As we get older, some things just get harder to manage.

That goes especially for the traditional family home. When you’re in your 30s, maintaining a house with two big yards is something to look forward to on the weekend.

But when you’re in your 60s, you just want to enjoy your retirement.

For many of my parents’ generation – the Baby Boomers – the decision to downsize is a tough one.

Some people don’t want to let go of the house they raised their children in. Others see downsizing as one step closer to the nursing home. Some see it as “trading down”; letting go of a sizable bricks and mortar asset to move into something smaller.

Recent changes to superannuation law are enticing many of these “fence sitters” to commit to downsizing.

Under the new rules, retirees can funnel up to $300,000 from the proceeds of the sale of a home they’ve owned for 10 or more years into their super fund. If you’re a married couple, that means between you, up to $600,000 from that sale could be invested into your super – and all the tax benefits your super fund enjoys.

On the surface, this might seem like the chance for a windfall: sell the family home, or an investment property, and move into something cheaper and live comfortably on the extra funds you’ll free up for your super.

But as an estate lawyer, I can tell you it’s never that simple.

Already, plenty of retirees are taking advantage of this new scheme, meaning demand for smaller homes is increasing. And not only are you up against other retirees in this market, but younger Australians are increasingly seeking apartments or townhouses to match their busy lifestyles.

That means you may not have the buying power you’d like when re-entering the housing market and could take a hit in stamp duty.

More importantly, how will the sale affect your entitlement for the aged pension? Cash is not exempt from aged pension means testing, so by liquidating your biggest asset you could be shooting yourself in the foot. Other questions to consider include:

• Is the house you’re looking to sell Capital Gains Tax exempt?
• Is the property owned as part of a trust, or subject to finance?
• How will the sale affect your children and grandchildren’s inheritance?

Downsizing can be a liberating experience, something that can actually help you enjoy your retirement more by freeing you up to live, but it needs to be done properly.

At Welden & Coluccio Lawyers, we are Estate Law specialists. This means we help people make decisions that will benefit them and their families into retirement and beyond.

If you’re considering selling your home to take advantage of this new super scheme, make an appointment to speak to us, as no decision happens in a vacuum.

It is wise to see what is proposed all from all angles.

Let’s just imagine The Last Jedi never happened and go back to more simpler times, say 1977 A New Hope . . . ah that’s better.

Did Han-Solo shoot first?  Did Greedo shoot first? Does it even matter?

The debate about whether or not Han-Solo shot first is to refer to George Lucas’ changes to the original Star Wars movie trilogy; more specifically a change to the A New Hope Special Edition, in the scene involving the characters Han Solo and Greedo in the cantina.

In the original version, after Han suggests that Jabba The Hutt would take the Millennium Falcon from him over his dead body, Greedo retorts, “That’s the idea.   I’ve been looking forward to this moment for a long time.”

Han replies, “Yes, I bet you have” and proceeds to shoots Greedo under the table while Greedo is pointing a blaster at him. However, in the Special Edition, Greedo shoots at Han and misses, without explanation, from point-blank range, and then Han shoots him. The scene was later altered again to have Han and Greedo shooting at almost the same time (though Greedo still shoots first), with Han dodging out of the way of Greedo’s shot.

It is clear the changes were made to avoid the conclusion that Han was a murderer, not a tag one wants from the, eventual, scoundrel-hero.  The central objection to the changes are that it weakens and compromises Han’s rebellious and ruthless nature.

Putting that aside, the generally accepted truth from fans of the franchise is that Han Solo kills Greedo in a bit of pre-emptive, badass self-defense. Everyone is right, right?

But is that legal?

To answer that question, we need look no further than the laws we accept in society for self-defense . . . whether this applies in a galaxy far-far away is impossible to know, yet for the sake of this argument lets assume that it is.

The answer lies within the 15 Criminal Law Consolidation Act 1935 (SA).  A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment).

If someone charged with an offence, say Han was charged with murder, and he raises a defence under this section, it is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

This will be a complete defence to an offence, including murder, as long as the force (no pun intended) used was, in the circumstances, as the defendant genuinely believed them to be, reasonably proportionate to the threat they genuinely believed to exist.

In other words, if Han genuinely believed he was about to be shot by Greedo and he shot first to defend himself, killing Greedo, then he was not guilty of murder.  Evidence to suggest this was the case is that Greedo was pointing his blaster at Han during their conversation, they were within the cantina (where Obi-Wan Kenobi tells Luke “You will never find a more wretched hive of scum and villainy”) and Greedo intimates, by his words, that he is about to kill Han.

This would be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.

In other words, Han would not be guilty of murder but guilty of manslaughter if, despite believing that his actions were necessary, shooting Greedo was disproportionate to the actual threat Greedo posed.  For example, if Greedo held a knife and not a blaster.

However, there is an exception to reasonable proportionality rule, in home invasions.

In the case of a home invasion acting for a defensive purpose or to defend property can be a complete defence to murder, even if the defendant’s conduct was not objectively reasonably proportionate to the perceived threat.  What is required is that the defendant genuinely believed that the victim was committing or had just committed a home invasion.

So, in summary, it appears like Han Solo was perfectly justified in blasting Greedo in the cantina without criminal repercussions . . . that would be, of course, if he didn’t flee Tatooine like the audiences from a Last Jedi screening!

Proposed changes to the South Australian Adoption Act 1988 will enable over 18’s the opportunity to be adopted.  This change, evolving from a series of recommendations put forward by independent reviewer Associate Professor Lorna Hallahan, is just one that relates to a range of changes to the Adoption Act that will also enable same-sex couples and extend the rights of single people to adopt.

Why should adoption of over 18’s be an option?

By far the greatest benefit of this new law is the power that it has for the building of strong family connections.  Indeed, it can not be underestimated the degree to which legal adoption can act as a healing salve, promoting a sense of belonging, in a child who has quite often experienced loss and suffering caused by the abandonment or neglect of the natural parent.

This proposed law recognises that it is never too late to address this need. 

While a carefully drafted Will may include anyone (including non-adopted children) as beneficiaries of your estate, the formal process of adoption ensures that an adopted child has equal rights to inherit your estate as would a natural born child.  This distinction provides an additional safeguard, diminishing the likelihood of an estate being contested and adding further weight to the wishes of a parent.

How will applications for adoptions of over 18’s be processed?

The first step in moving forward with the adoption of a child over the age of 18 is to meet with an experienced solicitor.  Through this consultation, the legal practitioner will assess eligibility and make the necessary preparations required to file paperwork with the Court.

It is anticipated that following the filing of documents, relevant parties will be required to attend counselling sessions to ascertain the motivations of those concerned and to determine if this is the most positive course of action for the child involved.  Following this, the Court will be advised of any recommendations, and if adoption is advised, a short Court hearing will provide the adoption order and finalisation of the process.

At this point it is recommended that families revisit any Wills and Testamentary documents to ensure that they are updated to reflect the legal change in this relationship.

Who is eligible to access this new Law?

Two main groups are expected to seek access to this legal process.  Primarily, the law will assist foster parents to legally adopt their fostered children once they have reached the age of 18.  This enables families to by-pass a range of red tape that has, in the past, made adoption of minors difficult.  Secondly, the law will enable the adoption of children by step-parents.

In both circumstances an existing parental bond must be demonstrated to have evolved before the child in question reached the age of 18.

What are the likely costs involved in undertaking this legal process?

At this stage it seems reasonable to assume that the financial outlay for undertaking this process will be minimal.  It is recommended that interested parties engage the support of a solicitor to prepare and file the appropriate documents.  These legal fees, in addition to the normal court filing fees, will be required.  It is highly unlikely that legal aid will be available for this matter.

While the Bill is currently awaiting consideration by the current State Government, its passing stands to herald a range of positive changes for many families throughout South Australia.  For advice about how changes to the Adoption Act may positively support your family, we warmly encourage you consult with one of our experienced solicitors with a view to moving forward with legal proceedings in the future.

There is growing talk about younger generations moving into adulthood with a sense of entitlement.  While this condition is often spoken of in relation to Gen Y’s; a sense of being entitled to things in the ‘now’ and without having worked for them is an affliction to which no generation is immune.  Of course, while it is one thing to expect to have material things handed to you on a silver platter, it is another thing altogether when this expectation manifests itself as a form of elder abuse.

As lawyers, we are constantly alert to the possibility that our older clients may become victims of financial abuse at the hands of those who are nearest and dearest to them.  As horrific as this may seem, it is occurring with alarming regularity and it evolves directly from a sense of entitlement.

Consider the following scenario. A man in his late twenties appeals to his elderly grandparents to reverse mortgage their home so that he may access the funds to finance the purchase of a car.  ‘It is just like me getting my inheritance early’ he explains to them, ‘and you still get to live in your home’.  The couple, feeling sympathy for their grandson, agree to his request, reverse mortgage their family home without understanding fully the broader implications that surrendering their home may have on their long term financial security.  In other situations, elderly people are coerced (in ways ranging from gentle persuasion to outright blackmail) to make changes to their Will.  Similarly, in other circumstances, adult children have misused their authority as Power of Financial Attorney as an opportunity to direct funds from their elderly relative into their own account.

As we move into our twilight years, managing finances becomes a challenge.  Especially in this time of online banking and constantly evolving technologies, it is normal to transfer the burden of these duties to a trusted relative.  Alas, undertaking such actions inevitably places the elderly person at greater risk of abuse.  While current laws generally fail to recognise the criminal nature of these activities, lawyers remain constantly alert to the increasing incidence of this and are actively working towards educating their clients and promoting the risks with the broader community.

If you, or a relative, feel that you are at risk of elder financial abuse, you are welcome to chat confidentially with one of our experienced solicitors to discuss your unique circumstances.

My obsession with wax seals extended to having our business logo turned into a seal.

My fascination with the wax seal started about the same time as my fascination for all things related to Wills and Estates.  In fact, if you were to ask my wife she might suggest that they emerged from the same passion.  A few years ago she purchased me an old Probate document, circa 1880, that she came across on ebay.  The document, relating to the settlement of an estate near Murray Bridge, was meticulously handwritten with pen and ink and came complete with its original red wax seal of Probate.   It is quite special and now framed, hangs on the wall in the Conference Room in our Prospect Office.

An example of an old South Australian seal of Probate circa 1880.

Wax seals have long been associated with important documents and the Law.  In the past it was both popular and fashionable for individuals of note to possess their own unique seal that could provide an impression into wax for the purpose of finalising a contract or as a security measure for sealing a folded letter (long before secrecy envelopes were invented).  In this manner, seals were carried with the owner constantly, fashioned into a piece of jewellery such as a ring or occasionally as a pendant to be worn about the neck.  Various church organisations, institutions and of course royalty, also had seals for endorsing official documents, and these were used in a similar manner.

In Australia, as in many western countries, wax seals were used primarily for legal purposes.  As literacy rates improved, and along with technological developments in printing, the use of seals gradually declined.  Perhaps one of the few places we see an echo of this tradition is in the seals that we find on academic parchments.  Legally, the only place the seal is still used with some regularity is on a ‘Grant of Probate’ document.  In this situation, the red seal is no longer wax, rather a sticker that is cleverly embossed to provide an impressive endorsement for this important document.

Modern example of a red seal used to indicate a Grant of Probate in South Australia. It is used in conjunction with an embossing technique.

As lawyers we are often slow to embrace new technologies.  While I support the move to becoming paperless, it would sadden me immensely to see this part of our legal traditional disappear completely.  What do you think?

Dear Graduate,

So you have your Law degree but are yet to secure a position in a law firm?

Join the club; it seems that you are in good company.  Since I graduated from Law in 1998 the number of students graduating from Australian universities in this discipline has more than doubled.  Such an increase in graduates (while not in line with population growth) reflects the situation facing students emerging from a range of disciplines, including Nursing, Education, Communications and even Dentistry.  I’m not interested in the reasons why our universities are churning out more graduates than is necessary, instead I’m going to address the more pertinent question; how the hell does one go about finding a job in these conditions?

It is competitive out there.

Competitive does not mean impossible.  In fact, as the old saying goes, ‘the cream will always rise to the top’.  In other words, if you are good you will get there (although you will need to be beyond proactive and perhaps redefine the meaning of determination as you go).

First of all, a little about me.

My background is working class.  I came from the northern suburbs (beyond Gepps Cross) and I went to the local High School.  Coming from where I did, it was more than likely assumed that I would follow my father’s footsteps and move into mechanics when I finished school.  I mention this only so that you understand that although it may help to have attended the ‘right’ school and had a ‘helping hand’ from your parents or whatever connections they had to the ‘right’ people, I still believe that you can succeed in this game without any of that.

Suffice to say, I didn’t have anything handed to me on a silver platter.  Finding a job in the current climate is hard work.  If you have connections, use them.  If you don’t, work harder, you will be better for it in the long run.   Even more than this, occasionally someone is going to throw you a lifeline.  It may be small (it probably will be so small as to be a whisper of something that you may not even consider it to be a lifeline).  Either way, take it with both hands and run with it.  Opportunities are far and few between and as such cherish them, nurture them in the hope that they will explode into something positive.

Get Educated.  Did you actually think that having a Law degree made you a lawyer?  It doesn’t.  You will become a lawyer sometime after graduation and probably before retirement.  It may never happen.  Furthermore, getting a job in the ‘Law firm of your dreams’ won’t necessarily turn you into a lawyer. Graduation is just the beginning.

I can say that the best lawyers are constantly learning; reading, researching, presenting papers, asking questions, asking questions.  Did I mention that they ask questions?

Be Future Thinking.  Law is currently in the midst of great change.  Everything we thought Law was has been uprooted.  Sure, the legal fraternity is largely resistant to such change, but as the saying goes, ‘resistance is futile’.  Technology is the greatest influence in this change and even a disputation of dusty old lawyers won’t change that.  Understand these changes.  Predict and pre-empt these changes and you will have the right head set to begin your search.  Appreciate that a ‘future thinking’ lawyer will seek employment beyond traditional avenues in firms which may not even resemble what you understood a law firm to be.

Identify Areas of Growth.  This follows on from the previous point and refers to your ability to identify (so you can exploit) where the areas of growth in this industry will be.  With an aging population and the fractured nature of the modern family, you don’t need to think too hard to realise that Estate Law and Family Law are two areas where this industry will be growing.  There are others too (think technology).

Allow this knowledge to influence the shape of your job hunt.  Furthermore, it makes sense to extend your knowledge in these areas of Law.  Keep learning but be strategic about what you learn.

Be Prepared to Move.  Go to where the work is.  Move city.  Move to the country.  My first ‘real’ job as a lawyer was in Port Augusta.  While many of my city-based colleagues were photocopying and filing (undertaking the duties of a legal clerk), I was in court (daily) and was even responsible for trials.  This level of work had me meet and work closely with barristers, magistrates and judges in a way that most graduates don’t.  These opportunities equal connections that have the potential to kick start your career in ways you can’t even begin to imagine.

Stand Out From the Crowd.  We get sent a tonne of emails each week from job seekers.  Most of them we delete immediately.

Why?  Because the applications are boring.

While it is important to remember that law firms tend to be conservative places, you need to find ways to get noticed.  Avoid sending out bulk generic emails. They are easy to spot and make us hit delete faster than you can say ‘I object!’.  What we really love is someone who can show that they took the time to find out who we are and what we do.  It is really not hard (especially for Gen Ys apparently adept with Mr Google).  Once you know what a potential employer does, it is YOUR job as a potential employee to share whatever it is about you that makes you interesting whilst highlighting what you can personally bring to the life of the firm in question.  We want to see PASSION.  We want to see an APPETITE for the Law, a HUNGER to learn and we want to know that you are COMMITTED to this journey with us.

What we are not interested in is your ATAR, the school you went to or your job flipping burgers while at uni.  Keep it relevant to the position please.  A summary of your grades achieved in your degree is helpful as is any work that might somehow be legally related.  Even better is a statement (or personal credo) that identifies your passion within the broad scope that is the Law.  I’m not speaking about generic statements like “I’m passionate about the Law.”  Who cares?  We don’t actually believe you when you say that anyway and besides, the other 15,000 people looking for work in this field reckon that they are just as passionate as you.  What you need to do is identify exactly what it is about the Law that makes you tingle.  What part of the Law makes you fired up to the point that you must know more. . . passion, appetite, hunger, commitment . . . need I go on?

Choose a Great Mentor Over a Big Firm.

When I graduated everyone seemed to want to work in one of the big law firms.  Too often, larger law firms are filled with people with law degrees that are not really lawyers.  In this context the graduate lawyer has limited opportunities to do any ‘real’ legal work and too often doesn’t get to learn from the ‘experts’.  Smaller and boutique style firms can sometimes provide better opportunities to work closely with industry experts.  In a smaller firm you are more likely to be given opportunities to extend your experience.

Suspend Your Dream of a Six Figure Salary.  I know of too many graduates who refuse to apply for positions in a law firm because the pay is less than they believe they are worth.  Please appreciate that as a graduate, since your knowledge is minimal, you are worth little.  My first real job as a lawyer paid much less than the starting salary for a graduate teacher.  I know this because I married a teacher.  Appreciate that as your skills improve so will your salary.  You will, however, be expected to prove your worth.

Be Prepared to Work Hard.  Yes, the hours you will be required to put in as a graduate lawyer often don’t seem to be commensurate with the amount you are paid.  Unfortunately this is how it is.  It is how it has always been and it has nothing to do with the current climate.

Expect to work seven days a week.  Expect to bring work home every night.  The metamorphism into a lawyer is hard work.   Appreciate that there is a huge gulf between what you actually know and what your clients will expect you to know.  Hard work is the stuff that fills the gap.

 Identify the Features of Gen Y and Be Un-GenY-like.  Gen Y have a bad reputation for a range of behaviours that other generations (your potential employers) actually find quite abhorrent.

While we understand the importance of technology we’d prefer you put the iphone down occasionally and communicate face to face.  Furthermore, you don’t need Facebook, Twitter and Instagram nearly as much as you think (especially during meetings or every ten minutes during your working day).

Finally, appreciate that we don’t agree with you about your sense of entitlement.  The world owes you nothing.  If you want a pay rise we expect you to prove to us that you deserve it (in quantifiable terms).  Also, we don’t care if you graduated with Honours.  That stuff means diddly in the ‘real world’.  What matters is the bottom line, your actual knowledge and how happy you make our clients.

The real world, alas, is not one filled with rainbows and unicorns.  It is not a place where you can expect to be congratulated daily for your ability to turn up.  Understand what your potential employer wants and give it to them.  If you won’t, rest assured because Generation Z is hot on your tails.

Greg Welden

Principal Solicitor

Welden & Coluccio Lawyers

Kids are cute.   I don’t have any of my own as yet, but I can’t help noticing that they have this wonderful propensity to offer us a window into the ways that many people think.

A few weeks ago I had the immense joy of watching Greg Welden’s youngest daughter in action as she played a wonderful game of pretend.  She was chatting away to herself (as kids do) and scribbling nonsense on a piece of paper, stamping it, before turning the page over only to repeat the process on the next sheet.  When I asked her about the game she was playing she replied, “I’m being a lawyer like Daddy.”

This story goes a small way to illustrate the way in which many people understand the work that lawyers do. You see ‘apparently’ we sit behind oversized mahogany desks nodding our heads, offering advice while occasionally witnessing and rubber stamping documents.  Of course when we are not doing this we are striding across the court room bellowing loudly “I object!”

However, I don’t think I have ever uttered the words “I object!” in a court room, and far be it from me to burst the bubble, but the real practice of Law is a very long way from LA Law.  At any rate, it got me thinking about the actual work that lawyers do, and, more importantly the skills that every lawyer needs.  I’ve managed to narrow them down to ten:

1. Be a workaholic. Is that even a skill?  In any case Law is a tough gig and working 9-5 Monday to Friday won’t get you very far.  Any lawyer worth his or her grain of salt is working every day, is taking work home and spends every waking moment (seriously) finding solutions to dilemmas.  It is exhausting.  It is intense and it is not a job that you ever clock off from….okay, perhaps when you die.
2. The ability to read with lightning speed. Lawyers like paper.  In fact we love it, especially the kind with really, really, tiny print.  It follows then that being a great lawyer means becoming a speed reader in a way that puts the super into the human.
3. Become a Crystal Ball Gazer. No, I’m not talking about reading tea leaves and tarot cards in between trials.  I mean having foresight.  The ability to see 3 or 4 steps into the future and understanding that what choice you make now can have a knock on effect ten steps down the road.
4. Have the research skills of a Librarian and the Curiosity of a 5 Year old. Believe it or not, really awesome lawyers don’t always know all the answers. Quite often what makes a lawyer brilliant is that innate ability to find answers to questions that they devise.  This also requires an intrinsically driven motivation to want to discover the answers (hence the 5 year old analogy).
5. Juggle with the finesse of a Circus Performer. Of course every client likes to think that the lawyer they have employed knows their case intimately.  A great lawyer makes their clients feel as though their matter is the only one in their caseload.  We wish practicing Law was like an episode of Suits.    Alas, we have multiple files firing at any one time.  It is all about juggling the files effectively, having an awesome memory and knowing immediately what needs to be done to a file at very short notice.
6. Be Organised. Good lawyers always bring the blue pens.  We never leave this to the client as it is guaranteed to end badly (ie it means more work in the long run).  If you find yourself lacking in organisational skills then Law is probably not the career for you.
7. Think on your feet. Sometimes things don’t go to plan.  Sometimes events evolve quicker than you expected.  Quite often a client lands on your doorstep without any notice and needs help immediately.  Great lawyers are flexible, adaptable and think quickly on their feet in those moments when it really matters.
8. Awesome lawyers let the client do most of the talking.  They don’t just listen attentively but they filter through all the stuff that the client thinks is important (but isn’t) to get to the heart of the matter.
9. When they do speak they ask the right questions. Not much to add to this.  Speak sparse but make it count.
10. Empathise like a Saint. Being a lawyer usually means dealing with people.  Sometimes your clients are elderly and infirm.  Sometimes your clients are grieving.  Almost always, legal clients feel overwhelmed by what is in front of them.  The job of the lawyer is to take that all on and make it look easy.  A great lawyer does this with empathy, treating every client who walks through the door with the same kindness they would show a favourite Aunt.  And it helps to know how to make a good cup of tea.

As you can see, the reality of Law is a very long way from the mythical glamour perpetuated in a 45 minute episode of Boston Legal.   In fact, real Law is far homelier with considerably less emphasis placed upon designer suiting and the drinking of imported whiskies.  This aside, I still love Law.  I love the challenge of this work, but more than that, I love the opportunity it gives me to help real people through their very real life challenges.

So you have your business plan mapped out, have secured funding for your venture and are now ready to take a giant leap and secure premises for your operation. Before signing on the dotted line make sure that you know all there is to know about Retail and Commercial Leases.

Firstly, Retail and Commercial Leases are governed by the Retail and Commercial Leases Act 1995 (SA).

Before you enter into a retail or commercial lease, you need to obtain a copy of the lease for negotiation and a disclosure statement from the landlord. The disclosure statement will outline all significant elements of the lease, including but not limited to:-
– The property address; size of letable area
– permitted use of the area
– term of the lease
– amount of rent payable
– whether the lessee is required to pay outgoings
– right of renewal, and
– consequences of breaching the lease.

Before signing it is critical that you carefully read this document and have a thorough understanding of all the terms.

At this point it is important to note that the minimum term for a lease period is 5 years. 5 years can sound like an eternity when you are starting a new (and unproven) business. However, there are exemptions to this which may be described in the document as a short-term lease, an exclusionary clause or sub-lease.

You must make sure you understand the full effect of your lease period prior to signing the lease.

In the event that your business were to fail, it is sometimes possible to assign the lease. This can only occur with the consent of the lessor. Under this procedure, you request consent to assign the lease in writing, providing the lessor with all information of the proposed assignee. This information includes the assignee’s financial position and relevant business experience. Upon receipt of this application, the lessor must provide to you a notice in writing as to whether or not consent is granted. This needs to be done within 42 days. Furthermore, if consent to the assignment of the lease is granted you would be would be liable under the lease until either:-

– The second anniversary of date which lease was assigned;
– The date which the lease expires; or
– If the lease is renewed or extended after assignment, then the date which renewal or extension occurs.

In the event that landlord fails to grant consent to the assignment, you will be liable for the remainder of the duration of the lease. It is not difficult to appreciate that entering into a Retail or Commercial Lease is not without risk.

In any event, retail and commercial leases are always complex. It is prudent to seek advice from a solicitor if you are thinking of entering into a commercial lease arrangement. A solicitor is best equipped to provide you with appropriate advice. For advice on property law or leases in general, please contact Jason Coluccio or the team at Welden & Coluccio Lawyers.

There is a universal assumption that lawyers charge too much for their services.

To some extent this is a misnomer.  I mean, some lawyers most certainly charge ‘too much’ for their services, but that doesn’t necessarily mean that all lawyers operate with an unscrupulous intent to part their clients unfairly from their hard-earned cash.

Here are my top 8 reasons for why legal advice can be costly, along with a few other reasons that might indicate that you are paying more than you should your legal services.

1. Lawyers are Professionals

Law is a profession.  As, such we are required to apply our understanding of the Law to your unique circumstances.

Bespoke.

No two matters are identical.

While experience makes this easier, it highlights the reality that finding solutions for our clients requires considerable effort in terms of creative thinking.  It doesn’t end here.  As lawyers, we hold a significant burden of responsibility to our clients for the legal advice we proffer.   Get it wrong and we are solely accountable.  It is something that keeps us awake at night.

2. Lawyers are Learners

Lawyers spend a long time at university to earn their degrees.  Most of us graduate with, not only a degree, but with a considerable HELP debt.  However, even post-graduation we face the harsh reality that this debt will continue to grow as we undertake extensive post-grad work which must occur before we can be admitted to the Bar and actually practice Law.

However, admission to the Bar is only the beginning of our learning journey.  Lawyers, like many other professionals, are legally required to learn continuously and annually attend an agreed number of conferences and approved activities.

Learning is expensive and time consuming, but without it we are not equipped to provide our clients with the quality of advice they deserve.

3. Providing Quality Legal Services Takes Time (and not just the time you spend in our office)

Quite often, and because all situations are unique, lawyers will need to spend time reading and researching precedents before they can devise a course of action that will enable them to confidently move forward with your matter.  This can take time; many hours (sometimes days, weeks or months).  Don’t be fooled into thinking that the only time we are working for you is when you are in our office.  Lawyers only spend a fraction of their time consulting with clients and attending court.  Most our time is spend researching our caseloads and preparing documents to suit the unique circumstances of our very unique clients.

4. Hidden (and not so hidden) expenses

Lawyers, are no different to anyone in service-driven industries.  We have expenses.  From rent, utility bills, photocopying, filing and storage, computers, industry specific software and the payment of paralegal support staff.  It all costs money and every bit of this eats into our profit margin.

That said, it is important to remember that having an effective infrastructure is a responsible way that we can deliver services efficiently.   While many of these expenses are hidden from view, a few of them are glaringly obvious.  Extravagantly appointed offices situated in the heart of the CBD are expensive.  You do realise that those gourmet cookies and latte you were offered upon arrival were paid for in your fees?  Oh, and the granite foyer; yep, you are paying for that too.

5. Don’t forget unavoidable fees

When you get your invoice, it is important to appreciate that we are not in control of all of the fees you are issued with.  Some of these fees are beyond our control.  These may include filing and application fees from various government departments (Family Court or Probate Office), taxes, levies and adjustments (that arise through property transfers), fees for reports from other non-legal professionals (Forensic Accountants or Medical specialists), or fees from other consulting legal professionals (Barristers).

Believe me when I say that nothing makes me angrier than when our clients suffer beneath, yet another, increase to government application and filing fees.  It is something we lawyers speak very loudly against.

6. Your lawyer is Incompetent

It pains me to say this but not all lawyers are good at what they do.  Like all professions, we have good and average people in the job.  Some are downright incompetent.  Occasionally, clients have had the misfortune to come across a lawyer who not only botches up their matter but they overcharge them for their services in the process.  This happens when a solicitor agrees to undertake a matter for which they lack the knowledge and experience.  The best way to avoid this is to do your research first and identify a practitioner who has expertise in the area of law you require.  Furthermore, if you feel that you have fallen victim to the incompetence of a lawyer seek a second opinion or consult the Law Society in your State.

7. We read the law not tarot cards

Much of the work that lawyers do revolves around our desire to negate risk.  In other words, we work hard to predict possible outcomes to ensure that you are protected if the worst happens.  Unfortunately, while we can identify and protect you from many risks, it is important to appreciate that unexpected circumstances often arise and will require immediate attendance.  This can lead to a need to provide services that we had not originally anticipated (from your original consult).

While you have the right to ask for a fee estimation prior to  lawyer undertaking your matter, accuracy in this is dependent upon the information you provide us with.  Furthermore, please remember, we read the law not tarot cards.

8. Clients Just Want to Fight

It happens a lot in Family Law, but it also occurs in other areas of Law. Occasionally you get a client who will refuse to concede anything.  It becomes all about the fight, with the client willing to spend thousands in legal fees to win ‘the battle of a toaster’.  Trust me, sometimes it is better to put your ego aside and concede a bit.  You may not have won the battle but you will, at the very least, be in a position to move forward in your life without being crippled with legal fees.

Some Final Thoughts

In South Australia there is a scale set by the Supreme Court every year which states the fees that lawyers can charge.  Currently this is $370 per hour.

Some lawyers will elect to charge more than this.  They are permitted to do this but they have to tell you.  Of course, someone else may charge below the scale.  Naturally, as with most things you do get what you pay for and sometimes, paying a little extra per hour to have an experienced solicitor manage your file can work out cheaper in the long run because they work more efficiently.

A word of caution, don’t assume that just because someone is charging above the scale that they are the best lawyer for your matter.  This needs to be something you determined through independent research.

Finally, while legal fees seem expensive, remember that this is because (aside from Legal aid which is only accessible by a small number of people), unlike other professionals, we do not receive any rebates or government benefits to assist the public with legal issues.   Without Medicare or private health insurance the ‘true-cost’ of medicine, treatments and medical care would be staggering.  This is a reality that many people forget when comparing legal fees with the costs of those in the medical profession.

We live in a society where we are accustomed to being bulk-billed for services or paying a small gap payment.  Alas, in Law there is No gap!  That said I still believe that for the service that lawyers provide, the quality of the advice that is given and the accountability we hold, our clients get quite a lot for their money.

As a Principal at Welden & Coluccio Lawyers, this article explores my belief in the importance of expertise and how this motivated my decision to direct my energies towards the field of Estate Planning and Litigation.

There is a tendency in the legal profession, particularly for small firms and sole practitioners, to accept any work which flows through the door. This activity, which is often rooted in the traditional ideals of what Law is, is often motivated by fear and a very real anxiety about what tomorrow may hold. A fear that tomorrow there may be no work to do and no money to pay the bills. While this is understandable it is also a counterproductive practice with the potential to cause extensive damage to your business in the long term.

Why?

In a nutshell, success in law is all about reputation. You are both your brand and your product. Anything which you do as a legal practitioner has the potential to grow your reputation or taint it. When you take on whatever matter flows through the door you are effectively diversifying your skillset to such a point that you risk incompetence.

Why?

Law is such a vast and nuanced field that demands nothing less than expertise. It is not humanly possible to develop the necessary expertise in every facet of the Law to guarantee competence, let alone expertise. In fact, the general practitioner or ‘Jack of all trades’ is, as the old adage suggests, at risk of becoming ‘a master of none’.   Too often, this leads to unsatisfactory outcomes for clients which over time can damage the reputation of your business, leading to more fear, more taking of work you are not requisitely skilled to perform, and so the cycle continues.

The decision to specialise was one Greg Welden and I adopted from the very inception of Welden & Coluccio Lawyers. The development of our expertise in estate planning is one which we view as a long term goal, and it is one that takes into consideration our context. That is, that with the passing of wealth from the War Generation to the Baby Boomers, we are amidst the single greatest transference of wealth the world and Australia has ever seen. It follows then, that the law of Estate Planning is not an area for the fainthearted, and as such, expertise is a must.

At some point, any lawyer who is really serious about being successful will need to ask the question; what am I good at? What is it about the Law which incites my curiosity? What fuels my passion for the Law?

However, merely identifying a passion is not enough to turn you into an expert. Passion must be fostered by action and a willingness to engage in your chosen area of law above and beyond the norm.   It may require that you present papers at conferences, volunteer as a member on a committee and read and write extensively about your passion.   Even so, it takes time to build a reputation in your chosen specialisation, and often it is about luck. By this I mean taking opportunities as they are presented and running with them.

As with all things in life, while there is no guarantee of success, concentrating your energies on what you are good at is the best strategy for ensuring that you shine brightest. When this happens something magical happens – your clients are satisfied knowing that their needs have been dealt with by an expert.

Welden & Coluccio Lawyers – The Estate Specialists

Call (08) 7225 8703.