18 September 2014

Legal Practice

'The Future of Big Law: Alternative Legal Service Providers to Corporate Clients' by John S. Dzienkowski in (2014) 82(6) Fordham Law Review comments
The legal profession around the world is undergoing a significant transformation. The turn of the century saw the world’s largest accounting firms offer legal services through different forms of multidisciplinary practice models. n 2007, Slater & Gordon became one of the world’s first public law firms. In the same year, the United Kingdom enacted the Legal Services Act in an effort to modernize the delivery of legal services. During this time period, several large national and multinational law firms—so-called Big Law firms (e.g., Brobeck, Heller Erhmann, Dewey & LeBoeuf, Thacher Proffitt, Thelen, Coudert Brothers, and Howrey)— dissolved due to financial and business issues. Further, many firms have merged in order to better position themselves for the highly competitive marketplace. 
Big Law firms are experiencing significant challenges in this new marketplace. The growth of in-house corporate legal departments has resulted in a decrease in corporate client reliance upon private law firms. The economic crises of the past ten to fifteen years that resulted from various corporate financial scandals and failures, the bursting of the housing bubble and related problems in the banking and mortgage loan industries, the dot-com boom and its subsequent crash, and the losses in unregulated derivatives markets have all contributed to a likely reduction in the need for high-dollar legal work. In the last five years, many of the top 100 law firms have suffered significant declines in their gross revenues and have taken measures to reduce their reliance upon a leveraged model of the associate-partner pyramid. 
During the last five years, several innovative legal services models have begun to offer corporate clients an alternative to Big Law lawyering. The stated impetus underlying this development is the need to innovate the century-old guild of lawyering that has failed to adapt adequately to the changes in the modern competitive marketplace. Clients are simply looking for alternatives to the large multinational law firms that only provide legal services through the traditional partner-associate service model. A secondary reason for this development is the need to address the reported widespread dissatisfaction of lawyers who work in Big Law firms. The new law firm models seek to offer highly skilled lawyers an alternative to the 2,000-hour-per-year billing model of traditional large corporate law firms. Moreover, these entities seek to confront other important work-life balance issues that the traditional large law firms have largely failed to adequately address. 
This Article examines several different Big Law alternatives that have experienced significant growth during the past five years. Part I briefly addresses the problems that corporate clients have with the current practices of the large law firms. Part II introduces six different types of legal service providers that are targeting the clients of traditional large law firms. It examines their business models in detail and identifies the main ways in which these firms deliver legal services. This Part compares and contrasts how these models differ from traditional Big Law practice. Part III addresses the key ethical issues presented by the new alternatives to Big Law practice. Finally, this Article concludes with an assessment of how these alternative firms are likely to affect the practice of traditional large law firms. 
Much scholarship has been written about the transformation of the legal profession, and this Article builds upon the work of others. Some commentators focus upon the downturn in the world’s economy as the primary cause of the changes in the world’s legal professions. Others argue that the traditional law firm models simply cannot withstand the economic and technological changes that have taken place in society. This Article addresses the specific question of whether and to what extent the new and innovative ways of delivering legal services to corporate clients are affecting the traditional lawyering model. Although the changes are likely to take many years, several of these innovative firms have a significant likelihood of changing the way in which large corporate clients receive legal services.

17 September 2014

Joint Committee on Intelligence and Security

As we head towards a khaki election the Australian Parliamentary Joint Committee on Intelligence and Security (PJCIS) has released its 'Advisory Report on the National Security Legislation Amendment Bill (No. 1) 2014', with the following recommendations
R1  that the Explanatory Memorandum to the National Security Legislation Amendment Bill (No. 1) 2014 (Cth) be amended to clarify that the term ‘ASIO affiliate’ is intended to be restricted to natural persons.
R2  that the intent of proposed sections 86 and 87 contained in the National Security Legislation Amendment Bill (No. 1) 2014 be clarified to make explicit that a person on secondment shall be required to work wholly on behalf of the host organisation, and under the host organisation’s legal framework.
R3  that consideration be given to amending the Explanatory Memorandum or the Attorney-General’s Guidelines issued under section 8A of the Australian Security Intelligence Organisation Act 1979 to clarify that a computer access warrant may only authorise access to a computer (which would include a network) to the extent that is necessary for the collection of intelligence in respect of a specified security matter.
R4  that the Government initiate a review of the Attorney-General’s Guidelines issued under section 8A of the Australian Security Intelligence Organisation Act 1979, including examining requirements to govern ASIO’s management and destruction of information obtained on persons who are not relevant, or no longer relevant, to security matters.
R5  that the Director-General of Security be required to include details of any instances of material disruption of a computer, or non-routine access to third party computers or premises, in the reports on the execution of each warrant provided to the Attorney-General under section 34 of the Australian Security Intelligence Organisation Act 1979.
R6  that the Australian Security Intelligence Organisation be required to notify the Attorney-General and the Inspector-General of Intelligence and Security within 24 hours of any incident in which force is used against a person by an ASIO officer, and for a written report on the incident to be provided within 7 days. The Committee further recommends that the Director-General of Security be required to include details of any use of force against a person by ASIO officers in the reports on the execution of each warrant provided to the Attorney-General under section 34 of the Australian Security Intelligence Organisation Act 1979.
R7  that the IGIS provide close oversight of the design and execution of training for ASIO officers who may be required to use force during the execution of warrants issued under the Australian Security Intelligence Organisation Act 1979.
R8  that the IGIS provide close oversight of any application of the proposed powers to authorise the use of force against persons by ASIO officers to ensure those powers are used only in exceptional circumstances, and to the extent reasonable and necessary to carry out a warrant.
R9  that Schedule 3 to the National Security Legislation Amendment Bill (No. 1) 2014 be amended to require that approval must be obtained from the Attorney-General before a special intelligence operation is commenced, varied or extended beyond six months by the Australian Security Intelligence Organisation.
R10  that additional requirements be introduced into the National Security Legislation Amendment Bill (No. 1) 2014 to enhance the Inspector-General for Intelligence and Security (IGIS)’s oversight of the proposed Special Intelligence Operations scheme, including:
  • a requirement for the Australian Security Intelligence Organisation (ASIO) to notify the IGIS when a special intelligence operation is approved 
  • a requirement for ASIO to advise the IGIS of any special intelligence operation that is intended to continue beyond six months 
  • a requirement for ASIO to notify the Attorney-General and the IGIS, as part of the six-monthly reports proposed in clause 35Q of the Bill, of any injury, loss or damage caused to a person or property in the course of a special intelligence operation, and 
  • a requirement for the IGIS to periodically, and at least annually, inspect ASIO’s records relating to current special intelligence operations.
R11  that additional exemptions be included in the offence provisions relating to disclosure of information on special intelligence operations in proposed section 35P of the National Security Legislation Amendment Bill (No. 1) 2014 to explicitly enable
  • disclosure of information for the purpose of obtaining legal advice 
  • disclosure of information by any person in the course of inspections by the Inspector-General of Intelligence and Security (IGIS), or as part of a complaint to the IGIS or other pro-active disclosure made to the IGIS 
  • communication of information by IGIS staff to the IGIS or other staff within the Office of the IGIS in the course of their duties.
R12  that the National Security Legislation Amendment Bill (No. 1) 2014 be amended or, if not possible, the Explanatory Memorandum of the Bill be clarified, to confirm that the Commonwealth Director of Public Prosecution must take into account the public interest, including the public interest in publication, before  initiating a prosecution for the disclosure of a special intelligence operation.
R13  that, to make clear the limits on potential prosecution for disclosing information about special intelligence operations, Section 35P of the National Security Legislation Amendment Bill (No. 1) 2014 be amended to confirm that the mental element (or intent) of the offence is ‘recklessness’, as defined in the Criminal Code, by describing the application of that mental element to the specific offence created by section 35P.
R14   that the National Security Legislation Amendment Bill (No. 1) 2014 be amended to confirm that the offence provisions in Schedule 6 to the Bill do not apply to
  • information disclosed to the Inspector-General of Intelligence and Security (IGIS) in the course of inspections, or in support of a complaint or other pro-active disclosure, or 
  • communication of information by IGIS staff to the IGIS or other staff within the Office of the IGIS in the course of their duties.
R15  that the Office of the Inspector-General of Intelligence and Security’s annual budget be supplemented to the extent required to provide for the new oversight requirements associated with the National Security Legislation Amendment Bill (No. 1) 2014, including periodic reviews of special intelligence operations and oversight of the use of force during the execution of warrants. Supplementation of the Office of the Inspector-General of Intelligence and Security’s budget should also take other proposed measures to expand the powers of intelligence agencies into account.
R16  that the Government appoint an Independent National Security Legislation Monitor as soon as practicable.
R17  that, following consideration of the recommendations in this report, the National Security Legislation Amendment Bill (No. 1) 2014 be passed by the Parliament.