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Navigating Age Discrimination In The Law With Tile Imo

Published:
18 Jun 2024
News

Wenee Yap

Legal Features Writer for the College of Law
Navigating Age Discrimination In The Law With Tile Imo

Bias and age-based discrimination remains an issue in the workforce, despite legal protections. In this article, we delve into the intricacies of age bias claims and elder abuse with Tilé Imo, Associate Director of Caxton Legal Centre. Imo, a recipient of the Queensland Law Society's 2022 Emerging Leader Award, brings his expertise in family, domestic violence, and elder law to bear on this critical topic.

We explore the evolving legal landscape, effective strategies for litigating age discrimination cases, and the emerging trends that lawyers need to be aware of to best serve their clients.

 

Recognising unlawful discrimination

Discrimination laws still have some way to go in recognising discrimination from an intersectional lens,” Tilé notes. “Regardless, it is important for us to acknowledge that when it comes to human rights and discrimination, that marginalised communities, and in particular, Aboriginal and Torres Strait Islander communities, bear the most significant structural discrimination.”

According to the Australian Government, ‘older people’ or ‘seniors’ are classified as people over the age of 65. These classifications come through the ABS, or through social security or aged care eligibility.

It’s important to recognise the diversity of such a broad cohort,” Tilé says. “People in their 60s can have completely different needs and general experiences to people in their 80s.”

Layer on race, disability, gender and other intersections, and this can lead to significantly different - and at times, severe - experiences of discrimination. In other words, ‘intersectionality’ - or multiple forms of discrimination experienced by an individual.

It is important to note that not all forms of discrimination is unlawful,” Tilé says. “It is usually only unlawful when it happens in an area of public life covered by legislation and comes with various defences or exceptions.”

 

According to Tilé, unlawful discrimination is broadly categorised as:

  • Direct discrimination: When a person treats another person worse than when they treat others in similar circumstances, because of their protected attribute. For example, ‘we do not want to hire older people or promote older people’.
  • Indirect discrimination: When a person unreasonably imposes a requirement or a rule, which seems fair and neutral, but which causes real detriment to some people because of their protected attribute. For example, everyone is expected to climb the stairs at work but certain people, such as older people, may not be able to do so due to their age.

 

Older people can experience discrimination in a number of ways:

  • Employment: Ageism in hiring practices, being passed over for promotions, or being forced to retire prematurely.
  • Services: Difficulty accessing services due to a lack of technological familiarity or because services aren't designed with their needs in mind. For example, complicated online forms. The Australian Digital Inclusion Index tells us that there’s a growing digital gap for older people. This is not to mention the limited resourcing of services for vulnerable older people.
  • Healthcare: Age-based assumptions about their health can lead to inadequate care or their concerns being dismissed. Despite there being a presumption of capacity generally at law, older people often have to contend with ageist attitudes.
  • Elder abuse: Family violence in relation to seniors and older people is prevalent with Australia’s first National Elder Abuse Prevalence Study in 2020 finding that one in six older people reported experiencing some form of elder abuse, most commonly by their family members.
  • Social isolation: Ageist stereotypes can lead to social exclusion and a sense of isolation.

 

When ‘overqualified’ becomes code for ‘too old’  

Age discrimination can be unconscious but identifiable by virtue of our anti-discrimination and human rights laws,” Tilé explains.

Age discrimination can occur in the workplace.

By overlooking experienced workers, companies may be missing out on valuable human resources and practice wisdom,” Tilé says. “Experience brings skills, institutional knowledge, and diverse perspectives. A multi-generational workforce can be much stronger than one focused on a single age group.”

The case of Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399 set a new high watermark for age discrimination casesIn this case, Mr Gutierrez was required to retire at 65 because of a company policy even though he was able and keen to do his job.  He was originally awarded $20,000 in damages but successfully appealed to increase damages to $90,000 for general damages and $142,0000 for economic losses.”

 

>

Ageism  

The underlying driver of age discrimination, often described as unconscious, is ageism.

Ageism is discrimination, stereotyping or prejudice against a person or a group of people based on age without any evidence base,” Tilé says. “For older people, this form of discrimination can lead to isolation, shame, and abuse. It is widespread but often invisible or unconscious. It can warp our perception of older people and ageing and have profound negative impacts on our personal experience of growing older.”

Tilé urges us to call out ageism when we see or hear it, as ageism impacts our self-esteem, quality of life, job prospects, health, and a sense of control over our life decisions. 

Changing the social norms that underpin negative attitudes and behaviours towards ageing and older people is critical to reducing ageism,” Tilé says. “It is important to recognise our own inclinations to infantilise and disempower older people.”

Ageism enables us as individuals to trivialise or minimise a story of discrimination from an older person and dismiss complaintsMany of us have internalised ageism and we are conditioned to believe that if bad things happen to us, they are an inevitable part of ageing. This internalised rhetoric can be a risk factor for discrimination.”

 

The impact of ageism in our communities  

Ageist attitudes in the community mean that older people are perceived to be less deserving or, incapacitated, or in need of protection,” Tile says.  He explains that Justice Connect explored what is arguably the worst form of age discrimination, elder abuse in its report, ‘A health justice partnership to address elder abuse’.

This report explored the impact of elder abuse as follows:

  • Depression and anxiety
  • Psychological harm
  • Declining physical health compounded by a decrease in resources available for healthcare
  • Increased mortality
  • Relocation to an aged care facility
  • Fear and lack of trust
  • Poverty and homelessness
  • Behavioural problems

The World Health Organisation describes elder abuse as a ‘... violation of human rights and a significant cause of injury, illness, loss in productivity, isolation and despair’.

Older People, Equity, Respect and Ageing (OPERA) was a project between Eastern Community Legal Centre and Swinburne University. 

During the project, older community members were asked how a world would look where older people feel safe, valued, and respected,” Tilé says. Here is what this group said:

  • Where everyone is afforded, respected, and valued beyond their economic value
  • A holistic approach to health and wellbeing
  • Society and services that look after the most vulnerable community members
  • Courageous conversations that normalise and embrace ageing
  • Being more community minded rather than focussing on individuals.

World Elder Abuse Awareness Day is recognised each year on 15 June,” Tilé says. “It is important that we each take time to learn about this form of family violence by visiting compass.info.  In Australia, the National Elder Abuse Prevalence study found that one in six older people have reported experiencing some form of elder abuse, and mostly from their adult children.  This is an endemic that we all have a role to prevent and stop.

 

It is vitally important lawyers are cognisant of legal red flags that could be a sign of elder abuse.  These could be:

  • older people going through separation and divorce later in life but where there is a long-term history of family violence, or inter-generational abuse or violence
  • where an older person has not received independent legal advice before signing a guarantee for a loan, or a loan, of which they will receive no benefit from
  • assets for care situations where an older person is transferring the title of their home and only asset for care. In these latter circumstances, family agreements may be crucial
  • setting up enduring documents that are not personalised to include some of their personal wishes, and also where you may have identified family conflict with the potential attorney
  • issues with Centelink paid carers, who are not providing care
  • medical separation where a spouse may become unwell and have impaired capacity

 

What do lawyers need to know?  

According to Tilé, one of the key ethical codes that applies is rule 8.1 of the Australian Solicitors Conduct Rules (ASCR).

"This rule states that a solicitor must follow a client's instructions, as long as those instructions are lawful, proper, and competent,” Tilé says.

Before seeing an older client, identify your client,” Tilé suggests. “Is your client the older person, their adult child, their Attorney or Guardian/Administrator, or litigation guardian? This is important to establish, particularly where you are supposedly giving independent advice.” 

The next logical step is to then meet the client independently and in the absence of others. Often older people may want an adult family member or support person with them. If so, think about the pros and cons and ensure they understand legal privilege.”

 Tilé noted that strong interpersonal skills can help in this space. Here is what he suggests:

  • Know your community, and where you are. For example, whether you’re based in metro/regional/remote will impact your language, service delivery and practice
  • Build relationships and connections with your client
  • Be inquisitive and learn from your client, centring them as the experts of their lives
  • If possible, meet where the client is comfortable
  • Have a trauma informed practice. Resources like the Trauma-Informed Organisational Toolkit may assist.
  • Having an understanding of ageism, racism, sexism, intersectionality and similar issues.

Tilé encourages lawyers to adopt a human rights-based legal practice by thinking about your role as a lawyer through the “PANEL” principles:

  • Participation – how do you know what is best for your clients? Are you seeing them independently?
  • Accountability - aim to have a reflective practice. This may be achieved by building your own critical consciousness on things like age, race, gender, etc, and being curious about what steps you can take to push against your own unconscious biases and be proactively anti-ageist, anti-racist and so forth.
  • Non-discrimination – ensuring you are not treating your client differently because of their age or making assumptions about their capacity, noting we broadly have a presumption of capacity in Australian jurisdictions.
  • Empowerment – ensuring your client can access your services, utilising hearing aids or interpreters. Asking yourself: how do you know they understand your advice? This may involve moving away from conversations where you might say, ‘It’s ok, I’ll do it, just trust me’, towards ‘I’m thinking about something, but I wanted to check it out with you first. Let me explain and tell me what you think’, or, ‘I’ll do whatever you instruct me or tell me to do’, towards, 'I'll know you've made an informed choice, when you can tell me what all your options are’.
  • Legality – this could include your ethical obligations as a lawyer, or your role as a referrer and important touchpoint for your client. Are you linking your clients with appropriate non-legal support, such as, financial counselling or planning, emotional supports, to a GP or other supports. It may also be that as a lawyer, you are identifying the gaps or areas of law where reform is needed, and you choose to take an active role towards law reform or policy change.

 

The information provided in this article is current as at 30 May 2024, noting that there are pending changes to Queensland’s antidiscrimination legislation.

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Elena Leonardos, principle lawyer at Adelaide Legal Solutions, chose to complete her LPMC when the SA's regulation rules changed. Now, she's executing her 12-month plan to expand her business, and seeing an increase in the firm's profitability.

How Ilvana Nanic pursued her childhood dream of family law

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How Ilvana Nanic pursued her childhood dream of family law

LLM graduate Ilvana Nanic shares why she finds family law so rewarding, and her advice to lawyers interested in studying The College of Law LLM.

Meet Best Graduating Student in Commercial Litigation, Dominique Mayo

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Meet Best Graduating Student in Commercial Litigation, Dominique Mayo

Explore how an LLM helped best graduating student (commercial litigation) Dominique Mayo advance her career.

How to break into family law with Jo Bragg

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How to break into family law with Jo Bragg

Jo Bragg, a solicitor in regional Tasmania, started as a generalist lawyer. Her personal experience of separation, along with increasing client demand, prompted her to move into family law. Insights spoke to Jo about what attracted her to family law, what her day-to-day life looks like in practice, and her advice for lawyers looking to move into the area.

NSW introduces combined Succession & Probate Lists: Key Updates

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NSW introduces combined Succession & Probate Lists: Key Updates

Recently, the Supreme Court of New South Wales introduced combined Succession & Probate Lists, applicable to family provision claims and contested probate applications. Queensland is also trialling a Wills and Estates List and there are likely to be further implications for other jurisdictions. We spoke to College of Law Lecturer Josephine Pignataro, Special Counsel at HWL Ebsworth, about what you need to know and how this will impact your practice.

REVEALED: The College’s most popular on-demand CPD short courses for 2024

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REVEALED: The College’s most popular on-demand CPD short courses for 2024

To prepare you for what’s next, let’s unpack the College of Law’s 5 most popular on-demand CPD Digital Subscription courses. It’s the best way to keep your skills sharp – and your mind engaged.

From procrastination to passion

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From procrastination to passion

Overcoming procrastination is quite simple: passion. There must be an internal desire, not dependent on anything except ourselves. That’s why we enable our learners to choose the courses and practice areas that matter most to them - from family law to advocacy - we’re helping lawyers reclaim their power and focus on the areas that they are passionate about.

Your Guide to a Career in Legal Operations

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Your Guide to a Career in Legal Operations

In Australia, the legal profession is evolving rapidly, driven by technological advancements and complex demands from clients and employers. Legal operations professionals, not necessarily with legal backgrounds, are pivotal in integrating new technologies, project management, and process improvements to meet modern market needs.

Nationally Accredited Mediator Training Course Guide

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Nationally Accredited Mediator Training Course Guide

Download our Nationally Accredited Mediator Training handbook, if you are considering adding mediation to your skill set. Inside you'll find everything you need to know about the course.

Vale Kay Smith

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Vale Kay Smith

On Monday 15 August 2016, Kay Smith, one of The College of Law’s longest serving and most respected people died after a short illness.

Kay’s legal career began when she gained her qualification in Law through the NSW Legal Practitioners Admission Board. Kay then obtained a position as an articled clerk with a city firm at a time when there were very few openings for women in the legal profession. She was admitted as a solicitor and established a legal career. She moved from private practice to the College of Law in 1983 – the start of a 30 year career at the College.

Dispute Resolution Postgraduate Programs Course Guide

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Dispute Resolution Postgraduate Programs Course Guide

Download the Dispute Resolution Postgraduate Course Guide to learn how our program can equip you with essential skills to resolve conflicts effectively and build a rewarding career in this growing field.

Defining success in life and law

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Defining success in life and law

What does it mean to be successful? Her Honour Magistrate Michelle Harries, former Assistant Director and lecturer at the College of Law WA, shares her insights at the PLT Excellence Awards Evening. The following is an extract from Her Honour’s speech.

What’s so special about specialising? The ins and outs of becoming a specialist lawyer

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What’s so special about specialising? The ins and outs of becoming a specialist lawyer

Becoming a specialist can be a smart career move. It’s a pathway to new knowledge, opportunities and challenges. But it’s also a commitment. So is specialising the right move for you? Learn the ins, outs, and must-knows of specialising – and what you need to know before you take the leap.

Dress for success: How clothes impact your performance and power

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Dress for success: How clothes impact your performance and power

What you wear has been proven to impact how you feel and perform, it has also been shown to influence how others perceive and respond to you. Given these findings what you wear to the office, a client meeting, to court, or even a job interview, matters. Experienced style expert and author, Dijanna Mulhearn, provides her expert tips on how lawyers can take their look and feel to the next level and dress for success at work.

Graduate Certificate in International Arbitration Practice Course Guide

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Graduate Certificate in International Arbitration Practice Course Guide

Download the Graduate Certificate in International Arbitration Practice Course Guide and unlock the skills needed to navigate complex, cross-border legal disputes with confidence and efficiency.

Property Law Postgraduate Programs Course Guide

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Property Law Postgraduate Programs Course Guide

Download the Property Law Postgraduate Course Guide and discover how our specialised program can help you build expertise and thrive in this dynamic field.

Graduate Certificate in Applied Law Guide

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Graduate Certificate in Applied Law Guide

Looking to boost your legal career but not ready to dive into a Master of Laws (LLM)?
 
The Graduate Certificate in Applied Law might be the answer.
 
Offering a flexible and affordable way to upskill, the Graduate Certificate is a popular option for busy legal professionals looking to sharpen their skills or master a particular field.
 
Download this course guide to receive more information. 
How ESG will impact your area of practice in law

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How ESG will impact your area of practice in law

Four years ago, ESG (Environmental, Social and Governance) principles barely registered, even today many people are left asking – “what is ESG?”. In a nutshell ESG is a framework that is used to assess a businesses’ sustainability and ethical performance. ESG principles are an ever-growing part of doing business today. For those wanting to know more about ESG the College of Law will be holding a free ESG in Australia seminar Thursday 18th of May onsite at the College headquarters in Sydney and online. 

The future has never looked brighter: words from our CEO on the College’s big move

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The future has never looked brighter: words from our CEO on the College’s big move

After more than 50 years at St Leonards, The College of Law is moving into the heart of Sydney’s CBD in early 2022.

A Lawyer's Guide to Getting Published

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A Lawyer's Guide to Getting Published

Looking to enhance your area of legal expertise via publication? Academic journals have long been a popular option for lawyers to establish a strong reputation in their practice area.

Navigating Family Law Changes: Insights from the LLM Program

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Navigating Family Law Changes: Insights from the LLM Program

Kathryn Kearley webinar on navigating recent the family law changes and the College of Law's family law postgraduate programs.

Reclaiming your career after a career break

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Reclaiming your career after a career break

Insights explores the issue of when lawyers decide to take a temporary break from the law, and what both lawyers and employers can do help experienced legal professionals return to the profession.

How to get a government job in law: everything you need to know

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How to get a government job in law: everything you need to know

Embarking on a legal career in local, state, or federal government can be an exciting move. There are many pathways for development, a broad range of practice areas, and often a healthy work-life balance. These roles are highly rewarding, and highly competitive, the College of Law tells you everything you need to know about landing a government job in law.

The legal ramifications of the Queen’s death are surprisingly small

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The legal ramifications of the Queen’s death are surprisingly small

We talk to the College of Law’s Adrian Deans, Academic Policy & Quality, James Crittenden, Head of Short Courses and CPD, and Lewis Patrick, Chief Academic Officer, about some of the pragmatic impacts of the Queen’s passing on the law and Australian legal profession.

3 Key Insights from the State of Separation Impact Report: Making Separation Simpler

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3 Key Insights from the State of Separation Impact Report: Making Separation Simpler

Parting ways in a relationship is never easy, and family lawyers are generally the first professional separating couples encounter when they end a relationship. For all of these reasons Angela Harbinson created The Separation Guide, which aims to make separation and divorce simpler, more manageable and less stressful.

Kyiesha Faulkner: How the Indigenous Business Handbook is transforming lives

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Kyiesha Faulkner: How the Indigenous Business Handbook is transforming lives

Starting a business is never easy. What step should you take first? How do you negotiate the ins and outs of your legal requirements if you’re not a lawyer? Even for a seasoned lawyer these steps are complicated…And what if you also face unique cultural considerations and complexities?

Australia's Legal CPD Requirements by State

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Australia's Legal CPD Requirements by State

This is your guide to Continuing Professional Development (CPD) requirements for lawyers across each Australian state. The CPD year runs from 1 April to 31 March, except for Tasmania, where it runs from 1 May to 30 April.

How to get into Wills & Estates with Rick Christie

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How to get into Wills & Estates with Rick Christie

Rick Christie, owner of ChristieLaw and committee member of STEP NSW, had always been attracted to the personal side of wills and estates. Insights spoke to Rick about how he came to specialise in wills and estates, what advice he might have for lawyers looking to move into the area, and what role industry organisation STEP can play for lawyers keen to become specialists.

Your Guide to a Career in Property Law

Resources

Your Guide to a Career in Property Law

Download your guide to a career in property law for everything you need to know about property law in a nutshell, the personal strengths of a property lawyer, the core expertise of a property lawyer, related areas of expertise, and the career prospects in property law.

How to Become a Partner Guide

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How to Become a Partner Guide

This guide will help you navigate the first steps towards becoming a partner. It will help you reflect on your own motivations, assess your skill set, and determine the best path forward in your career.

New Resolution Institute and The College of Law partnership to maximise skills and experience

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New Resolution Institute and The College of Law partnership to maximise skills and experience

Resolution Institute and The College of Law are pleased to announce an exciting new partnership aimed at establishing a symbiotic cooperation which will maximise the resources of both organisations through mutual collaboration and the sharing of expertise and efforts in education and training.

Major changes ahead with the Family Law Amendment Bill 2023 in progress

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Major changes ahead with the Family Law Amendment Bill 2023 in progress

Major changes are coming that will impact the family law system and the way practitioners operate in Australia. The Family Law Amendment Bill 2023 is currently under debate in parliament and after its third reading, it is now under review with the Senate Legal and Constitutional Affairs Legislation Committee. The College of Law will provide legal training support when the Family Law Amendment Bill commences, but in the meantime, we spoke with College of Law adjunct lecturer Kathryn Kearley to find out about the most important changes.  

Graduates, prize winners honoured at the Winter 2022 Academic Awards Ceremony

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Graduates, prize winners honoured at the Winter 2022 Academic Awards Ceremony

The College of Law recognised over 200 graduates of its Postgraduate Specialisation Programs at the 2022 Academic Awards Ceremony on 1 August. These awards included the Master of Laws (Applied Law), Master of Applied Law (Family Law), Graduate Diplomas of Applied Law and Graduate Diploma of Family Dispute Resolution Practice (FDRP).

Legal Practice Management Course Queensland - Course Guide

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Legal Practice Management Course Queensland - Course Guide

Download the QLD Legal Practice Management Course Guide to learn how our program can prepare you to manage a law firm or take on a leadership role within an established practice.

Legal Practice Management Course Western Australia - Course Guide

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Legal Practice Management Course Western Australia - Course Guide

Download the WA Legal Practice Management Course Guide to learn how our course can help you meet the requirements for a Principal Practising Certificate and successfully manage a legal practice.

Navigating Age Discrimination In The Law With Tile Imo

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Navigating Age Discrimination In The Law With Tile Imo

Bias and age-based discrimination remains an issue in the workforce, despite legal protections. In this article, we delve into the intricacies of age bias claims with Tilé Imo, Associate Director of Caxton Legal Centre. We explore the evolving legal landscape, effective strategies for litigating age discrimination cases, and the emerging trends that lawyers need to be aware of to best serve their clients.

Self-awareness: The surprising foundation to a thriving legal career

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Self-awareness: The surprising foundation to a thriving legal career

There’s no doubt the legal sector can be an intense work environment. Thanks to heavy caseloads and fierce competition, lawyers and other legal professionals are facing stress, anxiety and burnout on a concerning scale. But according to executive transition coach and CEO at Lucent Global, Ellie Scarf, it doesn’t have to be this way. There’s one tool that can help you manage a plethora of professional challenges. That tool? Self-awareness.

5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

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5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

The law is a complex field heavily reliant on knowledge, interpretation and advice. This makes for a profession that can have far reaching consequences and, as a result, lawyers are held to high standards. Athol Opas presents annual ethics updates to firms to keep them abreast of recent cases of misconduct and/or common ethical breaches. We spoke to Athol to find out about the most common ethical breaches lawyers should be mindful of and to gain his top tips on complying within ethical obligations. 

What are the top negligence claims facing lawyers today?

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What are the top negligence claims facing lawyers today?

The College of Law investigates which legal practice areas are most at risk of negligence claims and why. We spoke to Lawcover’s Legal Risk Manager Glenda Carry about the practice areas most affected by negligence claims, what behaviours can lead to adverse claims by clients, and what risk mitigation strategies law practices can put in place.

From LLB to Parliament – Australia’s Politicians-Turned-Lawyers

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From LLB to Parliament – Australia’s Politicians-Turned-Lawyers

Australia’s recent change in leadership has set the nation’s eyes on Malcolm Turnbull. Over the coming weeks and months, the newly appointed 29th Prime Minister will reveal his mettle as a national leader.

From ballroom dancing to the law: Meet PLT alum Helena Angela Hanna

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From ballroom dancing to the law: Meet PLT alum Helena Angela Hanna

While completing her law degree and Practical Legal Training with the College of Law, Helena Hanna also kept up with her interests outside of studies. Learn more about Helena and her law degree experience.

How to merge your love of music with your legal career: Chelsea's story

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How to merge your love of music with your legal career: Chelsea's story

Learn how Chelsea Donoghue merged her lot of arts and law: How she managed her study while on world tours, what she loves most about her work at Sanicki Lawyers, and what’s next.

Graduates and prize winners recognised in June ceremony

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Graduates and prize winners recognised in June ceremony

Graduates and prize winners celebrated their achievements, received their awards and honours remotely due to continuing COVID-19 restrictions.

How AI is being used in Family Law

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How AI is being used in Family Law

To understand where legal AI use cases are showing up within family law, the College spoke with two highly experienced practitioners who have incorporated AI into their legal practice in different ways. Fiona Kirkman, principal at Kirkman Family Law, embraced ChatGPT early on in her practice, while Jenna Downy, solicitor at Family Law Matters, helped train LawY, an AI legal research assistant.

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