Year in Review: Rough Waters

In the new legal market, dramatic changes and uncertain conditions are just a part of the landscape. Story by Stefanie Garber, Lara Bullock and Felicity Nelson.

Promoted by Lara Bullock 17 December 2015 Big Law
Year in review 2015
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Big news’ isn’t what it used to be. Only five years ago, the arrival of a global giant on Australian shores would have prompted surprise and consternation among the profession – today, it warrants mild interest. Reactions to newcomers have shifted from outraged cries of ‘why are you here?’ to a bemused ‘what took you so long?’

The Australian market has come to expect change, so much so that mergers or partner exoduses are commonplace. Change is de rigueur – upheaval has become the status quo.

In these conditions, it would be dangerous to believe firms can simply float along, practising as they have always practised. The market is always shifting, with waves of change lapping at the doors of even the most established firms. Survival may be a matter of learning to adapt.

Globally, 2015 was a year where high-flying economies came crashing back to Earth. The seemingly unstoppable Chinese stock market took a dive mid-year, while the Greek debt crisis threw the EU into chaos.

Yet Australian firms weathered these global storms with surprising resilience. By all reports, Chinese investment into the Australian market remained robust, fuelling extensive M&A and property activity.

Similarly, the crisis in Europe showed a surprising upside for Australian M&A activity, with foreign investors taking advantage of Australia’s stability and relatively low dollar.

Closer to home, Australia’s economic recovery continued to provide steady workflows for major firms. Both the Victorian and NSW governments were elected on infrastructure mandates – roads and privatisation for the Baird government, transport for Daniel Andrews. What followed was frantic activity in infrastructure, construction and property practices, with firms struggling to meet demand.

While West Coast firms continued to suffer from the mining slowdown, they also began recalibrating their practices towards more robust industries, including insurance. Queensland was rocked by a landslide victory for Labor early in the year yet activity stayed strong on the back of a property upswing, large-scale infrastructure projects and a booming LNG industry.

On a federal level, Malcolm Turnbull’s ousting of Tony Abbott as Prime Minister caused a shake-up for government practices – with both winners and losers, as departments were reshuffled or scrapped altogether.

Heading into an election year, Mr Turnbull’s reign is expected to bring new initiatives and ambitious projects that will keep government lawyers busy, provided they can win favour of the new directors.

In smaller states, this was the year government lawyers demanded their fair share. The South Australian government passed regulations giving greater weight to tenders from local firms, a move welcomed by the local law society. Yet both Tasmania and Northern Territory practices looked on as state and council work went interstate, with law societies from both states calling for local firms to be given precedence.

At an industry level, the flow of major firms into Australia swelled again. National firm Gadens announced its intentions to merge with Dentons in early November. Another two globals opened greenfield offices. Global firms also turned their attention overseas, expanding their footprint into new markets.

2015 also marked the arrival of tech players to the party. At least two quote services for legal services launched in 2015, while other online enterprises made it possible to crowdfund legal aid, get advice online and access other virtual services. The major firms also began to play more heavily in the start-up space, with Allens launching a practice dedicated to this sector in the mid-year.

For young lawyers, the prospects of graduating and moving into a position looked increasingly gloomy. Research Graduate Careers Australia showed law grads were facing the worst job market in two decades, with one quarter unemployed four months after graduating. Nonetheless, more law schools entered the market in 2015, including TOP Education’s Sydney City School of Law, raising concerns of a market “glut”.

Arrivals and departures

After a flurry of globals entering Australia in the past five years, some commentators predicted the tide would turn – but 2015 proved them wrong.

After months of speculation, the world’s largest law firm Dentons announced a potential tie-up with Australian player Gadens and Singapore-based Rodyk & Davidson. The proposed merger, estimated to be worth $2 billion, will go to a vote by the partners in mid-November.

Hogan Lovells, which has 40 offices around the world, opened in Sydney and Perth in April under the leadership of former Allens partners Tim and Nicky Lester. The firm is taking a cautious approach, limiting its practice areas to high-end international work.

UK firm Pinsent Masons employed a similar strategy when it opened a new office in July with former Maddocks CEO David Rennick at the helm. The office, which has swelled to around 20 lawyers, will keep a narrow infrastructure focus.

Global firms also looked overseas in 2015, targeting developing markets with growth potential. A number of firms with Australian offices grew their international footprint over the past 12 months, expanding into Asia, Latin America and Africa.

King & Wood Mallesons opened in Singapore, while Herbert Smith Freehills and DLA Piper launched in South Africa.

International partnerships were also a popular strategy. Holman Webb set its sights on Latin America through a tie-up with US firm Diaz, Reus & Targ. Meanwhile, the China-Australia Free Trade Agreement paved the way for a joint China operation between Baker & McKenzie and Beijing firm FenXun Partners.

The publicly listed firms also made headlines this year. Slater & Gordon’s announcement of its $1.3 billion acquisition of UK-based Quindell’s Professional Services Division was quickly followed by reports of an ASIC probe into Quindell’s accounting practices. While the firm’s stock initially took a major hit, it quickly rallied, posting strong FY15 results and beginning to stabilise in the second half of the year.

Listed personal injury giant Shine Legal also grew its business through acquisitions, snapping up Western Australian firm Bradley Bayly Legal for $13.28 million and Best Wilson Buckley Family Law for $5.4 million.

Disruption in the form of global mergers and the rise of non-traditional firms has created several opportunities for partner movement. Restless, discontent – or merely curious – partners continued to seek out these opportunities in 2015.

The appetite for ‘job shopping’ could be found at all types of firms at all levels, with lawyers seeking better remuneration, greater flexibility and that certain je ne sais quoi in law firm culture.

In a few notable cases, entire teams uprooted. In April, fast-growing firm Mills Oakley nabbed a dozen DLA Piper staff, including five lawyers and one partner. In June the pattern continued unabated with 12 Hardy Bowen lawyers, including three partners, joining DLA Piper in Perth.

Sparke Helmore was hit with a mass defection in June, as a team of 24 lawyers quit in search of greener pastures at Hall & Wilcox. This team joined five partners and a senior associate who defected from Sparkes to Hall & Wilcox in April.

In June Henry Davis York took another hit, with senior associate David Gilham becoming the fifth lawyer in a year to depart for McCullough Robertson.

The boutique craze continued over the past 12 months. This was exemplified by the former national head of construction at Holding Redlich, Stephen Pyman, who left to start CDI Lawyers in January, taking eight lawyers with him.

Making it official

Relations between the profession and the government were strained this year. Then Prime Minister Tony Abbott and Attorney-General George Brandis attracted ire for their comments in the wake of the Carmichael coal mine decision.

After a court ruled the $16 billion coal project’s approval be revoked, Mr Abbott slammed the courts for “sabotaging” its progress and Senator Brandis warned against lawyers pursuing “vigilante justice” and “lawfare”.

Community legal centre funding also proved to be a flashpoint, with Federal funding arrangements due to expire on 1 July. Following intense pressure by all legal bodies, Brandis rushed to secure an emergency cash injection just hours before the deadline.

In September, Prime Minister Malcolm Turnbull delivered an additional $15 million in domestic violence legal aid but these contributions fell short of the expectations of some legal observers.

A happier relationship existed between the Attorneys-General in NSW and Victoria and the legal professions in those states, as the Uniform Law came into effect. Creating a single regulatory framework for the legal profession, the rules were largely welcomed by associations in both states. To date, however, other states have refused to buy in to create a national system.

A unified national profession was a top priority for Northern Territory barrister Duncan McConnel, who took the top job at the Law Council of Australia (LCA).

The LCA also made 2015 the year it looked to overseas markets in earnest, appointing Arjuna Nadaraja as the first transnational practice director.

In this role, Mr Nadaraja aims to open up foreign countries to Australian lawyers.

The state law societies had equal doses of controversy and success through 2015.

In October a report commissioned by the Law Institute of Victoria (LIV) and carried out by PricewaterhouseCoopers highlighted the funding strain on the Victoria Legal Aid (VLA) system and cuts to the legal assistance services. In particular, the report highlighted that VLA in-house lawyers cost nearly 2.5 times the amount it would cost for external lawyers to run criminal matters.

While the LIV called for further investigation and better data collection, the Victorian Bar Association took a stronger stance, condemning the VLA as inefficient.

The Law Society of South Australia was divided over whether to introduce minimum quotas for female and male representatives. In October, the society voted to adopt a quota system, making it the first society in Australia to take this approach to diversity.

In Western Australia, the Law Society was put in the spotlight when former president Matthew Keogh resigned to contest the Canning by-election. Mr Keogh ultimately lost the election, but vowed to continue on in politics.

In September the young lawyers of NSW caused a stir by running on a ticket for the Law Society of NSW Council elections. The resulting elections delivered a victory for the youth, putting four young lawyers into power.

Sex Discrimination Commissioner Elizabeth Broderick stepped down, bringing her seven-year reign to an end and leaving the chair empty. At the same time, other women walked into the limelight, with NSW Attorney-General Gabrielle Upton and NSW Crown Solicitor Lea Armstrong becoming the first females to take up the roles.

Changes were likewise afoot in the in-house realm, with the Australian Corporate Lawyers Association joining with the Association of Corporate Counsel’s international network.

The NSW Independent Commission Against Corruption’s powers came under review, following the inquiry into the alleged actions of deputy senior crown prosecutor Margaret Cunneen SC.

Meanwhile, the profession was torn by accusations of bias against Dyson Heydon, Trade Union Royal Commissioner and former High Court judge. While his decision to retain his position divided onlookers, many agreed that his treatment had been excessively harsh, with the LCA calling for him to be shown “the same respect […] as a judge in a court”.

Return of the mega-deal

After a slow period following the GFC, 2015 made it official: multi-billion dollar transactions are back on the table.

One of the largest deals secured was the $11 billion merger of Novion Property Group and Federation Centres, creating one of the biggest real estate investment trusts in Australia. Under the guidance of Ashurst, Allens and Minter Ellison, it became an ASX top 30 entity with more than $22 billion in assets under management.

In the investment field, Henderson Global Investors purchased two IOOFowned fund managers for $10.7 billion – Perennial Fixed Interest Partners and Perennial Growth Management. K&L Gates, Hall & Wilcox and King & Wood Mallesons all played a crucial role.

At least four acquisitions came in around the $8 billion mark.

Macquarie Group purchased car and boat finance company Esanda from ANZ Bank for $8.2 billion, Japan Post acquired Australian transport and logistics provider Toll Group for $8 billion and international infrastructure investment group Brookfield Infrastructure Partners acquired Australia-based Asciano Limited for $8.9 billion.

In addition, Element Financial Corporation purchased GE Capital’s fleet management business for a value of $8.5 billion.

Beyond the M&A space, capital markets were also busy.

The largest IPO of the year was Link Group’s float on the share market, valued at $2.3 billion, with DLA Piper and Allen & Overy representing the company.

Ashurst and Herbert Smith Freehills advised on a significant pro rata entitlement offer made by the Commonwealth Bank to its shareholders. The 1 for 23 PAITREO with rights trading to raise approximately $5 billion was fully underwritten by Morgan Stanley and UBS AG.

Meanwhile, King & Wood Mallesons and Allens advised on NAB’s $5.5 billion capital raising to facilitate a proposed demerger of the bank’s UK business. The capital raising involved a pro rata accelerated renounceable rights issue fully underwritten by Macquarie Capital, Bank of AmericaMerrill Lynch and Morgan Stanley.

Telecommunications also made a mark in 2015, with the merger of telecommunications companies M2 Group and Vocus Communications worth $3 billion.

Bad behaviour

Whether it was drug possession, fraudulent activity or overcharging fees, lawyers all across the country found themselves in trouble this year.

The first half of the year saw two Victorian lawyers being handed jail sentences. In April, Alan Munt was convicted of creating false mortgage documents and forging signatures to steal almost $5 million from his clients. He was handed an eight-and-a-half-year jail term, with five-and-a-half years’ non parole.

Former sole practitioner Kugan Kanagaiyan pleaded guilty to three charges of obtaining financial advantage by deception and two of making and using a false document in applying for home loans from two banks. He was sentenced to 30 months’ imprisonment, fully suspended, in May.

Also in May, former Brisbane lawyer Russell Biddle was extradited from Sydney to face the Brisbane Magistrates’ Court regarding allegations he took $1.145 million from the deceased estate of two plane crash victims.

Back in Sydney, former DPP solicitor Lisa Munro was charged with one count of drug possession after she was found with 0.65 grams of cocaine in July. Ms Munro resigned from the DPP and luckily avoided jail, and was instead handed a 12-month good behaviour bond.

Another NSW lawyer, Sonny Wilson, was stripped of his practising certificate in September after being found guilty of using fake invoices to swindle $30,000 from the Legal Aid system. Meanwhile, lawyer Mark Andrew Slater from Canberra was struck off the roll by the ACT Supreme Court after he admitted to misusing trust account funds.

Over in WA, a family lawyer was ordered to repay $100,000 in overcharged fees. The Supreme Court of Western Australia found the lawyer had significantly overcharged his client throughout the course of a divorce proceeding, in one instance billing for almost 25 hours in a single day.

Fronting up to the Bar

The Bar was an occasionally scandalous place in 2015, with more than one association facing internal tensions.

The Australian Bar Association adopted a number of public political platforms in 2015, critiquing the government for its anti-terror policies, proposed citizenship legislation and asylum seeker treatment. The ABA also faced an ongoing legal battle as its trademark suit against Derek Minus headed to the Federal Court.

Queensland was a hotbed of gossip over the year, as the war over Chief Justice Tim Carmody’s appointment reached fever pitch. High-profile public takedowns peppered his reign, until the mounting pressure resulted in Justice Carmody’s resignation in July.

Justice Carmody announced his decision as a “dignified end to the controversy” surrounding his appointment. He was replaced by Justice Catherine Holmes, a judge from the Queensland Court of Appeal, who attracted cross-party support.

Still in the sunshine state, the first budget under Queensland’s Labor government released in July promised to reintroduce specialist courts and provide increased funding for young offender and domestic violence programs.

In NSW, the bar elections hit headlines as barristers engaged in public slanging matches over email. As one camp sought to maintain the Bar’s public profile, another called for a return to a politically neutral association, with barrister Margaret Cunneen SC slamming the association’s outspoken political stances.

President Jane Needham announced in October that she would not run for re-election, saying her time in the top job had been “extremely stressful” but also “incredibly valuable and constructive”.

The NSW Bar Association also raised concerns over changes that allow police to carry guns into courts. The change was implemented due to the heightened terror threat, but Ms Needham said it undermines current security protocols and will cause confusion.

The QC versus SC debate re-emerged in 2015, with the royalists gaining ground. In May, the NSW Bar Council formed a working party to help silks in NSW regain the right to use the QC post-nominal. In Victoria former judge Murray Kellam released a report in August recommending there should be no substantive change to the current system permitting silks to choose between QC or SC.

Several significant appointments were made this year including the Victorian Bar’s appointment of general counsel Sarah Fregon as CEO in March. Ms Fregon replaced Stephen Hare, who held the role for seven years.

The South Australian Bar Association pushed to have barristers recognised in state legislation in May, which at the time made no distinction between solicitors and barristers. However, the Bar encountered resistance from the Law Society of South Australia, who rejected nearly all of their proposals.

These fundamental shifts did little to affect the day-to-day practice of most lawyers. In Martin Place and Collins Street, up and down St Georges Terrace and along Eagle Street, law firms got on with the business end of law. Barristers continued to advocate, in-house lawyers to advise and CLCs to serve the vulnerable.

Nonetheless, the ground beneath lawyers’ feet has turned to water – those who ignore the change may struggle to survive their new environment.

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