Push for regulator splits Law Council

THE push to create a national system of regulating the nation’s lawyers has split the legal profession’s peak national body, the Law Council of Australia.

One of the Law Council’s key constituent bodies — the Law Society of Tasmania — has rejected the official Law Council stance and praised the government of Queensland for withdrawing from a national regulatory system that it says would have imposed extra costs on lawyers.

Chris Merritt, Legal Affairs Editor 
From: The Australian October 05, 2012

Return to Work

Kristina McGeehan-Hall, a partner at TressCox Lawyers, has expressed some thoughts on the return to work of women practitioners after being off for maternity leave. Here helpful list of comments and keep-in-minds are here.

Among her other insights is this: 

“I had this conversation with myself on my own return to work after having both of my children. I confess that I didn’t handle it very well, particularly the first time. In fact, I resigned within three months of my return because I felt marginalised, exhausted and like nobody cared.

“Ultimately, I stayed because I knew my decision was really a cry for recognition and direction. What I learnt from my experience was that I needed confirmation that I was not giving up time with my child to be with people and an organisation that didn’t care if I was there or not.

“As one friend and colleague put it – my time away from my child better be worthwhile and valued or it would not be given. I also learnt the most important and most difficult lesson of all – that, while my life and priorities had changed dramatically, nothing much had changed for my firm or my team in my absence. 

“So although returning to work was a shock for me, for them it was largely just going to be business as usual, with an extra pair of hands to lighten the workload.”

Children’s Courts get Mediation

An inquiry into the NSW child protection system has paved the way for the greater use of alternative dispute resolution (ADR) in the Children’s Court.

NSW Attorney-General Greg Smith (pictured) used his opening address at the 11th National Mediation Conference yesterday to give details of the ADR-related initiatives his department has spearheaded.

“These ADR initiatives were aimed at increasing the ability of families to actively participate in the decision-making process around their child’s future care,” said Smith.

[…]

One of the initiatives to arise from these recommendations is dispute resolution conferences, which use a conciliation model, are run for two hours by a trained mediator, and take place within courthouse accommodation.

Smith warned that ADR had not typically been used in the NSW care jurisdiction and, as a result, many lawyers and community services’ caseworkers questioned whether it was appropriate to negotiate with families about issues like restoration of children and contact. In response, the department conducted information and training sessions for lawyers and caseworkers and developed promotional material for families “to give them an idea of what to expect on the day and how to prepare for a conference”.

To measure the success of ADR in a jurisdiction that has traditionally been resistant to ADR, an independent evaluation of the conferences was commissioned by the department. The evaluation report – which has not yet been made public – found that around 80 per cent of all conferences resulted in the issues in dispute being either fully resolved or narrowed. “The evaluation has shown that these programs have made a significant difference to the lives of families going through care and protection proceedings in the NSW Children’s Court,” said Smith. “In fact, even I have been surprised at just what a difference these programs have made.”

The report showed a high level of satisfaction with the conferences, with around nine out of 10 family members reporting that the conference treated them fairly, and over 80 per cent felt that they had been given an opportunity to tell their side of the story. “These findings are particularly important to note,” said Smith. “Many parents and family members had previously felt confused and alienated by Children’s Court proceedings.” Smith added that, despite some initial hesitation from lawyers, between 82 per cent and 89 per cent who participated in a conference found it useful. “Overall, the evaluation report found that use of ADR in the Children’s Court delivered a range of benefits for the parties involved. It recommends the continued use of ADR in care matters,” said Smith.

Full puff piece story here.

Client Needs

Being responsive and providing value for money can backfire, according to a business consultant who believes the key to understanding client needs lies in psychological theory.

[…]

Trying to identify client needs without being explicitly told what they are is complicated, admitted Wraith, who has, on occasion, found it difficult to explain ‘needs modelling’ to lawyers. Needs modelling is an approach to profiling clients that has been used for more than 20 years in a number of industries but is rarely used in legal services.

For a law firm, developing a needs model can take the form of a half-day workshop to educate a practice group on the specific needs of its client base, or a training module where solicitors can gain a general understanding of needs and motivations within their sector.

“By looking at the behaviours and language their clients are using, and the sorts of work they’re using the firm for, we can identify areas of unfulfilled need,” Wraith said.

Following an extensive consultation process, Mext has attempted to make the complex psychological theory more palatable to lawyers. The names of client needs have been devised with lawyers in mind, like the ‘huffing and bluffing’ need and the ‘playing the rules’ need, which refers to enjoying the intellectual challenge of juggling rules and turning them on their head.  

Police Shooting of a Mentally Ill Man

A second ambulance officer has cast doubts on police accounts of the fatal shooting of a mentally ill Sydney man.
The Police Integrity Commission (PIC) is examining the shooting of Adam Salter in the kitchen of his family’s Lakemba home in November 2009. Two internal police investigations accepted that Mr Salter had been ready to knife an officer when he was shot by Sergeant Shiree Bissett.
But paramedic Karl Johnstone told a hearing this morning that he saw no verbal or physical threat from Mr Salter to anyone but himself. Mr Johnstone was one of four ambulance officers there that day to be questioned at the hearing; the three who saw Mr Salter shot in the back contradicting police evidence that an officer had hold of him at the time.
Full story here.

Mahmoud Mariam Laughs as he is Sent to Gaol

The man convicted of killing Canberra truck driver Bob Knight has laughed after being sentenced to at least five years and nine months in jail. Mr Knight was shot dead while he was in his truck waiting at traffic lights at Milperra in Sydney’s south-west in 2009. He was hit by a stray bullet from a gunfight between rival family groups in a restaurant carpark.
Mahmoud Mariam was found guilty of Mr Knight’s manslaughter after firing off several shots from his pistol during the fight. In the NSW Supreme Court today, Mariam was sentenced to a minimum of five years and nine months jail but will be eligible for release in April 2016. In sentencing, the judge said the 28-year-old wore his contempt for the law like a badge of honour.
Full story here.

Morning Coffee

It doesn’t have to be morning, in fact it’s often lunch, afternoon, evening or midnight, but coffee meetings are a way to reset the thinking mode you might find yourself locked into at a desk. A change of function, a conversion into deeper thought caused by a momentary step back from the action of the day, allows a new perspective to gently enter into what you’re doing.

I just got back from coffee with a barrister. In that short fifteen minutes we canvassed issues concerning three upcoming trials and discussed two of the recent legal developments affecting criminal law litigation.

I am in meetings like that pretty much every day. The best part about it, it reminds me just how valuable face-to-face communication is – it’s faster because it’s more efficient, it assists to ensure a relationship built on confidence and clarity and it avoids endless phone or email tag.

Aaron Kernaghan 

Fundamental Right ABOLISHED by the NSW Government

You’re right to silence is gone. This from the Sydney Morning Herald:

“The right to silence will be watered down under changes announced today by the O’Farrell government as part of its response to bikie gang violence. People will be warned that they may risk harming their defence in court if they refuse to give police information about a crime under proposed new laws. It’s been too easy to say: ‘I have nothing to say’. Jurors are smart enough to know if there is something suspicious about evidence which suddenly appears at a trial and is designed to get the accused off.
The caution police now give is: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”
This will be changed to:
“You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”
No doubt the infirm, the mentally unwell, children and persons who are in a state of shock or otherwise disadvantaged will be able to fully understand a caution such as this. And in NSW where you have no right to have a lawyer appointed to represent you (you better hope you can afford one), you’re effectively on your own.

This is a disgraceful and shameful attack on the rights of private citizens. Now you MUST talk to Police otherwise a jury might think you made something up when you try to explain yourself to them. While this may be couched in the language of euphoric common sense espoused by the usually sensible Attorney General be under no mistake – this will force the hand of everyone – speak now or forever hold your piece.

This puts the Police in the role of the jury and its a disgrace. Explain yourself to us or we will charge you. Of course, many of us practising in criminal defence can readily recall stories where Police have offered precisely that approach to a “witness” who ends up being charged and having those very same words used against them. An opportunity to explain your side of the story is rarely that – its usually the first version you will try to give to explain yourself against charges.

This is a dreadful change in the law, bringing it into the same area of law as England where this has been the case for some time.

Silence is golden, for a simple reason – commenting on questions put by Police in circumstances where they do not tell you all the relevant details, is like yelling into the dark- could be harmless, could be dangerous. Saying something innocently may be interpreted very differently by those with all the facts (the Police). 
The day this is formalized as law will be a dreadful day for the law. Dreadful day for anyone who comes into contact with Police.

This is more power for the Police – At least every other time the Police have been given a new thing to play with, they have been entirely reliable and sensible with it – take tazers as an example.

More here.

Comments?

Aaron Kernaghan.

Prisoner Abuse

A US Army private charged in a massive leak of government secrets claims his harsh pretrial treatment during nine months in a military prison was directed from high up the chain of command and warrants dismissal of the entire case, according to documents his civilian lawyer has released.

The 110-page motion alleges Private Bradley Manning developed a rash from being forced to sleep beneath a stiff, suicide-prevention blanket and suffered an anxiety attack due to harassment by guards.

It repeats well-publicised claims that Manning was forced for several days to surrender all his clothing at night and stand naked in his cell for roll call. For several days in January 2011, he was forbidden to wear his eyeglasses and forced to strip down to his underwear during the day, the motion contends.

More here.