The chief resource of a law
practice is its work force. To
a large extent, success can
depend on develo ping and
retaining talented , well trained staff.
The ‘product’ is legal services a nd
delivery should be consistent regardless
of which staff memb er has carriage of
the matter. A sound, well implemented
management system goes a long way to
achieving this consistency.
Obligations surrounding supervision
arise from legal profession legislation
as well as under commo n law.
Supervision of legal services
Rule 37 of the Legal Profess ion Uniform
Law Australian So licitors’ Conduct Rules
2015 state s: ‘[a] solicitor with designated
responsibilit y for a matter must exercise
reasonable supervision over solicitors
and all other employe es engaged in
the provision of the leg al services for
that matter.’
The glossar y to the conduct rules
specifies that the ‘so licitor with
designated responsibility’ means the
solicitor ultimately respo nsible for a
client’s matter or the solicitor responsible
for supervising the solicitor that has
carriage of a client ’s matter. The case of
Kelly v Jowett [2009] NSWC A 278 tells
us that where a solicitor is e mployed by
another solicitor, the client ’s retainer is
with the employer.
What constitutes ‘reasonable supervision’
is not specifically defined however.
What is required to meet the standard
will vary dep ending on the par ticular
circumstances existing at the time.
‘Reasonable supervision’ and the
responsibilities of principals
The concept of reasonableness is
reflected in s 34 of the Legal Profession
Uniform Law (NSW ) (‘the Uniform Law’).
This provision imposes an obligation on
principals of law p ractices to ensure that
reasonable steps are t aken to ensure that
all legal practitioner associates of the l aw
practice comply with their professional
obligations and a lso that the legal services
provided by the law practice are provided
in accordance with the Unifo rm Law.
Whilst it is impos sible to
comprehensively define the reasonable
steps a principal must take (this will
vary from practice to practice), a
good starting point for all practices is
to analyse the management system
currently in place with the following
question in mind: is it still fit for purpose?
The proverbial office ‘open door’ policy
is unlikely to meet the requ ired standard
for a proper management system.
Rule 37 implies a pos itive obligation to
supervise . Declaring that your ‘ door is
always open’ shifts the responsibility
from the supervisor to the supervisee.
An inexperien ced employee may not
appreciate the extent of a potential
problem until it is too late. Problems
identified and a ddressed at an early st age
are generally far e asier to rectify.
Liability of principals
Under s 35 of the Lega l Profession
Uniform Law, if a law practice
contravenes any provisio n of the
Uniform Law or the Uniform General
Rules imposing an obl igation on the
law practice, a prin cipal of the practice
is taken to have contravened the same
provision if:
• the principal knowingly authorised or
permitted the contravention; or
• the principal was in, or ought
reasonably to have been in a position
to influence the conduct of the law
practice in relation to its contravention
of the provision and failed to take
reasonable steps to prevent the
contravention.
For example, s 174 of the Uniform
Law imposes an obl igation on a law
practice to make costs disclosure to a
client when or as soon as practicable
after instructions are initially given in
a matter unless there is an exception.
In circumstances whe re disclosure is
required to be made an d is not made, the
law practice contraven es this provision.
In addition to the consequences which
flow under s 178 of the Unifo rm Law
there may also be implications for the
principal/s of the practice pursuant to
s 35. This emphasises the import ance of
having appropriate management systems
to ensure that all practitioners within
the practice comply w ith cost disclosure
requirements .
The statutory condition to engage
in supervised legal practice
Section 49 of the Leg al Profession
Uniform Law (NSW) imposes a statutory
condition on an Austr alian practising
certificate issue d in NSW whereby a
practitioner m ust, for a certain p eriod
of time (either 18 or 24 months) eng age
in supervised legal practice on ly.
Supervised legal practice is defined in
s 6 of the Uniform Law. In the case of an
employee of, or other per son working
under super vision (eg a volunteer)
ARE YOU SUPERVISING AS YOU SHOULD?
YOUR STAFF & YOUR PRACTICE DEPEND ON IT
By Glenda Carry
Glenda Carry is a regulatory compliance solicitor with the Professional Support Unit of the Law Society of New South Wales
• Good supervisory skills
do not come naturally to
everyone, which is why it is
important for principals and
supervisors to consider and
acknowledge their strengths
and weaknesses and ‘up skill’
accordingly.
• Importantly, principals and
solicitors with ‘designated
responsibility’ also have
statutory obligations
to exercise ‘reasonable
supervision’ over their
staff and the legal services
provided by the firm.
• You, your staff and your
practice will benefit from
implementing a number
of specific management
systems.
ISSUE 22
I
MAY 2016
I
LSJ 7170 LSJ
I
ISSUE 22
I
MAY 2016
Legal updates PRACTICE AND PROCEDURE
p70_71_Practice and procedure.indd 1 21/04/2016 6:20 pm
