• Login   

• For Solicitors
• For the Community
• About the Law Society
• Ressource center

Batting for solicitors (Oct 2010)

You may have noticed that the Law Society has been quite vocal lately about the need to resist the mandatory annexure of qualitative reports, such as pest and building reports, to the standard form Contract for Sale of Land (which contract our Law Society Property Committee drafts for the benefit of the profession). The Society's view is that it is fine to make available such reports, particularly prior to auction, or to devolve mechanisms where multiple purchasers can purchase the same reports at lesser cost, but that the Contract proper needs to be left as is. The existing contractual regime has worked well for a period in excess of twenty years, it is well understood by stakeholders in conveyancing, and it provides an appropriate balance between the competing interests of vendor and purchaser.

In many other areas, the Society is working to ensure that undue risk and other burdens are not posited on solicitors. These areas include the Society's submission to ICAC's inquiry into lobbyists, to the effect that the Law Society strongly opposes any practice whereby lawyers are viewed as 'lobbyists'. The prescriptive requirements of lobbyist's registers, including mandatory registration of phone calls and meetings, are not appropriate in the context of a lawyer performing legal work for a client.

An additional area where the Law Society, through the Law Council, is pushing back is the area of anti-money laundering. Tranche two of the federal government's anti-money laundering reforms are targeted at designated business and professions, including accountants and lawyers, real estate agents and trust and company service providers. The reforms are likely to impose customer due diligence, reporting, record keeping and training obligations on targeted business and professions. On 20 July this year it was announced that the tranche-two reforms would be postponed for a further 12 months. The decision to further delay the reforms was based on concern for small business and its ability to deal with any additional regulatory burden in the current economic environment. The government will review its position in 2011. In the longer term, the Law Council will explore whether it is possible and desirable for AML regulation of the profession to be dealt with through practice and conduct rules rather than legislation.

In the same way, the Law Society is arguing, under pressure, for the retention of Rule 45 in the National Conduct Rules, in order that the late '90s problem of positing risk for defaulting mortgagors and guarantors on solicitors not be revisited, with its concomitant explosion in professional indemnity insurance premiums. That is, in the '90s some solicitors were pressured by clients, banks and other solicitors to provide documents certifying that they had explained the mortgage to their client - certificates which could assist in finding solicitors or their insurers liable for mortgage default. Rule 45 greatly ameliorated that situation.

In sum, the Law Society is batting back attempts to impose additional unrewarded burdensome obligations on solicitors.

This month we can find joy in the Hindu festival of Diwali* and the Commonwealth Games. While a lot of money and media attention flows to sports where extreme masculinity is a prerequisite for participation at any level, there are other sports, such as weightlifting, which are fully diverse, fully equal in terms of participation opportunities for men and women at all levels, and get comparatively little funding or money from any source. Tune in to fully equal, pure sport, and check out the weightlifting at the Commonwealth Games. My tip for the most interesting visuals will be the Minnow class. That is, Erika Yamasaki contests the female 48 kg category while Daniel Koum Koum is in the male 62 kg category, and each will left twice if not three times their body weight overhead in their quest for medals.

With all eyes on the Commonwealth Games in Delhi, I note that increasing numbers of NSW lawyers are engaged to prosecute and defend the expanding world of sport law at all levels - and also to sit on the boards of sporting organisations.

One such NSW lawyer is the Hon. John Fahey AC, who has gone on to the sporting world's legal heights as President of the World Anti Doping Authority (WADA). On a day-to-day basis he deals with a very hard fact of sporting life - the need to deal with drugs and doping in sport.

Mr Fahey has had a distinguished career spanning sport, politics, and the law. From schoolboy rugby league star in the Southern Highlands, he went on to excel in professional rugby league before becoming the senior partner in a small, successful legal practice. A 22-year political career followed where he excelled in the 'sports' of both State and Commonwealth politics (as a former state Premier and federal Finance Minister). But now he has climbed to the top of the sporting world's legal tree

For those interested in hearing more about Mr Fahey's story, he will be a keynote speaker at a Law Society of NSW sports law seminar entitled, Sport, a Law Unto Itself www.lawsociety.com.au/sportslaw. The conference will look at sports governance and organisations such as WADA, the Court of Arbitration of Sport and the International Olympic Committee.

To be held at the State Library on Tuesday 9 November 2010, the seminar will feature some of the most respected minds in the world of sport and sports law, including Grant Hackett OAM (former Olympian, now TV personality and head of sports and entertainment at Westpac); Deborah Healey, senior lecturer, Faculty of Law, UNSW; Malcolm Holmes QC, barrister, Eleven Wentworth Chambers; Colin Love AM, Chairman, Australian Rugby League and Alan Sullivan QC, barrister, Eleven Wentworth Chambers. This is an event not to be missed for those interested or involved in the dynamic world of sports law. Hope to see you there!

Mary Macken
President, Law Society of NSW