AES members include both Board members and executives, such as CEOs and Executive Officers, who may need legal advice at some stage.
For the last 15 years, I have been a friend of John Crosby, a very experienced Barrister and Solicitor and former General Council for Shell Australia. He has been my legal mentor since then, and I would like to share some of what I have learned when seeking legal advice for the Associations I have been involved with.
All communications between 'solicitor and client' in obtaining legal advice and litigation are said to be privileged. Privilege is a close relative of 'confidentiality'; any' privileged' communications cannot be 'discovered' in legal proceedings.
These terms have acquired legal technical meanings. The 'privilege' is said to be that of privilege of the client (not the lawyer), so a client can choose to waive their privilege. A lawyer cannot disclose the communications to any other person and can plead 'LPP' if an attempt is made to force the lawyer to disclose any protected communications. There have been many cases over the definition of 'LPP', with the current ruling stating that most communications will be privileged and all are 'confidential'. Some special legislation, such as that related to 'terrorist' matters, is not protected.
The short answer is yes. However, accurate quoting can be a challenge. Let's take conveyancing as an example (it is probably the most common). If a client is buying or selling a property, they often request a quote. This is easy to provide if the sale or purchase is mainly for 'routine' terms.
It can be a little trickier when it comes to lawyer's hourly rates. These rates will vary from law firm to law firm and within a law firm itself. Law firms usually maintain a 'cascade' of fees, with the highest hourly rate for partners and then reducing for more junior lawyers. These rates can vary considerably, and $550 per hour or more is not uncommon for partners or even more for specialist lawyers. In all cases, though, lawyers must now complete and provide appropriate documentation to clients regarding the fees that will be charged for work.
There are also 'scale' costs, which are applicable in the absence of any agreed rates. These can be applied according to the nature and the level (or jurisdiction) of the work involved, mainly whether the case is being heard in the Magistrates Courts, County (District) Courts or Supreme Courts.
There are a number of other factors to take into consideration when it comes to fees:
There is a difference between buying actual legal services (such as in conveyancing matters), obtaining legal advice, and then determining a particular course of action based on that advice. Lay clients quite often just put the matter into the hands of the solicitors and largely leave the conduct of the matter largely to the lawyers, giving instructions at various stages of a matter.
However, not-for-profit organisations and companies generally adopt a more participative model, choosing to self-manage a legal issue based on legal advice. There are some issues with this model. There is always the danger that the legal advisor does not know (or is not given) all relevant details. A client may have a particular objective and try to apply the advice to achieve that objective, often changing throughout a matter.
The reality is, in most cases, the lawyer will not really know your problem. This is why you need to give detailed, specific instructions. This can be an art in itself. In large corporations, in-house lawyers are often the main players in both identifying the problem and giving appropriate instructions to law firms.
Expect your law firm to know only some things. We have suggested in the past that not-for-profit organisations set up a panel of advisors for their professional needs. This panel would then include lawyers, accountants, and other professional services. A law firm within relatively close proximity might be chosen to undertake routine work.
Another firm, or even firms, might be engaged for more specialised services. Most Australian states now have accredited specialists focused on specific areas of law, such as business, children's, commercial litigation, commercial tenancy, mediation, personal injury, property law, or immigration. There are thousands of accredited specialists. Specialists in one area will usually quickly tell you if a matter brought to them is outside their expertise.
Not-for-profit organisations need to consider their general situation when choosing a law firm or a lawyer. Not-for-profit organisations vary considerably, and no two are likely ever to need the same type of advice. Unfortunately, there is no specific specialisation of not-for-profit law.
Associations would be well advised when engaging lawyers, if for no other reason that throughout Australia now there is a “Uniform Law” which applies to provision of “Legal Services”, where the better course is for lawyers to issue, Disclosure Statement and Costs Agreement, and to enter into an appropriate “Costs Agreement” with law firms, where legal costs are likely to exceed $750, and this after some initial discussion with law firms as to the basis on which the firm charges. Some may have “fixed fee” for services, others may not but charge at “hourly rates”, for different lawyers in the firm.
With over 30 years of management expertise, Executive Director and Founder of AES, Nick Koerbin is one of the most experienced NFP leaders in Australia. He has held positions as the CEO of Materials Australia, the National Parts Code, as well as senior positions in the Institute of Insurance, Australian Quality Council, the Financial Planning Association, the Australian Human Resources Institute, and the Furniture Industry Association of Australia. Nick created AES with a vision of creating a set of management practices that could be consistently followed to ensure success. Over his 30 years in the industry, he noticed that inconsistent management practices often impeded delivery of services to members, which in turn created issues with membership renewal. By establishing AES and creating the NFP Association Best Practice Self-Assessment, Nick has been able to assist leaders in becoming more confident and informed decision makers so that they can create more effective strategies and implementation plans.
Disclaimer: The articles on our website are intended to stimulate interest in the subject matters. All comments and articles are for information purposes only. Professional advice should be sought on specific matters, and with lawyers under Costs Agreement and to which Legal Professional Privilege (LPP) applies.
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