1. Risk Management and CLC Practice Changes
9 May 2017
CLCQ Conference
Presenter: Rachel Neil PII Rep QLD
With grateful thanks to Catherine Eagle PII Representative WA for the preparation of this presentation

2. RMG 2nd edition Published May 2017
Available to members via NACLC website now
Hard copies to be distributed to all centres this week
Timely for centres to re-visit the RMG and ensure all staff and volunteers (including management committee members) have read at least Chapter 2 (mandatory standards) and understand their role and the role of other employees and volunteers in the centre

3. RMG – What is new in edition 2?
CLSIS to CLASS – changes in terminology
3.5 expanded description of stakeholders
3.7 mergers and amalgamations
3.8 centre closures
6.6.8 confidentiality and cloud computing
8.7 conflict checking
8.15 client legal privilege
8.19 privacy laws and appendix H
9. crosschecking procedures and appendix D

4. CLSIS to CLASS – what is new
Change from CLSIS to CLASS – changes to the RMG
CLASS is based on the terminology in the National Legal Assistance Data Standards Manual
All work done by centres falls under either Services For Individuals or Services For the Community
Services for Individuals includes services for individuals, groups, and organisations

5. NEW DATA STANDARDS MANUAL TERMINOLOGY

6. CLASS TERMINOLOGY Services For Individuals Discrete Assistance
Facilitated Resolution Process
Duty Lawyer Services
Representation Services
Ongoing Non-legal Support Services
Information
Court/Tribunal
Referral
Legal Advice
Dispute Resolution
Discrete Non-Legal Support Services
Other Representation
CLASS TERMINOLOGY
Legal Task

7. New Terminology for Casework
Services for individuals
Casework is now classified under either Representation Services or Ongoing Non-Legal Support Services
Representation Services
Ongoing Non-legal Support Services
Court/Tribunal
Dispute Resolution
Other Representation

8. Representation Services
Services for individuals
Where a Service Provider takes carriage of a matter in an ongoing, representative capacity
Court/Tribunal Services
Ongoing representation, where a service provider provides legal representation to a service user and takes carriage of a matter in an ongoing, representative capacity
Includes Court/Tribunal based ADR
Does not include services by a duty lawyer or assistance to self- representing parties
Representation Services
Court/Tribunal
Dispute Resolution
Other Representation

9. Representation Services
Services for individuals
Dispute Resolution Services
Includes preparation for and representation at a Facilitated Resolution Process
Other Representation Services
Where a Service Provider takes carriage of a matter in an ongoing representative capacity, but does not proceed to a court, tribunal or inquiry, or is not required to appear before a court, tribunal or inquiry
Representation Services
Court/Tribunal
Dispute Resolution
Other Representation

10. Ongoing Non-legal Support Services
Ongoing service provided in response to a request to resolve specific, non-legal problems
E.g. general counselling, financial counselling, trauma-informed counselling, Aboriginal and Torres Strait Islander community liaison, mental health assessments and support
Services for individuals
Ongoing Non-legal Support Services

11. Discrete Assistance Services
Services for individuals
Discrete Assistance is the provision of unbundled, discrete, legal and non-legal services to Service Users
Information Services
Provision of information to a service user about: the law, legal systems and processes; legal and other support services to assist in the resolution of legal and related problems
Information is of general application
Does not include administrative tasks such as booking appointments for Legal Advice sessions
Discrete Assistance
Information
Referral
Legal Advice
Discrete Non-Legal Support Services
Legal Task

12. Discrete Assistance Services
Services for individuals
Referral
When a Service Provider provides a User with contact details to another individual or organisation that can assist them
Simple Referral or Facilitated Referral
Legal Advice Services
Provision of fact-specific legal advice to a Service User in response to a request for assistance to resolve specific legal problem
Discrete Assistance
Information
Referral
Legal Advice
Discrete Non-Legal Support Services
Legal Task

13. Discrete Assistance Services
Services for individuals
Discrete Non-Legal Support Services
Service provided in response to a request to resolve specific, non-legal problems
E.g. General counselling, financial counselling, DV support, trauma-informed counselling, Aboriginal and Torres Strait Islander community liaison, and mental health assessments and support
Legal Task
A discrete piece of legal work to assist a Service User to resolve a problem or a particular stage of a problem
E.g. preparation or assistance with drafting documents, writing a letter to another party, advocating on behalf of Service User without taking ongoing carriage of the matter
Discrete Assistance
Information
Referral
Legal Advice
Discrete Non-Legal Support Services
Legal Task

14. Services For Individuals
Duty Lawyer Services
Services For Individuals
Services provided by a duty lawyer/advocate to a Service User at a court or tribunal
Duty Lawyer Services

15. Facilitated Resolution Process
Where a Service Provider conducts an activity to assist the parties to resolve or narrow issues in dispute
Generally will involve the provision of an independent, suitably qualified professional to facilitate
Services For Individuals
Facilitated Resolution Process

16. CLASS Terminology Services For the Community Community Education
Law and Legal Service Reform
Stakeholder Engagement
Community Legal Education
Resources
Activities

17. RISK MANAGEMENT GUIDE CHANGES

18. RMG 3.5 Stakeholders and roles
3.5 Stakeholders and 3.6 overview of roles in 1st edition now amalgamated and a few additions
Consider your role in your centre
In each role have to consider confidentiality, accountability, conflicts of interest
E.g. responsible person ‘centre employee with unrestricted practice certificate’

19. 3.7 Mergers and Amalgamations
New section to deal with issues that arise
Footnotes refer to useful resources available from Justice Connect Not For Profit Law Information hub
Outlines key legal practice requirements that need to be fulfilled:
Insurance – ensuring new entity has PII cover
Membership of CLCQ– for new entity
Consideration of data merges and conflicts of interest (useful table included)
New entity demonstrates compliance with RMG
Runoff cover for any entity that no longer exists after merger
Notifying legal practice board if necessary

20. 3.8 Centre closures
New section provides guidance on key legal practice management issues that need to be considered:
Dealing with open and closed files
Closed files
Review to see which can be destroyed and which must be archived
Identify if any original documents that need to be returned to the client
Arrange secure storage of files so as to not breach client confidentiality and complies with all legal requirements
Must be accessible in case claim made against centre or if client needs access to file
Advise former clients of centre closure (where practicable) – may need to get client’s consent to transfer closed files to another entity
Open files: consent to refer must be obtained before referral made, centre will have to do conflict check before agreeing to take matter on

21. 3.8 Centre closures
Open files:
advise all current clients and offer to assist with suitable referral
Consider whether required to change official records e.g. where solicitor from centre is solicitor on the record
Trust monies?
Agree with new centre on any indemnity issues
PII run off cover
Under NACLC scheme provided free of charge as long as the Scheme is in operation so notice must be given to NACLC who will liaise with the insurer
Notice to legal profession regulatory bodies – change of employer for practice certificate?

22. Confidentiality - Rule 9 Australian Solicitors Conduct Rules 2012
Client information ‘information confidential to a client of which a practitioner becomes aware in the course of providing legal services to a client’
Must not disclose client information outside legal practice unless in specified circumstances including to the insurer, to someone engaged for the purpose of providing administrative services to the client

23. 6.6.8 Confidentiality and Cloud Computing
Many Centres use cloud-based and other internet systems for services e.g. , social media, and document storage
CLASS is a cloud-based data system that records and stores client and service data and is used for reporting
Be aware of potential risks that come with use of cloud computing: breach of client confidentiality; client legal privilege; privacy; loss of data; security breaches, and outages (these exist for ay data storage system)
Ensure appropriate security and risk minimisation and management mechanisms are in place
Whether using the cloud or not, take action to protect all confidential information

24. 6.6.8 Confidentiality and Cloud Computing
Generally - disclosure to an IT service provider is permitted for the purpose of the centre providing legal services to the client but must be subject to a confidentiality agreement between the IT provider and the centre
Ensure cloud computing systems allow for tailored access to client information within the centre, so only authorised employees and volunteers have access to confidential client information on a need to know basis
There are additional serious considerations where a centre uses cloud computing or any other internet based service or application and the infrastructure is located or permits the data to be sent outside Australia e.g. it may be caught by the Patriots Act or be vulnerable to attack in certain overseas jurisdictions
All CLASS data will be stored in Australia

25. 6.6.8 Confidentiality and Cloud Computing
Resources
QLS - and_protection_of_confidentiality_in_a_digital_world
Australian Government, The Department of Finance and Deregulation, Cloud Computing Strategic Direction Paper: Opportunities and applicability for use by the Australian Government, Version 1.1 (released April 2013) at 9, available at: < _cloud_computing_strategy_version_1.1.pdf>
Australian Government, Attorney-General’s Department, Information Security Management Guidelines: Risk management of outsourced ICT arrangements (including Cloud) Version 1.1 (amended April 2015) at 11-12, available at: < mationSecurityManagementGuidelines.pdf>
Law Council of Australia, Cyber Precedent: strengthening the legal profession’s defence against online threats < See also: non-binding Practice Notes from the Office of the Legal Services Commission (NSW) on cloud computing and outsourcing, available at: < and Justin Edwards, ‘Cloud computing services: Professional obligations and ethics’ (Apr 2016) 43(3) Brief 32, at 34.

26. Conflict checking – 8.7
Some sections for the second edition have been expanded
Good idea for workers to read through relevant chapters
One example is the sections on conflict checking
8.7.2 – includes information about data collection and the importance of timely data entry to enable thorough conflict checking to occur

27. Conflict Checking 8.7
Conflict checking using any database is only as reliable as the quality of the data recording and data entry that centres maintain. Further, to be most effective, centres must implement a number of access and usage protocols and standards required by CLASS or their own database provider.
8.7.3 For effective and reliable conflict checking, data entry must be accurate and complete. The client’s name is the primary data used in conflict checking, and special care must be taken when entering this data. Any other names that are or have been used by the client and/or alternative spellings should also be recorded with equal care. Accurately recording the name of the Other Party or Parties is also critical.
8.7.4 Supplementary data that can be used to identify a client should be collected wherever possible. This includes date of birth, full address details, and phone number – research has shown that a person’s mobile telephone number is one of the most reliable identifiers, particularly over time.

28. Conflict Checking 8.7
Timeliness of data entry
8.7.7 It is mandatory that client details and Service data is recorded in CLASS or the centre’s own database as soon as possible. CLASS is cloud-based and it is expected that some Service Providers will enter the client and Service data at the time of Service provision. Where Service Providers complete hard copy records first, for entry by others later, it is critical that this is done very promptly. Delay in entering data into CLASS or other database substantially increases the risk of incorrect conflict check results.
8.7.8 It is recommended that, where the data system permits, centres consider making ‘temporary data entries’ for clients making appointments to ensure that accurate conflict checking occurs during the period between the time when the client is given an appointment and when they attend it. This way, if the Other Party contacts the centre for Legal Advice or other Assistance in that period, the centre will be able to identify that it has a conflict of interest and can make an appropriate Referral for the second party. Once the client has attended for Advice, the data entry is updated to note that the client has attended for Advice and the ‘temporary entry’ is deleted.

29. 8.15 Client legal privilege
This is a Mandatory Standard.
Client legal privilege can be defined as:
The right of a person to have withheld from evidence communications between that person and his/her adviser (or between the legal adviser and a third party), made in the course … of obtaining legal advice or with reference to litigation.
Those communications can be in hard copy, electronic or other forms.
When considering the topic of privilege, the centre should ensure that it has policies and procedures to identify and protect privilege. Staff and volunteers should be trained in this area.
New wording

30. 8.19 Privacy laws
This section has been amended and a draft privacy policy is at appendix H
Privacy laws exist at a Federal, State and Territory level. Each centre needs to determine which laws apply and what steps need to be taken to ensure compliance with the relevant law(s). Centres may also be required to comply with privacy obligations under one or more funding agreements.
For example, Centres funded and reporting under the National Partnership Agreement on Legal Assistance Services (NPA) must comply with Commonwealth's National Legal Assistance Data Standards Manual and NPA data reporting requirements. Principle 5 of the Manual requires data to be ‘collected, stored and disseminated in accordance with Australian Privacy Principles or the equivalent state or territory privacy law, as well as the relevant legislative and professional requirements’. In addition, the standard terms under funding agreements under the National Partnership on Legal Assistance in some jurisdictions include privacy obligations and requirements.

31. 8.19 Privacy laws
It is recommended that centres develop a privacy policy. A sample privacy policy is included at Appendix H. Centres may also wish to develop separate and/or additional privacy procedures.
In the event that the centre receives a request where compliance with the request may breach privacy obligations, it should seek assistance from a relevantly experienced legal adviser and the PII representative.

32. Privacy Policy – appendix H
This sample policy has been updated and contains options for centres to choose between when designing their privacy policy
Defines: personal information, sensitive information
Explains:
info centre collects and in what circumstances
How info is collected
When personal info can be disclosed and who it can be disclosed to
How a person can access their info and correct it
complaints

33. 9. Crosschecking procedures and Appendix D Crosscheck questionnaire
New intro
9.1.1 Cross-checking is critical to implementing the National PII Scheme: it ensures and demonstrates that a centre is complying with the Mandatory Standards of the Guide. Participation in cross-checking is required by Standard A1.5 of the Standards set out in the NAS Guidelines. Demonstrating satisfactory compliance with this Guide’s Mandatory Standards is essential for a centre to participate in and have cover under the National PII Scheme, to satisfactorily meet the NACLC Accreditation Criteria and to comply with the criteria to be a full member of a state or territory association for CLCs.

34. 9. Crosschecking procedures and Appendix D Crosscheck questionnaire
New mandatory standard
9.2 Participation in annual cross-check and satisfactory compliance with Mandatory Standards of the Guide
This is a Mandatory Standard.
9.2.1 Each centre that is or wishes to be a full member of a state or territory association of CLCs must participate in the annual cross- check, and must demonstrate satisfactory compliance with the Mandatory Standards of the Guide.
Important that centres understand purpose of crosscheck and engage wholeheartedly in the process

35. 9. Crosschecking procedures and Appendix D Crosscheck questionnaire
New section of the Guide Branch offices, cross-border services, and services with more than one Responsible Person Where centres have offices or otherwise deliver Services in more than one state or territory, and/or with more than one Responsible Person, there will be different requirements for the cross-check procedures, depending on how the centre operates. A centre that operates as more than one distinct legal practice under the one legal entity (whether overseen by one or more than one Responsible Person) is required to undergo a separate full cross-check on each distinct legal practice. Each cross-check should be signed by the Responsible Person for the respective legal practice.
Footnotes: This does not refer to centres that are primarily based in one state, but that undertake outreach services in another state or territory, or which provide assistance to clients from another state or territory and where no centre files or records are stored in the other state or territory, provided that the relevant states and/or territories have identical or substantially similar professional conduct rules. In practices such as these but where the relevant states and/or territories do have substantially different legal professional conduct rules, the centre should discuss the cross-check requirements that will apply with their state or territory PII Representative/s.
This is required in order to satisfy the provision of the common membership rules of all CLC state and territory associations that require the Convenors of the state and territory Associations’ Practice and Insurance Committees of which they are a member to be satisfied that the member centre has the necessary systems to comply with this Guide (see 1.4.4).

36. 9. Crosschecking procedures and Appendix D Crosscheck questionnaire
A centre that operates as one legal practice encompassing separate projects, programs or services or branch offices, is required to undergo a full Cross-check Questionnaire in relation to the ‘head office’ (in jurisdiction A), and additional ‘branch office checks’ on the other offices/projects/services in jurisdiction B using Part D of the questionnaire (see Appendix D).
The ‘branch office checks’ are to be completed against the head office’s full cross-check questionnaire. If there is more than one Responsible Person (for example, one for each branch office or service), then all Responsible Persons will need to jointly sign the same cross-check questionnaire.

37. 9. Crosschecking procedures and Appendix D Crosscheck questionnaire
9.2.5 A centre that is a member of more than one state or territory CLC Association is required to comply with the membership rules for each association including:
Attending the compulsory PII committee meetings of each of the states or territories in which the centre is a member; and
Participating in the cross-check processes of each state or territory in which the centre is a member if and as required by the respective association, by:
having the relevant cross-check questionnaires and/or branch office checks undertaken by a cross-checker from the state or territory in which the legal practice has an office or branch office; and
undertaking a cross-check of another centre in each state or territory in which they have an office.

38. 9. Crosschecking procedures and Appendix D Crosscheck questionnaire
9.2.6 Where a branch office check is to be carried out by a different cross-checker than the person who carried out the full head office cross-check both cross-checkers will need to discuss the full cross-check questionnaire prior to the branch office check being carried out, in order to ensure consistency.

39. QUESTIONS