A recent sour experience with an Australian lawyer is the catalyst for the practical tips here.
I am sharing this article with you for 2 reasons:
1) to help you with practical document management tips ; and
2) to call out certain behavior from lawyers that you should not tolerate.
I will also take you through Australian lawyer’s ethical duties.
In a hurry? you can skip ahead below.
Several months on, the lawyer for the other side still has not returned a signed contract from their client.
There was constant follow up with the lawyer over months.
Also, there were phone calls to the Law Society’s member services team (a team that gives advice to lawyers about difficult practice situations) about steps to take and whether a formal complaint should be made.
About 5 months in, there was a call from the lawyer; due to a financing situation, the contract would have to be re-signed.
After 7 months, the lawyer sent a hardcopy of the contract to the office with a cover letter with the words ‘sign in duplicate and return’ - that’s it.
There was no explanation of the changes.
No courtesy email or phone call to state this would occur in month 7 or a break-down of the changes made to the contract.
When I asked more questions, the lawyer explained there was a page format issue. The pages were not int he correct format apparently.
I then checked with the registering body, they said this would not cause a problem for registration so I rejected the request for our client to sign again.
After I asked the lawyer about the changes, the lawyer behaved in a discourteous way.
Another call was made to the ethics team of the Law Society of NSW.
After seeing there was no explanation of the changes to the contract, I emailed the lawyer to state that we’d need to know what the changes are, the contract could not be signed blindly.
Tip to lawyers making contract changes: if you make changes before or after a contract has been signed, tell the other lawyer or other party what they are.
It’s just basic commonsense and a courteous practice that should be part of your work practices.
The best method to show the changes to another lawyer or party is via track changes in a word document.
The other lawyer can see the changes marked up and does not have to pour over the document changes manually.
Don’t pay for another lawyer’s tardy actions.
The other party’s lawyer or their client should pay the costs for additional review and execution work including attendance for your client to sign again.
In this case, I explained to the lawyer that our client would not bear the expense of checking for changes between the new and old contact or attendance.
The other lawyer did not address the costs issue but insisted our client should sign and criticised my checking with the registering body.
So what's courteous in a document revision situation? read on.
I work with many lawyers that approach document version control in different ways.
There are the lawyers that think by sending a PDF you’ll be too lazy to challenge any unfair clauses.
Also, there are lawyers that have a genuine concern about too many frivolous change requests so send the file as a PDF.
To the first group of lawyers I say - hey have you heard about these tools called PDF to word converters?
Diligent lawyers will always challenge you about unfair clauses anyway - even if you do scan in the document to bypass these tools!
So, let’s save everyone some time PDF lawyers, and send the document as a word document with track changes.
Particularly annoying is a half baked contract that’s sent across in PDF.
If you are working on a document and getting input from another party, it's courteous to share that document in a way that allows timely input.
While there’s no rule that deals with this detail explicitly, I believe the courteous rule below and the diligence and timely practice rule covers this.
So, be courteous lawyers and send a word document with track changes where appropriate.
The lawyer emailed me to inform me they had run a compare document scan in word, between the new contract and old and said there appear to be no changes.
I then further questioned why then the contract would need to be re-signed if there were no further changes (before the formatting error was disclosed).
The lawyers response was that the document was not in registrable form.
After more questions, the lawyer then disclosed that the margins were not correct, this was followed by discourteous behavior, discussed below.
No. I don’t think you should.
While the courteous rule below also covers honesty, i.e. a lawyer must be honest in their dealings - try relying on that if there’s a version control problem, there have been unfavorable changes made to the contract and your client signs to their detriment.
It’s just too risky - a practice management risk that I won’t take on.
So, don’t trust the no-change promise!
Either don’t have your client sign if its unreasonable to check the changes, ask for a marked up copy or ask the problem lawyer to pay for the additional review time. This is especially warranted if the delay and revision arose from their mistake.
The lawyer in the problem I described above did not act in a courteous way.
First, there was the contract in duplicate mailed to the office with no explanation of the changes, 7 months after the contract was executed by our client.
Second, after questioning the lawyers actions, the lawyer copied in my client on an email criticising my checks.
In considering the courteous rule described below, the lawyer probably should not have done this. I also question the professionalism of a lawyer asserting their professionalism asking what my problem is and copying in my client.
Next, I will explain how the lawyer breached their fundamental duties.
Being courteous is about acting in a polite, respectful or considerate manner.
In fact, this requirement is written into conduct rules for Australian solicitors: rule 4.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
Rule 4.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
A solicitor must:
4.1.2 be honest and courteous in all dealings in the course of legal practice.
In addition to being courteous, the lawyer has to deliver their services properly and promptly.
The lawyer could have sent the email without copying my client, executed on time or explained the delay but did not do any of this.
And finally, the lawyer could have been upfront about the formatting issue but chose to create extra work by having me query revisions.
I mentioned the lawyer taking several months to return a signed copy of the contract.
Here’s what the rules say about timeliness: rule 4.1.3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015:
Rule 4.1.3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
A solicitor must:
4.1.3. Deliver legal services competently, diligently and as promptly as reasonably possible.
So, should you say something if you are faced with a discourteous lawyer that won’t deliver? We’ll cover that next.
Most lawyers I've met like to do the right thing, get the job done, even when the other side is being difficult.
But, I think we pay a high price for being silent and industry stats about burnout are proof.
Lawyers experience burn-out and there is no surprise why when you consider some nasty prevalent industry habits.
Consider these: our ongoing requirement to churn out work for clients at all hours and days of the week, last minute project requests from our busy clients who held the project brief for some months, and the list goes on.
That pressure and risk of burnout is turned up when you pile on discourteous lawyers.
Staying silent fuels the perpetrators of the bad behavior and hurts society in general.
The perpetrator thinks they can get away with and may continue the bad behavior and hurt other lawyers and their client also by delaying work or delivering it poorly.
Speak up, don’t suffer silently lawyers. The profession needs you and you should not stop doing what you love because of the actions of others.
Now, regardless of your organisation size, you may feel more comfortable going external, so I will cover useful contacts below.
Both lawyers and non lawyers may complain about a lawyer’s discourteous actions.
Lawyers may typically first go through their law society for guidance then to the office of the legal services commissioner.
You can talk through the problem which helps and get some guidance first.
The public may simply go straight to the Office of the Legal Services Commissioner (OLSC).
For lawyers in NSW, you may wish to look consider the contacts below before going to the OLSC:
For lawyers that have explored the options above, and for the general public in NSW, you may complain to the Office of the Legal Services Commissioner. Their number is (02) 9377 1800.
Complaint concerns are normal.
So hopefully the law society contacts above will give you some practical guidance about lodging your complaint.
Also, lawyer or not, you can get information about the complaint process directly from the OLSC.
One concern I had when considering a complaint to the OLSC was the time the time it takes to lodge and the burden of having to appear in person to give evidence with a busy schedule.
OSLC confirmed the matter would be 'on paper'. That is, you lodge a written complaint. This gave me some comfort.
While I to date have not lodged a complaint with the OLSC for the above matter, it’s good to know I have the option.
Questions? Comments? Experiences? Feel free to share below (don’t share any names though).