For the Provision of Specialist Legal Services for Small Businesses

⁠⁠⁠For the ASBFEO, a specialist legal practitioner engaged from the list will be required to provide eligible unrepresented small business clients with advice at two stages of the dispute resolution process (noting there will be flexibility in the service as not all matters will be subject to both stages). The current Guidelines for the service are available at https://www.asbfeo.gov.au/disputes-assistance/access-low-cost-advice-disputes. Note these guidelines are for the pilot and are subject to change, which will include an increase in the time offered to small businesses for the service, as reflected in the service requirement in this ATM.

Legal advice may be provided in-person, or via phone or videoconferencing. The specialist legal practitioner is responsible for providing facilities for meetings.

Stage 1 (Two-Hour Preliminary Advice)

On lodgement of the matter, the ASBFEO within the Department of the Treasury will determine whether the matter is eligible for the service. If the small business client is determined to be eligible, the ASBFEO case manager will access the list of legal specialist practitioners, and shortlist suitable specialist legal practitioners to handle the matter. This selection will largely be based on specialisation in relevant areas of law and may include geographic proximity and other relevant matters.

The small business client will be asked to review the shortlisted specialist legal practitioners and provide an order of preference. The matter will be referred to the preferred specialist legal practitioner through a Work Order, who may reject the Work Order due to any conflicts of interest or other reasons as listed within D.D.3(d) of the Additional DoSO Terms.

The specialist legal practitioner will be required to review the details of the matter as provided by an ASBFEO case manager and contact the small business client to arrange a consultation. The purpose of the consultation will be to assist the small business client to identify and clarify the issues in dispute and determine relevant material that may support resolution of the matter. The assistance must be concluded in a timely manner (within five to ten business days of receipt of the referral or as otherwise agreed with the small business client).

The specialist legal practitioner must provide the small business client with advice on the options available and the most appropriate way to resolve the dispute, with a view to creating a resolution mindset that includes:

• providing a forum to be heard where the practitioner employs active listening, patience and emotional intelligence
• robust reality testing by the practitioner that helps develop and maintain objectivity
• help in clarifying core issues of the dispute
• identification and discussion of options to settle the matter
• nurturing a willingness to collaborate, problem-solve, cooperate and compromise (rather than defend).

The ASBFEO will seek that the small business client in receipt of legal advice agree to the sharing of limited high-level particulars of the advice with the ASBFEO on a confidential basis. The purpose of sharing this advice is to help inform the ASBFEO’s recommendation of processes for resolution. As the advice will be subject to legal professional privilege (LPP), that sharing of any advice with the ASBFEO is not intended to waive LPP generally, however small business clients will be asked to agree to a limited waiver of LPP. In sharing the high-level particulars, the specialist legal practitioner will need to seek the small business client’s consent for a limited waiver after the advice is provided to ensure it is shared to the ASBFEO as a limited waiver only.

A co-payment of $100 is required from the small business client to be paid directly to the practitioner, with the balance of the cost to be paid by the ASBFEO.?We recommend the practitioner seek the copayment before or at the time of consultation as any outstanding copayments will need to be managed by the practitioner.

To conclude Stage 1, the legal practitioner will provide:

• the ASBFEO with?an invoice for two hours of legal advice, with the co-payment of $100 deducted from the total cost of service; and
• where agreed by the small business client, a high-level report to the ASBFEO with a description of relevant elements of the dispute suitable for alternative dispute resolution (ADR) and whether the legal practitioner believes the matter would benefit from ADR (including identifying the type of ADR and whether a half or full day may be required).

The amount of time spent on reviewing documentation and speaking to the small business client within the allocated time is at the discretion of the practitioner depending on the circumstances of the matter. It is expected that in most cases the majority of the time will be spent in the discussion with the small business client.

Stage 2 (Two-Hour Pre-ADR Advice)

If after the Stage 1 legal consultation the small business client begins to proceed to a facilitated ADR process recommended by the ASBFEO or required by a Code, such as mediation or conciliation, the small business client may be provided with a second consultation from the same specialist legal practitioner or another legal practitioner. A small business client may also be referred directly into Stage 2 where Stage 1 advice is not required.

The matter will be referred to the preferred specialist legal practitioner through a Work Order, who may reject the Work Order due to any conflicts of interest or other reasons as listed within D.D.3(d) of the Additional DoSO Terms.

At this consultation, the specialist legal practitioner will be required to provide advice to assist the small business client to prepare for the ADR process. This will include preparing documentation, assisting the small business client to understand what to expect during ADR, identifying the outcomes that the small business client is seeking and adopting a negotiation mindset. The consultation should also be concluded in a timely manner (within five to ten business days of receipt of the Stage 2 referral or as otherwise agreed with the small business client).

In addition, the specialist legal practitioner will provide:

• a forum to be heard where the practitioner employs active listening, patience and emotional intelligence
• robust reality testing by the practitioner that helps develop and maintain objectivity
• help in clarifying core issues of the dispute
• identification and/or reviewing options to settle the matter, and
• help to nurture a willingness to collaborate, problem-solve, cooperate and compromise (rather than defend).

This advice will not involve a limited waiver of LPP, with no report generally being provided to the ASBFEO.

No copayment is required from the small business client for the second consultation, and the cost will be met by the ASBFEO.?

However, if the ASBFEO makes a formal recommendation for the parties to proceed straight to ADR, such as for a Code related matter where the issues have been identified in a Notice of Dispute, and Stage 1 Preliminary Advice is not required, a $100 co-payment will be required from the small business client, with the balance of the cost to be paid by the ASBFEO. This will be advised by the ASBFEO at the time of engagement through a Work Order.

To conclude Stage 2, the legal practitioner will provide the ASBFEO with an invoice for two hours of legal advice (and, if applicable, with the co-payment of $100 deducted from the total cost of service).

Other Services including for other Commonwealth Entities

The Standing Offer will be made available to other Commonwealth (entity and company) Customers who seek to support small business clients by subsidising specialist legal advice. Should other Customers access the Standing Offer panel, a Work Order will be issued with the specific requirements and payment arrangements based on the Prices and Rates in the DoSO. The Supplier may reject the Work Order where the Supplier is unable to perform the services within the timeframes required by the Customer or for any other reason listed within D.D.3(d) of the Additional DoSO Terms. The Lead Customer may also issue a Work Order for other specialist legal services for small business clients under the DoSO.

Required Capability

The following Capability is required:

Legal practitioner (solicitor or barrister) who is admitted to practise and has a current practising certificate in their relevant State or Territory, and who has expertise in providing legal advice about:

• one or more areas of dispute resolution, and
• one or more areas of law

as set out in Annex A - Areas of Law and Dispute Resolution Types.