Tasmania may be the country’s smallest state, with only around 500 practising lawyers, but it remains active in the area of law reform. However, Tassie’s struggle to attract and retain legal talent to the ageing profession on the island is just one of the reasons why many of Tasmania’s ‘traditional cottage practices’ could ‘go out the back door’. Stephanie Quine reports.

The island state of Tasmania makes up 0.9 per cent of the total area of Australia. Separated from the mainland by the Bass Strait, a 240 kilometre wide, notoriously rough stretch of water, it is a regional and largely rural place.

For the purposes of a 2009 nationwide survey by the Law Council of Australia (LCA) of legal practitioners in rural, regional and remote (RRR) areas of Australia, the whole of Tasmania, including its capital Hobart, was considered a RRR area.

Perhaps symptomatic of its ageing legal profession, Tassie law firms are generally “top heavy” in the sense they have a lot of partners and principals and less support staff.

The vast majority of Tasmanian lawyers who completed the LCA survey were from private practice (94%). Of the 82 respondents, 49 per cent were employees and 45 per cent were principals.

The director of Launceston firm Rae and Partners, and former president of the Tasmanian Law Society, Ross Hart, takes issue with the way many top-heavy, small law firms operate in Tasmania.

“I don’t understand the idea that it is more efficient to have a practitioner at $300 to $400 an hour typing up a letter,” he says.

As of 1 July, Rae and Partners will merge with a fellow commercial Launceston firm, Will Edwards Lawyers, and will then consist of around 30 practitioners and 90-odd staff.

The firm is the second largest in the state (by headcount), according to Hart, closely behind Hobart-based Page Seager Lawyers.

Other large Tasmanian firms, which are not large by mainland standards, include M+K Dobson Mitchell Allport and Hunt & Hunt. Slater and Gordon also have a small office in Hobart.

Global firms have bypassed Tasmania and the current Law Society president, Frank Moore, doesn’t see them making an entrance any time soon.

“I doubt very much that global firms will [take] interest in the market here, there’s not the business for them here,” said Moore, adding that the profession has very limited involvement with national firms.

Independent state of affairs

Hart is not ashamed to admit his firm aims to dominate the market in Tasmania and the firm does mortgage recovery work in sync with mainland-based Gadens Lawyers, through Gadens NMS Pty Ltd.

“Personally I think the national legal profession reform and cross-border practising is a fantastic thing for Tasmanian practitioners and practitioners interstate,” says Hart.

The National Legal Profession Reform (NLPR) process is still working to a timetable of implementation by July 2013, despite half of Australia’s eight states and territories refusing to sign up to the scheme. 

Those against it include Western Australia, South Australia, Tasmania and the Australian Capital Territory.

“Even though a small state like Tassie could be subsumed by the larger states, I think firms like ours need the flexibility to be represented if necessary by the Law Institute of Victoria,” says Hart, who was on the LCA panel when it first started talking about NLPF.

“For example, when it comes to [accredited] specialisation, which I can’t get from Tasmania, why shouldn’t I simply use the LIV’s huge resources rather than relying on the Law Society of Tasmania?”

Moore takes an opposing view.

“We’re glad to see what we hope is the end of the NLPR. It was never about a national profession because we already have a national profession. It was all about centralisation and it was all about subordination of the profession and its communities across the country in the interest of a few,” says Moore, adding that the NLPR would deprive practitioners, in every stare and territory, of the autonomy that enables them to respond to the needs of their own communities.

“The NLPR was all about more and more regulation of a profession which is probably the most heavily-regulated sector of the community. We should be looking to reduce the burden of needless regulation and reduce the cost of practice because, after all, it’s the community that’s going to be paying,” says Moore.

On the contrary, Hart, like LCA president Catherine Gale, argues the NLPR would streamline practicing requirements across Australia and simplify regulatory burdens.

“Of course [Moore] would have that view because it obviously means there’s no real ongoing role for the Law Society,” says Hart, who asserts he is not “anti-Law Society” and that state-based law societies would still exist to provide the basis for committees dealing with law reform and “that sort of thing”.

“But when it comes to regulation, I simply can’t see the evil of the NLPR.”

Helping local practices

The most enduring issue for the profession in Tasmania remains the loss of practitioners from RRR areas.

In the 2009 LCA survey, a total of 32 per cent of Tasmanian respondents indicated they would leave their current practice in the next five years. Most commonly, the reason for leaving was to start a new career (24%), followed by moving to a legal practice in the city (20%), moving to a legal practice in their area (19%) and retiring (16%).

Moore believes the overarching reason has a lot to do with money.

“How is it that a senior and experienced counsel can be expected to do a difficult two-week murder trial for $890 per day? How does one run a practice at those rates and [pay] employer secretaries and other staff and all the overheads like rent and phone and the cost of [increasingly expensive] professional libraries and [pay] young practitioners enough so that they’ll want  stay in the law and at the end of the day how do you pay yourself?” he asks.

Moore believes the costs of practice for firms that would employ young practitioners’ needs to be cut.

The Law Society has provided subsidies to assist firms to employ young lawyers but Moore said further benefits, including the remission of hex debts and tax advantages for those working in regional areas, need to be made available.

“We’re seeking funding from the excess of what’s called the guarantee fund so that there are greater incentives to attract young practitioners to the regions,” he said.

A cultural problem

Hart believes the problem lies deeper. Rather than putting difficulties in practice management down to dollars, he suggests a culture of “self reliance” among ageing practitioners in some firms is incompatible with the needs of young practitioners.

“Tasmania has been a traditional cottage practice in the sense that you have small firms, people dealing with one file at a time, a fused profession of barristers and practitioners,” explains Hart.

“There have been some very fine practitioners in Tasmania but part of the Tasmanian experience is that traditional legal firms tend to be rather insular, they keep to themselves, they’re not seeking the assistance of others … and with the general ageing of [such a small profession] there have been significant problems with attracting and recruiting staff.”

Hart says he recognised the problem 10 years ago and has since been  focused on  attracting and retaining staff by having a “truly flexible working environment”, focusing upon staff, recruiting from universities and forming relationships with junior practitioners at a very early stage.

“There are a few good firms and [fewer ] small firms that do that, however, my impression is that a large part of the profession has simply given up on re-making their firms and making the commitment to what’s needed to attract and retain staff,” says Hart.

Hart believes the Law Society is “mad” for contemplating schemes to provide financial incentives to firms to enable them to employ graduates.

He describes this as a reactive, band-aid approach to an issue that requires practice management education for firms and a focus on refashioning the way they recruit staff.

“The fact they provide that financial incentive to someone to employ a grad is not going to get that grad down sitting at a desk in a meaningful job, it doesn’t work. There has to be the appropriate cultural settings in the office.”

With analysts predicting workers from Generation Y will work for more than 19 different companies during the course of their professional lifetime, Hart says they are the ones who “can sniff out a fraud as soon as they walk into the office”.

“If they don’t get the right vibes regarding the working environment they’re not even going to turn up to an interview,” he says.

Hart applauds the way the Law Society makes mentors and psychological counselling available for practitioners with stress mental health problems and says it should similarly establish an avenue for larger firms to provide mentioning and assistance to smaller firms.

“It’s not the case that the principals of these smaller firms don’t know what to do, but they simply find it an insurmountable task to re-make the habits of a lifetime and focus on their staff. What should and could be done is have people sit down and plan succession [because] lawyers don’t make good business people.

Hart believes that in some cases the problem is so bad it’s beyond any redemption. That many small practices are “about to go out the back door because they can’t employ people”.

Working it out

Tasmanian lawyers work across a wide range of areas; from personal injuries and worker compensation through to estates.  However, the major mainstay of many legal firms in Tasmania has been property work.

The introduction of licensed conveyancers through the Conveyancers Act 2006 has deprived many legal practitioners of considerable volumes of work; work that effectively subsidised other areas of practice, according to Moore.

Hart says that most legal firms in Tasmania, besides his and other “good firms”, will not discount conveyancing work in order to compete, while still charging appropriately for top-quality advice on conveyancing.

The unemployment rate has been higher in Tasmania, compared with national figures, in recent years. In December last year, the trend unemployment rate in Tasmania was 5.9 per cent, the highest in the nation, for which the official figure from the Australian Bureau of Statistics (ABS) was 5.3 per cent. Tasmania’s unemployment rose for eight months straight to the month of May this year and now stands at 7.7 per cent in trend terms, according to the latest ABS statistics.

Hart says the fact the state has a small economy means something which is a hiccup in Victoria or NSW can be more problematic there, but by the same token it can also improve fairly quickly.

Nevertheless, the State Government came under fire from local law firms last year when it paid Melbourne-based Minter Ellison more than $1 million in legal fees for work that, seemingly, could have been done locally.

The Government claimed Minters was engaged because of the "high level and specific expertise” needed  on the $100 million Parliament Square project,  but the then Law Society president, Bill Griffiths, asserted it was an insult to local firms who were more than capable of dealing with all legal matters for the State Government.

Nudging reform in a tight-knit community

While Tasmanian lawyers may be competing harder for work and struggling to sustain RRR practices, they remain important leaders in the community when it comes to law reform.

There are now three university-based law reform Institutes in Australia, all modelled on the Alberta Law Reform Institute in Canada, and the Tasmania Law Reform Institute (TLRI) is the longest running.

Law professor Kate Warner is the founding director of the TLRI, which was created in 2001, and she has written a number of issues papers and facilitated community consultation around 17, often contentious, matters of law reform.

She says that Tasmania is on par with other Australian states when it comes to law reform.

“I think we’re above average. We’re certainly not at forefront to change but we’re not at the back either,” says Warner.

The TLRI is not reliant on the Attorney General for references and has undertaken studies upon request of members of public and the Children’s Commissioner. It also self-refers projects.

Its latest project deals with sex offences against young people, following public outcry after a case where a 12-year-old child was reportedly prostituted to over 100 men by her mother and her mother’s friend.

The issue’s paper focuses on the legal defence of ‘mistake as to age’, where a person can defend the charge because they had a mistaken belief that the young person was over the age of consent.

It looks at various options for reform, including introducing a ‘no defence’ age; that is, when a child is below a prescribed age (12 or 13 for example) no defence of consent or mistake as to age can be argued.

Moore is wary of introducing a no defence age in case it impedes a fair trial. Weaver said his concern - that this would make the offence “absolute liability” – was a concern of many lawyers, especially criminal lawyers, who like the criminal law to have a subjective element of fault

“We have made [a number of] recommendations that are quite controversial and government often feels it’s just too much of a political hot potato … so we take a stand and list options. We don’t often [directly] achieve changes to the law, our success rate isn’t high, but things take a long time to happen,” says Weaver.

The TLRI produced a paper on same-sex adoption some years ago and a bill is currently before parliament to implement it, says Weaver.

“So it’s hard to say whether or not you’re successful,” she says, adding that she enjoys law reform because it presents the opportunity to question rather than accept “what you’ve got” and that having some input into being a catalyst for change is highly rewarding.

As Law Society president from 1993 to 1994, Hart says he was most proud of the work he did in pushing for the decriminalisation of sex between consenting males.

“At that stage it was still on record books as being a criminal act. With a very conservative legal profession I was actually able to get the Council of the Law Society to agree we’d survey all members with a view to getting law reform,” says Hart.

“We got the overwhelming support of the profession so we were able to go very strongly on that [to the government], now it might not have been the final reason why the law was changed but it was part of a crescendo of public opinion.”

Moore says he is currently working with the Government on possible changes to the legal aid commission act to ensure legal aid clients have a right to change lawyers within certain time limits without penalty and without the loss of legal aid.

“Were hoping to achieve an arranging whereby the applications for transfer of aid are independently assessed,” says Moore, adding that the Society is agitating for, and monitoring, law reform on a number of issues.

Unique state of affairs

Outside his presidency duties, Moore is a sole practitioner based in Launceston who specialises in litigation. Having lived in Tasmania since 1976, Moore relishes the “wonderful community” and close-knit profession in which he says practitioners have a great deal of contact with colleagues.

“We work together [and] we socialise together. There’s an enormous range of areas of practice in which you become involved and that variety is something you can’t achieve in the larger centres,” he says.

Hart’s office is a seven-minute drive or 20-minute bike ride from his home which he says has “rural views”.

 “We’ve got fantastic restaurants in Launceston, two that between them have come either first or second in best wine lists in Australia for a coupe of years, we’ve got wineries and you can be away from it all within half an hour.”

While Hart enjoys life and law in Tasmania he says he works “too much” and is most concerned about the “introspection and inward-looking nature” of some firms in the state.

“There are [only some] firms here that understand that you have to be competitive and practice as you would in any other state and disregard the fact that your practice is in Tasmania, you’ve got to be a good legal firm.”