Kirby: chances of global nuclear disaster greater now than ever

--A short news item for the April 2019 edition of the Law Society of NSW magazine LSJ | Kirby: chances of global nuclear disaster greater now than ever

The world’s nuclear non-proliferation regime is under threat and, according to experts, we may not have enough time to solve the problem.

Former High Court Justice Michael Kirby and former Australian Foreign Minister Gareth Evans spoke on the issue at a special event hosted by the Lowy Institute in March. Reflecting on the way geopolitics had changed since the 1980s, Kirby said progress had been slow. In fact, there are more nuclear weapon states today than there were during the height of the Cold War.

“The increase in the number of states that are nuclear armed is particular worrying, because some of them, particularly North Korea, [are] a very unstable ... And we have also come to know more clearly the dangers of accidents and mistakes,” Kirby said.

“We have to have a serious sense of urgency, otherwise nothing will be done. And if nothing is done, I think it’s a real question as to whether our species will still be on this planet in 100 years’ time – or maybe 20 years’ time.”

With the global tally of nuclear weapons totalling about 14,500, Evans said that in his view it was a matter of “sheer dumb luck” that a more serious incident had not already wiped the world out. One of the main reasons being that approximately 2,000 nuclear weapons are on “hair-trigger alert” – a military term meaning capability for rapid launch.

“We have learned over and over again, as the archives are unopened from the Cold War years, just how close we came,” Evans said.

“My judgment is that it is just sheer dumb luck rather than anything to do with statesmanship or inherent stability of the system that we have survived as long as we have.”

Evans urged the international community to address the issue of nuclear weapons with more vigour, noting the potentially “catastrophic” consequences of a nuclear disaster due to human or system error.

“The truth of the matter is that nuclear weapons are the most indiscriminately inhumane weapons ever invented and they do have capacity to destroy life on this planet as we know it.”

Kirby, who is a supporter of the Treaty on the Prohibition of Nuclear Weapons (the ban treaty) that currently has 70 signatories and 22 State parties, said delegitimising nuclear weapons was an important moral stance.

“Those who oppose the ban treaty have got to say what they will put in its place,” Kirby said.

Those in favour say AI

-- A feature story for the March 2019 edition of the Law Society of NSW magazine LSJ | Beyond the jargon: what does AI mean for lawyers? 

The case for artificial intelligence (AI) in legal practice is no longer pie-in-the-sky science fiction. The future is here and all kinds of lawyers are using AI-assisted technologies. Here's why AI is relevant for you and your firm.

Popular culture will have you believe that evil lurks in the pseudo-soul of the artificial intelligence (AI) machine. With AI capabilities, formerly innocuous technologies can become scary realities like self-navigating bombs and autonomous weapons. And that’s where so many mainstream headlines about the power and possibility of AI fall: in the realm of a terrifying, uncontrolled dystopia.

In 2017, the late Stephen Hawking told Wired magazine he feared AI may replace human beings altogether, citing self-improving systems as the main reason. Julia Shaw’s new book, Making Evil, which comes out this month, references the notion of “artificial evil”. First coined by philosophers Luciano Floridi and Jeff Sanders in 2001, the “artificial evil” label is meant to describe the wrongdoing of autonomous, non-human agents. While Shaw has a problem with the argument that “artificial evil” can be made by, and understood with, mathematical models, she considers the response to an AI chatbot that Microsoft released in 2016, where things went wrong quickly.

The chatbot named Tay was designed to engage with people in “casual and playful conversation”. She was meant to sound like an American woman between the ages of 18 and 24, and learn from interactions on Twitter to develop into a functional and conversational online robot.

“Tay tweeted a huge amount in the one day she was active, generating approximately 93,000 tweets,” Shaw writes.

“Almost immediately, people began tweeting racist and misogynistic comments at Tay, who learnt how to echo these sentiments. It took less than a day for Tay to go from tweeting, ‘Humans are super cool’ to ‘I f*****g hate feminists and they should all die and burn in hell’ … People online had made an artificial intelligence into an artificial evil. Tay was terrifying and was quickly shut down.”

If this is all you read about AI and its capabilities, you may be horrified or feel threatened by the dark future it represents. But guess what? AI is already here, you are probably already using it.

Many of the conveniences AI-assisted technologies have brought to human lives are already deeply integrated into legal practice, with simple innovations like the predicative text suggested for finishing your sentence in Gmail or a quick search of case law in a database.

So, what exactly is AI and how can you think about its best uses for your own advantage?
AI already touches much of what we do

Dev Mookerjee, the Asia Pacific Chief Technology Officer for IBM Watson Solutions, is of the view that many of us fail to realise just how pervasive AI technologies are. So much so, we do not realise that we already use AI technology daily, in our jobs and at home.

“All good technology should be like that,” Mookerjee says.

“AI is a set of technologies which is not discrete or separate. It is infused in what we do. Lawyers are using it already and that’s a good thing.”

Internet searching is a common, everyday task most lawyers of all levels would do. The basis of being able to complete that task relies on AI technology, Mookerjee explains.

“If you look back 20 years, when the internet wasn’t everywhere and internet search was in its infancy, you had sole practitioners who would do their research in a very different way. They would call up people, they would go to libraries and there were massive leather-bound books on shelves behind them. They knew exactly which book to open and what to actually search for. That’s gone,” Mookerjee says.

“That story has changed because AI has helped internet searches become so much easier. The main point you need to take away is that AI is not a black box that stands alone in the corner making noises.”

A recent survey of legal operations professionals by US data analytics company OpenText found that 34 per cent of 95 respondents working within in-house legal departments use AI technologies. Meanwhile, another 66 per cent of respondents indicated that spending on AI would increase in 2019.

For Mookerjee, who flies around the world speaking with international clients and partners about how AI can offer a solution to their business problems, the language surrounding the technology can make a big difference. He prefers the term “augmented intelligence” to AI, which puts the emphasis on technology augmenting human intelligence.

“AI is something that is new and different, it causes us to think twice about what this alien thing is. Whereas, if you call it ‘augmented intelligence’, then the word ‘intelligence’ is about the human being,” Mookerjee says.

‘Narrow AI’ is good and it probably won’t take your job

AI can perform tasks such as visual perception, speech recognition, decision-making, and translation between languages. The processes used to perform these tasks can include expert systems and machine learning (supervised, unsupervised and neural networks). According to a paper written by UNSW’s Professor Michael Legg and Dr Felicity Bell from the Law Society of NSW Future of Law and Innovation in the Profession (FLIP) joint research project, FLIP Stream, the AI developments most relevant to legal services are expert systems, machine learning and natural language processing. The application of these systems makes tasks like automated advice, document drafting, due diligence, online dispute resolution, eDiscovery, contract review and outcome prediction possible.


Neil Sahota, writing for Forbes, recently addressed the question of whether AI would put lawyers out of business. Together with Michael Ashley, Sahota (a United Nations AI expert) has authored a soon-to-be published book, Own the A.I. Revolution: Unlock Your Artificial Intelligence Strategy to Disrupt Your Competition. No matter how sophisticated the technology becomes, Sahota speaks with a number of experts who claim that AI “will never be a substitute for the judgment and decision-making that only humans can provide”.

One way to classify AI is by delineating “strong AI” and “weak AI”. Independent “thinking” AI falls into the first category, while weak AI relies on programs to mimic human thinking, without reasoning in the same way that a human does. Currently, AI works best with well-defined and focused tasks like reading a text or ‘understanding’ a contract clause. Mookerjee says there is little use for the “strong” kind of AI that is all-knowing and all-thinking.

“Lawyers in fact are, by nature, narrow in their focus and specialisation. And that is how, not just in law but in most industries, things happen. That is also how AI is being rolled out,” Mookerjee explains.

“That is not because AI needs to be rolled out like that, but because we are fixing real-world business problems which are narrow in focus.”

Perspective matters, aim for efficiency

AI will transform legal practice as part of a broader movement in law to automate. That is the view of UK-based strategy and innovation advisor Richard Tromans of Tromans Consulting. He suggests that sole practitioners scratching their heads as to how AI relates to them should refocus their attention on what tools can bring greater efficiency to their practice and how to automate basic tasks.

“It’s all part of a broader movement to drive efficiency and deeper insight in the law through automation,” Tromans says.

“AI is just one means to an end – one of many different ways to achieve the above. Automation is the goal. AI is one set of tools to get there.

“If you use Google, you use an AI system. So any lawyer can use this tech.”

Although he concedes that those law firms with a dedicated legal AI system on their wishlist will need to invest in a software licence that is not cheap, Tromans says most lawyers who are only looking to improve efficiencies and automate tasks can find affordable AI products on the market. The end objective should be to solve problems quickly and inexpensively.

“If your client wants work done to a fixed fee and you want to protect margins on process work, then AI or automation is the only way to do this,” Tromans says.

“Automation does help profits, but this depends on the client environment you are in. Just using tech alone does not make you more profitable – there needs to be a client context for it to be worthwhile economically.”

He adds that it is those practice areas with the least amount of repeatable tasks that will benefit the least from AI technologies. No practice area, however, will be immune to the efficiencies it can achieve.

According to Mookerjee, clients expect modern lawyers to be engaged with and open to using AI-assisted technologies. This expectation means the legal profession must be willing to abandon its culture of resistance to change. He says it is positive to see the Law Society of NSW pursue initiatives like FLIP, which bring people into a room and expose them to ideas about technology and innovation that may have felt out of reach.

“This takes people one step from ‘I don’t know what I don’t know’ to ‘I know what I don’t know’,” Mookerjee explains.

He adds that universities and law schools nationwide are beginning to take awareness of technology seriously, helping to shift the mentality of the next generation of lawyers. More senior practitioners should think about what extra training they can do to brush up on their skills, he adds, and should consider getting onto online platforms like Udemy or Coursera.

“The universities are doing some good work by having multi-faceted training available earlier. It encourages students to recognise that they might be going into law but they should also do a technology unit,” he says.

“For lawyers who have been in practice for the last 15 years, they also need to appreciate what changes are coming, not just because the industry is changing but also because the client base is changing.”

Hardwired

--My cover story for the February 2018 edition of the Lawyers Weekly magazine | Harwired - How innovation has transformed the advocate's approach, from chambers to the courtroom.

Melissa Coade speaks to members of the Australian bar about their perspective on how innovation has transformed the advocate’s approach, from chambers to the courtroom.

A dedicated and growing conversation among lawyers in government and private practice about technology and the law has flourished, perhaps in part because the impact of technological innovation on business is apparent. Professional bodies representing Australian barristers have also responded, albeit in different ways and with a little more caution.

There have been fewer surveys conducted with members of the bar than members of the various state law societies. However, recent years have seen some of the Australia’s larger bar associations in New South Wales and Victoria establish committees focused on innovation and technology. 

At the International Bar Association (IBA) conference held in Sydney last October, themes inextricably tied to technology and law dominated the program agenda. A few months before that congregation of practitioners, mainstream media was gripped by the concept of giving legal status to robots that was being considered by the European Union. A draft report presented to the EU’s lawmakers had suggested attaching civil liability to “smart autonomous robots” and creating a code of ethics for the manufacturers of such products. In 2016, a joint conference hosted by the Australian Bar Association (ABA) and Victorian Bar convened a panel of chief justices who spoke at length about technology and the courts.

Both at home and further afield, the advocates of the legal profession are thinking about where new innovations may take their vocation and its broader impact on justice. Here, leading barristers share their views on just how far these advances take the bar and how they have transformed the realities of day-to-day practice.

Time to transition

Taking his interview over the phone from Perth, Western Australian barrister Joshua Thomson SC spares 30 minutes to share his evolving experience with technology and practice. For most senior practitioners like Mr Thomson, setting aside the time to research, explore and self-teach the range of tech-offerings that are available to barristers can be difficult.

“I certainly see the way of the future as embracing technology as a tool. And I think that there is a long way to go in both legal firms and at the bar in making full use of the potential of technology,” Mr Thomson says.

“There is often a lag in trying to implement those things, just out of a fear of how it will work or because barristers are very much time-consumed with other things. They do not want to experience by dropping a few hours here in order to make up quite a lot of hours down the track if they can get technology working.”

For a busy sole practitioner, exploring the limits of a software program before committing to a new one, and then learning the ways of the alternative solution, takes patience. The trial and error required to make a strategic decision about what software to invest time in can also be a taxing process, Mr Thomson says. The silk shared his experience of moving from Microsoft OneNote to PDF Annotator (created by GRAHL software design) as an example of a process that required time to adjust to.

Previously the PDF alternatives to Microsoft OneNote had the problem of what Mr Thomson says a “clunky and haphazard” writing function. He says he had to wait for a new PDF product to come onto the market before making the decision to switch.

“It took a little bit of time for me to find a really good program like PDF Annotator, which allows me to write directly onto the screen, do links and to highlight and draw on it like it is a piece of paper,” Mr Thomson says.

“Until quite recently, I used the Microsoft OneNote program to store and utilise my electronic briefs because the experience was very similar to having a paper brief.

The difficulty about using One Note was that I had to transport all of the documents – the documents effectively had to be electronically printed into the software, and while there are techniques you can use to do that more quickly, it was a little time-consuming,” Mr Thomson says.

Mr Thompson joined the WA Bar in 2001, five years after graduating from the University of Oxford with a Bachelor of Civil Law, and six years after being admitted to practice. His main areas of practice, commercial disputes especially for insolvency, shipping law or building and construction matters, are document-intensive.

He says life as an advocate has become much more convenient now that the days of hauling bundles of paper to court are over.

“Certainly most commercial disputes have very large volumes of documents and it becomes very difficult to physically carry around,” Mr Thomson says.

“I recently did a trial or four weeks in Adelaide and that was done much easier by doing things electronically. I took my computers with me, as opposed to having to lug 17 volumes of 12 bundles backwards and forwards between Perth and Adelaide.”

Reducing his reliance on paper has also altered what was once the logistical juggling of taking suitcases filled with briefs back and forth between his chambers and home. Nowadays, transporting content is as seamless as packing away a laptop and leaving the office.

“I have moved from having an office, which is significantly cluttered with paper, to one where I try to have almost no paper at all.”

Speaking about the receptivity to technology more broadly and the election by lawyers to run electronic trials (e-trials), Alain Musikanth suggests old habits die hard. Like Mr Thomson, the barrister is a member of Francis Burt Chambers in Perth. Mr Musikanth also served as the 2017 president of the WA Law Society.

During his stewardship of the law society, Mr Musikanth commissioned a report into the future of the legal profession. The report identifies technology as one of the greatest challenges facing the legal profession, acknowledging that many lawyers do appreciate the opportunities of the tech revolution. It goes on to note that some practitioners, however, are “still hesitant about how the use of technology will fit within traditional models”.

When asked why he thinks a large number of parties have not chosen to proceed with e-trials, Mr Musikanth says he believes people, clients and their lawyers, are stuck in old ways. Notwithstanding the fact that an official survey of the legal profession is yet to have been conducted on the subject, he says that there is no surge of litigants in e-trials because parties are simply used to doing things the way they have always been done.

“That’s just my own view on it – they are afraid to try something different. It requires buy-in from the solicitors, it requires buy-in from the barristers and obviously from the clients,” he says.

Brief encounters

Mr Thomson says that he prefers for solicitors to brief him electronically. This is typically done by receiving the electronic brief on a USB or accessing documents via email or secure portal. In his view, the portals used to share documents with counsel are comparable platforms between firms.

“My way of using the portals is to access the documents and save them on my computer, and then a separate disk that I can use, as opposed to going back to the portal and re-accessing the documents. That is also because the links on to those portals often expire after a period of time,” he says.

According to Mr Musikanth, software designed specifically for barristers is limited. Other than the practice management package SILQ, which streamlines accounting and conflict check processes, new ways to brief barristers tend to be the main innovation of interest.

“I know that some barristers, one in particular, trying to use a cloud briefing system, where he gets briefed over the cloud. It is just another way of doing old things. Instead of people sending hard copy briefs or a USB, the solicitor can put stuff up on a secure server, which can then be downloaded,” Mr Musikanth says.

While the Perth barrister says that receiving briefs in digital format is his preference, he adds that realistically some solicitors will resist doing things digitally and insist on sending paper briefs.

“Some solicitors will insist on sending you 25 lever arch files, which you can’t really conveniently cart around with you. I think it is just a matter of people doing what works for them but being dedicated as to the benefits of having as little paper around as possible,” he says.

Courting the digital realm: Why more barristers don’t build software

Security issues concerning the use of cloud computing and electronic document and records management systems (EDRMS) to exchange confidential information is an important aspect of this evolving area. While the discussion of protecting client information from data breaches is a popular topic among solicitors and law firms, they are just as relevant to members at the bar and the software infrastructure at their disposal.

The WA Law Society has developed its own ethical and practice guidelines to address security issues concerning cloud computing and practitioners who use it. The guidelines note that professional conduct issues can arise for a practitioner, specifically when relying on cloud computing software, and they are unable to comply with the requirement of “competent and diligent” delivery of legal services or have difficulty doing so.

Other potential pitfalls tied up with cloud computing include circumstances where a lawyer cannot guarantee they have not shared confidential client information without relevant authorisation.

Where comparable, these ethical boundaries may account for why few barristers have actively entered the software development space. Mr Thomson points to groups such as the legal publishing team behind not-for-profit BarNet JADE as a project that has worked well. The platform provides searchable electronic access to legal decisions.

“I have often wondered whether there could be developed some specific software that would be useful for barristers and there is some great examples of people who have done that in a different context. The BarNet JADE team have done a very good job in terms of developing a database for case law and legislation which is extremely good,” Mr Thomson says.

“And there are also certain chambers in Melbourne where they do have their own platforms for the way in which you can brief barristers but that also increases risk. If chambers offer a software platform which goes down at a critical time, that could jeopardise a barrister. Or if it gets hacked into, that could jeopardise a barrister as well.”

“That would be a risk then that’s worn by the chambers providing the platform. Whereas, at the moment, each barrister makes their own decision and obtains the platform from a commercial provider. If you have somebody like Microsoft or another service providing the relevant facility, the platform is much less likely to go down and there is no particular set of barristers that are bankrolling the risk of other barristers in the chambers,” he says.

The WA silk also suggests that another reason fewer barristers are actively involving themselves in developing innovation solutions is the speed at which technology evolves. When asked if he considers it useful for legally qualified professionals and barristers to be involved in developing legal software, Mr Thomson offers a pragmatic response: it is useful but not essential.

“I do think it is helpful if lawyers can be involved in developing technology that is used by lawyers but I do not know if it’s absolutely essential,” Mr Thomson says.

“It seems to me that questions of confidentiality are certainly much global in all sorts of different areas of commerce and use of technology.”

Listless for change

Late last year, taLaw introduced an alternative briefing model to the legal market in New South Wales. BarristerSELECT offers a free central service for solicitors to lodge the requirements of their matter, which gets dispatched to a group of chambers in Sydney. The product leans on the knowledge of a dedicated clerk to find the best barrister for a particular matter but, crucially, touts itself as being a time-saver for instructing solicitors.

In a state like NSW, where there are in excess of 80 barristers’ chambers, taLaw CEO Stephen Foley says solicitors can spend hours ringing around to try and counsel who may be available for their client.

“We are giving this time back, as well as access to a wide range of chambers, with our intuitive online form that takes a maximum of five minutes to complete,” he says.

“Good lists or good chambers will have barristers’ clerks that know their barristers very well and know who’s most suitable for the job. For the solicitor and barrister, it’s a bit like a matchmaking service, but it’s the clerk that is the hub in the middle that is the trusted adviser. It’s in their interest only to put the right barristers forward, because if they don’t it reflects on their chambers, so we’re leveraging the clerk as the [focal] point in this system.”

Chambers are charged $165 per successful engagement organised through the BarristerSELECT service. Mr Foley refers to the chambers connected to the network as “progressive chambers”.

“What we mean by progressive chambers is chambers that are willing to take on technology, and take on this type of technology to find the right barristers,” he says.

More direct access to advocates

With models for briefing barristers differing slightly between Australia’s jurisdictions, the use of platforms such as BarristerSELECT to disrupt established briefing processes can be a sensitive topic. A member from the Victorian Bar told Lawyers Weekly that its innovation and technology committee has spoken about the option of working with a similar provider to help facilitate the process of briefing of counsel. It is understood that the possibility in Victoria is still in its embryonic stages.

In Queensland, Level Twenty Seven Chambers was the first group of barristers in the state to adopt the chambers clerk model in 2014. Since launching, Level Twenty Seven claims to be “the largest barristers’ chambers in Brisbane” operating from a fixed address.

Then Hemmant’s List entered the foray in the Sunshine State, taking the chambers clerk model online in 2016. At the time of the list launch, chair Geoffrey Diehm QC told Lawyers Weekly that the clerk-led, e-chambers took a “modern approach to an old game”.

One of the primary goals of Hemmant’s List is to better facilitate an equitable briefing regime and the way that matters are referred to counsel in Queensland.

“Our aim was to untie the list from any physical set of chambers, which much better facilitates our objective of getting a group of people of high quality but of diversity, because chambers are tied together by other considerations that might mean [such diversity] is harder to achieve,” Mr Diehm says.

“The list hopes to principally do two things: one aim is to provide solicitors and clients with the facility by which they can make informed choices about who they wish to brief for a particular matter.

“And then from the barrister’s perspective, it is an important service for providing professional development, where the clerk is able to assist the individual barristers in progressing their careers and developing their practice into the client that they hope to have,” he says.

Mr Thomson does not consider these new ways to connect solicitors with lawyers as a poisoned chalice for physical chambers. This is because the purpose of a chamber of barristers is to promote a culture of collaboration and support, and this need will not diminish with new and more efficient ways of briefing counsel. He suggests that it is going a step too far to suggest that these technologies and tools will lead to a future where only virtual chambers will exist.

“It is necessary for barristers to practice in a set of chambers, typically speaking. The purpose of chambers is not simply the paying of rent together but it is also to advise each other, to have professional interactions and to support each other ethically as well. I do not think those things are going to necessarily be provided electronically. But I do think that the electronic delivery of material will facilitate streamlining of the way chambers operate quite significantly,” Mr Thomson says.

Ranking lawyers with analytics

Just as Mr Thomson cycles through the ways technology has changed his practice, the silk stops abruptly and mentions a new product marketing itself as a tool for lawyers that also provides data to help litigants. Opening up the Litimetrics portal from his browser, he recites what information the so-called legal tech platform generates for the search entry ‘Joshua Thomson SC’.

“If I pay money it will tell me who my instructing firms primarily are, representative cases I have carried out and so forth,” he says.

The engine claims to provide credible information to assist clients plan for litigation by summarising the experience of different legal practitioners in Australia. Using learning models based on recent advances in natural language processing, Litimetrics will mine and translate available data. The insights which can be accessed from the platform include information such as a practitioner’s main area of expertise, average case duration, success rates and settlement figures.

“It says ‘Joshua’s primary areas of practice appear to be constitutional law, corporations and associations, private international law, costs and contract…’ And it says that I was called to the bar 16 years ago.

“This is just another example of the way in which people are using technology to assess barristers and cases,” Mr Thomson says.

The Litimetrics’ website specifies that as a “provider of information about matters of public importance”, it will consider taking down profiles in exceptional circumstances only.

Similar data-driven platforms that offer performance metrics for lawyers, like US-based legal analytics firm Premonition, have already captured the full archive of court records in the Australian market. It is understood that the Victorian Bar is cautiously observing how these platforms evolve.

When asked about how much stock rankings of this kind should be given, Mr Thomson said advocates, especially senior counsel, are often engaged for the tactical advantages they can offer. He underscored the fact if a case was especially difficult, losing may not be a bad outcome

“If you have a senior counsel involved, they will make sure to take advantage of every point that might arise and you might actually get them to come up with a good outcome,” Mr Thomson says.

“That doesn’t mean that if they lose, they have run a bad case. It means that the case may have been a very difficult one in any event and the client’s trying to maximise the potential of a good outcome.”

Bench pressing for paperless trials

It took three years to complete WA’s new David Malcolm Justice Centre, located on the corner of Barrack Street and St George’s Terrace. Home to 33 storeys comprising a civil courthouse, judicial chambers for the WA Supreme Court, the Supreme Court registry and offices for the Attorney-General and Treasurer, the facility is now complete.

According to Mr Musikanth and Mr Thomson, the court is a leading example of state-of-the-art facilities which can accommodate e-trials and other electronic processes during court proceedings.

“The brand-new Supreme Court facilities in WA are very well fitted-out for electronic trials and/or the display of electronic materials,” Mr Thomson says.

Mr Musikanth adds that in WA, facilities to conduct e-trials have been around for over two decades. The improved fit-out in the Supreme Court building offers even more sophisticated technology to conduct paperless trials, he says.

“Certainly the facilities are there for any practitioners wishing to use them. There are enormous advantages to using them.

“Instead of going to court with your trolley, you make sure that everything is uploaded onto the system. You do not have a paper trial bundle, you have an electronic trial bundle, and everyone has access to the bundle on their screens,” he says.

Mr Thomson’s experience of how technology is used in the courtroom is varied. Overall, he reports his experience as a positive one. He says that in a recent matter before the Federal Court in Adelaide was able to conduct a case that involved using electronic spread sheets and A3-sized documents during cross examination. Modern facilities will also accommodate for split screens to project two different pages in the courtroom at once.

“You can identify the relevant spreadsheet, and electronically it is projected on to a screen. Then you can manoeuvre the witness through several cells in the spreadsheet so the cross examination can occur by reference to the particular cells in the spreadsheet.

“The judge is able to follow the cross examination, it’s recorded on the transcript by reference to the cell numbers and everyone can see it on the screen in front of them,” Mr Thomson says.

“Obviously it varies between different judges but I have had generally positive experiences in the courtroom,” he adds.

From 1 March 2018, there will be compulsory e-filing for documents relating to General Division civil matters that are lodged in the WA Supreme Court and district courts. The requirement will apply to solicitors on the record and government, with no confirmation as yet about whether the compulsory rule also applies to self-represented litigants.

“Making e-filing compulsory could end up encouraging e-trials,” Mr Muskanth says.

“Once that is in, it may have the effect of making people realise that it is actually quite convenient having everything set up electronically and maybe we should start using the electronic trial rather than printing all our paper out.”

In November, NSW Attorney-General Mark Speakman announced that the Land and Environment Court would begin a trial of paperless hearings, with all evidence to be stored on USB and projected on to walls. Justice Brian Preston, chief judge of the NSW Land and Environment Court, said at the time that there was a strong likelihood paperless trials would become more common in lengthy civil matters.

“Paperless trials will only account for a minority of hearings in the Land and Environment Court this year, but they could quickly become the norm for lengthy civil matters as the legal profession adjusts to the technology and realises the benefits,” Justice Preston says.

By the end of 2017, five hearings had been scheduled in the NSW Land and Environment Court to consider electronic evidence and without using a single sheet of paper.

What clients want

--My cover story about client appetite for the legal services market, written for the December 2017 edition of the Lawyers Weekly magazine | What clients want

Law firms are conditioning themselves for high client expectation, Melissa Coade writes.

Like in motor sports, contenders on the business track hail from all over and vary in size. Despite clear disparities in the markets they serve and the deals they do, competitors can often vie for the same prize – that is a share of work from the same pie – and the nature of a winning offering can also be as scalable as it is sophisticated.

This is a circular conversation. What clients want will necessarily inform what law firms do. And leading legal businesses will always claim their strategy centres on understanding and meeting client needs.

This ambiguity in the obvious is what keeps legal industry reporters, conferences and consultants asking big bosses of successful firms what it is they are doing to keep their clients happy and businesses thriving. So for now, what do clients want? And which legal service providers are leading the field?

Gauging the in-house navigators

Lawyers have always poured time and energy into keeping a close relationship with their clients. It is a true endurance sport which, over the years, has seen legal professionals expand their skills beyond practice areas and focus more on developing the same kind of business nous their clients might be expected of.

Clients the world over want their lawyers to be more like business partners. This is part of an ongoing departure by clients who want more from their legal advisors and are looking for a holistic business relationship. It is a view consistent with the main takeaway of a new Law Firm Leaders Survey conducted with managing partners, senior partners, CEOs or chairs of the top 200 law firms in the UK and some global firms headquartered in the US.

Using a two-part method that included responses to survey questions and face-to-face interviews, the global report published by BDO has found that “strategic partnerships” are the new way to do legal business. More firms are putting greater emphasis on connectivity and integration, the report suggests, and clients are shopping for legal services that offer the best kind of transparency and control.

BDO professional service partner Tony Young says that law firm bosses recognise change is inevitable. He suggests that client relationships have entered a new era, with different expectations around what services law firms deliver and how. The time of purely transactional engagements between lawyers and clients is long gone.

“Clients expect to find that lawyers and other experts within the firm will provide more advice and support to their clients outside specific matters and often outside technical legal issues. For example, a growing trend is for in-house legal departments to turn to law firms for advice on management and operational issues, such as new technology investments,” Mr Young says.

Uber’s Katrina Johnson, associate general counsel and head of legal for Asia-Pacific, has gone a step further to encourage firms to think about how they can capitalise on data to inform the way they offer clients strategic advice. Speaking as part of a panel held in Sydney for the International Bar Association’s annual conference, Ms Johnson said the dynamic between clients and law firms has changed.

“What has won some law firms work that others have missed out on is the difference between those who are really willing to invest in the relationship and understand our business,” Ms Johnson says.

“One of the law firms on my preferred panel said: ‘We are going to use Uber to get around the city and understand the product and give you our feedback about user experience’. That allows them to put themselves in our shoes in terms of what problems we’re trying to solve for.”

LexisNexis has recognised the potential that big data promises law firms and subsequently created a number of high-volume data platforms and analytics tools that it says can free up more time for lawyers to get on the strategic fast track with clients.

Simon Wilkins, the general manager for LexisNexis Australia, has gone on the record to say that Artificial Intelligence (AI) technologies have now advanced to the stage where there are tools that can contextualise information. In his view, this development has transformative implications for the legal industry.

“All the rich data that is available to firms now, having seen this happen with previous clients, and how things have played out, that’s a great value add,” Ms Johnson says. “To be able to say: ‘This is how it’s going to be, this is what you should be focused on, we get your product and we get your industry’ – I think those things are really helpful."

Uber, like the online home-sharing marketplace Airbnb, is part of a new march of disruptive companies that are changing the way traditional business operates. Customers embrace these with relative ease and so regulatory landscapes that never anticipated businesses of this type find themselves challenged. As everyday people normalise the new ways of doing business with companies that reimagine their services, strategic legal advisors must also keep pace.

According to Brent Thomas, who is Airbnb’s head of public policy for Australia, New Zealand, India and South East Asia, there is also an opportunity for imaginative lawyers to help navigate the regulatory challenges he sees as posing obstacles for his industry. 

Speaking to the same IBA audience as Uber’s associate general counsel, Mr Thomas said he believes strategic legal counsel have a useful role to play in a legal landscape which is not currently favourable to disruptor clients. 

“The whole notion of the regulatory model is a very interesting thing for me,” Mr Thomas says. 

“You’ve got consumers [who] are voting with their feet and moving often more quickly than lawmakers. The question [for lawyers] is not what is the law today but what should the law be, and how do we get there?”

In the driver’s seat

The ways that the traditional lawyer’s role has morphed is closely tied to the opportunity the big four accounting consultancy firms have seized to gain ground in the legal services space. With the blurring of the lines around what a lawyer looks like, it is those groups who are used to offering complex and diversified advice about whole businesses, leveraging the opportunities to step in and take clients away from law firms. But private law firms are also strapping in for the ride and responding in kind.

Top-tiers have openly acknowledged that the threat legal services arms of PwC, Deloitte, KPMG or EY pose to their business are unlikely to go away. Independent Australian law firms in particular view the big four as major competition, with senior figures from Clayton Utz and Gilbert + Tobin admitting that the moves of the big four inform their own market strategy.

Leading Australian law firms say the scale of the accounting constancies means their investment capacities cannot be underestimated. At Clayton Utz, chief executive partner Rob Cutler says the response has been to execute a new legal project management framework. The idea behind the initiative is to enhance the capacity of the leading firm’s workforce to project management. By combining technological capability with more sophisticated project management skills throughout the firm’s ranks of lawyers, the top-tier boss believes Clayton Utz is better able to report to its clients in the ways they want.

“Lawyers historically have not been trained in project management as a discipline and that education of our talent must be supported by the technology,” Mr Cutler says.

“This enables us to manage the product and report to the client by achievement against phase and work product and attendant cost by reference to project budgets.”

Mr Cutler has revealed that just as the Clayton Utz strategic team pays careful attention to what new ventures competitors are embarking, the firm is concerned with its client engagement. In fact, this is the law firm’s biggest priority. It is listening to clients that has deterred the firm from going the same ways as others have done, which is by merging with a larger global outfit about 10 years ago. Mr Cutler says this decision has seen client referral work to Clayton Utz bump up in terms of overseas sources.

“There has been a dramatic increase year-on-year over the last five years, both in revenue terms and in number of referrals,” Mr Cutler says.

Earlier this year Campbell Jackson, the national head of the EY’s professional services team, has told Lawyers Weekly that firms across the board are asking how they can remain relevant. The C-suite consultant is adamant that unless law firms take the idea of innovation and package it in ways that means something to clients, they will die.

“Some firms have approached innovation really well and have continued to do so. Some firms have made big bets the other way and staying constant to what their strategy actually is. But the firms that don’t change will not survive. When you look at the way things are done now and mirror that with client expectations, changes are constant. You’ve got to be on the move,” Mr Jackson says.

In his view, the next five years will offer a telling indication of which law firms have done things right and those who have failed to learn from their mistakes. Even among those who are innovating with the right measure of pragmatism and profit, Mr Jackson says he has observed a certain conservatism hold law firms back. Compared to accounting firms, for example, law firms are less willing to diversify their traditional revenue streams. Mr Jackson suggests that in some cases this may be attributed to the fear of being seen as a ‘hobbyist’ rather than a ‘specialist’.

“I do have a saying that I think is critical to professional services: fail quickly and fail cheaply. Failing’s okay. Just make sure it’s cheap, and just keep trying because eventually you’ll get it right.

“Innovation to me is doing more with less. Can you get innovation wrong? I think you can. You can lose identity and you can become something that you’re not,” Mr Jackson says.

Tech pedal to the metal

Where there is decided mood for law firms to switch up their legal services by stepping out of the cockpit and into a more innovative space – what are some of the market leaders doing to ensure this transformation happens but their identity is not diminished?

The findings of the BDO survey have also reported an appetite among clients for more digital solutions. Respondents say they are looking for more tools and platforms to facilitate collaborative ways of engaging. This includes fostering more strategic business partnerships with law firms.

Mr Young says platforms, such as the digital conveyancing technology adopted by Corrs Chambers Westgarth earlier this year, offer clients the connectivity and integration they are after.

“Shared technologies have the potential to change the way clients work with law firms, provide clients with more transparency and control, and provide the tools for more collaborative ways of working,” Mr Young says.

When the property practice at Corrs launched what it described as a pioneering approach to open innovation in October, it was one more string to the bow of the firm’s secure cloud-based solutions. The law firm said that it was an early adopter of the platform for all its national conveyancing and large-scale property transactions.

Developed by InfoTrack, the PlanIT platform offers streamlined management of document production, distribution, execution, reporting and settlement for off-the-plan apartment and master-planned communities.

Corrs said the platform has the potential to deliver time and cost savings to clients, while also enabling contracts to be sent anywhere within minutes. According to Peter Calov, a partner at Corrs, the firm wanted to be sure it had implemented the right software before committing to a complete e-conveyancing platform.

“After conducting extensive market research, including an analysis on whether to further develop in-house conveyancing software, we determined that the PlanIT solution was the best fit for our clients, the firm and our property team,” Mr Calov said.

“Initially the platform will be used by our national off-the-plan Developer Sales Group. Our team can transact using the platform without the need to enter data twice and clients will also have the added benefit of being able to log in via a client portal and view up-to-date sales information.”

Corrs’ PlanIT is one specific example among many legal tech solutions already operating in the market. There already exist a plethora of AI-powered descriptive, predictive and prescriptive analytics that law firms are prototyping to complement, and in some cases automate entire legal functions.

The general manager of LexisNexis says the impact of the evolving legal tech solutions that are available are likely to put a stronger focus on the human relationships lawyers share with their clients.

“In the legal industry, these solutions are a technological leap, not just a step, and are set to streamline hours of manual legal research work as well as provide legal professionals with a distinct competitive advantage in the form of objective data points to better inform their litigation strategy,” Mr Wilkins says.

“While there is concern in the industry that technology could replace human functions, it is in fact far more likely to enhance the role that lawyers play. Indeed, it could make interactions ever more human.”

Partnership is a two-way street

For all the talk the opportunities that new technologies are flagging for law firms, being in the race boils down to maintaining a relationship with clients that matter. Sometimes that means telling a client what they may not want to hear or breaking the news about trouble on the horizon they never saw coming.

From the perspective of Uber’s Ms Johnson, a lawyer who can convey difficult advice straight is exactly what she wants from a strategic partnership.

“We don’t want to be told what we want to hear – I’m not paying for that. Maintaining professional standards and ethical standards is exactly what we’re seeking. And that doesn’t mean you can’t understand what we are trying to solve for as a client,” Ms Johnson says.

Kieren Parker, a partner of Sydney commercial firm Addisons, has also offered his views on the client-law firm relationship at the recent IBA conference hosted in Australia. Mr Parker stresses how important it is to know the difference between the needs of a client and communicating advice in the best interests of a client’s business.

“There is a real advantage in being the industry expert, and knowing not the companies in that industry, how regulated they are, the agency relationships they have, the liability risk they have, the role they play in their ecosystems without necessarily becoming conflicted in the advice you are giving,” Mr Parker says.

For the commercial lawyer, whose firm includes clients such as Virgin Enterprises, Bega Cheese and Coca-Cola, innovating for the benefit of clients and focusing on better ways to collaborate, cannot come at the cost of independence. He believes that clients do value the independent counsel of a good lawyer.

“You have got to get to know your client better and that means you need to tell your client what you think they need to hear.”

According to Ms Johnson, Uber is all about that kind of approach.

“I want to be tested on stuff; I want to be challenged; and I want legal advisors to have that arm’s length approach – but I also want you to get where we are going and what we are trying to solve, to encourage us to think about things more creatively,” she says.

Australia’s great dividing range

--My cover story about the Australian mid-tier law firm market, written for the November 2017 edition of the Lawyers Weekly magazine | Australia's great dividing range

The bedrock of traditional legal services has been subject to intense pressure in recent times, and from all directions. Fissures have emerged and split law firms into distinct groups, with global mergers casting the classic mid and top-tier layers into disarray.

In this special feature, Lawyers Weekly speaks with some of Australia’s remaining independent firms and asks what challenges the modern market poses and how they are finding success between a rock and a hard place.

A global metamorphism

Australia’s law firm stratigraphy was once a much easier concept to drill down. The shorthand of top-tier, mid-tier and boutique classification for legal service providers used to say something very specific about the clients a firm served, the size and scope of its practice groups and the fatness of its profit margins –but things have blurred.

While competition is fierce across the board, the pressure to innovate better and faster than the foray of NewLaw outfits that are bursting on to the scene, as well as picking a magic price point that satisfies the appetite for efficient, high-quality legal work, has made for a compelling case for some national firms to tie up with a global entity. Forces have driven some to the edge.

A recent example of this coming to bear is a portion of the fractured Gadens federation merging with global monolith Dentons. The Melbourne office of the prominent domestic law firm opted out of the international tie-up that was finalised in December 2016. Gadens offices in Sydney, Perth and Port Moresby meanwhile proceeded with the merger, with the Brisbane office also coming along for the ride to have an affiliate relationship with the global law firm but electing to hold on to its Gadens name.

Dentons global CEO Elliott Portnoy told Lawyers Weekly at the time that the firm’s entry into the Aussie legal market was “dramatically different” in its "polycentric" approach by adding entire firms with similar values to the network rather than going after lateral hires.

“For us, the ability to combine with an extraordinarily talent group of lawyers in Australia is the fulfilment of our clients’ desires. And we’ve already seen in a very short period of time the flow of new work from offices all around the world into Australia,” Mr Portnoy said.

Then six months later, the merger between mid-tier stalwart Henry Davis York (HDY) and global firm Norton Rose Fulbright (NRF) was announced in in June 2017. Like many global mergers before it, news of the union has led to the shedding of a number of partners.

The official reasons for the marriage were given in a public statement, attributed to HDY and NRF big bosses Michael Greene and Wayne Spanner. Both legal leaders described the merger prospect for their firms in optimistic and future-focused terms, leaning on the tag line: “a powerful combination for Australia”.

According to Mr Greene, HDY had been considering how to “re-engineer” the “proud and respected Australian law firm” for the future for some time. He went on to say in the statement that following client consultation, the HDY partnership agreed that “the time was right to look to join forces with an elite global law firm to continue to provide [clients] with an even greater level of service and industry expertise”.

The message that law firms are responding to client needs is a common justification given in favour of both the decision to merge with a global firm or the choice to hold on to independent status. The views shared for this feature suggest that different business leaders are fixed in their belief that one course is better for profit and productivity than the other. They all say the strategic steps taken in the past four years have positioned them well.

Of course, having a “good position” is also a matter of perspective. At the time of the HDY-NRF merger announcement, NRF global chief executive Peter Martyr noted the benefit of “critical mass” that HDY would bring the firm in Australia. The combination would help fulfil the ambitions of the NRF’s global strategy, he said.

“The addition of Henry Davis York will give us the critical mass we need in Australia to take full advantage of the steps already underway, at a global level, to modernise our business through the implementation of our 2020 business transformation strategy. This combination will allow us to bring the benefits of this transformation to more clients,” Mr Martyr’s statement said.HDY’s integration with NRF is expected to be completed by 1 December 2017.

At the time that this article went to print, six lawyers from the 124-year-old Australian firm had chosen to opt out of the tie-up and quit the HDY partnership for domestic rivals Corrs Chambers Westgarth and Mills Oakley. In the same month, four NRF partners also jumped out of the global firm to launch an office for Pinsent Masons in Perth. 

In August confidential sources have reached out to indicate that more HDY departures are expected to eventuate.Ten years ago, Mr Spanner had told Lawyers Weekly in what now looks like a prophetic interview about the waning relevance of Australia’s tier parlance that global law firms had no boundaries with respect to sector expertise because they were well placed to mobilise resources rapidly and broadly to meet client demand. 

Back in 2007, Mr Spanner’s prediction for the near future in Australia was an influx of at least 10 global firms to enter the local market.

Scratching the surface
In a climate where clients are demanding more for less, and where innovation is pushing change in all facets of business at a rapid pace, more lawyers are fighting for clients from the same pool. Domestic firms in particular are vocal in being regarded as preferred counsel for a great many international clients. This is the case for those hailing from the traditional top and mid-tier ends of the market scale that do not want their proud independence to be perceived as isolationist.

Far from it, in fact, domestic Australian firms see themselves unburdened by the dictates of an offshore board and equally desirable as an Australian referral for some of the major international powerhouses that do not want to send clients to magic-circle competitors or rival firms of similar size.

To understand the temptation, a national top or mid-tier law firm is presented with when a global merger is on the cards, four big bosses of independent firms offered their assessment of the current market conditions. The majority predict more mergers in future but also indicate they are benefiting from the opportunity that movement of this kind has left for others to swoop in on.

Being entrepreneurial in a buyers’ market

Gilbert + Tobin’s chief operating officer Sam Nickless says he can see why the prospect of a global merger may appeal to some breed of lawyers but he also dismisses the idea merger moves informs the way his firm strategises its market foothold. For one of Australia’s youngest leading independent corporate law outfits with offices in Sydney, Melbourne and Perth, the focus at G+T is on a two-pronged strategy of excellence and productivity.

“I can hear the logic in mergers, certainly. I think for individual groups of partners there is an element where people will want to get a bit more scale and solidify some of the in-bound referral work, but it doesn’t inform our strategy a lot,” Mr Nickless says.

“But these mergers going on are not a big discussion point in our partnership meetings and the strategic conversations that I have.”

According to Mr Nickless, in some cases mergers can spell good news for top-tier national firms such as G+T. He suggests that this opportunity directly relates to the shrinking pool of independent Australian firms, which international firms without a local footprint would prefer to recommend to clients.

“When mergers happen, they do sometimes create opportunities for us because that will be another independent firm that is no longer independent and therefore, the inflow of referral business from offshore firms may no longer go there.

“Although, if it was a global firm merging with a local firm that had been a source of referrals before, that could be a challenge because the offshore firms that aren’t in Australia don’t want to send their clients to a competitor,” Mr Nickless says.

G+T has set its sights on developing expertise in its complex transactions space and has specific ambitions for its corporate and M&A practices. Mr Nickless also identifies major disputes, infrastructure financing and regulatory work as promising growth areas where the firm is paying careful attention.

Speaking about current market conditions, he notes that while the mood has improved and “settled down” in the last five years, competition is fierce. Mr Nickless believes it has become a buyers’ market, which he claims is a good thing because rival firms have come to hold one another to account for the quality, price and service on offer.

“The increasing use of technology and our clients’ understanding of what the potential benefits of technology are (and starting to price that into what they expect to pay for services) means that all of us as firms need to make sure that we are responding,” Mr Nickless says.

“I don’t think you can just stand on the fact that you’ve got the best lawyers and the best practitioners alone. That’s why G+T is pushing hard on the productivity side as well, because we need to be able to do as much as we can in an automated way with quality legal judgment on top. That’s the kind of unbeatable preposition,” he says.

The G+T partner adds that the firm is keeping a close eye on the manoeuvres of top-tier rivals, including the strategy of the big four accounting firms whose legal services arms have been building out in recent times.

“Their emergence in the legal space is definitely a dynamic in the market that we need to be across and we need to be thinking about.”

Mr Nickless also speculates that in an environment where some competitors are posting flat revenues, it must be difficult for certain camps to retain their top partners. He says merger in this context could be a sensible option for firms wanting to keep a lid on evacuating talent.

“The benchmarking that we see on the overall market is that the revenue level is flat and there are some growing and therefore there are some that must not be growing. Once you start to see decline in terms of growth, then you can have a very difficult situation because your partners can be attracted to other places that can pay them more.

“That is a challenge for firms and maybe one of the reasons why they might let you merge – a merger could be better than having a whole group of partners all going at once,” Mr Nickless says.

For G+T though, the self-directed destiny that comes with staying independent is central to the emphasis on entrepreneurialism that the firm’s culture thrives.

The scope for a law firm business to be agile in this way and adapt fast is something G+T has no plans of ditching. Mr Nickless says it is the very reason the firm can attract the respected practitioners that it does.

“Independence allows you to create an environment for the sort of partners that we like to attract, who also value their independence and like to feel that their destiny is in the hands of a group of people that they can see around the table together.

“It can work as an independent because you can move quickly, and you can prototype, and you kind of work in a collaborative team with a small group of people,” he says.

The mid-tier punching above its weight

Michelle Dixon, the Melbourne-based CEO of Maddocks, alludes to something similar when she talks about the broad culture shift taking place within modern mega-firms. She acknowledges that there are many different market pressures challenging national domestic firms, businesses such as Maddocks have found themselves to be the beneficiaries of change. Top lawyers want to belong to agile workforces and call their own shots, Ms Dixon says.

“We’re finding that it’s much easier for us to attract fantastic partners from some of the larger firms. And we have clients coming to us because we’re not interested in some of the rigidity that you get at some of the larger firms or the international firms.

“Maddocks is an equal profit share partnership. We do that because it breeds collaboration, which means our clients are looked after by the right people in the firm. There’s nothing in our remuneration structure that is a disincentive to ensure that the right person is looking after the client,” Ms Dixon says.

Those partners who are entertaining the idea of jumping from a global law firm and joining a domestic partnership want to cut loose from the strong possibility of conflicts of interest with a firm that represents so many client interests around the world, she added. This is a relevant observation given Maddocks’ recent coup in acquiring the entire team of the of DLA Piper Canberra office lawyers, which include two partners and 8 lawyers. The specialist government team parted ways with its international home.

“As part of an international firm, [DLA’s Canberra lawyers] were increasingly being subject to conflicts that were preventing them from doing a lot of the government work that they do.

“Obviously, the bigger you are and with the broader reach, the greater the number of clients you will have worked for somewhere in the world and therefore the more likely it is you will come into conflict issues. Being smaller, being domestic, we have less of those conflict issues and that’s very attractive to people who actively practice in the government space,” Ms Dixon says.

It is a sound example of how mergers that present opportunities to improve the critical mass to global firms like NRF can have the unintended consequence of hindering the business of certain practice groups like those servicing government.

Furthermore, Ms Dixon says that the profitability of a firm of a size like Maddocks can be seriously underestimated. Contrary to the view of some, she says mid-tier firms can rake in bigger profit margins than the firms servicing the top end of town.

“Assumptions are made, I think, by the big firms particularly about what firms our size can or can’t do. You will find that some of the firms in our part of the market are far more profitable than larger firms.

“The market is obviously changing a lot, but it is just not right to say that it is a disaster to be in a mid-tier. Maddocks has had 8 per cent revenue growth this year and we expect we’ll have at least 10 per cent revenue next year. We’re stronger than we’ve ever been,” Ms Dixon says.

“Success comes down to a willingness to invest and I think if you have your culture right, you will have buy in into a strategy about investing in your people and how they work in order to deliver those best services.”

The mid-tier boss adds that the firm’s strategic objective would be to sharpen its pricing tools so that clients can be quoted for legal services with greater certainty. This is in addition to the firm’s innovation agenda and commitment to flexibility, she says. Ms Dixon also rules out the possibility that Maddocks will consider a merger of the like of HDY and NRF.

“We are very proudly a domestic firm. We have no desire to be an international firm, and we’re unequivocal about that. There is no ambiguity about that. When we started Sydney, when we started Canberra, we did that by recruiting the right people in and then through organic growth – so merger is not something that we’re interested in,” Ms Dixon says.

The case for re-engineering business

Competition for the hearts and minds of clients and the brightest lawyers Australia’s market has to offer is an issue for all firms, but the changing market has meant doing so effectively has drastically changed in recent years. Sparke Helmore’s Mark Hickey says that demonstrating and selling a clear point of difference in what he calls the “new paradigm” for law firms is critical. Technology and the way it is harnessed and embedded in a firm is a key part of Sparke Helmore’s strategy, he adds.

“Digital disruption, the restructuring of businesses, the internet have had significant impact on our clients, particularly in the banking industry and the insurance industry with hyper competition coming in.

“That, in conjunction with the GFC, has seen the clients now making it very clear that we are in a new paradigm for providing legal services and that we have to step up to the challenge and the change,” Mr Hickey says.

Sparke Helmore’s chairman of partners, who is based in Newcastle, says that business transformation or “re-engineering” the delivery of legal services has been a priority for global and national firms alike. Those unwilling to change tack in their approach to business and who fail to make serious investment in technological innovations will be left behind, he suggests.

Mr Hickey has gone on to say that work in the order of process-driven litigation, investing in data analytics and restructuring the business have been some of the ways that Sparke Helmore is meeting these modern challenges. He underscores sectors in insurance, banking and finance as spaces where clients are driving the call for this change, adding that there is also a need to engage and reward the firm’s workforce with the innovation agenda.

“Lawyers tend to put themselves at the centre of attention of clients, but I believe that [legal services] are one part of the puzzle that clients need to have looked after. The firm is committed to sticking with its core legal competencies but where we have to provide adjacent services that are relevant to the law, we will do that and will invest in types of things like allied revenue lines,” Mr Hickey says.

“It’s a whole different paradigm to what it was when I started law. What I think we have to do today is cater for the young lawyers and enable them to invest and be involved in the business process. Part of that is the Bright Sparke initiative that we have at the firm, which is an innovation hub. It works on the basis that younger people are getting involved in that and we see it as a good thing for the firm, for clients and for retention.”

A more fundamental shift taking place in the mid-tier workforce is the way that lawyers now envision their career trajectory. It matters because senior talent from a number of global firms are increasingly being lured to national firms with a sense that the culture of an independent firm has better synergies with smarter business. In a crowded market, where the departure of leading partners and teams can bring heavy blows to a national law firm, Mr Hickey says, retention is critical.

“Unless we focus on our key values, it’s very hard to maintain high retention. Provided that we have flexibility, we embrace diversity and we have other opportunities for young lawyers to get involved in things other than just being 9am-to-7pm, at-work lawyers; I think it can be effectively addressed,” Mr Hickey says.

“Retention is one of five key metrics set out by the Sparke Helmore board. Both retention and values are two main metrics that the board looks at in terms of making sure that we keep abreast of the market in terms of diversity, market remuneration, and providing more exciting opportunities for our lawyers, which includes innovation and being involved with national clients. It’s about providing a good place to work.”

Smart price points

Pricing for services is where Tony Macvean sees a universal hardship being levelled against all firms in Australia, from NewLaw boutiques to the globals alike. It is a view consistent with that shared by Mr Nickless, who uses G+T’s investment in NewLaw market entrant LegalVision to demonstrate that clients need more mixed options to adjust to their different needs.

“It’s competitive at the top end and competitive in the middle as well. And with price pressure, there is a shift of work in house, and there are reducing volumes,” Mr Macvean says.

At Hall & Willcox, servicing corporate clients’ operational, ‘business as usual’ requirements has been a move that has served the firm well. This is certainly so in a market where the likes of G+T are focused on improving dominance in complex matters and large commercial transactions.

Mr Macvean says that by cultivating its ‘Smarter Law’ initiative, the firm has been successful in being appointed to legal panels for operational corporate work of this kind. He says Hall & Wilcox’s strategy relies on forging and maintaining relationships that gives lawyers a clear insight into the client’s value-conscious pricing needs.

“Business-as-usual work needs to be delivered at a certain price point where clients know what they’re going to pay and they feel like they’re receiving value. We think that we can do that well,” Mr Macvean says.

“It is a balance. If you go in too low [with your pricing], it’s just poor quality or lack of investment in the business. At the same time, for that operational ‘business as usual’ work, it needs to be provided at a price that demonstrates value.

The right price point calls on firms to be accurate in picking a figure that reflects the volume of the business coming to the firm, Mr Macvean suggests. He also sees merit in building client relationships that persuade them to invest with the firm and their mutual interests.

“You have to reflect all those different factors in coming up with a price that’s fair from the client’s perspective and fair from our perspective and provides value.

“There is no doubt that there’s competition and the work needs to be done at a price that is competitive and that is less than what the top tier firms might have traditionally charged for that work,” Mr Macvean says.

Hall & Willcox’s attempts to get a handle on collaborative problem-solving for clients, particularly those in the insurance and financial services spaces, is also about reinforcing a culture that is ready and willing to respond to disruption. Mr Macvean says it is a long-term commitment that no firm can afford to lose sight of.

“Culturally, our willingness to embrace that things are changing and to challenge ourselves to do better and to come up with smarter solutions is one reason that we’ve done well. And as I say, there’s lots more to do.”

“We recognise that it’s a competitive market and that there’s some disruption we have to embrace – so we’ve got a long way to go.”

Uluru summit delivers clear message to Australian lawmakers

--My story written for Lawyers Weekly online | Uluru summit delivers clear message to Australian lawmakers

Lawyers and legal academics have weighed in on new calls for constitutional reform to empower Australia’s first peoples as part of the nation’s next serious step towards Indigenous reconciliation.

A group of Indigenous Australians have issued a statement following three days of meetings at Uluru last week, with many describing it as a national way forward for serious reconciliation.

Two propositions were expressed in the Statement from the Heart to come from the Uluru National Convention.

The first was a new national consultative body to advise the Australian Parliament on laws that affect Indigenous people.

The second was the establishment of a Makarrata Commission, whose mandate is agreement-making between governments and First Nations, with oversight of a public truth-telling process.

It is expected that the federal Referendum Council will be presented with the Statement of the Heart later this month. A final report from the council to parliament will then determine what becomes of the statement.

Speaking to Lawyers Weekly, Professor Adrienne Stone from the University of Melbourne said she anticipated that the Referendum Council report would add crucial detail for both proposals. However, she also noted that the Uluru statement offered a good outline of what proposed law reform can be expected.

“I think there’s a bit of fleshing out to be done about what are the bare bones of the proposal as you see it in the Uluru statement,” Professor Stone said.

“We currently have a statement that is something like a consensus among Torres Strait Islander and Aboriginal peoples, but it’s in general terms.

“The next stage will be for support to come from the Referendum Council, which is the government appointed body under which these dialogues took place,” she said.

According to the legal academic, the statement’s first proposition, to set up an indigenous consultative body, is the only proposition that will require constitutional change.

“The first proposal for what’s called a ‘First Nations Voice’ to be enshrined in the constitution would entail constitutional amendment,” Professor Stone said.

She explained this reform would likely involve the amendment of the constitution to form a representative group. That group would have a mandate to consult parliament on relevant Indigenous matters, and which had scope to give formal advice.

Professor Stone suggested that the consultations between this new body and the Australian government would be given formal status, with feedback tabled before the parliament.

“The proposal is that the body does not have any legally binding powers, no veto, nor will it constrain the parliament legally as a consultative body. We haven’t seen precisely what it involved but that’s my understanding of the bones of it,” she said.

Professor Stone also noted that the body would not act as a third chamber of parliament, sitting alongside the senate, but a strictly consultative body. Other parliaments in Scandanvia have adopted a similar model, she said.

For the vision of a constitutionally recognised Indigenous consultative body in Australia to be realised a referendum would have to take place.

In order for the referendum to succeed, an alteration bill would have to pass parliament, followed by a majority of Australian people voting ‘yes’ for the change. Professor Stone suggested this was obvious challenge that the proposals face in Australia’s context, given the nation’s history of voting against constitutional change.

“We need to have quite a robust and open-minded discussion about these proposals. And ultimately it’s only going to be with bi-partisan political support that this will pass.

“Formally and legally, there is the requirement for the parliament to engage and be prepared to pass a bill and then for the people to adopt it by essentially a double majority as a referendum,” Professor Stone said.

Indigenous woman Dani Larkin, who is a PhD candidate in law at the Bond University, remarked that the Uluru statement clearly reflects a new approach to reconciliation by leaders of the ATSIL community. Despite the difficulty of a getting a referendum up in Australia, she said this way of recognising Indigenous rights struck her as being more realistic than past efforts.

“To me, the summit symbolises this reclaiming of collective human rights that have been historically always oppressed with Australian culture and politics,” Ms Larkin said.

“The statement from the heart shows that there has been a significant shift, holistically across indigenous leadership in Australia that is aligning more with theoretical conceptions and internationally recognised collective human rights such as ‘self-determination’ and ‘sovereignty’,” she said.

Ms Larkin grew up on an Aboriginal mission outside Grafton and has worked in a legal capacity for a number of government agencies including the Australian Federal Police, Department of Public Prosecutions ACT, Australian Taxation Office and the Aboriginal and Torres Strait Islander Legal Service.

The young academic said the “shift” away from focusing on words in the constitution which acknowledged and upheld Indigenous rights to asking how to improve Indigenous political inclusion was cause for hope. Both the Makarrata Commission and consultative body would do this, she said.

However, Ms Larkin noted that more has to be done beyond the scope of the Uluru statement to meaningfully empower Australia’s first peoples in the political decision-making process.

“What we need in the first instance is interaction, consultation, consent. We also need a new value, at least from an Indigenous perspective, placed on asking how were are even going to get [a position of political inclusion] in the first place. This statement is just part of that realisation,” Ms Larkin said.

“I think both of these proposals are completely important, and they’re both symbolic of cultural progression but they are mechanisms.

“What I want to look at is increasing Indigenous voter engagement and federal representation of Indigenous peoples within Australian politics to get that equal decision-making opportunity,” she said.

The Referendum Council, whose report on the Uluru statement will guide how parliament approaches this next step, was established with bi-partisan support from Prime Minister Malcolm Turnbull and the opposition leader Bill Shorten.

“The next stage now is for the Referendum Council to lend its voice to the proposal by reporting to government and then I think that at that point it really does have to become a discussion for the Australian people because it is our constitution and we all have to grapple with it,” Professor Stone said.

While it as important that a national conversation about the importance of these proposals be had, Professor Stone also stressed the benefit of waiting for more detail. She urged that for the purposes of a meaningful and informed public debate, people should wait for what better sense of how it would all work after the Referendum Council’s report.

Professor Stone is the director of the Centre for Comparative Constitutional Studies at Melbourne University. Her current research looks at how constitutions, in their design and in their application, can unify and nurture diversity in complex, modern society.

Commenting on important considerations about what next after the Uluru summit, Professor Stone said that the regional dialogues between ATSIL representatives in the lead up to last week’s summit showed the process had been initiated by Australia’s first people. Attention should now be turned to bringing the rest of Australia on board, she said.

“I do think at some point it has to become a discussion for all of Australia.”

“To my view, I think it’s a really quite modest and sensible reform and I hope that if people take the time to find out about it in that light, that they come to the same position,” Professor Stone said.

Ms Larkin said if the Uluru propositions are embraced by a double-majority of Australians in a referendum, it would be a sign of long-awaited social progress.

“This is going to be an ongoing struggle because a lot of the loss is generational trauma that has been passed down. But what it does is it reclaims that shift in mentality that we saw in 1967,” Ms Larkin said.

“We are seeing a whole new generation come up, myself included, of Indigenous Australians and non-Indigenous Australians that are really grabbing on to concepts of ‘cultural identity’, ‘citizenship rights’ and what that really means.

“I think that gives hope for not only a more diversified political setting but an open forum,” she said.

Professor Stone pointed to the example of other settled countries, such as New Zealand, Canada and the United States. Australia’s lack of constitutional recognition in contrast to the varied ways these other countries have recognised the rights of their first peoples is stark, she said.

New Zealand has established a commission to supervise agreement-making with Maori people; there is an important provision of the Canadian constitution that recognises indigenous rights; and the United States has incorporated its own constitutional measures for its first people.

“What is unusual about Australia is there is nothing of the catalogue of reforms – treaties, agreement-making processes or Indigenous rights having constitutional recognition. We are the only system that hasn’t done anything by way of constitutional recognition,” she said.

In a statement marking Reconciliation Week #NRW2017, the Law Council of Australia (LCA) called for more meaningful strides towards reconciliation in Australia.

A move closer to true reconciliation is especially appropriate given the anniversaries this year of the 1992 Mabo decision (25 years) and the 1967 Referendum (50 years), LCA President Fiona McLeod SC said.

“The Law Council has long held that the Australian Constitution should formally recognise the distinct identities of the Aboriginal and Torres Strait Islander peoples and secure them equality before the law,” Ms McLeod said.

“The Referendum Council’s work in supporting this necessary dialogue has been essential, particularly through the convention at Uluru.

“This is a reform for all Australians, to strengthen the Australian Commonwealth, provide due recognition and respect to the First Australians and bind us all closer in reconciliation,” she said.

Ms McLeod added that achieving reconciliation should be considered a national priority of the highest order. She suggested that this progress must also follow efforts to close the gap between Indigenous and non-Indigenous Australians.

“As we reflect on National Reconciliation Week, there remains a critical need to address the widening justice gap. Indigenous incarceration rates are continuing to rise and all governments share responsibility.

“An intergovernmental strategy, along with justice targets, is long overdue,” Ms McLeod said.

More than a pipe dream

--My story written for the September 2017 edition of the Lawyers Weekly magazine | More than a pipe dream

One of the world’s most culturally diverse nations and Australia’s nearest neighbor is coming into its own, with businesses and law firms paying close attention to what the maturing political landscape means for its growing population and abundant natural wealth.

A majority of gross domestic product and export earnings for Papua New Guinea (PNG) hinges on its bountiful minerals and energy sectors. But according to the World Bank, the future promise for the young country’s population of 7.9 million relies on the country investing the revenue from its oil and natural gas resources, in particular for public infrastructure and inclusive growth.

One of PNG’s biggest challenges in meeting this growth agenda is the distribution of many communities scattered across remote and rural parts of the country. However, change is afoot and foreign pledges to assist with the refurbishment of key roads connecting more people with PNG’s major centres has triggered a flurry of activity in other areas.

The government, too, has slated public infrastructure initiatives as a priority and, with voting for the new Parliament underway as this article goes to print, that emphasis is only sure to come into sharper focus.

Paving a path for prosperity

For Sarah Kuman, managing associate in Allens’ Port Moresby office, there is much more legal work being undertaken in her home country, generated by projects beyond the scope of her own expertise.

Ms Kuman, who works in the energy, resources and infrastructure practice group at Allens, says that while much of the coverage that PNG receives by international press focuses on its sizeable mining and extraction works, business in the country has matured to encompass other prominent areas.

Specifically, development efforts funded by regional donors and ambitious public infrastructure projects have contributed to this new wave of business interest in PNG.

“A lot of PNG’s international type work is in the resources sector. It gets a lot of publicity because of the very large mines here and because of the PNG LNG project,” Ms Kuman says.

“But that’s not the only work that is available. We have a number of very large superannuation funds who are involved in a lot of the investment work; there is a lot of construction happening and a lot of work as a result of that construction; and there is a lot of infrastructure development.”

Ms Kuman lists a number of key development projects to have led to ongoing work in the country, including a recent government commitment to rural electrification, which has received financial backing from the Asian Development Bank (ADB). That initiative, she says, has seen a series of new power stations constructed across PNG and resulted in numerous people contracted for the build.

“As well as the refurbishment of existing power stations and building new power stations, there was a recent award of financing from the ADB for the rehabilitation of the Highlands Highway, which is the main road that goes from one of our coastal ports in Lae all the way through the highlands provinces and right around to the PNG LNG project,” Ms Kuman says.

“It’s a very large road that had been neglected and the signing off on financing for the rehabilitation of that highway is one of the largest loans in the region. So there’s a quite a bit of focus on infrastructure, development and upgrade or rehabilitation in PNG as well.”

Domestic financing work is plentiful too, Ms Kuman adds, with the significant construction projects driving large and complicated transactions for the local banks such as PNG’s Bank of South Pacific, ANZ and Westpac. The work is reflected in a greater demand for relevant legal experts in the financing space.

“With the level of projects and not just resource projects but infrastructure and construction, which is planned to happen in PNG, there is quite a bit of scope for work to be done and for lawyers to be able to do work,” she says.

Firms on the trail for legal work in PNG

A good indication of how the growing scope of work in PNG is attracting more experts from abroad is borne out in the number of international law firms establishing a presence on the ground in Port Moresby.

Allens and Ashurst were two of the leading stalwarts to have opened local office doors in PNG and as early as the ‘90s had been advising PNG clients. Norton Rose Fulbright is the latest of the mega firms to set up shop in the capital. Meanwhile, the joining of Gadens’ former Port Moresby office with Dentons means one extra global competing for a piece of the legal pie in PNG.

“As far as law firms go, there weren’t many large international firms here until very recently, with the changing from Gadens to Dentons and the opening of the Norton Rose offices.

“With the development and the ongoing production and the PNG LNG project site, I think that’s attracted the attention of some of the larger firms now with the level of work that’s available in PNG,” Ms Kuman says.

A graduate of the University of Papua New Guinea, Ms Kuman joined the Allens office as a paralegal while still in law school. With only one local higher education provider in the country producing law graduates, the firms tend to recruit students straight from university.

For those aspiring commercial lawyers, Ms Kuman adds that options are limited to a domestic mid-tier firm or one of the global players, although the big firms are gradually expanding their offices.

She says other smaller local firms tend to be tied up with litigation matters, so for those local lawyers wanting to gain experience working on large international transactions a firm like Allens is the best place to be.

“I think it can only be a good thing for more firms to be opening shop in PNG and for more lawyers to be working here because of the skills transfer, particularly to our Papua New Guinean lawyers.

“Of the people who are based on the ground in the Port Moresby office at Allens, there is only one partner who is Australian. Everybody else are Papua New Guinean lawyers,” she says.

Ms Kuman believes that the international firms that have landed in PNG are in it for the long game, pointing the cyclical nature of how major copper and gold mines in the country have performed over the years. She suggests that this doesn’t deter the big law firms who recognise a strategic incentive for maintaining a firm presence in the country.

“Around 2007 to 2009, we were constantly dealing with companies applying for new licence or renewing licences, or setting up joint ventures, or transferring exploration licences. There was a period where it was really, really busy and then after 2011, it just all of a sudden went quiet again.

“And this general slowdown in the resource sector seems to coincide with what’s happening around the rest of the world,” she says.

“I’ve only just recently, as recently as a few weeks ago, seen companies dealing with exploration licences or request for requirements for dealing with those types of licences again.

“I think a lot of work that is done overseas or by lawyers based overseas can now be done in PNG, and by teams and firms in PNG,” she says.

Taking a professional track to the Pacific

For foreign lawyers interested in seeking professional opportunities in PNG, Ms Kuman offers an encouraging perspective. She says that opportunity is plenty but interested lawyers will be served well to visit the country first and grasp for themselves what life is really like in PNG, beyond the stories they may read in newspaper headlines.

“I think that it is really important to get an understanding of how things work, seeing for yourself and creating relationships on the ground. Because you can’t really get work and work remotely from an office in an overseas jurisdiction without understand the nuances of PNG,” Ms Kuman says.

Compared to many other Pacific nations, she also suggests that PNG has a good track record for stable government, which ultimately has a bearing on business confidence and a consistent demand for legal services.

“I think a lot of people don’t realise that while things might not happen immediately, [processes] do get done. Generally, the rule of law is respected in PNG; we’ve got a stable government and we don’t have some of the problems that you would see in the news about other countries that have large resource projects with civil unrest and things like that,” Ms Kuman says.

The time is a promising one for foreign lawyers, she notes, with more work being generated by big-ticket construction, development and investment projects, and appetite for legal practitioners versed in sophisticated financial transactions and complicated contracts growing.

Ms Kuman also explains that the relatively small size of the market means junior practitioners have more exposure to important clients and government departments, with greater responsibilities and lease to sink their teeth into exciting work.

“Because of the needs of the business here, junior lawyers do get a lot of really good solid work and they do get a lot of exposure that you wouldn’t otherwise get in offices overseas,” she says