribution to the services sector, realise this. That is why five of the six global firms in Perth have offices in east-coast locations in Australia and why it would be inconceivable that the most recent global entrant in Perth, Squire Sanders, wouldn’t follow suit if it wanted to be a major player in the Australian market.

While Perth continues to be a focus for the legal profession, many other areas of the law are also under scrutiny.

It was my great pleasure last week to attend an address by the Privacy Commissioner Tim Pilgrim and to be a guest at a conference on the criminal justice system hosted by the Australian International Judicial Administration organisation – not as sexy or lucrative as what energy and resources lawyers are doing in Perth, but arguably more important to the Australian community.

TOP 10 STORIES ONLINE THIS WEEK 1 Freehills loses top partner 2 Melbourne claims top spot in world law school rankings 3 Clayton Utz loses partner to Piper Alderman 4 Man appeals to law firms to help “nail” Zuckerberg 5 Animal welfare groups must be investigated: lawyer 6 Slater & Gordon launches fixed fee service 7 Kemp Strang poaches Gadens director 8 Internet undermines jury system 9 Mallesons seeks true diversity 10 Courting attention: Why engaging the media is critical NEXT WEEK

Lawyers Weekly looks at the state of Continuing Legal Education in Australia and asks lawyers what they really think of it. We find out what needs to change and how CLE providers are responding.

EDITORIAL BOARD Lawyers Weekly is delighted to have the following industry leaders on its editorial board Andrew Grech Managing director, Slater & Gordon

Nick Abrahams Partner, Norton Rose

Will Irving Group general counsel, Telstra Corporation

Helen McKenzie Deputy managing partner, Blake Dawson

Sharon Cook Managing partner, Henry Davis York

Joe Catanzariti Partner, Clayton Utz

David Cowling Partner, Clayton Utz

Robert Milliner Chief executive partner, Mallesons Stephen Jaques

Ewen Crouch Chairman of partners, Allens Arthur Robinson

Megan Pitt Director, Australian Government Solicitor

Sue Gilchrist Partner and practice leader (intellectual property group), Freehills

Lucinda Smith Partner, Thomsons Lawyers

WE HAVE THE BEST JOBS IN PERTH

ABOUT US Editor: Justin Whealing Deputy Editor: Claire Chaffey Senior Journalist: Briana Everett Journalist: Stephanie Quine Designer: Ken McClaren Design Manager: Anthony Vandenberg Senior Online Producer: Rebecca Whalen Group Production Manager: Kirsten Wissel Group Sales Manager Adrian Fellowes Senior Account Manager Stephen Richards SUBSCRIBE TODAY Lawyers Weekly is published weekly and is available by subscription. Please email subscriptions@lawyersweekly.com.au All subscription payments should be sent to: Locked Bag 2333, Chatswood D/C, Chatswood NSW 2067 ADVERTISING ENQUIRIES: Adrian Fellowes sales@lawyersweekly.com.au (02) 9422 2134 (mob) 0407 489 060 Stephen Richards stephen.richards@lexisnexis.com.au (02) 9422 2891 (mob) 0429 305 836 EDITORIAL ENQUIRIES: Justin Whealing justin.whealing@lexisnexis.com.au (02) 9422 2832 All mail for the editorial department should be sent to: Lawyers Weekly, Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067

Corporate M&A | 1-6 yrs Top calibre opportunities in Perth for high performing corporate/M&A lawyers from 1 year of experience to SA level. Excellent salary packages and relocation on offer to the successful candidates.

Finance | 1-5 yrs General banking and project finance roles at the premier level in Perth. Get more responsibility sooner working in smaller teams on impressive deals with both a domestic and international focus.

Construction (Front End) | 2-3 yrs Become involved in exciting, high profile projects working with blue chip clients and industry recognised partners. If you want excellent training and development opportunities, then you should explore this role. Premier firm.

Energy (Oil, Gas, Minerals, Mining, Power) | 3-6 yrs Top tier firm. The booming WA resources sector can provide you with international quality experience. You will have solid corporate energy exposure across any of the above areas.

Commercial litigation | 1-6 yrs First rate opportunities for general commercial litigation lawyers. You will have a sharp mind to work on these complex and high profile cases. Perth or interstate experience from a leading practice is essential.

Capital Markets | 3 yrs + Highly regarded firm seeks top calibre capital market lawyer. An interesting mix of work and unmatched professional development opportunities offered. Very competitive remuneration package.

Workplace Relations | 3-7 yrs National powerhouse firm. Excellent career progression opportunities on offer for experienced workplace relations / industrial relations lawyers. Superb working environment in this client facing role.

Commercial Property | 2-7 yrs This is a very rare offering for a high calibre commercial property specialist at this internationally regarded firm. You will have an excellent core skill base, a commercial approach and great academics. Close knit team.

Funds | 4 yrs + This is a genuine growth role within a dynamic team environment working for impressive clients. If you are an SA, or on track, within a well regarded Australian practice but wanting to explore alternatives, contact us to discuss.

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Contributions are invited, but copies of all work should be kept, as Lawyers Weekly can accept no responsibility for loss. Lawyers Weekly and LexisNexis are divisions of Reed International Books Australia Pty Limited, ACN 001 002 357 Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067 tel (02) 9422 2203 fax (02) 9422 2946 ISSN 1833-5209 Important Privacy Notice: You have both a right of access to the personal information we hold about you and to ask us to correct if it is inaccurate or out of date. Please direct any queries to: The Privacy Officer, LexisNexis Australia or email privacy@lexisnexis.com.au. © 2010 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.

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For a confidential discussion about these opportunities or other opportunities at home or overseas contact: Greg Plummer email: greg.plummer@marsdengroup.com, telephone: 02 8014 9052 Samantha Cowling email: samantha.cowling@marsdengroup.com, telephone: 02 8014 9053 Jonathan Walmsley email: jonathan.walmsley@marsdengroup.com, telephone: 02 8014 9050 To search Australian and global job opportunities go to www.marsdengroup.com or download our free iPhone App (search iTunes – Marsden Job Search) - legal job searching just got easier.

thisweek

Melbourne claims top spot in world law school ranks The University of Melbourne (UOM) has claimed the top spot in Australia for the study of law.

According to the 2011 annual QS World University Rankings released on 5 September, UOM is ninth in the world for the study of law.

Harvard University took out first place, followed by Oxford, Cambridge, Yale and Stanford universities. The University of Sydney ranked 11th, the Australian National University 15th and Monash University ranked 20th.

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Blake Dawson has reappointed chairman Mary Padbury for a third successive term as speculation mounts that the firm will merge with global giant Ashurst.

Having worked as a lawyer at Bristows (a specialist intellectual property firm) in London in the mid 1980s, Padbury said she has seen first hand the “dramatic changes” to well-established law firms from mergers.

Padbury said she remembers going into work at Bristows, picking up the Financial Times and reading about the Clifford Turner and Coward Chance merger proposal.

“I remember thinking, ‘Gee that’s interesting’,” said Padbury. “That was also around the time that English firms were spreading into Western Europe.”

While working in London as Blakes’ resident partner around 10 years ago, Padbury also noticed the “enormous number of US firms opening” as they came to the UK looking for growth.

While she would not comment on any Blakes merger, Padbury said she was surprised at how long it had taken for English firms to come to Australia.

“I think partly it’s a credit to the quality and calibre of the firms we have in Australia, that it was a market that foreign firms largely steered away from,” she said.

“But with what’s happening in Asia and the growth of China, some of the exciting developments in our own economy and the strength of our currency, some of the things that have deterred people in the past will change. It’s a very exciting time.”

D E A L O F T HE W E E K

Three firms spin southern hemisphere’s largest wind farm Deal name: NZ’s Meridian and Australia’s AGL join forces for $1billion wind farm.

Key players: Freehills; Allens Arthur Robinson; Norton Rose

Ashurst partners are expected to vote on a proposed tie-up deal between Blake Dawson and Ashurst before the end of September, according to The Lawyer.

Padbury told Lawyers Weekly it was a “great privilege” to be elected to chair for a third successive term.

“My colleagues convinced me that continuity was a good idea and I enjoyed the role so I re-applied. I’m very touched that they wanted me to continue,” she said.

First elected as chair in 2005 to succeed Richard Fisher AM before being reappointed in 2008 for a further three years, Padbury has guided the firm through the introduction of a performance-based remuneration system for partners and the firm’s rebranding in 2007.

Now, Padbury said, she maintains a “semblance of practice” (in IP law), but mostly spends her time overseeing Blakes’ management, profitability and strategy.

Freehills, Allens Arthur Robinson and Norton Rose have advised on the funding of a $1 billion joint wind farm venture between Australia and New Zealand.

Allens advised NZ’s largest renewable electricity generator Meridian Energy Ltd (Meridian) on its share of the development and construction costs of the wind farm with Australia’s largest renewable electricity generator, AGL. Due for completion in 2013, the 420 megawatts (MW) Macarthur wind farm in southwest Victoria will be the largest wind farm in the southern hemisphere and one of the biggest in the world.

It will have the capacity to power more than 20,000 homes and create significant employment opportunities.

Freehills acted for Australia and New Zealand Banking Group Limited (ANZ) and the Danish export credit agency,

R E W IND The latest Nielsen opinion poll published by Fairfax newspapers has revealed that former Prime Minister Kevin Rudd would lead the Labor Party to victory if a federal election was held now. According to the poll, if Rudd was brought back as leader, Labor’s primary vote would increase from 27 per cent to 42 per cent, giving it a lead over the Coalition.

Eksport Kredit Fonden, who were the lead arrangers/underwriters for the transaction.

Norton Rose partners Vincent Dwyer and Dan Marjanovic advised AGL with assistance from senior associates Natasha Vyrnwy-Jones, Linda Robinson and Natalya Dingley.

Under the deal, which closed on 8 September, Meridian secured $386 million in syndicated debt facilities, including a portion of debt being provided by Eksport Kredit Fonden.

Partner Anna Collyer and senior associate Michael Ryan led the Allens team on the matter.

“The deal demonstrates the value that renewable energy can bring to Victoria,” said Collyer. “We would hope that investment of this nature can continue to thrive and contribute to the development of a low carbon economy.”

DE AL MAKERS

The Australian Competition and Consumer Commission (ACCC) lodged an appeal against the Federal Court’s dismissal of its bid to prevent Metcash from acquiring the Franklins supermarket. ACCC chairman Rod Sims said the watchdog has appealed because the “court’s interpretation of some fundamental principles of merger analysis could have serious implications for the ACCC’s ability to block anti-competitive mergers”.

The first shipment of live cattle since the suspension of live exports in June has left the Northern Territory for Indonesia. On Monday (12 September), Australian agribusiness Elders Limited loaded a shipment of 3000 cattle at a Darwin port after receiving approval in July to recommence supply to its wholly-owned supply chain in Indonesia.

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Bruce Adkins

Jane Hodder

Ross Landsberg

Firm

Corrs Chambers Westgarth (Straits Resources Limited)

Freehills (Bendigo and Adelaide Bank), Mallesons Stephen Jaques (developers)

Clayton Utz (Australia Pacific LNG), Minter Ellison (Gladstone Area Water Board and Gladstone Regional Council)

Deal name

Straits sells Hillgrove Banks acquire new lease Antimony-Gold Project to Court Resources WA

Agreement for provision of water services to Curtis Island

Area

Corporate

M&A

Major projects

Value

$40 million

Undisclosed

Undisclosed

Key players

Corrs’ Bruce Adkins

Freehills’ Jane Hodder

Minters’ Ross Landsberg

Movers & Shakers

NSW courts to get makeover The New South Wales Government has allocated $78 million in its 2011-12 Budget to allow for the upgrade of the NSW court network, including $40 million towards a new courthouse in Coffs Harbour.

NSW Law Society president Stuart Westgarth said he was pleased the budget aims to provide support to those accessing the justice system.

“We’re pleased that the NSW Government has made good on its commitment to expand and upgrade the NSW court network,” he said.

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Blakes reappoints chair

The Web

Don’t change Migration Act: ALHR The Federal Government should process asylum seekers onshore and not change legislation to accommodate offshore processing, according to the Australian Lawyers for Human Rights (ALHR).

“Onshore processing is the legally certain, least expensive and most humane and principled way ahead for determining asylum-seeker claims,” said ALHR president Stephen Keim.

Keim also cautioned the Government against resurrecting the Nauru and Manus Island processing and detention centres – neither of which have been scrutinised by the High Court.

thisweek G+T loses two partners Gilbert + Tobin has lost two partners to separate firms.

Truman Hoyle has poached Richard Pascoe (pictured) to head up its media and content practice, while Norton Rose has taken Martyn Taylor as a partner in its corporate practice in Sydney.

Taylor was formerly a partner at G+T specialising in competition matters, telecommunications and energy regulatory issues. Norton Rose also poached former Corrs Chambers Westgarth senior associate Scott Miller as a partner in its banking practice in Melbourne.

Clutz loses partner to Piper Alderman Wally McDonald has left Clayton Utz to join the Sydney corporate team of Piper Alderman as a partner. A corporate, government, TMT and major projects lawyer, McDonald held the national positions of departmental managing partner (corporate) and chairman of the energy and resources group at Clayton Utz. HopgoodGanim recruits top-tier expert HopgoodGanim has appointed international corporate expert Gavin Batcheler as a senior associate in it’s resources and energy team.

Batcheler has worked in Australia, the UK, southeast Asia and the Middle East for firms including Clifford Chance and Minter Ellison.

Wrays boosts IP team Wrays Lawyers has appointed three intellectual property lawyers to boost its advisory and litigation practice. Marie Wong (pictured) who previously worked for Norton Rose in Melbourne, will join Wrays as a special counsel.

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thisweek

thisweek

slater & Gordon launches fixedfee service Slater & Gordon announced on 8 September that it will offer fixed-fee arrangements for its family law services.

Starting in Victoria, but to be rolled out nationally at a later date, the firm’s fixed-fee service was developed over the last 12 months and will cover every stage of a family law matter up to and including court proceedings in Australia.

Discussing the firm’s intention to introduce fixed pricing with Lawyers Weekly earlier this year, Slater & Gordon national practice group leader Ian Shann said: “[Fixed pricing] aligns the interests of the lawyers with their clients, but also provides a much better working environment for those engaged in family law. We’d like to see the end of timesheets.”

The introduction of a fixed-fee service, according to managing partner Andrew Grech, will mean more people are able to access legal services.

“Legal costs are of great concern to people who need family law advice and we are pleased that we have been able to develop a model that will see the end of open-ended time-based billing systems in this area,” said Grech.

“We have devoted significant resources, research and business support to our family law practice over the past 12 months to develop this initiative and get it off the ground.”

Justin Whealing reports on how Privacy Commissioner Tim Pilgrim intends to wield his new powers

Mallesons hosts UN official Mallesons stephen Jaques played host to a senior united nations (un) delegate on 8 september as it became a signatory to a global initiative promoting gender diversity and equality in business. the un Women’s assistant secretary General, lakshmi puri, was guest of honour at a lunch to celebrate the firm’s ascension to the un Women’s empowerment principles. the principles are designed to engage with corporations around the globe and focus on seven core features, including establishing high-level corporate leadership for gender equality; treating all women and men fairly at work; promoting education, training and development for women; and measuring and publicly reporting on progress to achieve gender equality. puri, who has 37 years’ experience in economic and development policy, said the un is seeking to partner with businesses in australia and across the globe in order to “make a difference”.

speaking to Lawyers Weekly after the event, Mallesons’ chief executive partner Robert Milliner said the firm was ready to become a signatory to the principles.

“We are adopting the principles as a way of providing some targets for us and providing a framework within which to drive some of our further work,” said Milliner. “It is also to be clear about our commitment to publicly report on our work. It matches our own strategies and values and the work we have done internally and, because it was very reflective of where we knew we wanted to go, it seemed to be a very appropriate thing to do.”

Just under one quarter of Mallesons’ current partners are women.

“It’s not doing it just for diversity’s sake. It is making sure that the career opportunities match the people,” said Milliner.

Mallesons’ head of diversity, neil Cockroft, told Lawyers Weekly that the decision to sign up was about taking a lead role within the australian business community.

“Being a signatory to the principles sends a strong signal to our staff, our clients, and our community partners that we are committed to achieving full gender equality in our firm. I hope that more australian businesses will make that commitment in the future,” he said.

National profession legislation released The draft legislation for the development of the national legal profession was released on 9 September by AttorneyGeneral Robert McClelland.

The long-awaited release of the legislation followed talks on 6 September between the Attorney-General and his counterparts from New South Wales, Victoria, Queensland and Northern Territory.

“These discussions were very productive with

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pilgrim on journey to protect privacy

US/UK Update

UN Women’s Assistant Secretary General, Lakshmi Puri, with Mallesons Head Robert Milliner

some jurisdictions being in a position to commit to the scheme and points for clarification identified for others,” said McClelland.

“There are some final decisions we need to make to reach agreement, relating to transitional costs and selection of a host jurisdiction. We have committed to resolving these outstanding matters before 1 October so legislation can then be presented in the host jurisdiction’s Parliament as soon as possible.”

The legislation has been released in the wake of crumbling support for the national legal profession reforms after the smaller states of Tasmania and the ACT joined Western Australia and South Australia in their opposition to the proposals.

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Privacy commissioner Tim Pilgrim has welcomed moves to give him more power to enforce privacy laws.

speaking at Henry Davis york in sydney last week, Pilgrim cited personalities as diverse as Facebook founder mark Zuckerberg and former Governor-General sir Zelman cowen in a wide-ranging speech focusing on how to best provide and enforce privacy protections at a time when so much information can be easily disseminated via the internet and social media.

“Why, in 2011, are we now looking at the potential for the introduction of a statutory cause of action to be enacted through the Federal Parliament?” asked Pilgrim. “Why, on two occasions recently, has Facebook announced changes to its privacy settings in response to its users’ concerns?” in 2008 the australian Law reform commission (aLrc) recommended 295 amendments to the Privacy act, with many of those still in the process of being implemented. one of the proposed recommendations is to provide a statutory cause of action for a serious breach of privacy.

“The Government has indicated that it will introduce new laws to strengthen the powers of the Privacy commissioner,” he said.

“Under the current Privacy act, i am unable to impose a penalty on an organisation or an agency following an investigation on our own motion, where i haven’t received a case from the individual first.”

Pilgrim gave the example of an investigation he launched into vodafone after media reports that the company had breached provisions in the Privacy act by making customer information available on the internet. even though he found that vodafone did not have adequate security measures in place to protect the personal information of customers, he was not able to impose a penalty on the telecommunications giant. “additional powers for the Privacy commissioner will provide added credibility for enforcement of privacy law, reinforce the significance of privacy compliance and give

everyone an even greater incentive to take privacy more seriously,” he said.

Privacy v the right to know While Pilgrim acknowledged the rights of individuals to have privacy protections, he said this needed to be balanced by concerns such as the public’s right to know certain information and concerns about individual freedoms.

“Going back to the statutory cause of action, i stress here, as i have done in a number of interviews on the subject, that the right to privacy is not absolute,” said Pilgrim. “it should always be balanced with other important human rights and social interests, and one of these is freedom of expression.” at present, journalism is exempt from the operation of the Privacy act.

The aLrc recommended that journalism keep its exempt status, but expressed concerns about the lack of strong enforcement mechanisms in some media sectors. This has only been exacerbated recently by the News of the World phone hacking scandal, which Pilgrim said had sparked a growing interest in privacy.

“The aLrc noted that self-regulatory mechanisms do not provide the complete answer to the task of balancing competing public interests in privacy and freedom of expression,” he said.

Pilgrim acknowledged competing points of view in this area, such as concerns expressed by the aLrc that the lack of the definition of the term “journalism”, and the “vigorous” campaigning of media organisations against the application of a statutory cause of action to acts and practices that fall within the journalism exemption.

“Privacy is about what we think, what we believe and value, what we want and what we want to do,” he said in concluding. “it is also about having the greatest ability to control who gets to know these things about us. But it can’t be an absolute in the society in which we live – and in that sense, privacy law reform is about trying to find the balance.”

Ashurst to vote on Blakes merge Ashurst partners are expected to vote on a proposed tie-up deal between the firm and Blake Dawson before the end of September, reports The Lawyer. A merger would create a 31-partner practice across Hong Kong, Shanghai, Singapore, Tokyo and Papua New Guinea and is seen as an attempt to boost Ashurst’s access to the Asian market. Ashurst’s revenue in the region rose by 50 per cent in 2010-11, making up 7 per cent of global income.

NR enters new age with apps Norton Rose Group has launched its first smartphone applications for iPhone and BlackBerry. The apps feature a directory of NR’s 2600 lawyers with a “tap and call” function, information on NR’s offices, descriptions of its practice areas, news, briefings and videos on topical subjects. The apps were developed by the firm’s Canadian and London IT and business development teams.

Riots cause rise in jailed children The influx of child prisoners accused of involvement in last month’s UK riots have contributed to an 8 per cent increase in the juvenile prison population in the UK, reports The Guardian. Youth Justice Board (YJB) figures show 170 riot offenders aged under 18 are now in custody, adding to the 2,075 child prisoners recorded in June. The YJB, which administrates youth justice in England and Wales, said half of the under-18s facing riot charges had no previous contact with the criminal justice system.

Greenberg Traurig poaches Wall Street wonder US law firm Greenberg Traurig has appointed former Cadwalader, Wickersham & Taft senior partner Dennis Block to the newly-created post of senior chairman for global M&A, reports the AM Law Daily. The 69-year-old lawyer is considered a major Wall Street dealmaker and advised pharmaceutical giant Pfizer on its $68 billion takeover of rival Wyeth in 2009.

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indepth

indepth

Justice and the law

Warning against over regulation

An international conference in Sydney put the criminal justice system under the microscope.

Justin Whealing and Stephanie Quine report

Many times in law, it is not even established that there has been a crime until the defendant has been convicted”

Even though Lowe cited the abuse of social media as the greatest challenge to the jury system, he warned against imposing strict surveillance measures to ensure jurors are behaving appropriately.

“If jurors can’t be trusted to do the task that we repose in them and report irregular contact, then why would anyone serve on a jury if they knew that their absolute privacy was going to be invaded? Who would want to serve?” asked Lowe. “Legislation must be introduced to prevent any or all such surveillance.”

Lowe said that while there is no uniform legislation in Australia which covers jury impropriety and confidentiality of jury deliberations, there are options available for reform. This includes having a judge retire with the jury to assist them in their deliberations, or the use of a “jury facilitator” to assist in discussions. Such a facilitator would be trained in helping groups reach consensus, but could not offer an opinion regarding the evidence.

Raised in a transcript of Lowe’s presentation obtained by Lawyers Weekly prior to his presentation, but not explicitly addressed

during his speech, Lowe said one area of reform that should be strongly considered is the taping of jury deliberations. He acknowledged this might be “an unpalatable suggestion”, but believes policy makers should give serious consideration to lifting the prohibition of taping jury room deliberations in Australia.

“Such direct evidence would demonstrate whether the presumption ordinarily underpinning juror deliberations – that they comply with their oath and assiduously follow the trial judge’s instructions – has been complied with and, even if not the case, whether a miscarriage of justice has been occasioned,” he said.

Cyber crime, the problems associated with long and complex terrorism trials, the role of statistics in the sentencing debate, and multicultural justice issues such as the cross-examination of niquab-wearing Muslim witnesses and delivering justice in newly-arrived African communities was also addressed at the conference. lw See Folklaw on page 26

The impact of the law Michael West, a representative from the Metropolitan Aboriginal Land Council, spoke before the respective welcoming remarks of Federal Court chief justice Patrick Keane and NSW chief justice Tom Bathurst on the first morning of the conference.

In an address that profoundly moved many people, West acknowledged the traditional owners of the land where the conference was held, the Gadigal people of the Euro Nation. He said that he knew about the law “from day one” as a member of the stolen generation who was taken from his mother at birth.

“I was talking to Justice Keane, and there is the intent of the law and the application of the law,” said West.

“It is about working together to make this a great society to show the rest of the world.”

RT Hon LoRd IgoR Judge, LoRd CHIef JusTICe of engLand and WaLes pIC-MICHaeL fLokIs

T

he law can be slow to properly recognise victims of crime.

This significant acknowledgement of shortcomings within the criminal justice system was made by the Lord Chief Justice of England and Wales at the Australasian Institute of Judicial Administration’s (AIJA) Criminal Justice Conference in Sydney last week.

The Rt Hon Lord Igor Judge provided the opening oration at the three-day conference, addressing the topic of vulnerable witnesses in the criminal justice system.

Pinpointing victims of sexual crime, violent crime, children and witnesses lacking communication skills, Judge said the principle of “innocent until proven guilty” often had “extremely painful” consequences for those who are victims of crime or who have given truthful evidence about the facts of a case.

“Many times in law, it is not even established that there has been a crime until the defendant has been convicted. If the allegation is rape, it’s not until there’s a verdict of guilty that, as a matter of law, there has been a victim at all,” said Judge, adding that “in truth” there has been a victim from the very moment the rape occurred.

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Judge said that while the profession has made significant progress in its handling of vulnerable witnesses, judges and magistrates must remain informed about the fact that witnesses who are vulnerable are under huge pressure.

“Every single witness should, so far as possible, have the stresses of attendance and so on reduced ... none of this is at the expense of the fairness of the defendants’ trial.”

Internet undermines the jury system While the law has slowly developed over hundreds of years, it is struggling to deal with the affects of rapid technological change.

One of the most intriguing presentations at the conference was from Peter Lowe, a barrister who recently represented Pauline Hanson in a Supreme Court action related to the results in the NSW state election. He said the explosion in the number of social media forums over the past decade can alter the ways juries decide cases and, in some instances, prejudice the results of criminal trials.

“There is currently a class of society who do not really know how to survive without

this technology and, when asked that they do not use that technology to search for particular information, find the request quite disconcerting,” he said. “To tell anyone from the millennial generation not to retrieve information available at their fingertips is a red rag to a bull.”

Lowe went on to provide numerous examples of juror misconduct in cyberspace, including a juror empanelled in a criminal trial in Victoria who posted on Facebook that “everyone’s guilty” in the initial stages of a trial. The jury was discharged and the trial judge referred the matter to prosecution.

“The spectre of this form of impropriety is palpable,” said Lowe. “There is no guarantee that the information used by an aberrant juror hasn’t been placed on the net by the accused ... or through their agent.”

Lowe believes that such inappropriate use of the internet can undermine the justice system.

“The issue of digital injustice has the potential to derail the very basis upon which justice is administered, and must, on that score alone, be addressed if the notion of a fair trial according to law is to be preserved.”

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11

indepth

tweet as, bro!

This year, Marque Lawyers decided to recruit their summer clerks via Twitter. Now, managing partner and chief judge of tweets Michael Bradley tells us how it went and what they learned.

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“The day very quickly degenerated into a festival of excruciatingly bad cheese puns - mostly involving Gouda or Feta, although “fromage à trois” was a winner”

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arque Lawyers conducted its summer clerkship recruitment campaign this year exclusively via Twitter. It proved to be a fascinating exercise in the potential of social media for interactive engagement in more serious matters than the name of Beyoncé’s baby, and a reminder of what law school teaching does to students’ brains.

We launched the campaign with an open house party and then spent a week getting the word out virally that we were going with Twitter. That was successful in the sense that our number of followers increased from 70 to 500 in a few days.

The actual process consisted of us tweeting a question each morning and then sitting back and letting the Twittersphere have its say during the course of the day. We then selected the top tweets of each day, and ended the week with 43 candidates who we invited to send us a proper application.

We’ll interview about half of them, and ultimately offer two clerkships (one of which is called the GetUp! Clerkship, because it’s being funded by GetUp! and that clerk will mainly be doing policy work for GetUp! over the summer).

The first day’s question was, “What’s your favourite cheese?” While we had thought it would be obvious that we don’t care what anybody’s favourite cheese actually is, and that the students might not take the question literally, pretty much 100 per cent of them did exactly that. We found out a lot about individual cheese preferences, but the day very quickly degenerated into a festival of excruciatingly bad cheese puns - mostly involving Gouda or Feta, although “fromage à trois” was a winner.

The other interesting feature, which stayed with us all week, was the ability of law students to find sexual innuendo in pretty much anything we said. This was entertaining, but didn’t get anyone a job.

On day two we asked, “Should it be Kochie and Mel, or Mel and Kochie?” Again, we figured we’d get some lateral tweeting on the broader issues of gender and sexual politics, but no such luck. So on day three, we dispensed with language altogether and posted a photo of a stuffed chicken standing next to a Marquebranded log (pictured). This was self-evidently

A “post-modern” tweet from Marque lawyers post-modernist, or more likely devoid of meaning altogether, but the absence of direction did bring results. We got a lot of philosophical musing and some really hilarious tweets.

The tweeting numbers stayed up all week, although one could sense rising levels of panic among some of the regular tweeters as they saw others make the cut and redoubled their efforts to attract our attention. If they were trying to detect any science in our selection criteria, it was hopeless because we just went with whatever tickled us.

Reading all the tweets (it was a low productivity week in our office), we couldn’t help but get involved emotionally. We were rooting for some tweeters, hoping they’d come up with something that got them through. It was a bizarre conversation to be having, of course, not at all like a normal recruitment process, but we’re not at all sure it was any less effective.

What did we learn? Law students, like lawyers, find it difficult and threatening to break the mould and stand out. There was a distinct trend each day as most people clearly, unconsciously, convinced themselves that there were rules to follow. But those rules didn’t exist. So, along with having to convey a thought in 140 characters, which isn’t many, this proved a massive challenge to many. That was interesting, and points to the downside of how law has always been taught – there are strengths to being able to contemplate issues in a rational, linear and literal fashion, but creativity and lateral thinking are clearly diminished along the way.

Twitter is an exciting domain. That, in the space of a week, we could engage with over 400 law students and have an interactive conversation, admittedly about some pretty random and meaningless topics, gives some small sense of the immense potential which social media has as a forum for dialogue, engagement and knowledge sharing. We’re hooked. LW

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legalspotlight

legalspotlight

watching the money men Draft regulations for litigation funders are set to apply from next month. Justin Whealing looks at whether this will inhibit access to justice or make them more financially accountable

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usiness has been good for IMF Australia.

In August, Australia’s largest litigation funder by quite some distance posted stellar results for the 2010-11 financial year. Total revenue was up 88 per cent to over $40 million, while net profit increased by 92 per cent to almost $23 million.

With its dominant position in the litigation funding market achieved through bankrolling some of Australia’s most well known class actions, including the Sons of Gwalia and Westpoint class actions, executive director John Walker is relaxed about the prospect of tighter regulations for the industry.

“As the industry grows, there will be a greater risk of default, in the sense that the expectations of consumers will not be met,” he says from his office in Martin Place in Sydney. “We are listed and we are licensed and people understand where we are at, but other competitors don’t feel they have those obligations.

“It is not so much of a problem now, but as the market gets bigger, with more consumers accessing litigation funding, we can see that the market needs protection from regulation.”

The litigation funding business model was turned upside down by the judgment in October 2009 by a full-bench of the Federal Court in Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd. In essence, the Court held that private entities involved in litigation were participating in an unregistered managed investment scheme and were therefore in breach of the Corporations Act. This ruling meant that litigation funders would be required to hold Australian Financial Services Licenses, threatening the conduct of current and future class actions.

Chris Bowen, the minister for Corporate Law at the time, came to the rescue of the funders and plaintiffs involved in large scale litigation by removing class actions and proof of debt arrangements from the definition of a managed investment scheme in the Act. The Department of Treasury then called for submissions into the exposure draft of its suggested amendments to The Corporations Act, with IMF and the Law Council of Australia amongst six organisations that made formal

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submissions before the closing period in August.

These draft regulations are expected to apply from 1 October this year, and Walker welcomes any moves to require litigation funders to hold

an Australian Financial Services Licence (AFSL), as IMF has held such a license since 2005.

“By just focusing on one particular thing, mainly the management of conflict issues, the draft regulations don’t deal with all the other issues,” he says. “They are trying to tie in some of those other issues into an exemption that enables you not to be licensed if you come within that exemption.

But those things mean that some days you are exempted, while on other days you might not be, so it is quite difficult to run multi-million dollar projects that require you to understand clearly what your regulatory obligations are.”

What the law firms think

The view from inside and out The money to be made Between 2001 and 2010 IMF funded claims which returned to claimants in excess of $832 million These claims cost IMF $91.2 million IMF has only been liable to pay $2.8 million during this period

What the Law Council of Australia thinks In a Position Paper released in June, The LCA said it would support regulation by ASIC of the following: prudential regulation of litigation funders regulation of offshore litigation funders requiring that settlement of a funded matter be approved by a court

It is no surprise that the plaintiff law firms on the whole support the exemptions granted to litigation funders, while many litigation lawyers from top-tier law firms that sit at the opposite side of the table think there should be more regulation.

“It is clear the Government is thinking about this issue, but there is a very real debate about if what is proposed in those draft regulations is the right way to go,” says Greg Williams, a litigation and dispute resolution partner with Clayton Utz who describes the current levels of regulation on litigation funders as being “Inadequate”.

Williams cites the exclusion of litigation funders from being required to hold an AFSL that poses the major concern to the integrity of the litigation funding system.

“I think the proposal has a number of problems, including leaving the industry in an under regulated position,” he says. “My view is that litigation funders should be required to hold licenses, and there should be a question as to whether there should be some additional

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“I think the proposal has a number of problems, including leaving the industry in an under regulated position” GREG WILLIAMS, PARTNER, CLAYTON UTZ

“The largest critics or those calling for the greatest regulation are those who have an interest in either reducing the number of class actions overall or in reducing the size of the litigation funding market”

“As the industry grows, there will be a greater risk of default, in the sense that the expectations of consumers will not be met” JOHN WALKER, EXECUTIVE DIRECTOR, IMF

BEN PHI, PRACTICE GROUP HEAD, SLATER & GORDON

regulatory obligations over and above the holding of a financial services license.”

Slater & Gordon practice group head Ben Phi is leading his firm’s team on the class action against Nufarm Limited. He believes that many of the voices calling for more regulation of litigation funders have a vested interest in making those claims.

“It is interesting that the largest critics or those calling for the greatest regulation are those who have an interest in either reducing the number of class actions overall or in reducing the size of the litigation funding market,” he says. “In our view, defendants are properly concerned to make sure their clients are adequately protected in the event they win

in a litigation matter and are entitled to a costs order.

“Beyond that, it is questionable as to what extent they are properly voicing concerns on behalf of group members in class action proceedings. None have been able to point to any situation in which someone has been poorly advised.” LW

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opinion

opinion

trial by media

As the number of cases receiving significant media attention grows, Joe Murphy and Alana Paterson ask where lawyers need to draw the line when it comes to engaging with the press.

I

t is over a year now since the Fraser-Kirk v David Jones matter hit the press. DJs lost its CEO, took a huge hit on reputation, shares and legal costs and was left with a hefty compensation payment. But what part did the media play in the outcome? More importantly, what are the limits on the role a practitioner can take in those circumstances?

As a practitioner, you may have been shocked at the time about the degree of detail disclosed to the media and the speed at which it was hitting the news (we were). You may have been even more shocked to find that the statement of claim filed in the Federal Court was posted on the internet for all to see and access (complete with court seal and the amount paid for filing … $894).

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the Law Society suggested practitioners should seek consent before making any public statement about a client’s matter (a trite suggestion).”

Non-legal or illegitimate tactics in litigation are fraught with ethical dilemmas. Parties have been known to launch legal action that is frivolous, vexatious or lacking in substance in order to obtain an outcome that is perhaps not legitimately connected to the cause of action.

Lodging an appeal in a matter to try and settle a lost case in the face of a large costs order can be one such tactic.

We are not suggesting that Fraser-Kirk didn’t have a genuine case to bring. In fact (if you believe everything you read in the media) the CEO did publicly admit some conduct that, at face value, could attract an adverse finding. However, the case did settle for a whopping $850,000 and a significant number of commentators took the view that the case was worth nothing like that. Since that matter, a number of other cases have emerged in the press, for example, the Styles v Clayton Utz case and even more recently, the case being touted as the $9 million case against Pacific Brands.

While media coverage can be a problem

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outside the courtroom, cases are usually conducted in open court. In the Fraser-Kirk v DJs case, Justice Flick commented about the media attention the case had received (nationally and internationally) and said; “Care should be exercised when making submissions to the Court not to make statements which were more in the nature of a ‘media release’ than a submission which provided genuine assistance to the Court … and the interests of all parties protected”.

When the trial judge is aware of the extensive media coverage of a matter, the degree of prejudice (if any) is difficult to gauge.

In R v Gordon Wood, the Carolyn Byrne murder trial, some media went so far as to claim partial responsibility for securing a guilty verdict and his family agreed, complaining that he did not receive a fair trial.

If, and we stress if, the lawyers for FraserKirk set about deliberately disseminating the details of that case to the media, then that is a course that must be travelled with absolute caution. Legal practitioners must be conscious of ethical duties and responsibilities to both the client and the court (generally); substantive law restrictions (specific rules and whether any orders have been made about disclosure); and potential impacts of any disclosure (short and long term for the lawyers and the client!).

Ethical and other considerations Aside from the Bar Rules, NSW and a number of other states have not adopted the ‘integrity of hearings rule’ from the LCA Model Rules.

Victoria has and, in view of a practitioner’s general obligations, it is applicable to all as a guide. It says; “A practitioner must not publish, or take steps towards the publication of, any material concerning current proceedings for which the practitioner is engaged which may prejudice a fair trial of those proceedings or prejudice the administration of justice”.

Counsel are permitted to provide copies of documents used in proceedings with the consent of the instructing solicitor or the client and are also allowed to answer unsolicited questions from the media about the matter, provided that they do not provide coloured comment,

unnecessary description or express their own opinions on matters relevant to the case.

In MG v R [2007] the court noted that the Legal Services Commissioner found the Crown Prosecutor had breached the rules because of comments made about the evidence in a particular case in which she appeared at a university lecture. Those comments were subsequently reported in newspapers. In that case the LSC dismissed the complaint because the breach “was in no way deliberate, being a technical contravention of a complex rule deriving from an error of a judgement”.

Practitioners must also be mindful of their duty to the client, which requires primary consideration of the client’s best interests, including confidential information.

In Legal Services Commissioner v Tampoe [2009], a practitioner was struck off the roll after publicly disparaging his former client (Schapelle Corby) and her family. This included disclosing confidential information about his client’s defence without authority. In response to this matter, the Law Society suggested practitioners should seek consent before making any public statement about a client’s matter (a trite suggestion).

The culture or policies of a practitioner’s firm may also have an impact. Some will take a strict approach against media or public comment, whilst others will take a more strategic or liberal approach and provide comment to the media or publish details about matters it acts in.

Practitioners need to be mindful that particular documents, such as witness statements, may be subject of an implied undertaking to the court precluding disclosure, despite the fact they have been read in open court or found their way into the public domain.

A practitioner can be at risk of being in contempt of court if they provide details to the media about a matter resulting in publication that may have a tendency to cause prejudice to proceedings. This is not such a problem if done in the public interest of freedom of discussion, and dissemination of information, about a matter of public importance.

While the issue of the public interest is an important concept in law, the courts have said, in

Hinch v Attorney General [1987], that “the public interest in free discussion and in alerting the community to risk does not warrant a desertion of the public interest in securing a fair trial”.

Errors inside and outside court The impact of mishandling a client’s case or falling foul of professional obligations extends beyond the risk of disciplinary action, and may include: reputational risks for all parties involved (including the practitioners!); the personal toll on the client. As an observation only, both Fraser-Kirk and Styles have appeared distressed by the media attention when appearing on television.

Fraser-Kirk has also reportedly moved to Singapore for a fresh start; the media expressing views about the merits of a case and placing improper pressure on a party to settle by prejudging the proceedings or by placing the responding party in a position where they feel they have to buy their way out of a case to salvage what is left of their brand reputation; trial judges and jurors can be inappropriately influenced and a party may be unfairly prejudiced in a case; and restrictions on the ability of a practitioner or their firm to continue to act in a matter where they have fallen foul of their obligations.

One might ask whether the media should be taking any responsibility. The media do have the Australian Journalists’ Code and the Media Entertainment and Arts Alliance Code of Ethics.

However, compliance with these codes does not always mean compliance with the law - but that can be left for another article.

Media interest in court proceedings and legal stories provides a great source of temptation for practitioners when seeking to achieve an outcome. These issues present ethical challenges for practitioners, so it is important for them to be familiar with their ethical obligations as well as to understand the conflicts and ramifications that flow. LW Jo Murphy and Alana Paterson are lawyers with Australian Business Lawyers & Advisors

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17

coverstory

The number of global firms in Perth in 2009

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Perth in 2011

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of g

s in rm l fi ba lo

0

n w o t

The n um be r

With global firms moving in and local firms bulking up in the face of the resources boom, it seems the streets of Perth may well be paved with gold.

But are things really as good as they seem? Claire Chaffey finds out.

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19

coverstory

coverstory “As soon as a global equity partner touches the work, it triples in price. So I really doubt that the Perth market can handle that”

“The streets aren’t paved with gold in Perth. A few of them in West Perth are, but the rest of Perth is tarmac” HylTon QuAil, PresidenT, lAW socieTy of WesTern AusTrAliA

JulIAnnA SheArn, dIreCTor, SheArn legAl

T The Perth legal market in numbers

A morphing marketplace Allion Legal principal Phil Lucas has been watching the events of the past two years with interest.

A boutique firm native to Perth, Allion has thus far weathered the global onslaught and

419

“The war for talent in Perth is definitely a war – it’s not a battle” nick nicHolA, mAnAging PArTner, middleTons

Lucas says the arrival of global firms is actually creating more opportunities in the market.

“Some of the Perth boutiques have dropped off as they have merged with other entities, and what that has actually done, in some respects, is create more opportunities for us at the boutique end of the market,” he says.

Quite simply, this is because Allion no longer has to directly compete with the likes of Blakiston & Crabb and Cochrane Lishman Carson Luscombe – two well-reputed boutique firms which have recently merged with Gilbert + Tobin and Clifford Chance respectively.

788 819 752 the number of law firms in Perth in 2009

the number of law firms in Perth in 2008

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“There is demand in Perth for legal services to be provided to some quite large companies by firms such as us, and if [boutique] firms are diminishing in number, then clearly we see there is opportunity in the marketplace,” says Lucas. “So, in a strange way, you could say that … the opportunities are increasing at the moment, not decreasing.”

Perth has long had a strong culture of topnotch boutique firms and it is arguably the quality of these firms which has attracted, and continues to attract, both national and global firms looking to snap up well-established talent.

And with the energy and resources sector booming, recruitment specialist Julianna Shearn of Shearn Legal believes more boutiques are likely to spring up in Perth as more global firms move in and companies look to use firms which can offer high-quality services at a lower cost.

“There will be more global firms to come …

[But] as soon as a global equity partner touches the work, it triples in price. So I really doubt that the Perth market can handle that,” she says.

“And if you have a big oil and gas company, a lot of their work is farmed out to the best firms. If it continues that way, you’ll start to get conflicts of interest occurring, so you have got to go and find some new stellar people for the work to go to … You’ll have partners and senior associates going out and starting a new [boutique] firm because they know that will happen.”

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Changing the landscape the number of law firms in Perth in 2010

the number of law firms in Perth in 2001

wo years ago, not one global firm could be found in Perth.

In Sydney and Melbourne, yes, but the quiet Western Australian capital did not yet feature in the sights of the world’s biggest law firms looking to stake a claim in the Asia-Pacific.

How things have changed.

Perth now boasts six global firms: Norton Rose, Allen & Overy, DLA Piper, Clifford Chance, Holman Fenwick Willan and Squire Sanders (officially opening in October). While the first five firms to arrive also have offices elsewhere in Australia, the most recent arrival, Squire Sanders, does not. The US giant chose Perth as its sole antipodean base, and by doing so made the bold statement that it is here for a slice of the energy and resources pie – and everything else is an aside.

The events of the past two years mean Perth is now firmly on the radar of the world’s legal powerhouses, and few would dispute that more will soon be elbowing their way into its increasingly crowded legal services market.

But with new names moving in, old names being swallowed up and a whole lot more competition for a lucrative corner of the market, questions must be asked about whether the reality of Perth will match expectations – and whether this new “golden” era is truly a boon for lawyers and law firms alike.

According to the president of the Law Society of Western Australia, Hylton Quail, the arrival of the global firms has irrevocably altered Perth’s legal landscape – but in a largely positive way.

“It is definitely changing the Perth market, because most of the larger firms which aren’t allied or integrated with a multi-national firm are looking around; looking over their shoulders and considering their positions,” he says.

“But they seem to have been well received.

They have integrated into Perth fairly smoothly.

I think that this is because of the models they have chosen – integrating with local firms or integrating with a large national firm. Obviously there have been some competitive tensions, but

healthy ones.”

Quail also says the benefits of new firms coming to Perth are not just for the firms themselves, but also for Perth’s local lawyers and businesses.

“I think it would be fair to say that the presence of the new multi-nationals opens up new opportunities that weren’t previously available in Perth,” he says. “It works both ways. They have not only come here, but they have enabled easier entry into global markets for Perth-based lawyers and Perth-based businesses.”

According to Doron Paluch, a director at Burgess Paluch Legal Recruitment, the real impact of global firms is yet to be determined.

“I think the jury is really still out on what sort of impact [their arrival] will have,” he says. “It is very hard to say what is happening, especially seeing as everybody is beating their own drum and saying that things are going great. Naturally, the national firms in Perth are suggesting they haven’t been hit particularly hard. But the international firms themselves seem to be talking up the fact that they are getting approaches from lawyers who are looking to join them, and that they are winning work above and beyond what they were expecting.”

Taking to the battlefield With the rapid expansion of energy and resources work has come the problem of finding talent.

Lawyers with experience in the area are few and far between, and this is providing a significant challenge for firms trying to increase their presence in Perth.

Earlier this year, Allens Arthur Robinson offered staff a $20,000 spotter’s fee for successful referrals to its Perth office, and firms across the board are trying to differentiate themselves in the marketplace to lure the best and brightest.

One firm experiencing such difficulties is mid-tier firm Middletons, which is significantly growing its Perth practice and has recently relocated to new premises to accommodate this.

But finding lawyers to place behind desks is an ongoing issue.

“The war for talent in Perth is definitely a war – it’s not a battle,” says Middletons managing partner Nick Nichola. “It’s very difficult. We rely on trying to differentiate ourselves a little bit. We are a mid tier. We are not pretending to be a top tier or a mega firm.

We just play to our strengths in terms of being focused in what we do.”

For Lucas, finding talent has not been such an issue, though Allion has largely been recruiting senior lawyers at the top end of town.

“In the last year we have recruited quite a few new partners; one from Allens, a senior counsel from Freehills and three or four senior lawyers from Corrs, Blakes and Mallesons.

So we have been very lucky in a recruitment sense,” he says. “We have picked up some very high-quality people coming out of the large firms and slotting in very nicely here. What that all adds up to is the ability to provide legal services that we think are comparable to the national firms, because all of our people are national firm people.”

According to Lucas, Perth lawyers are snapping up the opportunity to work in a boutique firm and enjoy the lifestyle that comes with it. “Most of our work would sit comfortably inside national firms, so we can give our people the opportunity to do quality work, but they don’t have to put up with the issues you have to put up with if you’re working inside a national firm,” he says.

Quail acknowledges that when it comes to lawyers with between three and five years’ experience in areas such as energy and resources and construction, there is a serious lack of available talent. But this, he says, is certainly not the case across the board.

“This is a story of a two-speed economy,” he says. “There is no doubt that in some practice areas there is, if not a crisis, a real tightening of the market. But it is only in those particular practice areas, namely resources. If you are in resources, it is not quite ‘name your price’ but there is a shortage of the lawyers with the necessary experience.”

However, if you happen to be a recent graduate or work in pretty much any other area of law, Quail says things are actually very difficult.

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21

Print & Copy

Scanning – OCR

coverstory

Electronic Discovery

Court Copying

Doron Paluch, DIrector, Burgess Paluch legal recruItment

Appeal books Virtual Data Rooms

“We still have far too many graduates coming through who we can’t give jobs to,” he says. “If you are not in resources, there are plenty of lawyers in Perth who are going through tough times … The streets aren’t paved with gold in Perth. A few of them in West Perth are, but the rest of Perth is tarmac.”

dearth of lawyers in many of our regional areas.

There are plenty of opportunities for lawyers to start up in country towns and make a really good living. Some of the most under-serviced regions are in fact those which are very wealthy, such as Karratha and Port Hedland. There are almost no lawyers up there, yet they are the highest per capita earning towns in Australia.”

a harsh reality

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It is very hard to say what is happening, especially seeing as everybody is beating their own drum and saying that things are going great”

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The extent of Perth’s graduate overpopulation is making itself known in various circles.

According to Shearn, the primary reason behind it is an increasing number of universities offering law degrees.

“We have got far too many graduates. There are five law schools now,” she says. “We are trying to find people jobs and we can’t, because they just can’t go anywhere.”

So great is the backlog of graduates, says Shearn, that aspiring young lawyers can’t even find placements for their College of Law practical legal training requirements.

Another who has noticed the state’s significantly over-lawyered status is Nicola Stott, the director of legal process outsourcing (LPO) provider Exigeant, which is based in Rockingham, just south of Perth.

“We put an ad on SEEK [for one of our projects] and I could not believe the amount of people who came forward – and great people,” she says. “We had them queuing out the door.”

Stott says that more and more graduates and lawyers are opting to look at alternatives such as LPO in order to get a foot in the door.

“They are absolutely crying out to gain even first-level experience and actually do real work, but they are struggling to find positions within law firms,” she says. “They are struggling because they don’t have any experience, so this is actually a great way for them to touch and feel real work.”

The situation in regional Western Australia could not provide a more stark contrast to the over lawyered Perth market “We have got real problems in the regions, because everyone is in Perth. The regions are starved of lawyers,” says Quail. “In fact, I would say that if there are interstate lawyers who don’t want to come for resourcing regions, there is a

exciting times

In a strange way, you could say that … the opportunities are increasing at the moment, not decreasing” PhIl lucas, PrIncIPal, allIon legal

We had them queuing out the door.”

For those in the energy and resources sector and related fields, the outlook is bright and the firms who have chosen to establish themselves in Perth have done so for very good reason.

The downside of the boom, however, has been a rising cost of living which is outgrowing salaries, a shortage of housing and an increasingly crowded and expensive CBD. Despite this, Perth remains, for the moment, a vibrant place to be.

“It is an exciting time in Perth,” says Paluch.

“It is a combination of the mining boom, the general state of the market, and the emergence of not only international firms, but also very strong boutiques.”

Lifestyle, too, continues to be typically laid back, says Quail. “The reason to [move west] is that you get all the advantages of the small city lifestyle,” he says. “Perth is a fantastic place to live and bring up kids and you still have the opportunity to work on significant projects. That is what makes it attractive for lawyers.”

And for Shearn, who knows what the future will bring. “They are exciting times,” she says.

“Every day is a new discovery. lw

nIcola stott, DIrector, exIgeant

In-demand practice areas (for three-year-plus PAE lawyers) Energy & resources Construction Corporate & commercial

Finance Insurance Workplace relations

l aw y e r s w e e k ly 16 s e p t e m b e r 2 0 11

23

career

counsel Male managers best allies of working mums

We are representing a number of leading US and UK firms who are looking at the Australian market and Perth in particular. These firms are looking at options ranging from alliances to taking teams to full blown mergers. If you would like to discuss this fast-changing market in absolute confidence, please call Terrie Cole on 08 61021056 or email at terrie@atticus-legal.com.au.

Male managers are the greatest ally of working mothers, according to a study on the advancement of women in the workforce.

From THE myriad of groups surveyed for the study What Moms Think: Career versus Paycheck, male managers – regardless of whether they have children – hold the most favourable perceptions of working mothers. Additionally, in a number of circumstances, male managers hold more positive perceptions of working mothers than mothers themselves.

According to the study, which surveyed more than 4,600 men and women, more male managers agree that working mums are likely to take on additional work (+6 per cent); will travel for work (+10 per cent); are committed to career advancement (+8 per cent) and would relocate if called on to do so (+15 per cent).

However, the expectations of male managers differ when it comes to family responsibilities.

“While male managers may be strong workplace advocates for working mothers, their social views stand in stark contrast,” the report

PARTNER Energy/Projects Partner

states. “For example, 51 per cent feel that one parent should stay at home to care for children.

However, with today’s economic realities and preferences, just one in five of today’s families meets this mould.”

Not surprisingly, working men who are fathers have favourable perceptions about the contributions of working mothers. However, working men who are not fathers have far less favourable perceptions.

“Compared to fathers, men without children rate working mothers as far less likely to be committed to career advancement; take on additional work; be committed to job responsibilities; be willing to do whatever it takes to get the job done; reliably deliver quality work and be prepared for a promotion,” the report states.

Additionally, working women with no children share some of the men’s harsher views

Gender politics

my

of working mothers.

“These judgments are the kind working mums dread,” the report states. “our survey shows that career-orientated working mothers fear their colleagues and managers question their commitment.”

The study also revealed that careerorientated working mothers feel more respected at home compared to women who work solely for financial reasons. The career-orientated women also said their spouses are more helpful in caring for children and managing the household.

“We learned that mums who view work as a career feel more satisfied, healthy and fulfilled on almost every measure – on both work and the home front – than mums who say they work for primarily financial reasons, regardless of their salary level,” said the president of Working mother media, Carol Evans.

next move:

Alex McIntyre, senior consultant, Dolman

Of men think it would be okay for their spouse to be the higher earner, but only 42 per cent feel comfortable when the scenario moves from theory to reality Of women say they would be comfortable if their spouses were the higher earners

59 %

73 %

Source: What Moms Think: Career versus Paycheck – The Working Mother Report 2010

24

l aw y e r s w e e k ly 16 s e P T e M B e r 2 0 11

Q A

A: There are a number of factors to consider when timing a strategic career move in order to maximise the options available to you.

Lawyers looking to make a move within the first two years of practice often find there are limited options available as the larger firms usually resource these positions through graduate schemes. Generally, lawyers are advised to learn as much as they can with their existing employer until they have around two years of experience, giving themselves more options in the employment market.

As you progress towards associate level and reach up to five years of PQE, you are more attractive to employers and have the most options available to you. This is because you have developed the core technical skills, knowledge of the law in your specialist area and are able to take on higher levels of responsibility, whilst remaining malleable.

If you are on the cusp of becoming a senior associate and are weighing up whether you should stay and get promoted or move, there are a few factors to consider.

If you do decide to stay and become a senior associate, you should stay in that role for at least one to two years so that you can benefit from that experience and become more attractive to the market. If you are a year away from becoming a senior associate and are thinking of making a move, it would be better to make a move now so you can invest your time with a new employer.

As you reach the five year PQE mark and above, more options become available on the in-house side as you will have more refined technical skills and a stronger commercial acumen that is required for in-house roles.

At the more senior level, looking to make a move can take time and there are fewer options available both in-house and in private practice. It’s worth keeping track of market activity as it’s harder to predict when the right opportunity will arise.

w w w.law yersweekly.com.au

Commercial Litigation Partner

Perth

This is a rare opportunity to join the successful Perth office of this ambitious national practice. As a strong business developer you will bring a variety of personal contacts. Exposure to international clients would be an advantage. A fantastic role for a partner looking to shape a department and a real chance to shine.

LWA2641

Corporate Partner

Perth

Play a key role in developing the Perth office of this forward thinking national practice. This specific role would suit a corporate partner who wants to work in a more ambitious environment and to join a practice with genuine growth plans. A genuine opportunity to step up. Proven marketing and business development skills required. LWA2640

IN-HOUSE Legal Counsel - Oil & Gas

3-4 & 6-7 PQE

Darwin

This is an exciting opportunity to move in-house and work with a premier legal team on one of the country’s foremost LNG projects. You will have solid transactional experience in commercial LNG/oil and gas documentation gained within a top national or recognised boutique firm. This is a challenging role that will afford the opportunity of 6 months overseas. LWA2619

ASSOCIATES Corporate

2+ PQE

Perth

Regulatory

2-4 PQE

Perth

Banking & Finance

3-6 PQE

Sydney

This international firm is looking to build their Australia practice. Opportunities exist at all levels to do high-end M&A work with blue chip clients within the energy and resources sectors. LWA2379

This top tier firm is looking to develop their established practice further with the hire of an associate. You will have ecognised financial services, regulation and corporate finance experience. LWA2399

Move to this truly global law firm and work on a range of finance transactions for some leading financial institutions in a collegiate environment. Great opportunity for career development. LWA2398

Employment

Litigation

Corporate Energy

3-5 PQE

Perth

Work with this dynamic partner in an energetic team environment to build this practice. You will have experience in employment and independent contractor agreements and industrial instruments. LWA2528 Banking & Finance

Q: When is the best time to make my next career move?

Perth

Recently established in Perth, with an excellent national reputation, our client is in growth mode. A partner is sought to expand the Perth office’s capability and work closely with the energy partners nationally. Whilst you will be expected to have your own existing client base, this is a superb opportunity to utilize the firm’s name and national profile. LWA2642

2-5 PQE

Melbourne

This is a great opportunity for an experienced finance lawyer to join this established and successful team.

You will have top law firm experience as well as top academics to be successful in this role. LWA2492 Securitisation

6+ PQE

Sydney

2-5 PQE

Sydney

3-8 PQE

Perth

Due to continued success, this leading commercial law firm with a focus on the Asia Pacific is seeking an associate with recognized litigation experience gained with a highly regarded practice. LW2459

Global law firm seeks lawyers to join highly rated practice on high profile deals with blue chip clients in the mining and resources sector. You will have gas and electricity experience. LWA2449

Corporate

Resources

2-6 PQE

Perth

2+ PQE

Perth

Opportunity to work with the cream of Australia’s top ranked M&A lawyers on the biggest deals in a collegiate atmosphere. Excellent academics and experience obtained within a leading M&A practice. LWA2487

Rare opportunity to work for a highly recognized firm with high profile clients in the mining and resources sector. You will possess experience from an international or recognized boutique firm. LWA2504

Oil & Gas

Construction

3-6 PQE

Perth

2+ PQE

Sydney

This is an outstanding chance to further your career with a globally recognised firm. As well as solid structured finance and securitization experience you will have a working knowledge of ISDA. LWA2605

Make the move to one of the country’s foremost energy practices. You must have solid transactional experience in commercial oil and gas documentation ideally gained with a highly regarded practice. LWA2573

Fantastic role working for a top tier firm. You will work on front end property and construction and large scale infrastructure projects for a range of clients. LWA2499

HSE & Risk

Energy & Resources

Corporate Energy

5-7 PQE

Perth

This top tier firm is looking for an associate with litigation experience and a background in mining, petroleum and other HSE crisis management. Great opportunity to join a committed team. LWA2484

4-6 PQE

Perth

Opportunity for a stellar lawyer with experience in the mining, oil and gas, power, and/or renewable energy sectors to join a thriving practice. You will have a flexible and collaborative style. LWA2634

2-6 PQE

These are a selection of our vacancies, for further information in complete confidence please contact terrie.cole@atticus-legal.com.au or sandra.godbold@atticus-legal.com.au on 08 61021056

www.atticus-legal.com.au trust

|

honesty

|

integrity

Perth

Opportunity to further your career at this well regarded nationwide market leader. They are seeking associates with a background in energy and resources to join their leading M&A team. LWA2524

|

partnership

folk

R E A D T H E L AT E S T FOLKLAW ONLINE

law

www.lawyersweekly.com.au/folklaw

Man appeals to law firms to help ‘nail’ Zuckerberg A man who claims he owns more than half of Facebook has issued an open invitation to law firms to help state his case.

Paul Ceglia owned the Streetfax company in April 2003 when he hired a young Harvard freshman called Mark Zuckerberg. Ceglia claims that while employed with Streetfax, he gave Zuckerberg $1000 to help start Facebook. He now claims that due to stipulations in that contract, he is entitled to up to 84 per cent of its earnings.

According to ZDNet, Ceglia has started a website to help fund his lawsuit. He has invited any lawyers with legal or technical expertise to help “nail him (Zuckerberg) down for good”.

Unfortunately for Ceglia, he does not have a good record with his legal representatives, having been dropped by no less than two firms and, prior to that, two high-profile lawyers since he indicated that he wanted to take on Facebook last year.

In July, the five-office strong American firm Edelson McGuire severed its links with the ambitious litigant, just one month after the global law firm DLA Piper had done the same.

One firm Ceglia won’t be contacting is Orrick

Mark Zuckerberg is relieved this lawsuit doesn’t involve identical twins armed with oars Herrington & Sutcliffe who, according to ZDNet, Ceglia thinks might have “carelessly” included his home address on a document he alleges is forged, but which Facebook claims is an authentic contract between himself and Zuckerberg, which makes no reference to Facebook.

Given his litany of failed legal relationships, Folklaw thinks it unwise for Ceglia to be burning potential legal suitors before at least meeting them for coffee.

Folklaw is unsure whether Ceglia has seen The Social Network, which details the origins and the rise of both Facebook and Zuckerberg. It is certainly a pity Ceglia doesn’t have an identical twin brother to back up his story.

Where now brown cow?

Folklaw loves getting out of the office and pressing the challenges for the jury system and a fair trial in the 21st flesh, so it was delighted to attend the Australian Institute Century. of Judicial Administration Incorporated (AIJA) Conference Barrister Peter Lowe presented this topic, and while he on the issues and challenges for judicial administration. didn’t provide any insights on what it was like to have Pauline While many of the topics covered were extremely meaty Hanson as a client, he did provide numerous examples of and prescient, the criminal instances when jurors have lawyers and barristers in inappropriately used social media. attendance also showed that With the lawyers in the room they haven’t lost their sense of not knowing whether to laugh or humour, despite often having cry, Lowe recounted many a jury regular contact with hardened tale of woe, including a juror who cops and crims. James Wood was dismissed from a trial in the QC, one of the attendees spied UK for posting on Facebook that,

by Folklaw, could certainly “I don’t know which way to go, so testify that it is often hard to I’m holding a poll”, and a juror differentiate between the two. from Detroit whose enthusiasm The Welcome Address at the for the role got the better of her, Conference was provided by as could be gleaned by her Facebook post which said, “Actually Federal Court Chief Justice Walks like a Queensland judge Patrick Keane and NSW Chief excited for duty tomorrow. It’s gonna Justice Tom Bathurst, with the latter stating that prior to be fun to tell the defendant they’re GUILTY”. becoming chief justice he was immune for 28 years from The juror was found guilty of contempt of court and fined the problems confronting criminal justice, even though US $250. “some of his clients probably deserved it”.

Folklaw recommends that all jurors should watch 12 Justice Keane then took to the podium once more, Angry Men before commencing duty. However, as wiser asking delegates to be “prompt” in getting to the next heads such as Lowe’s warn, even this Hollywood classic session, noting that “some judges, particularly from features ‘serious juror misconduct’ as the late, great, Henry Queensland, wander around like brown cows”.

Fonda’s character sources his own evidence to convince the Folklaw duly trooped off at light speed to avoid the other jurors on a murder trial to return a not guilty verdict.

Wrath of Keane, and attended the illuminating session on Best to leave it to the lawyers.

26

L AW Y E R S W E E K LY 16 S E P T E M B E R 2 0 11

Law clerk expects reward for working overtime In what would have been a much-needed reality check for a young, budding lawyer, a Californian court has denied a law clerk’s claims that he should have been paid for working – shock horror – overtime.

As reported by Above the Law, US law firm BraytonPurcell was forced to defend such claims in a Californian appeals court after one of its former law clerks, Matthew Zelasko-Barrett, sued the firm for failure to pay him overtime wages and to provide other benefits, like meals and rest time (what was he thinking?).

The law clerk alleged that Brayton-Purcell had incorrectly classified him as employed in a professional capacity, which then exempted the firm from having to pay him overtime wages.

Luckily for Brayton-Purcell – but not so lucky for all the law clerks out there hoping to be compensated for long hours and no sleep – the appeal court ruled in favour of the firm, confirming that although the law clerk was not yet licensed to practice, he was nevertheless a law school graduate and constituted part of a ‘learned profession’.

Folklaw is hoping this news will provide a wake-up call to any misguided law students across Australia who believe they’ll be working nine to five. w w w.law yersweekly.com.au

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