President’s Report – August

VALE
ALAN ERIC BLANCKENSEE AO

The Society was saddened to learn of the passing of former President Alan Blanckensee AO on 1 July 2017.

Alan was admitted to the Western Australian legal profession in 1949, was a partner at Stone James, now King & Wood Mallesons, and served as President of the Society from 1977 to 1979. He also served for some two decades as Honorary Consul of Germany in Western Australia.

The Society extends its sincere condolences to Alan’s children, grandchildren, family and friends.

Performance of legal work by non-practitioners

I am pleased to report that the comprehensive study into the performance of legal work by non-practitioners, foreshadowed in this column in the February edition of Brief, has now been completed. The study involved extensive work by the Society’s advocacy team and a number of its committees, and has resulted in a paper entitled People Unlawfully Engaging in Legal Work: Protecting the Community.

As noted in February, it is for good reason that the Legal Profession Act 2008 (WA) makes clear who may perform legal work and who may not. The relevant provisions exist to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified, and to protect consumers by ensuring that persons carrying out legal work are entitled, to do so.

Unregulated non-lawyers pose a potential risk to the public where they engage in legal practice. Their clients do not enjoy the benefit of legal professional privilege, nor is confidentiality guaranteed in respect of their communications. Further, unregulated non-lawyers are, generally, not required to maintain professional indemnity insurance; regulated as to the manner and form of costs disclosures; required to hold trust accounts; or bound by codes of professional conduct and ethics (including, significantly, duties to avoid conflicts of interest). These and other important distinguishing features which provide significant protection to the public are often not readily apparent to all but the most sophisticated of clients.

The paper canvasses the main issues associated with legal practice undertaken by non-practitioners and explores a variety of actual or potential manifestations of the phenomenon including: the activities by professionals qualified in other disciplines; non-legal practitioners providing representation as agents or advocates in proceedings; online generation of legal documents; artificial intelligence and multi-disciplinary partnerships.

The paper also advances a series of recommendations, including that:

  • Legislative amendments be enacted to:
    • ensure consistency with the provisions relating to the undertaking of legal work by non-practitioners applicable under the Uniform Law regulating the legal profession in New South Wales and Victoria;
    • address expressly the performance of legal work through artificial means.
  • The Society:
    • raise public awareness of the risks of instructing unqualified persons, and the advantages of instructing legal practitioners;
    • prepare and publish guidelines relating on unqualified practice;
    • liaise with the Legal Practice Board, and/or the Legal Profession Complaints Committee, as to the adequacy or otherwise of current arrangements for regulation of multi-disciplinary partnerships in Western Australia; and
    • actively encourage its members to report instances of non-lawyers performing legal work, and the provision by the Society of such information to the Legal Practice Board for further investigation.

The paper was approved by the Society’s Council at its July meeting. It may be viewed at lawsocietywa.asn.au/law-reform-and-advocacy.

Quality Practice Standard

Members will be aware that the Society has, for over 20 years, operated a Quality Practice Standard (QPS) scheme.

At its June meeting, the Society’s Council resolved that a strategic review of QPS be undertaken. The primary term of reference of the review is to consider “where the strengths and weaknesses lie for the Law Society in offering the QPS programme as a service or benefit to members”.

It is intended that a report reflecting any conclusions and recommendations arising from the review will be presented to Council for consideration at its August meeting.

While no new applications for QPS accreditation will be approved pending completion of the review and consideration by Council of the foreshadowed report, the activities of the QPS committee and the QPS auditors will otherwise continue to operate as per normal pending the outcome of the review.

Golden Gavel

On Friday, 14 July, the annual Golden Gavel competition was held at the Pan Pacific Perth. Courageous young lawyers put their public speaking and comedic skills to the test in front of 300 guests.

The Society extends its congratulations to Daniel Sutherland of Jackson McDonald, who has won the chance to represent Western Australia at the National Golden Gavel. The Society also expresses its thanks to the Honourable Chief Justice Wayne Martin AC, Tom Percy QC and Hayley Cormann for graciously agreeing to serve as the panel of judges.

NAIDOC Week

On Wednesday, 19 July, a screening of the ground-breaking musical documentary Prison Songs was held at the Society in celebration of the recent NAIDOC Week and as part of the Society’s Reconciliation Plan. This moving and amusing documentary casts light on the issues surrounding the incarceration of Aboriginal and Torres Strait Islander peoples.

Mandatory e-lodgement of land transaction documents delayed

As mentioned recently in Friday Facts, since Landgate announced the introduction of mandatory electronic lodgement of land transaction documents from 1 August 2017, the Society has on behalf of the profession worked actively to have this date extended to ensure practitioners have adequate time to make changes to their practices.

Last month, I wrote to Minister for Lands restating the Society’s position that an extension of time was required. Landgate has now agreed to extend the mandatory deadline from 1 August to:

  • 1 December 2017 for all mortgages, discharges of mortgages and refinances; and
  • 1 May 2018 for all eligible documents (including transfers, caveats and withdrawal of caveats and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats).

Transactions currently in progress will be unaffected by the regulations.

The Society once again acknowledges and thanks the Minister for agreeing to support the Society’s position on this important matter, given the implications for the public and the profession.

President’s Report – August

VALE
ALAN ERIC BLANCKENSEE AO

The Society was saddened to learn of the passing of former President Alan Blanckensee AO on 1 July 2017.

Alan was admitted to the Western Australian legal profession in 1949, was a partner at Stone James, now King & Wood Mallesons, and served as President of the Society from 1977 to 1979. He also served for some two decades as Honorary Consul of Germany in Western Australia.

The Society extends its sincere condolences to Alan’s children, grandchildren, family and friends.

Performance of legal work by non-practitioners

I am pleased to report that the comprehensive study into the performance of legal work by non-practitioners, foreshadowed in this column in the February edition of Brief, has now been completed. The study involved extensive work by the Society’s advocacy team and a number of its committees, and has resulted in a paper entitled People Unlawfully Engaging in Legal Work: Protecting the Community.

As noted in February, it is for good reason that the Legal Profession Act 2008 (WA) makes clear who may perform legal work and who may not. The relevant provisions exist to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified, and to protect consumers by ensuring that persons carrying out legal work are entitled, to do so.

Unregulated non-lawyers pose a potential risk to the public where they engage in legal practice. Their clients do not enjoy the benefit of legal professional privilege, nor is confidentiality guaranteed in respect of their communications. Further, unregulated non-lawyers are, generally, not required to maintain professional indemnity insurance; regulated as to the manner and form of costs disclosures; required to hold trust accounts; or bound by codes of professional conduct and ethics (including, significantly, duties to avoid conflicts of interest). These and other important distinguishing features which provide significant protection to the public are often not readily apparent to all but the most sophisticated of clients.

The paper canvasses the main issues associated with legal practice undertaken by non-practitioners and explores a variety of actual or potential manifestations of the phenomenon including: the activities by professionals qualified in other disciplines; non-legal practitioners providing representation as agents or advocates in proceedings; online generation of legal documents; artificial intelligence and multi-disciplinary partnerships.

The paper also advances a series of recommendations, including that:

  • Legislative amendments be enacted to:
    • ensure consistency with the provisions relating to the undertaking of legal work by non-practitioners applicable under the Uniform Law regulating the legal profession in New South Wales and Victoria;
    • address expressly the performance of legal work through artificial means.
  • The Society:
    • raise public awareness of the risks of instructing unqualified persons, and the advantages of instructing legal practitioners;
    • prepare and publish guidelines relating on unqualified practice;
    • liaise with the Legal Practice Board, and/or the Legal Profession Complaints Committee, as to the adequacy or otherwise of current arrangements for regulation of multi-disciplinary partnerships in Western Australia; and
    • actively encourage its members to report instances of non-lawyers performing legal work, and the provision by the Society of such information to the Legal Practice Board for further investigation.

The paper was approved by the Society’s Council at its July meeting. It may be viewed at lawsocietywa.asn.au/law-reform-and-advocacy.

Quality Practice Standard

Members will be aware that the Society has, for over 20 years, operated a Quality Practice Standard (QPS) scheme.

At its June meeting, the Society’s Council resolved that a strategic review of QPS be undertaken. The primary term of reference of the review is to consider “where the strengths and weaknesses lie for the Law Society in offering the QPS programme as a service or benefit to members”.

It is intended that a report reflecting any conclusions and recommendations arising from the review will be presented to Council for consideration at its August meeting.

While no new applications for QPS accreditation will be approved pending completion of the review and consideration by Council of the foreshadowed report, the activities of the QPS committee and the QPS auditors will otherwise continue to operate as per normal pending the outcome of the review.

Golden Gavel

On Friday, 14 July, the annual Golden Gavel competition was held at the Pan Pacific Perth. Courageous young lawyers put their public speaking and comedic skills to the test in front of 300 guests.

The Society extends its congratulations to Daniel Sutherland of Jackson McDonald, who has won the chance to represent Western Australia at the National Golden Gavel. The Society also expresses its thanks to the Honourable Chief Justice Wayne Martin AC, Tom Percy QC and Hayley Cormann for graciously agreeing to serve as the panel of judges.

NAIDOC Week

On Wednesday, 19 July, a screening of the ground-breaking musical documentary Prison Songs was held at the Society in celebration of the recent NAIDOC Week and as part of the Society’s Reconciliation Plan. This moving and amusing documentary casts light on the issues surrounding the incarceration of Aboriginal and Torres Strait Islander peoples.

Mandatory e-lodgement of land transaction documents delayed

As mentioned recently in Friday Facts, since Landgate announced the introduction of mandatory electronic lodgement of land transaction documents from 1 August 2017, the Society has on behalf of the profession worked actively to have this date extended to ensure practitioners have adequate time to make changes to their practices.

Last month, I wrote to Minister for Lands restating the Society’s position that an extension of time was required. Landgate has now agreed to extend the mandatory deadline from 1 August to:

  • 1 December 2017 for all mortgages, discharges of mortgages and refinances; and
  • 1 May 2018 for all eligible documents (including transfers, caveats and withdrawal of caveats and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats).

Transactions currently in progress will be unaffected by the regulations.

The Society once again acknowledges and thanks the Minister for agreeing to support the Society’s position on this important matter, given the implications for the public and the profession.