Insurance and risk management services for the better practice of law

Your client is purchasing an investment property, and the client is aware that they will be liable for land tax once settlement goes through. Settlement completes, the transfer is lodged and registered, the notice of acquisition is submitted to the council and water authority, and the file is closed.

Several years later, the client receives an unexpected land tax surcharge assessment from the State Revenue Office, including penalties and interest. The practitioner knew the client acquired the property as a trustee of a trust, but failed to lodge an LTX-Trust-08 form, also known as a Notice of Trust Acquisition or NOTA after settlement.

Checklists are among the most powerful and accessible risk management tools available to lawyers. They are also one of the most underused. While most firms have them, far fewer use them consistently. Checklists often sit at the front of a paper file, unmarked, or they live in a digital folder that no one opens. Good intentions at the point of creation do not necessarily translate into good habits at the point of practice.

While checklists may seem like a relatively simple tool, used properly, they can more than earn their keep. Checklists can help practitioners identify key issues, follow critical steps and manage matters consistently.

Claims experience shows that small oversights can have significant consequences for both practitioners and clients, with the LPLC regularly seeing claims arise from missed tasks, overlooked deadlines and failures to follow established processes.

A client asks you to prepare an enduring power of attorney. The document is signed, witnessed and filed. Months later, when the client has lost capacity and the attorney needs to act, a bank or tribunal rejects the instrument because one witness certification was incomplete. The client's family must now apply to VCAT or the Supreme Court to resolve the problem, and your firm faces a negligence claim.

Enduring powers of attorney are among the most common documents prepared by Victorian solicitors. Courts enforce mandatory witnessing and certification requirements exactly. Even a single omission can invalidate the instrument. This article sets out what practitioners must do, and when, to get execution right every time.

A long-standing client calls to say their son is buying his first home. The parents want to help with a $200,000 loan and would like the firm to handle both the purchase and the loan documentation. The parents and son have a good relationship. Everyone agrees on the terms. What could go wrong?

If the loan is not documented and enforced as a genuine arm's length transaction, a family court may disregard it entirely when assessing matrimonial property, leaving the parents with no protection. And the solicitor who acted for both sides without managing the conflict is likely to face a claim from one or both.

A first-year practitioner files an affidavit explaining the firm's delays. The supervising principal does not. The court is unimpressed. Howard J's words on supervision in a recent case are some of the clearest from an Australian court, and they should be noted by every principal of a firm that delegates work to early-career staff.

Firms that allocate time in supervisors' budgets to do the job properly recognise it as an investment that prevents larger costs later, in claims, in indemnity costs orders, and in the loss of capable junior staff who do not get developed.

Solicitors typically brief counsel for specialist expertise in particular areas of law and advocacy, but solicitors retain independent duties to the court and client requiring them to exercise their own judgment in the matter. Claims experience shows solicitors are exposed when they fail to do this and, in extreme cases, may lose their right to practice.

The LPLC regularly sees solicitors accept unfamiliar or highly specialised matters hoping counsel’s guidance will see them through. The solicitor remains responsible for identifying issues, briefing properly, and critically assessing the advice received.