In this edition:
- Commissioner’s message
- We’ve moved
- Confidentiality and its exceptions – new guidance now available
- Carry out proper checks before hiring anyone
- Supervisors’ perspectives on SLP – early survey findings
- How to meet our minimum cybersecurity expectations
- Lawyer wellbeing – be part of the solution
- New consumer guidance on mediation
- Other news updates
Commissioner’s message
In the work that we do, unfortunately, we often see serious consumer harms that could have been avoided. One concerning trend we’re seeing is in relation to the hiring of both legal and non-legal staff. The appropriate checks haven’t been put in place to avoid harm to both clients and the reputation and business of the lawyer – from a former paralegal who was recently sent to prison for stealing client trust money through to law practices unknowingly hiring lawyers who aren’t qualified for the work they’re employed to do at the time. I encourage you to read more about ways to protect your clients, and your firm’s reputation, below.
When it comes to the lawyer-client relationship, the duty of confidentiality sits at the heart of what it means to be an ethical and trusted legal adviser. A client needs to trust that the information they give their lawyer will be kept confidential. This helps the lawyer to give their client accurate advice, and avoid delays and changes to how their client’s case is managed. There are limited exceptions to the duty of confidentiality that allow for the disclosure of confidential information in certain circumstances. To help you assess if disclosure is permitted, and the steps you need to take beforehand, we’ve developed new guidance on confidentiality and its limited exceptions. Take a moment to read more below about how our guidance can help.
We have seen high engagement with the first stage of the Lawyer Wellbeing Theory of Change project – an initiative that will see the co-design of a shared model for system-wide change in lawyer wellbeing. Over a thousand people shared their views on the causes of poor lawyer wellbeing. You can read more about how to take part in the next stages of the co-design process.
I’m also pleased to share that on 19 August, we officially moved to our new office location at 500 Bourke Street, Melbourne. We look forward to welcoming lawyers to our new office.
Fiona McLeay
Board CEO and Commissioner
We’ve moved
We’re excited to announce that we’ve officially relocated to 500 Bourke Street, Melbourne.
We’re still close to Melbourne’s legal precinct so lawyers and consumers can visit our office with ease, and our office has been designed with customer accessibility at the forefront. If you ever need to speak with us in person, visit us at Level 27, 500 Bourke Street, Melbourne. We encourage you to make an appointment beforehand so we can help you more effectively.
Confidentiality and its exceptions – new guidance now available
As a lawyer, it’s your duty to keep your client’s information confidential.
If you disclose confidential information, you can harm your client’s interests, and your client may lose their legal privilege protection. Doing so also risks disciplinary action against you or civil action against your law practice. The conduct rules provide exceptions to this duty, allowing you to make a disclosure in limited situations.
We appreciate this is a complex area. To assist lawyers, we’ve developed new guidance on this very topic, focusing on:
- the limited exceptions to the duty
- factors to help you determine whether a disclosure of confidential information is justified under an exception – from disclosure where there is express or implied consent through to disclosure to prevent imminent serious physical harm
- where to go for high-quality and confidential ethical advice and support in each circumstance
- how to document a decision to disclose confidential information.
Carry out proper checks before hiring anyone
Recently, several instances have come to our attention where law practices have failed to carry out proper checks before hiring employees. This includes hiring lawyers who don’t hold current practising certificates and hiring non-legal staff who have prior criminal convictions.
This issue was highlighted in July when the County Court sentenced former paralegal Athena Razos to five years and three months’ imprisonment, after she had pleaded guilty to obtaining financial advantage and property by deception.
Ms Razos stole over $1.56 million in client money while working at a Melbourne law firm – despite having prior convictions for theft and fraud, including theft from a law practice where she used to work.
The proper checks law practice leaders need to make
For anyone you’re considering bringing on board – legal or non-legal – it’s vital that you:
- establish a thorough pre-selection process
- carry out police and reference checks (including oral reference checks)
- consider doing a Google and LinkedIn search
- check whether they are a prohibited lay associate, and follow the Board's guidelines accordingly.
For legal staff, you should confirm that they’re entitled to practise. This includes:
- searching our Register of Lawyers to check if they’re licensed to practise, what type of certificate they hold and whether any disciplinary action has been taken against them
- making sure they hold a current practising certificate (or are eligible to apply for one) and that it’s renewed each year
- checking their practising certificate for any conditions, particularly those that affect their practice – for example, a supervised legal practice condition that requires them to be supervised.
Learn more about who can practise
Supervisors’ perspectives on SLP – early survey findings
In 2023, we began a multi-phase research project to explore lawyers’ experiences of supervised legal practice (SLP). This saw us survey early career lawyers about their experiences during last year’s practising certificate renewal period.
To make sure we gain a complete understanding of how the SLP period works from the perspectives of everyone involved, this year we surveyed current or recent supervisors of early career lawyers. We would like to thank the lawyers who took part in our 2024 survey for taking the time to share their valuable insights with us.
Supervisors: what they had to say
The survey revealed some positive trends:
- Nearly all respondents (98%) agreed or strongly agreed that their most recent supervisee had improved their legal skills under the respondents’ supervision, and 95% agreed or strongly agreed that their supervisee became more competent to practise independently
- Most lawyers (88%) reported interacting with their supervisee daily, weekly or fortnightly, with only 7% not having regular meetings
- Nearly two-thirds of supervising lawyers (64%) agreed that supervising another lawyer helped to develop their own managerial skills, and more than half (57%) built an ongoing mentoring relationship with their most recent supervisee.
The survey did, however, show that supervisory responsibilities could negatively affect supervisors, and that there were areas for improvement:
- When asked whether their recent supervisory responsibilities had affected them negatively in any way, 60% noted having to work longer hours to complete their own work, and 31% saw an increase in their stress levels
- When asked how SLP could be improved, 60% indicated that it would be useful to have access to resources on effective supervision, 54% suggested there was a need for workplaces to allocate enough time for supervisory duties and 53% considered that more formal training in supervision would be useful.
We will publish more detailed survey findings on our website in early 2025.
This SLP research project aligns with our 2024 Risk Outlook, where we identify inadequate supervision as a key risk for the profession. Access the Risk Outlook for access to resources that can help – including our guidelines for supervisors.
How to meet our minimum cybersecurity expectations
The scale and severity of cybercrime continues to rise, and the magnitude of this risk warrants urgent attention. This is why we’ve identified cybersecurity as this year’s priority risk for the profession – as we did in 2023.
Our Minimum Cybersecurity Expectations resource, which we launched in our March 2024 Commissioner Update, unpacks vital system and behavioural controls for your legal practice. These controls minimise your exposure to cyberattacks, helping you to meet your professional obligation to keep client information confidential.
Our resource also lists examples of unacceptable cyber-insecure practices that we consider capable of amounting to unsatisfactory professional conduct or professional misconduct.
Law practice principals should use this resource to understand the basic controls they need to put in place. This includes three ‘critical controls’ (i.e. enabling multi-factor authentication, having strong and unique passwords, and turning on regular security and software updates). If there are any critical controls you haven’t yet actioned, these should be your top priority.
We also expect law practices to implement other system and behavioural controls as soon as they can. System controls include security software and backups to protect against external threats and vulnerabilities, and behavioural controls include staff training and client verification to minimise security risks.
We know that when it comes to cybersecurity, it can seem all too much and challenging to know where to turn for guidance. That’s why our table of expectations includes links to trusted supports that can help – from the Australian Cyber Security Centre through to the Legal Practitioners’ Liability Committee.
Access our Minimum Cybersecurity Expectations
Lawyer wellbeing – be part of the solution
The Lawyer Wellbeing Theory of Change project – an initiative to create a shared understanding of where, how and why change should happen within Victoria’s legal system – is now moving to the next phase.
Social research and evaluation experts at First Person Consulting (FPC) are guiding the process, which so far has included a survey to identify the systemic drivers of poor wellbeing within the profession.
Drawing on the 1,100+ survey responses, FPC will run online peer workshops that will see the co-design of a model for system-wide change in lawyer wellbeing. This will be followed by a further series of drop-in online workshops to help review the draft model, and then a final brief online survey.
Everyone from Victoria’s legal system is encouraged to have a voice by taking part in the design and review process.
Register your interest
New consumer guidance on mediation
For many of the consumer complaints made to us, we answer the consumer’s questions, give them information that might help them to resolve their concerns directly with their lawyer, and if needed, work with both parties to reach a fair outcome.
Where you and your client need more support to resolve your dispute, we offer mediation. Why? Because it supports efficient negotiation, encourages compromise, and resolves conflict in an impartial, confidential and safe environment.
At mediation, we bring you and your client together to talk through your dispute with the support of one of our nationally accredited mediators. Our mediators use their specialised skills and techniques to help you and your client identify and explore options for resolving your matter, and negotiate an agreement that enables both parties to move forward. Throughout the process, you and your client stay in control, with both parties having the opportunity to influence the outcome.
To help support consumers, we’ve developed new guidance on mediation that unpacks everything they need to know.
Access our new guidance
Victoria Law Foundation
Public Understanding of Law Survey Volume 3
Victoria Law Foundation’s (VLF) Public Understanding of Law Survey Volume 3 is now available. Building on Volumes 1 and 2, this report explores how people’s attitudes, skills and confidence matter in resolving justiciable issues. It also highlights the role legal capability plays in people’s problem solving and the effectiveness of their interactions with legal services.
Major Grants: building capacity
VLF is offering up to $100,000 to help legal organisations better understand and support the legal needs of Victorians. Apply now to fund a civil legal project that develops understanding through the use of data, strengthens your data capabilities or builds a new community initiative to meet a legal need – apply before 5pm on 2 September.
Law Institute of Victoria
Property Law Conference
Law Institute of Victoria’s (LIV) 2024 Property Law Conference explores essential updates in property law and their practical implications – from the upcoming commercial and industry property tax through to the proposed anti-money laundering and counter-terrorism financing (AML/CTF) reforms. The event will run on 19 September – find out more.
Keen to upskill in AML/CTF? The LIV has launched a dedicated hub to support lawyers in implementing AML/CTF programs to manage and mitigate risk, and understand and meet their new obligations – access the hub.
2024 Spotlight on Wellbeing
The Law Institute Journal 2024 special edition on wellbeing unpacks:
- the courtroom as an arena of professional stress and wellbeing
- psychosocial hazards in the legal profession
- the VLSB+C Lawyer Wellbeing Program, which is a journey of transformation that’s centred around research, system-wide change and genuine collaboration.
Victorian Bar
Legal Minds Unite: brain teasers and trivia for barristers and solicitors
LIV Young Lawyers and the Victorian Bar New Barristers’ Committee are coming together on 19 September to host an exciting evening of intellect and camaraderie. Connect, unwind and put your knowledge to the test, while building lasting relationships within your practice area. To attend, register by 5pm on 13 September.
Legal Practitioners’ Liability Committee
Lodging caveats: your responsibilities
Before lodging a caveat, lawyers should always make sure they carefully consider, and have evidence of, the interest in the estate or land being claimed. Legal Practitioners’ Liability Committee’s (LPLC) guest author Barrister Philip Barton offers his guidance, and walks through common examples where courts have found the caveator to have no interest in the relevant land.
This helpful guidance supports the VLSB+C’s Risk Outlook 2024, where we identified lodging caveats improperly to be a key risk for the profession.
Avoiding misunderstandings when it comes to non-engagement
Non-engagement communications are crucial, yet are often overlooked. They inform parties who have consulted with you that you haven’t been engaged or won’t be representing them, helping to manage their expectations and make sure they have a clear understanding of the professional relationship. LPLC’s article explores the key elements, and how to get it right.
Law Library Victoria
Regional roadshow
Law Library Victoria continues its regional roadshow with an upcoming CPD event in Warrnambool. The Library is showcasing its specialised and authoritative legal resources – which you can access for free anytime, anywhere – while giving you the chance to meet your law librarians in person. Further visits will be added to the Library’s events web page.
Shakespeare in the Supreme
Law Library Victoria is hosting a series of Shakespeare’s scenes performed by actors and legal professionals in the historic Supreme Court Library. There are two free evening performances in September – but you’ll need to be quick to secure your spot.
Sentencing Advisory Council
The Criminal Justice Diversion Program in Victoria: second statistical profile
This 10-year profile on diversion plans in the Magistrates’ Court analyses the:
- prevalence and conditions of diversion plans
- demographics of people who receive diversion plans and their rates of prior offending and reoffending
- the use of diversion plans in the context of family violence offending – access the profile.
Sentencing of occupational health and safety offences
In February, the Council published a consultation paper seeking submissions on potential reforms to Victoria’s sentencing of occupational health and safety offences, and has since received 21 written submissions. The Council is now consulting with key stakeholders on draft recommendations for reform, with the final report due to the Victorian Government by 31 December 2024.