In discussion with legalsuper in April 2019, former Law Institute of Victoria (LIV) President Tony Burke opens up about how to create and run a successful practice; transitioning to retirement; and a completely unexpected recent diagnosis of Type II Bipolar Disorder.
The deep end and donuts
Like many lawyers before him, Tony, aged 65 years, recalls the start of his legal career as a succession of job applications and interviews as he sought to land his first position with a legal firm. An interview with small Melbourne CBD firm Gorman & Storer in 1980 went well, but no-one told Tony because the partner who interviewed him, Matthew Gorman, passed away suddenly soon after the interview.
“In the meantime, I went on looking for other jobs until one day I received a phone call from the remaining partner who had not interviewed me, and he asked me where I was and why I had not turned up for my first day at work,” Tony recalls. “So, in the midst of the confusion following the first partner’s death I found myself with a job and I also found myself thrown in the deep end. In no time at all I was running Supreme Court trials. It was an absolutely terrifying and chaotic start to my life in law.”
“But eventually my principal Alan Storer and I struck up a routine where I'd come in very early, we would have coffee and donuts at about 6:00am for about half an hour and I was then left to my own devices”.
This “terrifying and chaotic” start to Tony’s legal career was a formative experience for the young lawyer who very quickly realised that the best way to avoid ever finding himself in a similar situation again was to be incredibly organised and to ensure that rigorous systems were in place to deal with every aspect of both the practice of law and the business side of running a firm.
“My reaction to the initial chaos was to develop systems and processes and checklists and so on to make sure that things were done properly, and I got very, very good at it,” Tony said. “I got to the point where instead of a personal injury trial or case taking three years from the date of instructions to date of completion, I could get instructions, get them issued and turn them over in 12 or 18 months, which had a pretty significant impact in terms of cash flow because the firm was funding it all. It also meant happier clients.”
It also meant a happy principal and before Tony had been at the firm for two years, he was offered partnership. Tony thought long and hard about the offer and was on the cusp of going to the bank to borrow the money required when he decided instead to join his father’s legal practice.
“My father said: ‘There's a ready-made practice out here in Malvern. I'm not getting any younger. Let's make a deal and have you come join the practice.’”
Thus in 1983, Tony, married and with the first of his two children born, joined his father Thomas Burke’s practice, later to be renamed Burke & Associates Lawyers. The firm had been established the year Tony was born (1953) and, upon his father’s retirement in 2003, Tony took over the “very typical suburban practice” with its focus on personal injury litigation, family law, commercial litigation, residential property work and wills and estates.
Technology and the business of law
Tony’s unusual start in the law at Gorman & Storer had not only instilled in Tony the need for rigorous systems, it was also the first time he became aware of the benefits technology could bring to the business side of running a legal practice.
“Very early on, I saw the possibilities of technology. My principal, Alan Storer was a very early adopter and very innovative, and that got me thinking,” Tony said.
“When I left that firm and joined my father's practice, I was determined to pursue the use of technology, so I went off and did some study at what was then Chisolm Institute, now Monash University, in computing and areas including basic coding.”
“I also started going to business seminars run by people like FMRC, which at that stage was a business unit of the University of New England. This led me to wanting to know more, so I then did post-graduate study in Business Management.”
“I proceed on the assumption that I and my legal colleagues are knowledge workers – we're here for our intellect – and knowledge workers should not be expected to engage in repetitive dross. So, the avoidance of repetitive dross mandates sophisticated knowledge management systems, and to achieve this you need to commit to a consistent investment in good quality IT.”
This focus on technology and best business practice has been a constant throughout Tony’s career and his decision to become involved with the LIV helped him further develop these areas of interest not only for himself but the wider profession. He joined the LIV’s Business Law Committee, qualified as a business law Accredited Specialist and later chaired that Committee.
Tony became a member of the LIV Council in 2004. He was Treasurer in 2006, Vice-President in 2007 and President in 2008. During his time at the LIV, Tony’s other roles included Chair of the Small Practice Section and Chair of the Continuing Professional Development Appeals Committee. He also wrote articles for the Law Institute Journal (LIJ) and in 2010 won the LIJ Rogers Legal Writing Award.
In addition, Tony was the inaugural Chair of the Law Council of Australia’s SME Business Law Committee, representing Australian lawyers in dealing with the Commonwealth Government regarding legal issues relevant to SMEs. In that capacity he was called upon to give expert evidence to a Senate inquiry. Tony has also presented at many legal conferences in Australia and overseas.
The title of the LIJ profile to mark the start of his LIV Presidency – “Tony Burke Takes Cyber Focus” – (LIJ Jan/Feb 2008) showed Tony’s keen focus on technology and how it could help all members of the profession.
In his first LIJ President’s Page, Tony also focused on technology and said: “A great deal has changed during my more than 25 years in the law. To me the seminal change has been the digitisation of information and communications and the dramatic drop in the cost and speed of data manipulation, storage and transmission. Flowing from this is the expectation that good quality results can be delivered faster and cheaper . . . This challenges us to reflect on what really makes us of value in the lives and the business affairs of our clients. What is our role in this domain?”
“I believe that over time we will find ourselves called on more as legal network navigators, strategists, advocates, communicators, negotiators and knowledge managers.” (LIJ Jan/Feb 2008)
At his firm, Tony was also an early adopter of legal process outsourcing, a practice which Burke & Associates Lawyers has increasingly used in recent years. “Initially, some of my colleagues were apprehensive that we were going to be involved in some sort of sweatshop exploitation of poorly paid people so we sent two of them to Calcutta to meet with and spend some time with the outsourcing firm that we used, and they came back amazed at the quality of the work environment and convinced that the people were being well-paid and respected,” Tony said.
“Over time we've progressed from the outsourcing company doing simple transcription work to developing precedents and completing preliminary legal research. They now also assist us by monitoring the security of our IT systems, because they have IT specialists based in Melbourne as well as Calcutta.”
“As they have grown, they've become more sophisticated to the point that when we recently changed to a new legal software application, they were pivotal in working with our local IT people to make sure it all happened.” While technology and cutting-edge business practices has been a constant focus of Tony’s career, along with a focus on being a good lawyer, Tony believes they are but part of the overall package required if a law firm is to succeed.
“A law firm is not a physical product, you can't taste it or smell it. Instead, it is a combination of many things: the way you project yourself, the physical premises you occupy, the manner in which the phone is answered, the sophistication of your website, the indications of involvement in broader society – it's a whole range of things.”
Succession planning failures and success
As President of the LIV in 2008, Tony spent much of his time travelling Victoria and he was struck by the alarming number of lawyers he met both in the city and the country who had no succession plans in place for exiting their practice. By comparison, Tony not only had a keen eye on the daily running of his firm, he was also thinking of how best to put in place the building blocks for his eventual exit from his firm, even though he did not anticipate leaving the practice for at least a decade.
Despite this forward thinking, Tony is the first to admit that his succession planning initially involved false starts and failures. Over the years, Tony met with about four other firms to discuss possible mergers, only to find it an “extremely frustrating, time-consuming and dispiriting experience.”
“Invariably we would hit the wall on an issue like ‘Oh no, the [new] firm needs to be located at my premises, not your premises.’ or ‘I can't do it now.’ or ‘I want you to guarantee my income, despite what I said about my capacity to generate all these fees.’”
“So, I pivoted to the idea that if a merger was not going to happen externally then succession would have to happen internally.” Being the owner of the firm and having more experience as both a lawyer and businessperson compared to his colleagues at Burke & Associates Lawyers, Tony wanted to start by ensuring there was as level a negotiating playing field as possible.
“It can be a difficult process because there’s a huge disparity in experience, and a huge disparity in financial literacy because, as a young lawyer, you’ve never had cause to consider the economics of the practice,” Tony said.
“So, in order to get those employees I regarded as good prospects to the point where we could have a fair conversation, I paid for them to go and do business management workshops with FMRC so they got an education from someone other than me.” Despite these best intentions and thorough planning, the first efforts at an internal merger failed and it was a few years later, with new colleagues at the firm, that success was achieved and the firm transitioned to four shareholders and directors, one of whom was Tony.
To support the smooth and equitable running of the partnership, the firm created a board with an independent Chair and the three new directors undertook the Australian Institute of Company Directors (AICD) Directors’ Course (Tony had completed the course in 2008). Remuneration is set by an independent consultant based on market rates.
“With a law firm merger, be it external or internal, if you proceed on the mistaken assumption that lawyers know governance, and that just because they have run a number of commercial litigation episodes they know how a business operates, then things will almost certainly go wrong,” Tony said.
“As a lawyer I've dealt with many situations where companies become dysfunctional. It's almost always a consequence of kitchen-sink governance, no structured meetings, no proper attention to strategy and a short-sighted refusal to invest money in training and governance.”
“You also need to bring to bear a degree of insight into your own foibles and personality and sufficient insight to plug the gaps in your skills with other people who are capable of filling those gaps.” Over time, Tony has reduced his stake in the now 12 lawyer firm and recently resigned as a director. He currently works part-time as a consultant for the firm, including mentoring younger lawyers.
“I focus on work that engages me intellectually, avoid all the boring transactional stuff that goes with it and I insist that with anything I do, I must have a young lawyer working with me because I enjoy the interaction and the mentoring.” A daunting and potentially dangerous realisation for people approaching retirement, lawyers included, is that, having spent too much of their life focusing on work to the exclusion of almost everything else, they are faced with their sole source of satisfaction – work – being taken from them without anything to replace it.
This was not the case for Tony who has always maintained a vigorous work-life balance with his interests and activities outside work including his family, athletics, swimming and cycling. He has three times qualified as part of the Australian team at World Triathlon Championships in New Zealand (2003), Switzerland (2006) and Canada (2014) and was President of Triathlon Victoria. In late June 2013 Tony attempted to swim the English Channel but in unseasonably cold conditions withdrew after six hours in 12 degrees Celsius water.
“To have nothing to look forward to after you stop working is a dangerous thing,” Tony said. “You don't supplant an intense way of living with another overnight, you have to work at these things and develop friendship groups and interests beyond the law and it takes time.”
“It really should be something that you do from day one in your legal career. In fact, it makes you a better lawyer to bring to your practice at the law an engagement with the broader world.”
“I say this because ultimately legal practice depends for its success on personal relationships, and personal relationships depend upon a capacity for empathy and sharing of experience as a foundation of trust. The broader your life experience, the more you engage with diverse groups of people, the more you'll have that in your toolkit and people relate to that. You can put people at their ease much more effectively if you have those skills or that experience.”
Tony’s final bit of advice regarding succession planning and transitioning to retirement includes starting early and seeking advice from those who know more than you do.
“Start before you think you need to. Allow yourself at least ten years and get advice,” Tony said. “Get advice from people who are deeply immersed in negotiating these transactions. Not all accountants are well suited for this sort of work. Don't get hung up on the money and recognise that the price of having some degree of peace of mind as you exit is putting your ego in your pocket. It is also enormously satisfying to see talented young people rise to the challenge and take on a role as owners of a business and be ready to take it to the next level.”
A bolt from the blue
The best laid plans of mice and men (and women) often go awry, and Tony wryly observes that his recent diagnosis with Type II Bipolar Disorder is proof of this. He is keen to talk about it as he believes it may help other lawyers avoid the difficult and confronting – although eventually positive – path he has had to tread recently.
While Tony had reduced his workload at Burke & Associates Lawyers significantly in recent years, his working hours were increasingly with more complex and difficult matters, including some Tribunal- appointed roles.
A particularly complicated, stressful and long-running matter became even more so when Tony failed to heed his surgeon’s advice to rest after prostate surgery. “I was told to stay home and not work at all for two weeks but within two days I was back working. I overdid it and had a depressive episode coupled with a physical collapse. I thought I was bullet-proof and the rules did not apply to me,” Tony said.
“My doctor referred me to a psychologist who, at the end of our first session said: ‘Our time's nearly up and we'll need to have another discussion but I'm coming to the conclusion that you're almost certainly bipolar, probably Type II.” According to national mental health charity SANE Australia, to be diagnosed with Type II Bipolar Disorder, a person must experience at least one major depressive episode lasting two weeks, and have one experience of hypomania that lasts at least four days.
Similar to mania, a hypomanic episode features an elevated, persistent or irritable mood, with increased energy, and three or more symptoms of inflated self-esteem or grandiosity; decreased need for sleep; being more talkative than usual; flight of ideas; distractibility; increased goal-directed activity; and excessive involvement in activities that have high potential for painful consequences.
Tony’s preliminary diagnosis was subsequently confirmed and accepted by Tony who says it has helped him make sense of much of his life. “I found myself looking back over my life and seeing all of these events, these behaviours and realising that all the time I had thought I was a free agent and in control of things I wasn’t, I was manifesting this syndrome,” Tony said.
“It has been very confronting to look back on much of my life and see it through a different prism. That said, I don’t dismiss the fact that much of my success has been a consequence of being bipolar and given to hypomania. There are many high performing people with this condition in history, literature and the arts. So, it’s not without its upside, quite literally.”
“Whilst this discovery has shocked me and whilst I am somewhat aghast at some of my past behaviour, I consider myself in some ways extremely fortunate to have gotten to this stage in life without having had a major problem, without having topped myself or done great harm.” Medication, family support and a determination to stay well have made Tony optimistic about the future. He continues to work and believes that he is better able now to deal with some work issues than ever before.
“They say that being diagnosed as Type II Bipolar and starting medication is a bit like dying,” Tony said. “You say goodbye to your past highs and lows and change quite fundamentally. They say you have a period of about 12 months in mourning as you grieve your lost, more extreme, persona. But at least it's good to be able to sleep properly at last.”
“A good friend of mine is also bipolar, and it's just uncanny the way we ended up together. In the period since he's got stable with his medication which is only a year or two ago, his creativity has gone through the roof. He's learning the piano, has joined a choir and is doing woodwork. I hope to do likewise in a creative sense.”
“In a sense there is a neat segue here. Just as I’ve done the business succession piece, now I am doing the psychic succession piece.” Looking back on his career more generally Tony has this to say: “The law is an extraordinarily diverse field and for those of us with a creative bent there are endless opportunities to reinvent ourselves, to find new ways of doing things and being intellectually stimulated and extended along the way.”
“All things considered, I consider myself to have been enormously privileged to have been a part of the profession for nearly forty years.”
If you require information or support in relation to mental health issues raised in this article, contact Lifeline on 13 11 14, beyondblue on 1300 224 636 or your local law society or Bar.