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Law Mutual News 

Welcome to the latest update from Law Mutual (WA). 

A reminder that applications and payment for Insurance 2017/2018 are due by Monday, 15 May 2017. Many thanks to the firms who have already provided their applications and should now have their tax invoices. A special thanks to those that have already paid. 

After Monday, a 10% late lodgement penalty will apply. There is also the potential for delays in the Legal Practice Board being able to issue your practising certificates by 30 June as it will only do so once we have informed it of your insurance status for the upcoming year.

In this newsletter you will also find relevant articles on Common claims: procedural oversights or mistakes, New practitioner risk management skills, Use of email - what are the risks? as well as details about our upcoming risk management seminars. 

Common claims: procedural oversights or mistakes

It may surprise you to know that only a small percentage of claims we see at Law Mutual (WA) fall within the category of “failure to understand the law”.  Most often we see claims which arise because the solicitor in question made a simple error due to oversight or not having an adequate procedure to ensure time limits are recognised and met. Recent examples are:

  1. Allowed the limitation period on personal injury (usually workers compensation) claim to expire.
  2. Failed to remove the action from the Inactive Cases List resulting in the action being dismissed by the court for want of prosecution.
  3. Neglected to refer a party to obtain independent legal advice on the terms of the Binding Financial Agreement (BFA) before it is signed.  
  4. Delayed in acting on the testator’s instructions resulting in the testator dying before signing the will.
  5. Failed to register interest under the Personal Property Securities Act 2009.

At Law Mutual (WA), we continually emphasise that effective procedures and processes in which staff are well trained can be effective risk management tools. However, staff must realise that the firm considers these processes are mandatory and that there will be consequences if they are not followed. Internal audit or peer review to ensure processes are being followed are also very important. 

We realise that some of these measures are not easy or practical for sole practitioners to adopt of implement. In those cases, the practitioner may want to consider if there are systems (IT) solutions that will assist or whether they should be accepting time critical work at all if their procedures are not adequate.

 

New practitioner risk management skills

Effective risk management is a critical practice management skill that requires training and development.  Ensuring that risk management strategies are in place and complied with can reduce the occurrence of professional liability claims.   

New practitioners are often unaware of the underlying causes of claims. Learning and developing ways to mitigate the risks from the very beginning of your legal career is an essential tool and an important part of legal practice. 

New practitioners not only have to adhere to and implement the Practice’s risk management strategies, they have to develop their own personal risk management strategies to ensure that legal knowledge is up to date and relevant to areas of practice, limitation dates and important deadlines are adhered to, and workload/time management strategies are in place to effectively service the clients.

Faced with a number of other adjustments at the beginning of their legal career, new practitioners rarely take the time to think about risk management. 

To equip new practitioners with the vital risk management skills, Law Mutual (WA) has developed a targeted seminar, New Practitioner Risk 101.  The seminar provides an overview of the professional liability claims history in Western Australia, discusses the underlying causes of the claims, and provides a breakdown of the key risks and strategies for minimising the risks within various practice areas. 

The next New Practitioner Risk 101 seminar is on Tuesday, 26 September 2017, at 4.00pm, at the Law Society of Western Australia. 

 

Use of email - what are the risks?

These days, a hard-copy letter is regarded as a slow, inefficient and relatively expensive method of communication with limited use in the modern world.  Traditionally lawyers dictated letters having given consideration to the file before drafting the advice or a response.  The hard copy letter would be reviewed before mailing, often with edits to the content, discussion with colleagues or review by superiors.  

Email is seen a fast, efficient and convenient method of communication.  However, the use of email can circumvent the quality controls that have been applied to letters. 

The use of email creates an immediate response, often without checking of the file or provision of time to reflect on the content and discuss with superiors.  The expectation of the client to receive an immediate response creates the risk of sending incomplete and possibly inaccurate advice.   

There are strategies that can be implemented to reduce the risk of professional liability claims when emails are being used, including:

- Think before you send.  Will this look good attached to an affidavit? Do I need more time to reply? Will it be legally effective? Is it too sensitive to send? Should I pick up the phone?
- Pay close attention to addressees and addresses. Put the address in last. Check address is current and correct.  Use separate emails for clients and other parties.  Do not add new recipients to long message strings.  Do add those team members that need to be kept informed.
- Seek ‘4 eyes review’ where appropriate. Don’t by-pass review.  Know what must be reviewed or approved by a principal or management before sending.
- Check messages and attachments before sending. Proofread in hardcopy to avoid screen blindness. Clean documents of comments and metadata before attaching to the email.  Open documents to check that the correct version is attached.  Check that sending and receiving formats are compatible.
- Avoid inbox neglect and overload. Check your inbox regularly but not obsessively.  Make sure someone else can and will check in your absence.  Check for missing or corrupted attachments.  Have a system for tracking emails that must be actioned or followed up.

- Consider the potential for misuse.  Warn clients not to forward privileged material.  As a sender authenticate and secure outgoing work.  As a receiver, compare incoming attachments for unmarked amendments.  Authenticate the identity of the sender where significant instructions are involved.  Be alert for falsified or fraudulent messages.
- Don’t leave things to the last minute. Have a fall back plan in case the technology fails and you can’t send or receive emails. 
- Don’t assume delivery or non-delivery. If delivery is important, check that your email has reached the receiver.  If an expected email doesn’t arrive then query the non-delivery with the sender.  Electronic delivery notifications are not 100% reliable.  Firewalls and spam filters can block legitimate emails.
- Speak up if you send or receive by mistake. Confess; don’t cover up if it’s your mistake.  Don’t take unprofessional advantage of someone else’s mistake.
- Don’t go paperless just yet and don’t delete too soon.  Print out and file all matter related emails and attachments.  Availability of hard copy does not necessarily mean a soft copy should be deleted immediately.  Retain electronic copies for as long as required.  Know what you can and can’t delete and when and know what you must retain and for how long.

It is also important for practices to recognise that the use of email in legal communication requires the use of courteous, professional language. Using a salutation or the receiver’s name is one way to infuse courtesy into those quick emails. Remember to always use proper English as well as complete sentences in your business emails. Avoid emoticons, acronyms and chat jargon. Follow these guidelines to show your recipients that you respect them enough to ensure all correspondence is complete and courteous. This may appear basic to some, but important nonetheless particularly where complacency sets in. Try not to become too familiar with your client, things can ‘turn south’ at any time and those relaxed emails can come back to bite you. 

In recognising that email has an important place among today’s forms of communication and by implementing risk management strategies to mitigate the risks, legal practices can benefit from the advantages of email communication.

Get to know your Law Mutual (WA)

Sharan Gill, Claims Solicitor

Sharan began her legal career with Crown Law in Brisbane before relocating to Perth in 2008. She joined Law Mutual (WA) for a year before embarking into private practice at Jarman McKenna, working primarily in the insurance area, with a focus on professional indemnity and medical negligence claims.  Following her maternity leave, Sharan returned to Law Mutual (WA) in January 2014.  

Outside of work, Sharan enjoys interior designing, refining her culinary skills with a glass of good wine and spending time with her daughters, Saryna and Zara.

Upcoming risk management seminars

How to Stay Conflict Free for Small Practices
Tuesday, 30 May | 2.00pm - 3.00pm 
»Register today

Introduction to Practice Management and Matter Management Guidelines
Monday, 12 June | 3.00pm - 5.00pm
»Register today

You're not my client; are you?
Tuesday, 11 July | 11.00am - 12.00pm
»Register today

How to Stay Conflict Free for Small Practices
Thursday, 20 July | 2.30pm - 3.30pm
»Register today

Professional Liability Risks and Controls in Practice - are you accepting high risk clients and matters?
Thursday, 20 July | 4.00pm - 5.00pm                       
»Register today

 

Contact Law Mutual (WA)

Street Address: Level 4, 160 St Georges Terrace, Perth WA 6000
Postal Address: PO Box Z5345, Perth WA 6831
Telephone:  (08) 9481 3111   |   Facsimile:  (08) 9481 3166
Email: info@lawmutualwa.com.au   |   Website: www.lawmutualwa.com.au

The Law Society of Western Australia
Level 4, 160 St Georges Terrace, Perth 6000
Phone: (08) 9324 8600   |     Fax: (08) 9324 8699
E: info@lawsocietywa.asn.au  | W: lawsocietywa.asn.au

Disclaimer: Law Mutual (WA) News is an information service of the Law Society of Western Australia. The information provided does not constitute legal advice and members should consult the Government Gazette, relevant statutes and other source documents as appropriate. Reasonable steps have been taken to protect our mail servers and web pages via the use of anti-virus software but all customers are advised to take all necessary steps to ensure that their own systems are virus protected. The Law Society of Western Australia does not accept responsibility for any loss or damage sustained as a consequence of any virus transmission. This email is intended for members of the Law Society of Western Australia ONLY.

To join the Society, visit our website.

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