Queensland Bills

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This is a Bill, not an Act. For current law, see the Acts databases.


LEGAL PROFESSION BILL 2007

           Queensland



Legal Profession Bill 2007

 


 

 

Queensland Legal Profession Bill 2007 Contents Page Chapter 1 Introduction Part 1.1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 3 Main purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Part 1.2 Interpretation Division 1 Dictionary 4 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Division 2 Meaning of various terms 5 Terms relating to lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 6 Terms relating to legal practitioners . . . . . . . . . . . . . . . . . . . . . . . 35 7 Terms relating to associates and principals of law practices . . . . 36 8 Home jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 9 Suitability matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 10 Information notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 11 References to convictions for offences. . . . . . . . . . . . . . . . . . . . . 40 12 Meaning of government legal officer and engaged in government work and related matters . . . . . . . . . . . . . . . . . . . . . 41 Division 3 Jurisdiction of Supreme Court and related matters 13 Inherent jurisdiction of Supreme Court. . . . . . . . . . . . . . . . . . . . . 43 14 Jurisdiction of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 15 Appeal period for appeal to Supreme Court or tribunal . . . . . . . . 44 16 Hearing and deciding particular action without a jury. . . . . . . . . . 44 Division 4 Other interpretation matters 17 Notes in text may indicate difference to language in corresponding law .................................. 44 18 Timing for doing things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 19 Grounds that are reasonable in the circumstances . . . . . . . . . . . 45

 


 

2 Legal Profession Bill 2007 20 References to parts in this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Chapter 2 General requirements for engaging in legal practice Part 2.1 Preliminary 21 Simplified overview of ch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Part 2.2 Reservation of legal work Division 1 Preliminary 22 Main purposes for pt 2.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 23 Part does not apply to a person if authorised under a Commonwealth law or a government legal officer . . . . . . . . . . . . 47 Division 2 Prohibitions 24 Prohibition on engaging in legal practice when not entitled . . . . . 48 25 Prohibition on representing or advertising entitlement to engage in legal practice when not entitled . . . . . . . . . . . . . . . . . . . . . . . . 50 26 Associates who are disqualified or convicted persons . . . . . . . . . 50 Division 3 General 27 Professional discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Part 2.3 Admission of local lawyers Division 1 Preliminary 28 Main purposes of pt 2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 29 Definitions for pt 2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Division 2 Eligibility and suitability for admission 30 Eligibility for admission to the legal profession under this Act . . . 53 31 Suitability for admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 32 Early consideration of suitability . . . . . . . . . . . . . . . . . . . . . . . . . . 54 33 Involvement of Supreme Court whether by referral or on appeal . 55 Division 3 Admission to the legal profession under this Act 34 Application for admission to the legal profession . . . . . . . . . . . . . 56 35 Role of Supreme Court relating to application for admission . . . . 56 36 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 37 Roll of persons admitted to the legal profession as a lawyer . . . . 57 38 Local lawyer is officer of Supreme Court . . . . . . . . . . . . . . . . . . . 58 Division 4 Powers and functions of board 39 Role of the board relating to application for admission. . . . . . . . . 58 40 Consideration of applicant's eligibility and suitability . . . . . . . . . . 59 Division 5 Miscellaneous 41 Board may appear before Supreme Court . . . . . . . . . . . . . . . . . . 59 42 Fees payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

 


 

3 Legal Profession Bill 2007 Part 2.4 Legal practice by Australian legal practitioners Division 1 Preliminary 43 Main purposes of pt 2.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Division 2 Legal practice in this jurisdiction by Australian legal practitioners 44 Entitlement to practise in this jurisdiction . . . . . . . . . . . . . . . . . . . 60 Division 3 Local practising certificates generally 45 Local practising certificates generally. . . . . . . . . . . . . . . . . . . . . . 61 46 Suitability to hold local practising certificate . . . . . . . . . . . . . . . . . 61 47 Duration of local practising certificates. . . . . . . . . . . . . . . . . . . . . 63 48 Local legal practitioner is officer of Supreme Court . . . . . . . . . . . 63 Division 4 Grant or renewal of local practising certificates 49 Application for grant or renewal of local practising certificate. . . . 64 50 Manner of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 51 Grant or renewal of local practising certificate . . . . . . . . . . . . . . . 67 Division 5 Conditions on local practising certificates 52 Conditions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 53 Conditions imposed by law society or bar association . . . . . . . . . 69 54 Applications relating to conditions . . . . . . . . . . . . . . . . . . . . . . . . 70 55 Statutory condition regarding conditions imposed on interstate admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 56 Statutory condition regarding practice as solicitor . . . . . . . . . . . . 71 57 Statutory condition regarding notification of offence . . . . . . . . . . 72 58 Compliance with conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Division 6 Amendment, suspension or cancellation of local practising certificates 59 Application of this division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 60 Grounds for amending, suspending or cancelling a local practising certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 61 Amending, suspending or cancelling a local practising certificate 74 62 Operation of amendment, suspension or cancellation of local practising certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 63 Immediate amendment or suspension of local practising certificate ...................................... 76 64 Removal from local roll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 65 Consensual amendment or cancellation etc. . . . . . . . . . . . . . . . . 78 66 Relationship of div 6 with ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

 


 

4 Legal Profession Bill 2007 Division 7 Special powers in relation to local practising certificates--show cause events 67 Application for local practising certificate if show cause event happened after first admission . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 68 Requirement if show cause event . . . . . . . . . . . . . . . . . . . . . . . . 81 69 Refusal, amendment, suspension or cancellation of local practising certificate because of failure to show cause . . . . . . . . 81 70 Restriction on making further application . . . . . . . . . . . . . . . . . . . 82 71 Relationship of div 7 with ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Division 8 Further provisions relating to local practising certificate 72 Surrender and cancellation of local practising certificate . . . . . . . 83 73 Return of local practising certificate . . . . . . . . . . . . . . . . . . . . . . . 83 Division 9 Interstate legal practitioners 74 Requirement for interstate practising certificate and professional indemnity insurance . . . . . . . . . . . . . . . . . . . . . . . . . 84 75 Extent of entitlement of interstate legal practitioner to practise in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 76 Additional condition on interstate legal practitioner engaging in legal practice in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 86 77 Special provision about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction . . . . . . . . . . . . . . . 86 78 Interstate legal practitioner is officer of Supreme Court . . . . . . . . 87 Division 10 Miscellaneous 79 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 80 Consideration of applicant for local practising certificate and certificate holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 81 Register of local practising certificates . . . . . . . . . . . . . . . . . . . . . 89 82 Supreme Court orders about conditions . . . . . . . . . . . . . . . . . . . 90 83 Regulatory authority may charge reasonable fees . . . . . . . . . . . . 90 Part 2.5 Suitability reports Division 1 Preliminary 84 Main purpose of pt 2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 85 Definitions for pt 2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Division 2 Police reports 86 Relevant authority may ask for police report . . . . . . . . . . . . . . . . 92 Division 3 Health assessments 87 Health assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 88 Appointment of health assessor . . . . . . . . . . . . . . . . . . . . . . . . . . 93 89 Health assessment report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

 


 

5 Legal Profession Bill 2007 90 Payment for health assessment and report . . . . . . . . . . . . . . . . . 95 91 Use of health assessment report . . . . . . . . . . . . . . . . . . . . . . . . . 95 Division 4 General 92 Confidentiality of suitability report . . . . . . . . . . . . . . . . . . . . . . . . 96 93 Operation of pt 2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Part 2.6 Inter-jurisdictional provisions regarding admission and practising certificates Division 1 Preliminary 94 Main purpose of pt 2.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 95 Relationship of this part with ch 4 . . . . . . . . . . . . . . . . . . . . . . . . 99 Division 2 Notifications to be given by local authorities to interstate authorities 96 Notification to other jurisdictions about application for admission 99 97 Notification to other jurisdictions about removal from local roll. . . 99 98 Law society and bar association to notify other jurisdictions about particular matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Division 3 Notifications to be given by lawyers to local authorities 99 Lawyer to give notice of removal in another jurisdiction . . . . . . . . 101 100 Lawyer to give notice of interstate orders . . . . . . . . . . . . . . . . . . . 101 101 Lawyer to give notice of foreign regulatory action . . . . . . . . . . . . 102 102 Provisions relating to requirement to notify . . . . . . . . . . . . . . . . . 102 Division 4 Taking of action by local authorities in response to notifications received 103 Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction . . . . . . . . . . . . . . . . . . . . 103 104 Peremptory cancellation of local practising certificate following removal of name from interstate roll . . . . . . . . . . . . . . . . . . . . . . . 103 105 Show cause procedure for removal of lawyer's name from local roll following foreign regulatory action . . . . . . . . . . . . . . . . . . . . . 104 106 Show cause procedure for cancellation of local practising certificate following foreign regulatory action . . . . . . . . . . . . . . . . 105 107 Order for non-removal of name or non-cancellation of local practising certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 108 Local authority may give information to other local authority . . . . 107 Part 2.7 Incorporated legal practices and multi-disciplinary partnerships Division 1 Preliminary 109 Main purposes of pt 2.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 110 Definitions for pt 2.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

 


 

6 Legal Profession Bill 2007 Division 2 Incorporated legal practices providing legal services 111 Nature of incorporated legal practice . . . . . . . . . . . . . . . . . . . . . . 109 112 Non-legal services and businesses of incorporated legal practices ...................................... 110 113 Corporations eligible to be incorporated legal practices. . . . . . . . 110 114 Notice of intention to start providing legal services . . . . . . . . . . . 111 115 Prohibition on corporations or directors etc. representing that corporation is incorporated legal practice. . . . . . . . . . . . . . . . . . . 111 116 Notice of termination of provision of legal services . . . . . . . . . . . 112 Division 3 Legal practitioner directors, and other legal practitioners employed by incorporated legal practices 117 Incorporated legal practice must have legal practitioner director . 113 118 Obligations of legal practitioner director relating to misconduct . . 114 119 Incorporated legal practice without legal practitioner director . . . 115 120 Obligations and privileges of an Australian legal practitioner who is an officer or employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Division 4 Particular matters including application of other provisions of relevant laws 121 Professional indemnity insurance. . . . . . . . . . . . . . . . . . . . . . . . . 117 122 Conflicts of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 123 Disclosure obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 124 Effect of non-disclosure on provision of particular services . . . . . 119 125 Application of legal profession rules . . . . . . . . . . . . . . . . . . . . . . . 120 126 Requirements relating to advertising . . . . . . . . . . . . . . . . . . . . . . 120 127 Extension to incorporated legal practice of vicarious liability relating to failure to account and dishonesty . . . . . . . . . . . . . . . . 121 128 Sharing of receipts, revenue or other income. . . . . . . . . . . . . . . . 121 129 Disqualified persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Division 5 Ensuring compliance with this Act by incorporated legal practices 130 Commissioner or law society may audit incorporated legal practice ....................................... 122 131 Application of chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 132 Banning of incorporated legal practices . . . . . . . . . . . . . . . . . . . . 123 133 Disqualification from managing incorporated legal practice . . . . . 125 134 Disclosure of information to the Australian Securities and Investments Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Division 6 External administration 135 External administration proceedings under Corporations . . . . . . 127

 


 

7 Legal Profession Bill 2007 136 External administration proceedings under other legislation . . . . 128 137 Incorporated legal practice that is subject to receivership under this Act and external administration under Corporations Act . . . . 128 138 Incorporated legal practice that is subject to receivership under this Act and external administration under other legislation . . . . . 129 Division 7 Miscellaneous provisions relating to incorporated legal practices 139 Cooperation between courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 140 Relationship of Act to constitution of incorporated legal practice ..................................... 130 141 Relationship of Act to legislation establishing incorporated legal practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 142 Relationship of Act to Corporations legislation and certain other instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 143 Undue influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Division 8 Multi-disciplinary partnerships 144 Nature of multi-disciplinary partnership . . . . . . . . . . . . . . . . . . . . 132 145 Conduct of multi-disciplinary partnerships . . . . . . . . . . . . . . . . . . 132 146 Notice of intention to start practice in multi-disciplinary partnership ..................................... 133 147 General obligations of legal practitioner partners. . . . . . . . . . . . . 133 148 Obligations of legal practitioner partner relating to misconduct . . 134 149 Actions of partner who is not an Australian legal practitioner. . . . 134 150 Obligations and privileges of Australian legal practitioner who is partner or employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 151 Conflicts of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 152 Disclosure obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 153 Effect of non-disclosure on provision of particular services . . . . . 137 154 Application of legal profession rules . . . . . . . . . . . . . . . . . . . . . . . 137 155 Requirements relating to advertising . . . . . . . . . . . . . . . . . . . . . . 137 156 Sharing of receipts, revenue or other income. . . . . . . . . . . . . . . . 138 157 Disqualified persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 158 Prohibition on partnership with particular partner who is not an Australian legal practitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 159 Undue influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Division 9 Miscellaneous 160 Obligations of practitioners not affected . . . . . . . . . . . . . . . . . . . . 140 161 Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

 


 

8 Legal Profession Bill 2007 Part 2.8 Legal practice by foreign lawyers Division 1 Preliminary 162 Main purpose of pt 2.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 163 Definitions for pt 2.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 164 This part does not apply to Australian legal practitioners . . . . . . . 142 Division 2 Practice of foreign law 165 Requirement for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 166 Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 167 Scope of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 168 Form of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 169 Application of Australian professional ethical and practice standards ....................................... 145 170 Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 171 Letterhead and other identifying documents . . . . . . . . . . . . . . . . 147 172 Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 173 Foreign lawyer employing Australian legal practitioner. . . . . . . . . 149 174 Trust money and trust accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 149 175 Professional indemnity insurance. . . . . . . . . . . . . . . . . . . . . . . . . 150 176 Fidelity cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Division 3 Local registration of foreign lawyers generally 177 Local registration of foreign lawyers . . . . . . . . . . . . . . . . . . . . . . . 151 178 Duration of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 179 Local registered foreign lawyer is not officer of Supreme Court. . 152 Division 4 Application for grant or renewal of local registration 180 Application for grant or renewal of registration . . . . . . . . . . . . . . . 152 181 Manner of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 182 Requirements regarding applications for the grant or renewal of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Division 5 Grant or renewal of registration 183 Grant or renewal of local registration . . . . . . . . . . . . . . . . . . . . . . 155 184 Requirement to grant or renew registration if criteria satisfied . . . 156 185 Refusal to grant or renew registration . . . . . . . . . . . . . . . . . . . . . 157 Division 6 Amendment, suspension or cancellation of local registration 186 Application of pt 2.8, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 187 Grounds for amending, suspending or cancelling registration . . . 159

 


 

9 Legal Profession Bill 2007 188 Amending, suspending or cancelling registration . . . . . . . . . . . . . 160 189 Operation of amendment, suspension or cancellation of registration ...................................... 161 190 Other ways of amending or cancelling registration. . . . . . . . . . . . 162 191 Relationship of this division with ch 4. . . . . . . . . . . . . . . . . . . . . . 163 Division 7 Special powers in relation to local registration--show cause events 192 Applicant for local registration--show cause event . . . . . . . . . . . 163 193 Locally registered foreign lawyer--show cause event . . . . . . . . . 164 194 Refusal, amendment, suspension or cancellation of local registration--failure to show cause . . . . . . . . . . . . . . . . . . . . . . . 164 195 Restriction on making further applications . . . . . . . . . . . . . . . . . . 165 196 Relationship of this division with pt 4.6 and ch 6 . . . . . . . . . . . . . 165 Division 8 Further provisions relating to local registration 197 Immediate suspension of registration. . . . . . . . . . . . . . . . . . . . . . 166 198 Surrender of local registration certificate and cancellation of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 199 Automatic cancellation of registration on grant of practising certificate ........................................ 167 200 Suspension or cancellation of registration not to affect disciplinary processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 201 Return of local registration certificate on amendment, suspension or cancellation of registration . . . . . . . . . . . . . . . . . . 168 Division 9 Conditions on registration 202 Conditions generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 203 Conditions imposed by law society. . . . . . . . . . . . . . . . . . . . . . . . 169 204 Statutory condition regarding notification of offence . . . . . . . . . . 169 205 Conditions imposed by regulation . . . . . . . . . . . . . . . . . . . . . . . . 170 206 Compliance with conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Division 10 Interstate-registered foreign lawyers 207 Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 208 Additional conditions on practice of interstate-registered foreign lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Division 11 Miscellaneous 209 Consideration and investigation of applicants and locally registered foreign lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 210 Register of locally registered foreign lawyers . . . . . . . . . . . . . . . . 172 211 Publication of information about locally registered foreign lawyers ....................................... 173

 


 

10 Legal Profession Bill 2007 212 Supreme Court orders about conditions . . . . . . . . . . . . . . . . . . . 173 213 Exemption by law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 214 Membership of professional association . . . . . . . . . . . . . . . . . . . 173 215 Refund of fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Chapter 3 Conduct of legal practice Part 3.1 Preliminary 216 Simplified outline of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Part 3.2 Manner of legal practice Division 1 Preliminary 217 Main purposes of pt 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 218 Definitions for pt 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Division 2 Rules for Australian legal practitioners and other individuals 219 Rules for Australian legal practitioners engaged in practice as solicitors and others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 220 Rules for Australian legal practitioners engaged in practice in the manner of barristers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 221 Legal profession rules may provide for application to government legal officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 222 Subject matter of legal profession rules . . . . . . . . . . . . . . . . . . . . 177 223 Public notice of proposed legal profession rules . . . . . . . . . . . . . 177 Division 3 Rules for incorporated legal practices and multi-disciplinary partnerships 224 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Division 4 Notice about making of legal professional rules and role of committee 225 Minister to give notice of solicitors and barristers rules . . . . . . . . 179 226 Monitoring role of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Division 5 General provisions for legal profession rules 227 Binding nature of legal profession rules . . . . . . . . . . . . . . . . . . . . 180 228 Legal profession rules may prohibit practices relating to mortgage financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 229 Relationship of legal profession rules to this Act and regulation . 181 230 Availability of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Division 6 Administration rules 231 Rules other than legal profession rules . . . . . . . . . . . . . . . . . . . . 181 232 Indemnity rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 233 Relationship of administration rules to this Act and regulation. . . 187

 


 

11 Legal Profession Bill 2007 234 Relationship between legal profession rules and administration rules ........................................... 187 235 Availability of administration rules . . . . . . . . . . . . . . . . . . . . . . . . 188 Part 3.3 Trust money and trust accounts Division 1 Preliminary 236 Main purposes of pt 3.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 237 Definitions for pt 3.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 238 Money involved in financial services or investments . . . . . . . . . . 191 239 Decisions about status of money . . . . . . . . . . . . . . . . . . . . . . . . . 192 240 Application of part to law practices and trust money . . . . . . . . . . 192 241 Protocols for deciding where trust money is received . . . . . . . . . 193 242 When money is received . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 243 Discharge by legal practitioner associate of obligations of law practice .......................................... 194 244 Liability of principals of law practice . . . . . . . . . . . . . . . . . . . . . . . 195 245 Former practices, principals and associates . . . . . . . . . . . . . . . . 195 246 Barristers not to receive trust money . . . . . . . . . . . . . . . . . . . . . . 195 Division 2 Trust accounts and trust money 247 Keeping general trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 248 Certain trust money to be deposited in general trust account . . . 196 249 Holding, disbursing and accounting for trust money. . . . . . . . . . . 197 250 Withdrawing trust money from general trust account . . . . . . . . . . 198 251 Controlled money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 252 Withdrawing controlled money from controlled money account . . 200 253 Transit money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 254 Trust money subject to specific powers . . . . . . . . . . . . . . . . . . . . 201 255 Trust money received in the form of cash. . . . . . . . . . . . . . . . . . . 201 256 Protection of trust money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 257 Intermixing money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 258 Dealing with trust money--legal costs and unclaimed money . . . 203 259 Deficiency in trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 260 Reporting certain irregularities and suspected irregularities . . . . 204 261 Keeping trust records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 262 False names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Division 3 Investigations 263 Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 264 Investigator's report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

 


 

12 Legal Profession Bill 2007 265 When costs of investigation are debt . . . . . . . . . . . . . . . . . . . . . . 206 266 Law society or commissioner may give information to professional accounting association. . . . . . . . . . . . . . . . . . . . . . . 207 Division 4 External examinations 267 Appointment and qualifications of external examiner . . . . . . . . . . 208 268 Law practice must have trust records externally examined . . . . . 209 269 Restriction on appointment of associates as external examiner . 209 270 Law practice to give notice of external examiner . . . . . . . . . . . . . 210 271 Notice if person stops being external examiner . . . . . . . . . . . . . . 210 272 Examination of affairs in examining trust records. . . . . . . . . . . . . 210 273 Carrying out external examination . . . . . . . . . . . . . . . . . . . . . . . . 211 274 External examiner's report on external examination . . . . . . . . . . 211 275 External examiner to give other reports . . . . . . . . . . . . . . . . . . . . 211 276 Final examination of trust records . . . . . . . . . . . . . . . . . . . . . . . . 212 277 Law practice liable for costs of examination . . . . . . . . . . . . . . . . . 213 278 Disqualification of person as external examiner . . . . . . . . . . . . . . 213 279 Offence about carrying on external examination . . . . . . . . . . . . . 214 Division 5 Provisions relating to ADIs 280 Approval of ADIs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 281 ADIs not subject to certain obligations and liabilities . . . . . . . . . . 215 282 Reports, records and information . . . . . . . . . . . . . . . . . . . . . . . . . 215 Division 6 Prescribed accounts and Legal Practitioner Interest on Trust Accounts Fund Subdivision 1 Preliminary 283 Main purposes of pt 3.3, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 284 Definitions for pt 3.3, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Subdivision 2 Prescribed accounts 285 Regulation for prescribed account . . . . . . . . . . . . . . . . . . . . . . . . 217 286 Deposits to prescribed account . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Subdivision 3 Interest on trust accounts paid to department 287 Arrangement with financial institution . . . . . . . . . . . . . . . . . . . . . . 218 Subdivision 4 Legal Practitioner Interest on Trust Accounts Fund 288 Establishment of fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 289 Payments from fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 290 Minister to decide distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 291 Submission of budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

 


 

13 Legal Profession Bill 2007 Division 7 Miscellaneous 292 Restrictions on receipt of trust money . . . . . . . . . . . . . . . . . . . . . 222 293 Application of Act to incorporated legal practices and multi-disciplinary partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 294 Disclosure to clients--money not received or held as trust money ....................................... 223 295 Disclosure of accounts used to hold money entrusted to legal practitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 296 Report about law society's functions . . . . . . . . . . . . . . . . . . . . . . 224 297 Report about law practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 298 Regulation-making power relating to trust money and trust accounts ....................................... 225 Part 3.4 Costs disclosure and assessment Division 1 Preliminary 299 Main purposes of pt 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 300 Definitions for pt 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 301 Terms relating to third party payers . . . . . . . . . . . . . . . . . . . . . . . 228 Division 2 Application of this part 302 Application of part--first instructions rule. . . . . . . . . . . . . . . . . . . 229 303 Part also applies by agreement or at client's election. . . . . . . . . . 229 304 Displacement of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 305 How and where does a client first instruct a law practice . . . . . . . 231 306 When does a matter have a substantial connection with this jurisdiction ........................................ 231 307 What happens when different laws apply to a matter. . . . . . . . . . 231 Division 3 Costs disclosure 308 Disclosure of costs to clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 309 Disclosure if another law practice is to be retained . . . . . . . . . . . 234 310 How and when must disclosure be made to a client . . . . . . . . . . 235 311 Exceptions to requirement for disclosure . . . . . . . . . . . . . . . . . . . 235 312 Additional disclosure--settlement of litigious matters . . . . . . . . . 238 313 Additional disclosure--uplift fees . . . . . . . . . . . . . . . . . . . . . . . . . 238 314 Form of disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 315 Ongoing obligation to disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 316 Effect of failure to disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 317 Progress reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 318 Disclosure to associated third party payers . . . . . . . . . . . . . . . . . 241

 


 

14 Legal Profession Bill 2007 Division 4 Legal costs generally 319 On what basis are legal costs recoverable . . . . . . . . . . . . . . . . . . 242 320 Security for legal costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 321 Interest on unpaid legal costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Division 5 Costs agreements 322 Making costs agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 323 Conditional costs agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 324 Conditional costs agreements involving uplift fees . . . . . . . . . . . . 245 325 Contingency fees are prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . 246 326 Effect of costs agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 327 Particular costs agreements are void . . . . . . . . . . . . . . . . . . . . . . 246 328 Setting aside costs agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Division 6 Billing 329 Legal costs can not be recovered unless bill has been served . . 250 330 Bills. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 331 Notification of client's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 332 Request for itemised bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 333 Interim bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Division 7 Costs assessment 334 Definition for div 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 335 Application by clients or third party payers for costs assessment 253 336 Application for costs assessment by law practice retaining another law practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 337 Application for costs assessment by law practice giving bill. . . . . 257 338 Consequences of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 339 Persons to be notified of application. . . . . . . . . . . . . . . . . . . . . . . 258 340 Assessment of complying costs agreements . . . . . . . . . . . . . . . . 258 341 Criteria for assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 342 Costs of assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 343 Referral for disciplinary action . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 344 Contracting out of div 7 by sophisticated clients etc. . . . . . . . . . . 261 Division 8 Speculative personal injury claims 345 Main purpose of div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 346 Definitions for div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 347 Maximum payment for conduct of speculative personal injury claim ......................................... 262

 


 

15 Legal Profession Bill 2007 Division 9 Miscellaneous 348 Application of part to incorporated legal practices and multi-disciplinary partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 349 Imputed acts, omission or knowledge . . . . . . . . . . . . . . . . . . . . . 264 350 Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 351 Preservation of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 352 Ordinary protection and immunity allowed . . . . . . . . . . . . . . . . . . 265 Part 3.5 Professional indemnity insurance 353 Professional indemnity insurance. . . . . . . . . . . . . . . . . . . . . . . . . 266 354 Continuing obligation for professional indemnity insurance . . . . . 267 Part 3.6 Fidelity cover Division 1 Preliminary 355 Main purpose of pt 3.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 356 Definitions for pt 3.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 357 Application of pt 3.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 358 Time of default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Division 2 Fidelity fund 359 Establishment of fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 360 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 361 Limitation on borrowing powers of law society for fidelity fund . . . 271 362 Fund to be kept in separate account . . . . . . . . . . . . . . . . . . . . . . 271 363 Moneys payable into fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . 272 364 Expenditure from fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 365 Audit of accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 366 Law society may delegate its powers in relation to the fidelity fund to a committee of management . . . . . . . . . . . . . . . . . . . . . . 273 367 Minister may require report about fund . . . . . . . . . . . . . . . . . . . . 273 368 Contribution to fidelity fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274 369 Levy for benefit of fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 274 370 Law society may advance moneys from its general funds to fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Division 3 Defaults to which this part applies 371 Meaning of relevant jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 275 372 Defaults to which this part applies . . . . . . . . . . . . . . . . . . . . . . . . 276 373 Defaults relating to financial services or investments. . . . . . . . . . 277 Division 4 Claims about defaults 374 Claims about defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

 


 

16 Legal Profession Bill 2007 375 Time limit for making claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 376 Advertisements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 377 Time limit for making claims following advertisement. . . . . . . . . . 280 378 Claims not affected by certain matters . . . . . . . . . . . . . . . . . . . . . 280 379 Investigation of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 380 Advance payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Division 5 Deciding claims 381 Law society to decide claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 382 Maximum amount allowable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 383 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 384 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 385 Reduction of claim because of other benefits . . . . . . . . . . . . . . . 284 386 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 387 Proceedings brought under right of subrogation . . . . . . . . . . . . . 285 388 Repayment of surplus amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 389 Notification of delay in making decision . . . . . . . . . . . . . . . . . . . . 286 390 Notification of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Division 6 Right of action against external examiner 391 External examiner guilty of neglect . . . . . . . . . . . . . . . . . . . . . . . 287 Division 7 Appeals 392 Appeal against decision on claim . . . . . . . . . . . . . . . . . . . . . . . . . 288 393 Appeal against failure to decide claim within 1 year. . . . . . . . . . . 289 394 Proceedings on appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Division 8 Payments from fidelity fund for defaults 395 Payments for defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 396 Caps on payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 397 Sufficiency of fidelity fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Division 9 Claims by law practices or associates 398 Claims by law practices or associates about defaults . . . . . . . . . 292 399 Claims by law practices or associates about notional defaults. . . 293 Division 10 Defaults involving interstate elements 400 Concerted interstate defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 401 Defaults involving interstate elements if committed by 1 associate only ..................................... 294 Division 11 Inter-jurisdictional provisions 402 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295

 


 

17 Legal Profession Bill 2007 403 Forwarding claims to corresponding authority in another jurisdiction ..................................... 296 404 Investigation of defaults to which this part applies . . . . . . . . . . . . 296 405 Investigation of defaults to which a corresponding law applies . . 296 406 Investigation of concerted interstate defaults and other defaults involving interstate elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 407 Recommendations by law society to corresponding authority . . . 297 408 Recommendations to and decisions by law society after receiving recommendations from corresponding authority. . . . . . 298 409 Request to another jurisdiction to investigate aspects of claim . . 298 410 Request from another jurisdiction to investigate aspects of claim 299 411 Cooperation with other authorities . . . . . . . . . . . . . . . . . . . . . . . . 299 Division 12 Miscellaneous 412 Interstate legal practitioner becoming authorised to withdraw from local trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 413 Application of part to incorporated legal practices . . . . . . . . . . . . 300 414 Application of part to multi-disciplinary partnerships . . . . . . . . . . 301 415 Application of part to Australian lawyers whose practising certificates have lapsed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 Chapter 4 Complaints and discipline Part 4.1 Preliminary 416 Main purposes of ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 417 Application of chapter to lawyers, former lawyers and former practitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Part 4.2 Key concepts 418 Meaning of unsatisfactory professional conduct. . . . . . . . . . . . . . 303 419 Meaning of professional misconduct . . . . . . . . . . . . . . . . . . . . . . 303 420 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct . . . . . . . . . . . . . . . . . . . . . . . 304 421 Meaning of respondent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 Part 4.3 Application of this chapter 422 Practitioners to whom this chapter applies . . . . . . . . . . . . . . . . . . 306 423 Conduct to which this chapter applies--generally . . . . . . . . . . . . 306 424 Conduct to which this chapter applies--insolvency, serious offences and tax offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 425 Chapter also applies to law practice employees. . . . . . . . . . . . . . 308 426 Chapter also extends to other persons in particular circumstances ................................. 308 427 Chapter also applies to unlawful operators . . . . . . . . . . . . . . . . . 309

 


 

18 Legal Profession Bill 2007 Part 4.4 Complaints about Australian legal practitioners 428 Conduct about which complaint may be made. . . . . . . . . . . . . . . 309 429 Making a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 430 Complaints made over 3 years after conduct concerned . . . . . . . 310 431 Further information and verification . . . . . . . . . . . . . . . . . . . . . . . 311 432 Summary dismissal of complaints . . . . . . . . . . . . . . . . . . . . . . . . 312 433 Withdrawal of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 434 Commissioner may delay dealing with complaint . . . . . . . . . . . . . 314 435 Referral by commissioner to law society or bar association . . . . . 314 436 Commissioner investigating a complaint or investigation matter . 315 437 Australian lawyer to be notified of complaint or investigation matter ........................................ 316 438 Submissions by respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 439 Role of law society or bar association . . . . . . . . . . . . . . . . . . . . . 318 Part 4.5 Mediation for complaints involving consumer dispute 440 Definition for pt 4.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 441 Mediation of complaint involving consumer dispute solely . . . . . . 320 442 Mediation of hybrid complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 Part 4.6 Investigations 443 Powers for investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 444 Referral of costs for assessment . . . . . . . . . . . . . . . . . . . . . . . . . 322 445 Regulation may provide for covering cost of assessment under s 443 or 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 446 Powers of commissioner relating to complaint or investigation matter relating to unlawful operator . . . . . . . . . . . . . . . . . . . . . . . 323 Part 4.7 Decision of commissioner 447 Decision of commissioner to start proceeding under ch 4 . . . . . . 323 448 Dismissal of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 449 Record of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 Part 4.8 General procedural matters 450 Duty to deal with complaints efficiently and expeditiously . . . . . . 324 451 Duty to inform complainant about action taken for complaint. . . . 325 Part 4.9 Proceedings in disciplinary body 452 Starting proceeding before a disciplinary body . . . . . . . . . . . . . . 325 453 Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 454 Joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 455 Variation of discipline application . . . . . . . . . . . . . . . . . . . . . . . . . 326

 


 

19 Legal Profession Bill 2007 456 Decisions of tribunal about an Australian legal practitioner . . . . . 327 457 Orders to be filed in Supreme Court and information notices to be given to parties etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 458 Decisions of committee about discipline application . . . . . . . . . . 330 459 Orders to be filed in Supreme Court and information notices to be given to parties etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 460 Interlocutory and interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . 332 461 Compliance with decisions and orders. . . . . . . . . . . . . . . . . . . . . 332 462 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 463 Other remedies not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Part 4.10 Compensation orders 464 Meaning of compensation order. . . . . . . . . . . . . . . . . . . . . . . . . . 334 465 Compensation order relating to pecuniary loss . . . . . . . . . . . . . . 335 466 Effect of compensation order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 467 Other remedies not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336 Part 4.10A Appeals from decisions of disciplinary bodies 468 Appeal may be made to Court of Appeal from tribunal's decision 336 469 Appeal to tribunal against committee's decision. . . . . . . . . . . . . . 336 470 Appeal to Court of Appeal in relation to a decision of committee. 337 Part 4.11 Publicising disciplinary action 471 Definition for pt 4.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337 472 Discipline register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338 473 Other means of publicising disciplinary action . . . . . . . . . . . . . . . 339 474 Quashing of disciplinary action. . . . . . . . . . . . . . . . . . . . . . . . . . . 340 475 Liability for publicising disciplinary action . . . . . . . . . . . . . . . . . . . 340 476 Disciplinary action taken because of infirmity, injury or illness . . . 341 477 General provisions about disclosure of information . . . . . . . . . . . 341 Part 4.12 Inter-jurisdictional provisions 478 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342 479 Request to another jurisdiction to investigate complaint or investigation matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 480 Request from another jurisdiction to investigate complaint . . . . . 343 481 Sharing of information with corresponding authorities . . . . . . . . . 343 482 Cooperation with other authorities . . . . . . . . . . . . . . . . . . . . . . . . 344 483 Request for information relevant to a complaint or investigation matter ........................................... 344 484 Compliance with recommendations or orders made under corresponding laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345

 


 

20 Legal Profession Bill 2007 485 Other powers or functions not affected. . . . . . . . . . . . . . . . . . . . . 345 Part 4.13 Miscellaneous 486 Information about complaints procedure . . . . . . . . . . . . . . . . . . . 346 487 Protection from liability for notification of conduct or making a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 488 Failure to comply with order of a disciplinary body. . . . . . . . . . . . 347 489 Performance criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 490 Annual and other reports to the Minister . . . . . . . . . . . . . . . . . . . 347 491 Confidentiality of client communications . . . . . . . . . . . . . . . . . . . 348 492 Waiver of legal professional privilege or benefit of duty of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 Chapter 5 External intervention Part 5.1 Preliminary 493 Main purpose of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 494 Definitions for ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 495 Application of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 496 Application of chapter to other persons . . . . . . . . . . . . . . . . . . . . 351 Part 5.2 Starting external interventions 497 Circumstances warranting external intervention. . . . . . . . . . . . . . 351 498 Decision regarding external intervention . . . . . . . . . . . . . . . . . . . 353 Part 5.3 Supervisors of trust money 499 Appointment of supervisor of trust money . . . . . . . . . . . . . . . . . . 354 500 Notice of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 501 Effect of service of notice of appointment . . . . . . . . . . . . . . . . . . 356 502 Role of supervisor of trust money. . . . . . . . . . . . . . . . . . . . . . . . . 357 503 Records of law practice under supervision. . . . . . . . . . . . . . . . . . 358 504 Termination of supervisor's appointment . . . . . . . . . . . . . . . . . . . 359 Part 5.4 Managers 505 Appointment of manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 506 Notice of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 507 Effect of service of notice of appointment . . . . . . . . . . . . . . . . . . 361 508 Role of manager. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 509 Records and accounts of law practice under management . . . . . 364 510 Deceased estates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 511 Termination of manager's appointment . . . . . . . . . . . . . . . . . . . . 365 Part 5.5 Receivers 512 Appointment of receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366

 


 

21 Legal Profession Bill 2007 513 Notice of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 514 Effect of service of notice of appointment . . . . . . . . . . . . . . . . . . 368 515 Role of receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 516 Records and accounts of law practice under receivership . . . . . . 371 517 Power of receiver to take possession of regulated property. . . . . 371 518 Power of receiver to take delivery of regulated property . . . . . . . 372 519 Power of receiver to deal with regulated property . . . . . . . . . . . . 372 520 Power of receiver to require documents or information . . . . . . . . 373 521 Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373 522 Lien for costs on regulated property of the law practice . . . . . . . . 374 523 Regulated property of a law practice is not to be attached . . . . . 375 524 Recovery of regulated property where there has been a breach of trust etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 525 Improperly destroying property etc. . . . . . . . . . . . . . . . . . . . . . . . 377 526 Deceased estates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 527 Termination of receiver's appointment . . . . . . . . . . . . . . . . . . . . . 378 Part 5.6 General 528 Conditions on appointment of external intervener for a law practice ....................................... 379 529 Status of acts of external intervener for a law practice . . . . . . . . . 380 530 Eligibility for reappointment or authorisation . . . . . . . . . . . . . . . . 380 531 Appeal against appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 532 Directions of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 533 Manager and receiver appointed for law practice. . . . . . . . . . . . . 381 534 ADI disclosure requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 535 Fees, legal costs and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 382 536 Reports by external intervener for law practice . . . . . . . . . . . . . . 383 537 Confidentiality for external intervener for law practice . . . . . . . . . 384 538 Provisions relating to requirements under this chapter . . . . . . . . 385 539 Obstruction of external intervener . . . . . . . . . . . . . . . . . . . . . . . . 386 Chapter 6 Investigations Part 6.1 Preliminary 540 Main purpose of ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386 541 Definitions for ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386

 


 

22 Legal Profession Bill 2007 Part 6.2 Requirements relating to documents, information and other assistance 542 Requirements that may be imposed for investigations, examinations and audits under parts 3.3 and 2.7 . . . . . . . . . . . . 387 543 Requirements that may be imposed for investigations under ch 4 387 544 Provisions relating to requirements under this part . . . . . . . . . . . 388 Part 6.3 Entry to places 545 Power to enter places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389 546 Entry with consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 547 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 548 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 549 Application by electronic communication and duplicate warrant . 392 550 Defect in relation to a warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 394 551 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . 395 Part 6.4 Powers of investigators after entry 552 General powers of investigator after entering places . . . . . . . . . . 395 553 Power to require reasonable help or information . . . . . . . . . . . . . 396 Part 6.5 Power of investigators to seize evidence 554 Seizing evidence at place entered under s 545 . . . . . . . . . . . . . . 397 555 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 556 Tampering with seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 557 Powers to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 558 Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 559 Forfeiture of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 560 Dealing with forfeited things etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 400 561 Return of seized things. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 562 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 Part 6.6 General enforcement matters 563 Notice of damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 564 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 565 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . 402 566 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 402 567 Obstructing investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 568 Impersonation of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Part 6.7 Provisions about investigations relating to incorporated legal practices 569 Definition for pt 6.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404

 


 

23 Legal Profession Bill 2007 570 Application of part to audits and investigations . . . . . . . . . . . . . . 404 571 Examination of persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 572 Inspection of books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 573 Power to hold hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 574 Failure to comply with investigation . . . . . . . . . . . . . . . . . . . . . . . 407 Part 6.8 Investigators 575 Appointment, qualifications etc. of investigators. . . . . . . . . . . . . . 408 576 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . 409 577 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 578 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . 410 579 When investigator ceases to hold office . . . . . . . . . . . . . . . . . . . . 410 580 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410 581 Return of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411 Chapter 7 Establishment of entities for this Act, and related matters Part 7.1 Legal Services Commissioner Division 1 Preliminary 582 Main purposes of pt 7.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411 Division 2 Appointment 583 Legal Services Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . 411 584 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 585 Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 586 Remuneration and conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 587 Acting commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 588 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 589 Resignation of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 Division 3 Functions 590 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414 Division 4 Legal Services Commission 591 Establishment of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414 592 Staff and other resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414 593 Preservation of rights if public service officer appointed or engaged ....................................... 415 594 Preservation of rights if person becomes public service officer . . 415 595 Preservation of rights if public service officer seconded . . . . . . . 415 Division 5 Miscellaneous matters about the commissioner 596 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416

 


 

24 Legal Profession Bill 2007 597 Arrangements with regulatory authority about copies of documents ..................................... 417 Part 7.2 Legal Practice Tribunal Division 1 Preliminary 598 Main purpose of pt 7.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Division 2 Establishment of Legal Practice Tribunal and related matters 599 Establishment, members and chairperson of tribunal . . . . . . . . . 417 600 Way tribunal is to operate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 601 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 602 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 603 Rule-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 604 Practice directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 605 Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 606 Tribunal's seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Division 3 Panels, members of panels and related matters 607 Establishment of panels for helping the tribunal. . . . . . . . . . . . . . 419 608 Appointment of panel members . . . . . . . . . . . . . . . . . . . . . . . . . . 420 609 Remuneration and appointment conditions of panel members . . 420 610 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 611 Resignation of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 Division 4 Role of tribunal members and panel members 612 Role of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 613 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 Division 5 Constitution of tribunal for hearings 614 Constitution of tribunal for hearings . . . . . . . . . . . . . . . . . . . . . . . 423 Division 6 Other provisions 615 Institution of proceedings by the commissioner . . . . . . . . . . . . . . 423 616 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 617 Conduct that is contempt and an offence . . . . . . . . . . . . . . . . . . . 424 618 Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 Part 7.3 Legal Practice Committee Division 1 Preliminary 619 Main purpose of pt 7.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 620 Definitions for pt 7.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425

 


 

25 Legal Profession Bill 2007 Division 2 Establishment, membership of committee, functions and powers 621 Establishment of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 622 Committee members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 623 Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 624 Functions and powers of committee. . . . . . . . . . . . . . . . . . . . . . . 426 625 Administrative support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 Division 3 Provisions about committee members 626 Eligibility for membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 627 Termination of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 628 Resignation of committee member. . . . . . . . . . . . . . . . . . . . . . . . 427 629 Deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428 630 Remuneration and allowances of lay members . . . . . . . . . . . . . . 428 Division 4 Provisions about committee performing advisory functions 631 Application of pt 7.3, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428 632 Conduct of business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428 633 Time and place of meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428 634 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 635 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 636 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 637 Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 638 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 Division 5 Provisions applying to committee for hearings 639 Constitution of committee for hearing. . . . . . . . . . . . . . . . . . . . . . 431 640 Conduct of committee for hearing and deciding discipline applications ...................................... 432 641 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 642 Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433 Part 7.4 Provisions applying to each disciplinary body Division 1 Parties to proceedings 643 Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Division 2 Conduct of proceedings 644 Public hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 645 Procedure for hearing by a disciplinary body . . . . . . . . . . . . . . . . 435 646 Recording evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 647 Disciplinary body may proceed in absence of party or may adjourn hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436

 


 

26 Legal Profession Bill 2007 648 Matter may be decided on affidavit evidence . . . . . . . . . . . . . . . . 436 649 Standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436 650 Prohibited publication about hearing of a disciplinary application 437 Division 3 Powers of disciplinary body 651 Power to disregard procedural lapses . . . . . . . . . . . . . . . . . . . . . 438 652 Directions for hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438 653 Attendance notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 654 Authentication of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 Division 4 Offences 655 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . 440 656 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 440 Part 7.5 Legal Practitioners Admissions Board Division 1 Preliminary 657 Main purpose of pt 7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 658 Definitions for pt 7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 Division 2 Establishment and membership of board 659 Establishment of board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 660 Members of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 Division 3 Board's functions and powers 661 Functions and powers of board etc. . . . . . . . . . . . . . . . . . . . . . . . 442 662 Administrative support of the board . . . . . . . . . . . . . . . . . . . . . . . 443 Division 4 Provisions about board members 663 Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 664 Chairperson and deputy chairperson . . . . . . . . . . . . . . . . . . . . . . 443 665 Eligibility for membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 666 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 667 Resignation of board member . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 Division 5 Board business 668 Conduct of business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 669 Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 670 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 671 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 672 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 673 Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 674 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446

 


 

27 Legal Profession Bill 2007 Division 6 Miscellaneous 675 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 676 Application of particular Acts to board . . . . . . . . . . . . . . . . . . . . . 448 Part 7.6 Queensland Law Society Incorporated Division 1 Preliminary 677 Main purpose of pt 7.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 678 Definitions for pt 7.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 Division 2 Constitution and related matters about the law society 679 Establishment of Queensland Law Society . . . . . . . . . . . . . . . . . 449 680 Functions of the law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 681 General powers of the law society . . . . . . . . . . . . . . . . . . . . . . . . 450 682 Status of the law society because of its establishment in Act . . . 450 683 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451 Division 3 Membership of law society 684 Membership of law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 Division 4 Council and its membership and officers of the law society 685 Council of the law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 686 President, deputy president and vice-president of the law society ...................................... 453 687 Dealing with casual vacancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 688 No defect because of vacancy . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 689 Secretary and other staff of the law society . . . . . . . . . . . . . . . . . 454 Division 5 Council meetings 690 Conduct of business at meetings . . . . . . . . . . . . . . . . . . . . . . . . . 454 691 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 692 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 693 Conduct of council meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 694 Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 695 Disclosure of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 Division 6 Law society may make rule 696 Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457 697 Notice by Minister about law society making rules . . . . . . . . . . . . 457 698 Availability of society rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458 Division 7 Miscellaneous 699 Starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458 700 Recovery of unpaid amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458

 


 

28 Legal Profession Bill 2007 Chapter 8 General Part 8.1 General provisions Division 1 Liabilities, injunctions, protection of information etc. 701 Liability of principals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 702 Executive officers must ensure corporation complies with Act. . . 459 703 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461 704 Disclosure of information by commissioner, regulatory authorities and other entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462 705 Confidentiality of personal information . . . . . . . . . . . . . . . . . . . . . 463 706 Duty of relevant entities to report suspected offences . . . . . . . . . 465 707 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467 Division 2 Offences, starting proceedings and evidentiary and other matters 708 Offences are summary offences. . . . . . . . . . . . . . . . . . . . . . . . . . 468 709 Limitation on time for starting summary proceeding . . . . . . . . . . 468 710 Appointments and authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 711 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 712 Evidentiary aids--documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 469 713 Dealing with particular trust money and trust property (Trust Accounts Act, section 33). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469 Part 8.2 Machinery provisions 714 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471 715 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472 Chapter 9 Transitional, savings and repeal provisions for Legal Profession Act 2007 Part 9.1 Purposes, definitions and general approach 716 Main purposes of ch 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473 717 Definitions for ch 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474 718 Authorised actions and documents etc. under previous provision 474 719 Things continued in force under Legal Profession Act 2004 . . . . 475 720 Terminology in things mentioned in s 718(1) . . . . . . . . . . . . . . . . 475 721 Period stated in previous provision. . . . . . . . . . . . . . . . . . . . . . . . 476 722 Period or date stated in document given under previous provision ..................................... 476 723 Acts Interpretation Act 1954, s 20 not limited. . . . . . . . . . . . . . . . 477 Part 9.2 Transitional provisions relating to chapter 2 724 Act or omission happening before commencement may be relevant to proceeding for particular acts or omissions . . . . . . . . 477

 


 

29 Legal Profession Bill 2007 725 Examples for ch 2 of things under s 718 . . . . . . . . . . . . . . . . . . . 478 Part 9.3 Transitional provisions relating to chapter 3 Division 1 Examples for chapter 3 726 Examples for ch 3 of things under s 718 . . . . . . . . . . . . . . . . . . . 481 Division 2 Matters dealt with in part 3.3 727 Continued application of Trust Accounts Act 1973 . . . . . . . . . . . . 483 728 Provision about application of s 268. . . . . . . . . . . . . . . . . . . . . . . 484 729 Provision about application of s 270. . . . . . . . . . . . . . . . . . . . . . . 484 730 Provision about application of s 276. . . . . . . . . . . . . . . . . . . . . . . 484 731 Provision about application of s 278. . . . . . . . . . . . . . . . . . . . . . . 485 Division 3 Matters dealt with in part 3.4 Subdivision 1 Preliminary 732 Definitions for pt 9.3, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485 733 General application of pt 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Subdivision 2 Client agreements 734 Client agreements may be entered into despite pt 3.4 . . . . . . . . . 486 735 Application of part 3.4 to client agreements etc. . . . . . . . . . . . . . 486 736 Failure to comply with Queensland Law Society Act 1952 after commencement and before relevant day . . . . . . . . . . . . . . . . . . . 488 Subdivision 3 Billing 737 Application of pt 3.4, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 Subdivision 4 Costs assessments 738 All costs assessments to be under pt 3.4, div 7 . . . . . . . . . . . . . . 489 739 Costs assessment started before commencement . . . . . . . . . . . 489 Division 4 Matters dealt with in part 3.6 740 Amounts payable to and from the fidelity fund before commencement ................................... 490 741 Delegation to committee of management before commencement ............................... 491 742 Claims for acts or omissions happening before commencement . 491 743 Reference in s 377 to previous sections. . . . . . . . . . . . . . . . . . . . 492 744 Right of subrogation to continue despite repeal . . . . . . . . . . . . . . 492 745 Payments for defaults under previous ch 2, pt 7. . . . . . . . . . . . . . 492 Part 9.4 Transitional provisions relating to chapter 4 746 Examples for ch 4 of things under s 718 . . . . . . . . . . . . . . . . . . . 493 Part 9.5 Transitional provisions relating to chapter 5 747 Examples for ch 5 of things under s 718 . . . . . . . . . . . . . . . . . . . 495

 


 

30 Legal Profession Bill 2007 Part 9.6 Transitional provisions relating to chapter 6 748 Examples for ch 6 of things under s 718 . . . . . . . . . . . . . . . . . . . 497 Part 9.7 Transitional provisions relating to chapter 7 749 Examples for ch 7 of things under s 718 . . . . . . . . . . . . . . . . . . . 498 Part 9.8 Transitional provisions relating to chapter 8 750 Examples for ch 8 of things under s 718 . . . . . . . . . . . . . . . . . . . 501 Part 9.9 Regulation-making power for transitional purposes 751 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . . 502 Part 9.10 Repeal of the Legal Profession Act 2004 752 Repeal of Legal Profession Act 2004 . . . . . . . . . . . . . . . . . . . . . . 503 Part 9.11 Provisions relating to Trust Accounts Act 1973 753 Definitions for pt 9.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 754 Trust accounts and trust moneys under Trust Accounts Act. . . . . 504 755 Accounting and other records . . . . . . . . . . . . . . . . . . . . . . . . . . . 504 756 Dealing with particular trust moneys . . . . . . . . . . . . . . . . . . . . . . 504 757 Provision about particular auditors and audits . . . . . . . . . . . . . . . 504 758 Continuing application of Trust Accounts Act, s 5 . . . . . . . . . . . . 505 759 Continuing application of Trust Accounts Act, ss 12 and 13. . . . . 505 760 Continuing application of Trust Accounts Act, s 14(2) and (3) . . . 505 761 Continuing application of Trust Accounts Act, ss 15 and 16. . . . . 506 762 Continuing application of Trust Accounts Act, s 17 . . . . . . . . . . . 506 763 Continuing application of Trust Accounts Act, s 19 . . . . . . . . . . . 506 764 Continuing application of Trust Accounts Act, s 28A . . . . . . . . . . 507 765 Continuing application of Trust Accounts Act, s 30 . . . . . . . . . . . 507 766 Continuing application of Trust Accounts Act, s 33 . . . . . . . . . . . 508 Part 9.12 Repeal of Queensland Law Society Act 1952 767 Repeal of the Queensland Law Society Act 1952 . . . . . . . . . . . . 508 768 Transitional provision about examination of accounts under Queensland Law Society Act 1952 . . . . . . . . . . . . . . . . . . . . . . . 508 769 Another transitional provision for repeal of Queensland Law Society Act 1952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509 Part 9.13 Amendment of Acts 770 Acts amended in sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510 Schedule 1 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511 Criminal Law (Rehabilitation of Offenders) Act 1986 . . . . . . . . . . 511 Director of Public Prosecutions Act 1984 . . . . . . . . . . . . . . . . . . . 511 District Court of Queensland Act 1967. . . . . . . . . . . . . . . . . . . . . 512

 


 

31 Legal Profession Bill 2007 Justices Act 1886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Justices of the Peace and Commissioners for Declarations Act 1991 .......................................... 513 Juvenile Justice Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 Land Sales Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 Land Title Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516 Legal Aid Queensland Act 1997. . . . . . . . . . . . . . . . . . . . . . . . . . 517 Magistrates Courts Act 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520 Personal Injuries Proceedings Act 2002. . . . . . . . . . . . . . . . . . . . 520 Police Service Administration Act 1990 . . . . . . . . . . . . . . . . . . . . 521 Property Agents and Motor Dealers Act 2000 . . . . . . . . . . . . . . . 522 Retail Shop Leases Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Supreme Court Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Supreme Court Library Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . 523 Supreme Court of Queensland Act 1991 . . . . . . . . . . . . . . . . . . . 523 Transport Operations (Marine Safety) Act 1994 . . . . . . . . . . . . . . 524 Trust Accounts Act 1973. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 Schedule 2 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528

 


 

 

2007 A Bill for An Act to provide for admission to, and the regulation of, the legal profession, and for entities involving members of the legal profession, and for other purposes

 


 

s1 34 s3 Legal Profession Bill 2007 The Parliament of Queensland enacts-- 1 Chapter 1 Introduction 2 Part 1.1 Preliminary 3 1 Short title 4 This Act may be cited as the Legal Profession Act 2007. 5 2 Commencement 6 This Act, other than sections 218, 219, 220, 221, 222, 224, 7 696, 714 and commences on day to be fixed by proclamation. 8 3 Main purposes 9 The main purposes of this Act are as follows-- 10 (a) to provide for the regulation of legal practice in this 11 jurisdiction in the interests of the administration of 12 justice and for the protection of consumers of the 13 services of the legal profession and the public generally; 14 (b) to facilitate the regulation of legal practice on a national 15 basis across State borders. 16

 


 

s4 35 s6 Legal Profession Bill 2007 Part 1.2 Interpretation 1 Division 1 Dictionary 2 4 Definitions 3 The dictionary in schedule 2 defines particular words used in 4 this Act. 5 Division 2 Meaning of various terms 6 5 Terms relating to lawyers 7 (1) An Australian lawyer is a person who is admitted to the legal 8 profession under this Act or a corresponding law. 9 (2) A local lawyer is a person who is admitted to the legal 10 profession under this Act, whether or not the person is also 11 admitted under a corresponding law. 12 (3) An interstate lawyer is a person who is admitted to the legal 13 profession under a corresponding law, but not under this Act. 14 (4) In this section-- 15 this Act includes a previous Act. 16 6 Terms relating to legal practitioners 17 (1) An Australian legal practitioner is an Australian lawyer who 18 holds a current local practising certificate or a current 19 interstate practising certificate. 20 (2) A local legal practitioner is an Australian lawyer who holds a 21 current local practising certificate. 22 (3) An interstate legal practitioner is an Australian lawyer who 23 holds a current interstate practising certificate, but not a local 24 practising certificate. 25

 


 

s7 36 s7 Legal Profession Bill 2007 7 Terms relating to associates and principals of law 1 practices 2 (1) An associate, of a law practice, is-- 3 (a) an Australian legal practitioner who is-- 4 (i) a sole practitioner if the law practice is constituted 5 by the practitioner; or 6 (ii) a partner in the law practice if the law practice is a 7 law firm; or 8 (iii) a legal practitioner director in the law practice if 9 the law practice is an incorporated legal practice; 10 or 11 (iv) a legal practitioner partner in the law practice if the 12 law practice is a multi-disciplinary partnership; or 13 (v) an employee of, or consultant to, the law practice; 14 or 15 (b) an agent of the law practice who is not an Australian 16 legal practitioner; or 17 (c) an employee of the law practice who is not an Australian 18 legal practitioner; or 19 (d) an Australian-registered foreign lawyer who is a partner 20 in the law practice; or 21 (e) a person who is a partner in the multi-disciplinary 22 partnership but who is not an Australian legal 23 practitioner; or 24 (f) an Australian-registered foreign lawyer who has a 25 relationship with the law practice, that is a class of 26 relationship prescribed under a regulation. 27 (2) A legal practitioner associate, of a law practice, is an 28 associate of the practice who is an Australian legal 29 practitioner. 30 (3) A lay associate, of a law practice, is an associate of the 31 practice who is not an Australian legal practitioner. 32 (4) A principal, of a law practice, is an Australian legal 33 practitioner who is-- 34

 


 

s8 37 s8 Legal Profession Bill 2007 (a) a sole practitioner if the law practice is constituted by 1 the practitioner; or 2 (b) a partner in the law practice if the law practice is a law 3 firm; or 4 (c) a legal practitioner director in the law practice if the law 5 practice is an incorporated legal practice; or 6 (d) a legal practitioner partner in the law practice if the law 7 practice is a multi-disciplinary partnership. 8 8 Home jurisdiction 9 (1) The home jurisdiction, for an Australian legal practitioner, is 10 the jurisdiction in which the practitioner's only or most recent 11 current Australian practising certificate was granted. 12 (2) The home jurisdiction, for an Australian-registered foreign 13 lawyer, is the jurisdiction in which the lawyer's only or most 14 recent current registration was granted. 15 (3) The home jurisdiction, for an associate of a law practice who 16 is neither an Australian legal practitioner nor an 17 Australian-registered foreign lawyer, is-- 18 (a) if only 1 jurisdiction is the home jurisdiction for the 19 only associate of the practice who is an Australian legal 20 practitioner or for all the associates of the practice who 21 are Australian legal practitioners--that jurisdiction; or 22 (b) if no 1 jurisdiction is the home jurisdiction for all the 23 associates of the practice who are Australian legal 24 practitioners-- 25 (i) the jurisdiction in which the office is situated at 26 which the associate performs most of his or her 27 duties for the practice; or 28 (ii) if a jurisdiction can not be decided under 29 subparagraph (i)--the jurisdiction in which the 30 associate is enrolled under a law of the jurisdiction 31 to vote at elections for the jurisdiction; or 32 (iii) if a jurisdiction can not be decided under 33 subparagraph (i) or (ii)--the jurisdiction decided 34 under criteria prescribed under a regulation. 35

 


 

s9 38 s9 Legal Profession Bill 2007 9 Suitability matters 1 (1) Each of the following is a suitability matter in relation to a 2 natural person-- 3 (a) whether the person is currently of good fame and 4 character; 5 (b) whether the person is or has been an insolvent under 6 administration; 7 (c) whether the person has been convicted of an offence in 8 Australia or a foreign country, and if so-- 9 (i) the nature of the offence; and 10 (ii) how long ago the offence was committed; and 11 (iii) the person's age when the offence was committed; 12 (d) whether the person engaged in legal practice in 13 Australia-- 14 (i) when not admitted to the legal profession, or not 15 holding a practising certificate, as required under a 16 relevant law or a corresponding law; or 17 (ii) if admitted to the legal profession, in contravention 18 of a condition on which admission was granted; or 19 (iii) if holding an Australian practising certificate, in 20 contravention of a condition applicable to the 21 certificate or while the certificate was suspended; 22 (e) whether the person has practised law in a foreign 23 country-- 24 (i) when not permitted under a law of that country to 25 do so; or 26 (ii) if permitted to do so, in contravention of a 27 condition of the permission; 28 (f) whether the person is currently subject to an unresolved 29 complaint, investigation, charge or order under any of 30 the following-- 31 (i) a relevant law; 32 (ii) a corresponding law; 33 (iii) a corresponding foreign law; 34

 


 

s9 39 s9 Legal Profession Bill 2007 (g) whether the person-- 1 (i) is the subject of current disciplinary action, 2 however expressed, in another profession or 3 occupation in Australia or a foreign country; or 4 (ii) has been the subject of disciplinary action, 5 however expressed, relating to another profession 6 or occupation that involved a finding of guilt; 7 (h) whether the person's name has been removed from-- 8 (i) a local roll but has not since been restored to or 9 entered on a local roll; or 10 (ii) an interstate roll, but has not since been restored to 11 or entered on an interstate roll; or 12 (iii) a foreign roll; 13 (i) whether the person's right to engage in legal practice has 14 been suspended or cancelled in Australia or a foreign 15 country; 16 (j) whether the person has contravened, in Australia or a 17 foreign country, a law about trust money or trust 18 accounts; 19 (k) whether, under a relevant law, a law of the 20 Commonwealth or a corresponding law, a supervisor, 21 manager or receiver, however described, is or has been 22 appointed in relation to any legal practice engaged in by 23 the person; 24 (l) whether the person is or has been subject to an order 25 under this Act, a previous Act, a law of the 26 Commonwealth or a corresponding law, disqualifying 27 the person from being employed by, or a partner of, an 28 Australian legal practitioner or from managing a 29 corporation that is an incorporated legal practice; 30 (m) whether the person currently is unable to satisfactorily 31 carry out the inherent requirements of practice as an 32 Australian legal practitioner. 33 (2) A matter under subsection (1) is a suitability matter even 34 though it happened before the commencement of this section. 35

 


 

s 10 40 s 11 Legal Profession Bill 2007 10 Information notices 1 (1) An information notice is a written notice to a person about a 2 decision relating to the person stating-- 3 (a) the decision; and 4 (b) the reasons for the decision; and 5 (c) if the person may appeal under this Act, that the person 6 may appeal against the decision to a stated court or 7 entity and the day by which the appeal must be started. 8 (2) A provision under this Act may provide that an information 9 notice relevant to the provision must include other stated 10 information. 11 (3) If a person may appeal within a number of days after the day 12 an information notice is given to the person, a defect in the 13 notice does not affect the person's right to appeal in relation to 14 the matters dealt with in the information notice. 15 11 References to convictions for offences 16 (1) A conviction, for an offence, includes either of the following 17 whether or not a conviction is recorded on sentence-- 18 (a) a finding of guilt; 19 (b) the acceptance of a guilty plea. 20 (2) Without limiting subsection (1), quashing a conviction, for an 21 offence-- 22 (a) includes quashing-- 23 (i) a finding of guilt for the offence; or 24 (ii) the acceptance of a guilty plea for the offence; and 25 (b) does not include quashing a conviction if-- 26 (i) a finding of guilt in relation to the offence remains 27 unaffected; or 28 (ii) the acceptance of a guilty plea in relation to the 29 offence remains unaffected. 30 (3) A conviction includes a conviction before the commencement 31 of this section. 32

 


 

s 12 41 s 12 Legal Profession Bill 2007 Note-- 1 See also the Criminal Law (Rehabilitation of Offenders) Act 1986, 2 section 9A, table, items 24 and 25. 3 12 Meaning of government legal officer and engaged in 4 government work and related matters 5 (1) A government legal officer is a person whose employment or 6 appointment in any of the following includes or may include 7 engaging in legal practice-- 8 (a) a department of this jurisdiction, the commission, or an 9 agency prescribed under a regulation; 10 (b) a department of government of the Commonwealth; 11 (c) a department of government of another jurisdiction; 12 (d) an agency of another jurisdiction if, under a 13 corresponding law of that jurisdiction, a person 14 engaging in legal practice for the agency is exempted 15 from holding a practising certificate or otherwise does 16 not require a practising certificate. 17 (2) A government legal officer is engaged in government work 18 when the government legal officer is engaged in legal practice 19 in the course of the officer's duties for the entity in relation to 20 which the person is an employee or appointee. 21 Example of engaged in government work-- 22 A public service officer employed by the Department of Justice and 23 Attorney-General is engaged in legal practice at the Department of 24 Education. The officer's duties for the Department of Justice and 25 Attorney-General while working at the Department of Education 26 include providing advice to that department as a client of the 27 Department of Justice and Attorney-General. 28 (3) For an agency prescribed for subsection (1)(a), a regulation 29 may state activities that are, or are not, government work. 30 (4) If a provision under this Act does not apply to a government 31 legal officer engaged in government work, the provision 32 applies to the person who is the government legal officer if the 33 person is engaging in legal practice other than being engaged 34 in government work. 35

 


 

s 12 42 s 12 Legal Profession Bill 2007 (5) If a government legal officer holds a practising certificate 1 from the bar association, a condition of the barrister's 2 practising certificate about only practising as a barrister does 3 not apply to the government legal officer to the extent that the 4 government legal officer practises as a solicitor as part of 5 engaging in government work. 6 (6) A government legal officer who is an Australian lawyer does 7 not have any fewer rights, privileges, protections or 8 immunities than an Australian lawyer who is not a 9 government legal officer. 10 (7) A government legal officer who is not an Australian lawyer is 11 subject to the same limitations and obligations to which a 12 government legal officer who is an Australian lawyer is 13 subject. 14 (8) The provisions of this Act about the fidelity fund do not apply 15 to a government legal officer in his or her capacity as a 16 government legal officer engaged in government work even if 17 the government legal officer is the holder of a practising 18 certificate. 19 (9) A government legal officer who is an Australian lawyer but 20 does not hold a current local practising certificate may-- 21 (a) if the officer was admitted to the legal profession as a 22 barrister before 1 July 2004 or engages in government 23 work in the manner of a barrister--call himself or 24 herself a barrister or another term that describes the way 25 the officer engages in government work; or 26 (b) if the officer was admitted to the legal profession as a 27 solicitor before 1 July 2004 or engages in government 28 work in the manner of a solicitor--call himself or 29 herself a solicitor or another term that describes the way 30 the officer engages in government work. 31 (10) Without limiting another subsection, if under an Act an 32 Australian lawyer is allowed to witness a document even 33 though the lawyer does not hold a current local practising 34 certificate-- 35 (a) nothing in this section prevents a government legal 36 officer who is an Australian lawyer but does not hold a 37

 


 

s 13 43 s 14 Legal Profession Bill 2007 current local practising certificate from witnessing the 1 document; and 2 (b) when witnessing the document, the government legal 3 officer may include a description or title that is correct at 4 the time, including, for example-- 5 (i) the title of lawyer or Australian lawyer; or 6 (ii) another title involving the government legal 7 officer's employment or appointment as mentioned 8 subsection (1). 9 (11) For a person whose employment or appointment in a 10 department of government of the Commonwealth includes or 11 may include engaging in legal practice as mentioned in 12 subsection (1)(b), this Act is subject to the Judiciary Act 1903 13 (Cwlth). 14 Division 3 Jurisdiction of Supreme Court and 15 related matters 16 13 Inherent jurisdiction of Supreme Court 17 (1) The inherent jurisdiction and power of the Supreme Court in 18 relation to the control and discipline of local lawyers and local 19 legal practitioners is not affected by anything in this Act. 20 (2) The inherent jurisdiction and power-- 21 (a) extends to an interstate legal practitioner as mentioned 22 in section 78;1 and 23 (b) may be exercised by making any order that a 24 disciplinary body may make under this Act. 25 14 Jurisdiction of Supreme Court 26 (1) The Supreme Court must hear and decide each application 27 and appeal made to it under this Act and may make the order 28 it considers appropriate for the application or appeal. 29 1 Section 78 (Interstate legal practitioner is officer of Supreme Court)

 


 

s 15 44 s 17 Legal Profession Bill 2007 (2) Subsection (1) is subject to a provision that states the orders 1 that may be made by the court on an application or appeal. 2 (3) This section does not limit section 13. 3 (4) An Australian lawyer is entitled to appear before and be heard 4 by the Supreme Court at a hearing about an application or 5 appeal as mentioned in subsection (1) that is made in relation 6 to the lawyer under this Act. 7 15 Appeal period for appeal to Supreme Court or tribunal 8 (1) This section applies if a provision of this Act provides that a 9 person has a stated number of days to appeal to the Supreme 10 Court or the tribunal (the appeal period). 11 (2) The court or tribunal may allow a person who may appeal 12 within the appeal period to appeal after that appeal period if 13 the court or tribunal considers it appropriate having regard to 14 the extent of, and reasons for, the delay. 15 16 Hearing and deciding particular action without a jury 16 (1) This section applies if an action in relation to any description 17 of civil liability arising out of the business of practising as an 18 Australian legal practitioner is before a court and any person 19 who may be made liable in that action is indemnified under a 20 contract of insurance under a relevant law. 21 (2) If, apart from this section, the action may be heard and 22 decided by a jury in that court, the action must be heard and 23 decided by a judge without a jury. 24 Division 4 Other interpretation matters 25 17 Notes in text may indicate difference to language in 26 corresponding law 27 A note in the text in this Act is sometimes used to indicate 28 why the language in this Act may be different to the language 29 used in corresponding laws. 30

 


 

s 18 45 s 19 Legal Profession Bill 2007 Example-- 1 This Act often refers to a law of this jurisdiction, including this Act. 2 Under the Acts Interpretation Act 1954, section 7, the reference to a law 3 includes a reference to statutory instruments made or in force under the 4 law. Accordingly, a reference to this Act includes, for example, a 5 regulation or legal profession rules made or in force under this Act. 6 18 Timing for doing things 7 If no time is provided or allowed for doing something under 8 this Act, the thing is to be done as soon as practicable, and as 9 often as is required. 10 19 Grounds that are reasonable in the circumstances 11 (1) If, under this Act, a person is required to be satisfied or not 12 satisfied of, or have a belief or suspicion about, a particular 13 matter before the person may do or refrain from doing an act, 14 or make a decision, the person must be satisfied or not 15 satisfied or have the belief or suspicion on grounds that are 16 reasonable in the circumstances. 17 (2) If, under this Act, a person who is satisfied or not satisfied of, 18 or has a belief or suspicion about, a particular matter is 19 required to do or refrain from doing an act, or make a 20 decision, the person must be satisfied or not satisfied, or have 21 the belief or suspicion, on grounds that are reasonable in the 22 circumstances. 23 (3) If, under this Act, an entity is required to consider that a 24 particular matter is appropriate before the entity may do or 25 refrain from doing an act or make a decision, the entity must 26 not do or refrain from doing the act, or make the decision, 27 unless the entity considers the particular matter is appropriate 28 on grounds that are reasonable in the circumstances. 29 (4) The following are examples of entities for subsection (3)-- 30 (a) a disciplinary body; 31 (b) the board; 32 (c) a regulatory authority; 33 (d) the commissioner; 34 (e) an investigator. 35

 


 

s 20 46 s 21 Legal Profession Bill 2007 20 References to parts in this Act 1 (1) A reference in this Act to a part by a number is a reference to 2 the part, designated by that number, of this Act. 3 (2) A reference under another Act to a part of this Act by a 4 number without reference to a chapter is a reference to the 5 part, designated by that number, in this Act. 6 Chapter 2 General requirements for 7 engaging in legal practice 8 Part 2.1 Preliminary 9 21 Simplified overview of ch 2 10 (1) Generally, this chapter seeks to achieve the main purposes of 11 this Act by providing that-- 12 (a) legal practice is engaged in only by persons who are 13 properly qualified and hold a current practising 14 certificate; and 15 (b) only persons who are eligible and fit and proper persons 16 for admission to the legal profession are admitted; and 17 (c) an Australian lawyer may obtain a local practising 18 certificate from the law society or bar association and 19 become a local legal practitioner; and 20 (d) police reports and health assessment reports may be 21 obtained for purposes stated in this Act; and 22 (e) the regulation of legal practice on a national basis is 23 promoted by providing for inter-jurisdictional 24 provisions regarding admission to the legal profession 25 and practising certificates; and 26 (f) a corporation may engage in legal practice as an 27 incorporated legal practice while it has a legal 28 practitioner director, and a partnership, consisting of at 29 least 1 partner who is not an Australian legal 30

 


 

s 22 47 s 23 Legal Profession Bill 2007 practitioner, may engage in providing legal services in 1 this jurisdiction if there is at least 1 legal practitioner 2 partner; and 3 (g) foreign lawyers may practice foreign law in this 4 jurisdiction as a recognised aspect of legal practice in 5 this jurisdiction to encourage and facilitate the 6 internationalisation of legal services and the legal 7 services sector. 8 (2) Subsection (1) is intended only as a guide to readers as to the 9 general scheme of this chapter. 10 Part 2.2 Reservation of legal work 11 Division 1 Preliminary 12 22 Main purposes for pt 2.2 13 The main purposes of this part are as follows-- 14 (a) to protect the public interest in the proper administration 15 of justice by ensuring that legal work is carried out only 16 by those who are properly qualified to do so; 17 (b) to protect consumers by ensuring that persons carrying 18 out legal work are entitled to do so. 19 23 Part does not apply to a person if authorised under a 20 Commonwealth law or a government legal officer 21 (1) This part does not apply to-- 22 (a) a person authorised to engage in legal practice under a 23 law of the Commonwealth; or 24 (b) a government legal officer engaged in government work. 25 (2) However, subsection (1) does not prevent this part applying to 26 a person only because the person has been enrolled as a 27 barrister or solicitor, as a barrister and solicitor or as a legal 28 practitioner, of the High Court of Australia. 29

 


 

s 24 48 s 24 Legal Profession Bill 2007 Division 2 Prohibitions 1 24 Prohibition on engaging in legal practice when not 2 entitled 3 (1) A person must not engage in legal practice in this jurisdiction 4 unless the person is an Australian legal practitioner. 5 Maximum penalty--300 penalty units or 2 years 6 imprisonment. 7 (2) Subsection (1) does not apply to engaging in legal practice of 8 the following kinds-- 9 (a) legal practice engaged in under the authority of a law of 10 this jurisdiction or the Commonwealth; 11 (b) legal practice engaged in by an incorporated legal 12 practice under part 2.7;2 13 (c) the practice of foreign law by an Australian-registered 14 foreign lawyer under part 2.8;3 15 (d) work performed by a trustee company, or a person 16 employed by a trustee company, in the course of-- 17 (i) preparing a will; or 18 (ii) carrying out any other activities involving the 19 administration of trusts, the estate of a living or 20 deceased person or the affairs of a living person; 21 (e) work performed by a PAMDA licensee, or by an 22 employee of a PAMDA licensee, if the licensee or 23 employee only fills in details in a preprinted contract or 24 other document as part of performing the work of a 25 PAMDA licensee and does not give advice about the 26 contract or other document or the details that are filled 27 in; 28 (f) legal practice prescribed under a regulation. 29 (3) Also, subsection (1) does not apply to an Australian lawyer if 30 the lawyer-- 31 2 Part 2.7 (Incorporated legal practices and multi-disciplinary partnerships) 3 Part 2.8 (Legal practice by foreign lawyers)

 


 

s 24 49 s 24 Legal Profession Bill 2007 (a) has applied under section 49 to the law society for a 1 local practising certificate and has not been given a 2 notice that the law society has refused to grant the 3 application, or refused to consider the application, as 4 mentioned in section 51; and 5 (b) is employed in or by a law practice and the lawyer has 6 informed the law practice that he or she has applied for, 7 but not yet been granted, a local practising certificate by 8 the law society. 9 (4) A person is not entitled to recover any amount in relation to 10 anything the person did in contravention of subsection (1). 11 (5) A person may recover from someone else (the other person), 12 as a debt due to the person, any amount the person paid to the 13 other person for anything the other person did in 14 contravention of subsection (1). 15 (6) A regulation may make provision about the application, with 16 or without stated changes, of provisions of this Act to persons 17 engaged in legal practice of a kind mentioned in subsection 18 (2) other than paragraphs (a) and (b). 19 (7) In this section-- 20 filling in, in relation to a contract or other document, if the 21 contract or other document is available in electronic form, 22 includes inserting information in the electronic form and 23 printing the contract or other document. 24 PAMDA licensee means the holder of any of the following 25 licences within the meaning of the Property Agents and Motor 26 Dealers Act 2000-- 27 (a) auctioneer's licence; 28 (b) motor dealer's licence; 29 (c) pastoral house director's licence; 30 (d) pastoral house licence; 31 (e) real estate agent's licence; 32 (f) restricted letting agent's licence. 33 trustee company see the Trustee Companies Act 1968, section 34 4. 35

 


 

s 25 50 s 26 Legal Profession Bill 2007 25 Prohibition on representing or advertising entitlement to 1 engage in legal practice when not entitled 2 (1) A person must not represent or advertise that the person is 3 entitled to engage in legal practice unless the person is an 4 Australian legal practitioner. 5 Maximum penalty--300 penalty units or 2 years 6 imprisonment. 7 (2) A director, officer, employee or agent of a body corporate 8 must not represent or advertise that the body corporate is 9 entitled to engage in legal practice unless the body corporate 10 is an incorporated legal practice. 11 Maximum penalty--300 penalty units or 2 years 12 imprisonment. 13 (3) Subsections (1) and (2) do not apply to a representation or 14 advertisement about a person being entitled to engage in legal 15 practice as mentioned in section 24(2). 16 (4) A reference in this section to a person-- 17 (a) representing or advertising that the person is entitled to 18 engage in legal practice; or 19 (b) representing or advertising that a body corporate is 20 entitled to engage in legal practice; 21 includes a reference to the person doing anything that states or 22 implies the person or the body corporate is entitled to engage 23 in legal practice. 24 26 Associates who are disqualified or convicted persons 25 (1) A law practice must not have a lay associate whom any 26 principal or legal practitioner associate of the practice knows 27 to be either of the following unless the lay associate is 28 approved by the law society under subsection (2)-- 29 (a) a disqualified person; 30 (b) a person who has been convicted of a serious offence. 31 (2) The law society may, on application, approve a person as a lay 32 associate for this section. 33

 


 

s 27 51 s 27 Legal Profession Bill 2007 (3) An approval under this section may be subject to stated 1 conditions. 2 (4) If the law society refuses an application mentioned in 3 subsection (2) or imposes a condition on the approval-- 4 (a) the law society must give the applicant an information 5 notice about the decision to refuse the application or to 6 impose the condition; and 7 (b) the applicant may appeal to the Supreme Court against 8 the refusal or imposition of the condition within 28 days 9 after the day the information notice is given to the 10 applicant. 11 (5) A disqualified person, or a person convicted of a serious 12 offence, must not seek to become a lay associate of a law 13 practice unless the person first informs the law practice of the 14 disqualification or conviction. 15 Maximum penalty--200 penalty units. 16 (6) This section does not apply in circumstances prescribed under 17 a regulation. 18 (7) In this section-- 19 lay associate, in relation to a law practice, includes a 20 consultant to the law practice, however described-- 21 (a) who is not an Australian legal practitioner; and 22 (b) who provides legal or related services to the law 23 practice, other than services prescribed under a 24 regulation. 25 Note-- 26 The term `lay associate' is also defined in section 7(3). 27 Division 3 General 28 27 Professional discipline 29 (1) A contravention of this part by an Australian lawyer who is 30 not an Australian legal practitioner is capable of constituting 31 unsatisfactory professional conduct or professional 32 misconduct. 33

 


 

s 28 52 s 29 Legal Profession Bill 2007 (2) Nothing in this part affects any liability that a person who is 1 an Australian lawyer but not an Australian legal practitioner 2 may have under chapter 4,4 and the person may be punished 3 for an offence under this part as well as being dealt with under 4 chapter 4 in relation to the same matter. 5 Part 2.3 Admission of local lawyers 6 Division 1 Preliminary 7 28 Main purposes of pt 2.3 8 The main purposes of this part are as follows-- 9 (a) in the interests of the administration of justice and for 10 the protection of consumers of legal services, to provide 11 a system under which only applicants who have 12 appropriate academic qualifications and practical legal 13 training and who are otherwise fit and proper persons to 14 be admitted to the legal profession are qualified for 15 admission to the legal profession under this Act; 16 (b) to provide for the recognition of equivalent 17 qualifications and training that apply to applicants for 18 admission to the legal profession in other jurisdictions. 19 29 Definitions for pt 2.3 20 In this part-- 21 admission rules means the rules under the Supreme Court of 22 Queensland Act 1991, section 118,5 for admission to the legal 23 profession under this Act and for associated matters. 24 applicant for admission means a person who makes an 25 application for admission. 26 4 Chapter 4 (Complaints and discipline) 5 Supreme Court of Queensland Act 1991, section 118 (Rule-making power)

 


 

s 30 53 s 30 Legal Profession Bill 2007 application for admission means an application under section 1 34 for admission to the legal profession under this Act. 2 Supreme Court, in relation to an exercise of power of the 3 court, means-- 4 (a) if the admission rules provide that the power may be 5 exercised by a single Supreme Court judge--a single 6 Supreme Court judge; or 7 (b) otherwise--the Court of Appeal. 8 Division 2 Eligibility and suitability for 9 admission 10 30 Eligibility for admission to the legal profession under this 11 Act 12 (1) A person is eligible for admission to the legal profession 13 under this Act only if the person-- 14 (a) is a natural person aged 18 years or more; and 15 (b) has attained approved academic qualifications or 16 corresponding academic qualifications; and 17 (c) has satisfactorily completed approved practical legal 18 training requirements or corresponding practical legal 19 training requirements. 20 (2) In this section-- 21 approved academic qualifications means academic 22 qualifications that are approved under the admission rules for 23 admission to the legal profession under this Act. 24 approved practical legal training requirements means legal 25 training requirements that are approved under the admission 26 rules for admission to the legal profession under this Act. 27 corresponding academic qualifications means academic 28 qualifications that would qualify the person for admission to 29 the legal profession in another jurisdiction if the board is 30 satisfied that substantially the same minimum criteria apply 31 for the approval of academic qualifications for admission in 32 the other jurisdiction as apply in this jurisdiction. 33

 


 

s 31 54 s 32 Legal Profession Bill 2007 corresponding practical legal training requirements means 1 legal training requirements that would qualify the person for 2 admission to the legal profession in another jurisdiction if the 3 board is satisfied that substantially the same minimum criteria 4 apply for the approval of legal training requirements for 5 admission in the other jurisdiction as apply in this jurisdiction. 6 Note-- 7 The board is the Legal Practitioners Admissions Board. 8 31 Suitability for admission 9 (1) A person is suitable for admission to the legal profession 10 under this Act only if the person is a fit and proper person to 11 be admitted. 12 (2) In deciding if the person is a fit and proper person to be 13 admitted, the Supreme Court must consider-- 14 (a) each of the suitability matters in relation to the person to 15 the extent a suitability matter is appropriate; and 16 (b) other matters that the Supreme Court considers relevant. 17 (3) However, the Supreme Court may consider a person to be a fit 18 and proper person to be admitted to the legal profession under 19 this Act despite a suitability matter because of the 20 circumstances relating to the matter. 21 32 Early consideration of suitability 22 (1) This section applies if a person considers a matter may 23 adversely affect an assessment as to whether the person is a fit 24 and proper person to be admitted to the legal profession under 25 this Act. 26 (2) The person may apply, in the approved form, to the board for 27 a declaration that a matter stated in the application, including, 28 for example, a suitability matter, will not, without more, 29 adversely affect the board's assessment as to whether the 30 person is a fit and proper person to be admitted to the legal 31 profession under this Act. 32 (3) The board must consider the application and do 1 of the 33 following-- 34

 


 

s 33 55 s 33 Legal Profession Bill 2007 (a) make the declaration; 1 (b) refer the application to the Supreme Court for a 2 direction if the board considers a direction would be 3 appropriate; 4 (c) refuse to make the declaration. 5 (4) A declaration made under subsection (3)(a), or under a 6 direction mentioned in subsection (3)(b), is binding on the 7 board unless the applicant failed to make a full and fair 8 disclosure of all matters relevant to the declaration sought. 9 (5) If the board decides to refuse to make the declaration 10 sought-- 11 (a) the board must give the applicant an information notice 12 about the refusal; and 13 (b) the applicant may appeal to the Supreme Court against 14 the refusal within 28 days after the day the information 15 notice is given to the applicant. 16 33 Involvement of Supreme Court whether by referral or on 17 appeal 18 (1) If an application under section 32(2) is referred to the 19 Supreme Court as mentioned in section 32(3)(b), the court 20 may give a direction to the board as the court considers 21 appropriate. 22 (2) If the applicant appeals to the Supreme Court against the 23 decision of the board to refuse to make the declaration, the 24 appeal is to be by way of rehearing, and fresh evidence or 25 evidence in addition to or in substitution for the evidence 26 before the board may be given on the appeal. 27 (3) On an appeal under this section, the Supreme Court may make 28 an order as it considers appropriate. 29

 


 

s 34 56 s 35 Legal Profession Bill 2007 Division 3 Admission to the legal profession 1 under this Act 2 34 Application for admission to the legal profession 3 (1) A person may apply to the Supreme Court to be admitted to 4 the legal profession under this Act. 5 (2) The application must be made in the approved form and under 6 the admission rules. 7 35 Role of Supreme Court relating to application for 8 admission 9 (1) The Supreme Court must hear and decide each application for 10 admission in the way the court considers appropriate. 11 (2) Without limiting subsection (1), the court may-- 12 (a) make an order admitting the applicant to the legal 13 profession as a lawyer if the court is satisfied the 14 applicant for admission is-- 15 (i) eligible for admission to the legal profession under 16 this Act; and 17 (ii) a fit and proper person to be admitted to the legal 18 profession under this Act; or 19 (b) refuse the application if the court is not satisfied as 20 mentioned in paragraph (a). 21 (3) The court's order as mentioned in subsection (2)(a) may be 22 made unconditionally or on conditions the court considers 23 appropriate. 24 (4) In deciding the application, the court may rely on a 25 recommendation of the board under section 39. 26 (5) Also, the court may hear and decide an application for a 27 direction as mentioned in section 32(3)(b) and give a direction 28 to the board as the court considers appropriate. 29

 


 

s 36 57 s 37 Legal Profession Bill 2007 36 Conditions 1 (1) This section applies to a person admitted to the legal 2 profession if-- 3 (a) the person's admission under this Act or a previous Act 4 was subject to a condition, whether or not the condition 5 has been amended since it was imposed; and 6 (b) the condition as imposed or amended has not lapsed or 7 been revoked. 8 (2) The Supreme Court may do any of the following in relation to 9 the condition-- 10 (a) revoke or vary the condition on which the person was 11 admitted to the legal profession, whether on application 12 of the person or on the court's own initiative; 13 (b) order the removal of the person's name from the local 14 roll for contravening the condition. 15 (3) Without limiting subsection (2)(b), a contravention of a 16 condition is capable of constituting unsatisfactory 17 professional conduct or professional misconduct. 18 37 Roll of persons admitted to the legal profession as a 19 lawyer 20 (1) The Supreme Court must keep a roll of persons admitted to 21 the legal profession, as a lawyer, under this Act. 22 (2) The local roll must include-- 23 (a) the roll of solicitors and roll of barristers, as kept by the 24 Supreme Court and as in existence immediately before 1 25 July 2004; and 26 (b) the roll of legal practitioners, as kept by the Supreme 27 Court from 1 July 2004 to immediately before the 28 commencement of this section. 29 (3) After the Supreme Court makes an order admitting a person to 30 the legal profession under this Act-- 31 (a) the registrar for the Supreme Court district at which the 32 Supreme Court is sitting must, under the admission 33 rules, enter the person's name on the local roll; and 34

 


 

s 38 58 s 39 Legal Profession Bill 2007 (b) the person must sign the local roll. 1 (4) The person's admission to the legal profession under this Act 2 takes effect when the person signs the local roll. 3 (5) Subject to the admission rules, the Brisbane registrar may give 4 written directions to any other registrar about keeping the 5 local roll. 6 38 Local lawyer is officer of Supreme Court 7 (1) A person becomes an officer of the Supreme Court on being 8 admitted to the legal profession under this Act. 9 (2) A person who immediately before the commencement of this 10 section was an officer of the Supreme Court, because of the 11 person's admission as a barrister, solicitor or legal practitioner 12 continues to be an officer of the court. 13 (3) A person ceases to be an officer of the Supreme Court under 14 this section if the person's name is removed from the local 15 roll. 16 Division 4 Powers and functions of board 17 39 Role of the board relating to application for admission 18 (1) The board's role is to help the Supreme Court by making a 19 recommendation about each application for admission. 20 (2) The board must consider each application and, in particular, 21 whether or not-- 22 (a) the application is made under the admission rules; and 23 (b) the applicant is eligible for admission to the legal 24 profession under this Act; and 25 (c) the applicant is a fit and proper person for admission to 26 the legal profession under this Act, including having 27 regard to all suitability matters in relation to the 28 applicant to the extent appropriate; and 29 (d) there are other matters the Supreme Court may consider 30 relevant. 31

 


 

s 40 59 s 42 Legal Profession Bill 2007 (3) The board makes a recommendation to the Supreme Court 1 about the application by giving the recommendation to the 2 Brisbane registrar and a copy of it to the applicant. 3 40 Consideration of applicant's eligibility and suitability 4 (1) To help the board to consider an application for admission, the 5 board may, by notice to the applicant for admission, require 6 the applicant-- 7 (a) to give the board stated documents or information; or 8 (b) to cooperate with any inquiries by the board that it 9 considers appropriate. 10 (2) An applicant's failure to comply with a notice under 11 subsection (1) by the date stated in, and in the way required 12 by, the notice is a ground for recommending to the Supreme 13 Court that the applicant not be admitted to the legal profession 14 under this Act. 15 (3) However, if the board considers it appropriate to apply to the 16 Supreme Court for a direction about a matter concerning an 17 application, the board may do so. 18 Division 5 Miscellaneous 19 41 Board may appear before Supreme Court 20 The board, by a member of the board or by an Australian legal 21 practitioner acting for the board, is entitled to appear before 22 and be heard by the Supreme Court at a hearing about any 23 application made under this part or a reference of an 24 application for a direction of the court. 25 42 Fees payable 26 The board must charge the fee prescribed under a regulation 27 for matters under this part or for matters dealt with in the 28 admission rules. 29

 


 

s 43 60 s 44 Legal Profession Bill 2007 Part 2.4 Legal practice by Australian 1 legal practitioners 2 Division 1 Preliminary 3 43 Main purposes of pt 2.4 4 The main purposes of this part are as follows-- 5 (a) to facilitate the national practice of law by ensuring that 6 Australian legal practitioners can engage in legal 7 practice in this jurisdiction and to provide for the 8 certification of Australian lawyers whether or not 9 admitted to the legal profession in this jurisdiction; 10 (b) to provide a system for the granting and renewing of 11 local practising certificates. 12 Division 2 Legal practice in this jurisdiction by 13 Australian legal practitioners 14 44 Entitlement to practise in this jurisdiction 15 (1) An Australian legal practitioner is, subject to this Act, entitled 16 to engage in legal practice in this jurisdiction. 17 (2) Also, a government legal officer engaged in government work 18 is, subject to this Act, entitled to engage in legal practice in 19 this jurisdiction as a government legal officer even though the 20 government legal officer is not an Australian legal 21 practitioner. 22 (3) Subsection (2) does not prevent a government legal officer 23 from being the holder of a local practising certificate. 24

 


 

s 45 61 s 46 Legal Profession Bill 2007 Division 3 Local practising certificates 1 generally 2 45 Local practising certificates generally 3 (1) Practising certificates may be granted under this part. 4 (2) A regulatory authority may decide the categories of local 5 practising certificates to be granted by it. 6 (3) It is a statutory condition of a local practising certificate that 7 the holder must not hold another local practising certificate, or 8 an interstate practising certificate, that is in force during the 9 currency of the first-mentioned certificate. 10 46 Suitability to hold local practising certificate 11 (1) This section has effect for the purposes of section 516 and any 12 other provision of this Act where the question of whether or 13 not a person is a fit and proper person to hold, or to continue 14 to hold, a local practising certificate is relevant. 15 (2) A regulatory authority of this jurisdiction, in considering 16 whether a person is, or is no longer, a fit and proper person to 17 hold a local practising certificate, may take into account any 18 suitability matter relating to the person, and any of the 19 following, whether happening before or after the 20 commencement of this section-- 21 (a) whether the person obtained an Australian practising 22 certificate because of incorrect or misleading 23 information; 24 (b) whether the person has contravened a condition of an 25 Australian practising certificate held by the person; 26 (c) whether the person has contravened a relevant law or a 27 corresponding law; 28 (d) whether the person has contravened-- 29 (i) an order of a disciplinary body or the Supreme 30 Court; or 31 6 Section 51 (Grant or renewal of local practising certificate)

 


 

s 46 62 s 46 Legal Profession Bill 2007 (ii) an order of a corresponding disciplinary body, or 1 of a court or tribunal of another jurisdiction 2 exercising jurisdiction or powers by way of appeal 3 or review of an order of a corresponding 4 disciplinary body; 5 (e) without limiting any other paragraph, whether the 6 person has failed to pay an amount for which the person 7 is or was liable under a relevant law or a corresponding 8 law, including, for example, an amount payable to the 9 fidelity fund or other costs or expenses for which the 10 person is liable under a relevant law; 11 (f) whether, without limiting paragraph (e), the person has 12 contravened a provision of a relevant law or a 13 corresponding law about professional indemnity 14 insurance; 15 (g) other matters the authority thinks are appropriate. 16 (3) A person may be considered a fit and proper person to hold, or 17 to continue to hold, a local practising certificate even though 18 the person is within any of the categories of the matters 19 mentioned in subsection (2), if the relevant authority 20 considers that the circumstances warrant the decision. 21 (4) If a matter was-- 22 (a) disclosed in an application for admission to the legal 23 profession in this or another jurisdiction; and 24 (b) decided by the Supreme Court or the board, or a 25 Supreme Court of another jurisdiction or corresponding 26 authority of another jurisdiction corresponding to the 27 board, not to be sufficient for refusing admission to the 28 legal profession; 29 the matter can not be taken into account as a ground for 30 refusing to grant or renew, or for suspending or cancelling, a 31 local practising certificate, but the matter may be taken into 32 account when considering other matters in relation to the 33 person concerned. 34

 


 

s 47 63 s 48 Legal Profession Bill 2007 47 Duration of local practising certificates 1 (1) A local practising certificate granted under this Act is in force 2 from the date stated in it until the end of the financial year in 3 which it is granted, unless the certificate is sooner suspended 4 or cancelled. 5 (2) A local practising certificate renewed under this Act is in 6 force until the end of the financial year following its previous 7 period of currency, unless the certificate is sooner suspended 8 or cancelled. 9 (3) If an application for the renewal of a local practising 10 certificate is received before the time stated in the regulatory 11 authority's administration rules for applying for a renewal but 12 the application has not been decided by the following 1 July, 13 the certificate-- 14 (a) continues in force on and from that 1 July until 1 of the 15 following happens-- 16 (i) the authority renews or refuses to renew the 17 certificate; 18 (ii) the local legal practitioner withdraws the 19 application for renewal; 20 (iii) the certificate is suspended or cancelled; and 21 (b) if renewed, is taken to have been renewed on and from 22 that 1 July. 23 48 Local legal practitioner is officer of Supreme Court 24 A person who is not already an officer of the Supreme Court 25 becomes an officer of the Supreme Court on being granted a 26 local practising certificate. 27

 


 

s 49 64 s 49 Legal Profession Bill 2007 Division 4 Grant or renewal of local practising 1 certificates 2 49 Application for grant or renewal of local practising 3 certificate 4 (1) An Australian lawyer may apply to a regulatory authority for 5 the grant or renewal of a local practising certificate if eligible 6 to do so under this section. 7 (2) An Australian lawyer is eligible to apply for the grant or 8 renewal of a local practising certificate if the lawyer complies 9 with all provisions of a regulation and the legal profession 10 rules relating to eligibility for the practising certificate and-- 11 (a) in the case of a lawyer who is not an Australian legal 12 practitioner at the time of making the application-- 13 (i) the lawyer reasonably expects to be engaged in 14 legal practice solely or principally in this 15 jurisdiction during the currency of the certificate or 16 renewal applied for; or 17 (ii) if subparagraph (i) does not apply to the lawyer or 18 it is not reasonably practical to decide whether it 19 applies to the lawyer--the lawyer's place of 20 residence in Australia is this jurisdiction or the 21 lawyer does not have a place of residence in 22 Australia; or 23 (b) in the case of a lawyer who is an Australian legal 24 practitioner at the time of making the application-- 25 (i) the jurisdiction in which the lawyer engages in 26 legal practice solely or principally is this 27 jurisdiction; or 28 (ii) the lawyer holds a current local practising 29 certificate and engages in legal practice in another 30 jurisdiction under an arrangement of a temporary 31 nature; or 32 (iii) the lawyer reasonably expects to be engaged in 33 legal practice solely or principally in this 34 jurisdiction during the currency of the certificate or 35 renewal applied for; or 36

 


 

s 49 65 s 49 Legal Profession Bill 2007 (iv) if subparagraphs (i), (ii) and (iii) do not apply to 1 the lawyer or it is not reasonably practical to 2 decide whether subparagraph (i), (ii) or (iii) applies 3 to the lawyer--the lawyer's place of residence in 4 Australia is this jurisdiction or the lawyer does not 5 have a place of residence in Australia. 6 (3) For subsection (2)(b), the jurisdiction in which an Australian 7 lawyer engages in legal practice solely or principally is to be 8 decided by reference to the lawyer's legal practice during the 9 certificate period current at the time-- 10 (a) the application is made; or 11 (b) in the case of a late application--the application should 12 have been made. 13 (4) An Australian lawyer is not eligible to apply for the grant or 14 renewal of a local practising certificate in relation to a 15 financial year if the lawyer would also be the holder of 16 another Australian practising certificate for that year, but this 17 subsection does not limit the factors deciding ineligibility to 18 apply for the grant or renewal of a local practising certificate. 19 (5) An Australian lawyer must not apply for the grant or renewal 20 of a local practising certificate if the lawyer is not eligible to 21 make the application. 22 (6) An Australian legal practitioner who-- 23 (a) engages in legal practice solely or principally in this 24 jurisdiction during a financial year; and 25 (b) reasonably expects to engage in legal practice solely or 26 principally in this jurisdiction in the following financial 27 year; 28 must apply for the grant or renewal of a local practising 29 certificate in relation to the following financial year. 30 (7) Subsection (6) does not apply to an interstate legal 31 practitioner who applied for the grant or renewal of an 32 interstate practising certificate on the basis that the 33 practitioner reasonably expected to engage in legal practice 34 solely or principally in this jurisdiction under an arrangement 35 that is of a temporary nature. 36

 


 

s 50 66 s 50 Legal Profession Bill 2007 (8) However, subsection (7) ceases to operate in relation to an 1 interstate legal practitioner at the end of the period prescribed 2 by a regulation for the subsection. 3 (9) A reference in this section to engaging in legal practice 4 principally in this or any other jurisdiction applies only to 5 legal practice in Australia and, accordingly, an Australian 6 lawyer who is engaged or expects to be engaged in legal 7 practice principally in a foreign country is nevertheless 8 eligible to apply for the grant or renewal of a local practising 9 certificate if the lawyer otherwise meets the requirements of 10 this section. 11 Note-- 12 The purpose of subsection (9) is to deal with a case where a person 13 practises both in Australia and overseas. In that case, overseas practice 14 is to be disregarded (even if it forms the principal portion of the person's 15 overall practice), so that eligibility is decided by reference to the 16 person's practice in Australia. 17 50 Manner of application 18 (1) An application for the grant or renewal of a local practising 19 certificate must be-- 20 (a) made in the approved form of the relevant regulatory 21 authority; and 22 (b) made in the way provided for under the administration 23 rules of the relevant regulatory authority; and 24 (c) for an application for renewal--made within the period 25 stated in the administration rules of the relevant 26 regulatory authority. 27 (2) The approved form may require the applicant to disclose 28 matters that may affect the applicant's eligibility for the grant 29 or renewal of a local practising certificate or the question 30 whether the applicant is a fit and proper person to hold a local 31 practising certificate. 32 (3) The approved form may indicate that particular kinds of 33 matters previously disclosed in a particular way need not be 34 disclosed for the purposes of the current application. 35

 


 

s 51 67 s 51 Legal Profession Bill 2007 51 Grant or renewal of local practising certificate 1 (1) A regulatory authority must consider an application that has 2 been made to it for the grant or renewal of a local practising 3 certificate and may-- 4 (a) grant or refuse to grant the certificate; or 5 (b) renew or refuse to renew the certificate. 6 (2) The regulatory authority may, when granting or renewing a 7 certificate, impose conditions as mentioned in section 53. 8 (3) The regulatory authority may refuse-- 9 (a) to consider an application if-- 10 (i) it is not made under this Act; or 11 (ii) fees and costs payable under this Act have not been 12 paid; or 13 (b) to grant or renew a local practising certificate if the 14 applicant has not complied with the administration rules 15 of the authority relating to the application. 16 (4) The regulatory authority must not grant a local practising 17 certificate unless it is satisfied that the applicant-- 18 (a) was eligible to apply for the grant when the application 19 was made; and 20 (b) is a fit and proper person to hold the certificate. 21 (5) The regulatory authority must not renew a local practising 22 certificate if it is satisfied that the applicant-- 23 (a) was not eligible to apply for the renewal of the 24 certificate when the application was made; or 25 (b) is not a fit and proper person to continue to hold the 26 certificate.7 27 (6) Also, the regulatory authority must not grant or renew a local 28 practising certificate if the authority considers the applicant's 29 circumstances have changed since the application was made 30 and the applicant would, having regard to information that has 31 come to the authority's attention, not have been eligible to 32 7 See section 46 (Suitability to hold local practising certificate).

 


 

s 52 68 s 52 Legal Profession Bill 2007 make the application when the application is being 1 considered. 2 (7) If the regulatory authority grants or renews a local practising 3 certificate, the authority must give the applicant-- 4 (a) for the grant of a certificate--a local practising 5 certificate; or 6 (b) for the renewal of a certificate--a new local practising 7 certificate or a notice of renewal. 8 (8) The regulatory authority must give the applicant an 9 information notice if the authority-- 10 (a) refuses to grant or renew a local practising certificate; or 11 (b) imposes a condition on the certificate and the applicant 12 does not agree to the condition. 13 (9) The applicant may appeal to the Supreme Court against a 14 refusal mentioned in subsection (8) within 28 days after the 15 day the information notice about the decision is given to the 16 applicant. 17 Note-- 18 For matters relevant to the imposition of conditions, see section 54. 19 Division 5 Conditions on local practising 20 certificates 21 52 Conditions generally 22 A local practising certificate is subject to the following-- 23 (a) a condition imposed by the relevant regulatory authority 24 at the time the certificate is granted unless the condition 25 is revoked at a later time; 26 (b) a statutory condition as mentioned in section 45, 55, 56 27 or 57; 28

 


 

s 53 69 s 53 Legal Profession Bill 2007 (c) a condition imposed or amended under division 6 or 7;8 1 (d) a condition imposed or amended under chapter 49 or 2 under a corresponding law; 3 (e) a condition imposed or amended under a regulation, the 4 legal profession rules or the administration rules. 5 53 Conditions imposed by law society or bar association 6 (1) At the time a regulatory authority grants a local practising 7 certificate, the authority may impose any reasonable and 8 relevant condition on the practising certificate. 9 (2) A condition may be about any of the following-- 10 (a) requiring the certificate holder to undertake or 11 complete-- 12 (i) continuing legal education; or 13 (ii) stated legal education or training; 14 (b) limiting the certificate holder to supervised legal 15 practice in the way stated in the condition or to the 16 practice of areas of law stated in the condition; 17 (c) controlling, restricting or prohibiting the operation of a 18 trust account; 19 (d) restricting the certificate holder to particular conditions 20 concerning employment or supervision; 21 (e) a matter agreed to by the certificate holder. 22 (3) Subsection (2) does not limit the matters about which a 23 condition may be imposed under this section. 24 (4) The regulatory authority must not impose a condition 25 requiring the certificate holder to undertake and complete 26 stated legal education or training unless-- 27 8 Division 6 (Amendment, suspension or cancellation of local practising certificates) or 7 (Special powers in relation to local practising certificates--show cause events) 9 Chapter 4 (Complaints and discipline)

 


 

s 54 70 s 54 Legal Profession Bill 2007 (a) the regulatory authority is satisfied that it is reasonable 1 to require the stated legal education or training to be 2 undertaken, having regard to-- 3 (i) when the holder undertook his or her previous 4 academic studies or legal training, or obtained the 5 previous legal experience; or 6 (ii) the certificate holder's conduct; or 7 (b) the condition is 1 that is imposed generally on 8 certificates holders or a class of certificates holders. 9 (5) A regulatory authority's power to impose a condition 10 mentioned in subsection (2)(a) is not limited by, and does not 11 limit, the regulatory authority's power to impose a condition 12 under its administration rules about a matter mentioned in 13 section 231(2)(e).10 14 54 Applications relating to conditions 15 (1) This section applies if a regulatory authority imposes a 16 condition on a practising certificate, other than a condition 17 applying in relation to a practising certificate under the 18 authority's legal profession rules or administration rules. 19 (2) If the applicant did not apply for a practising certificate to be 20 subject to the condition-- 21 (a) the regulatory authority must give the applicant an 22 information notice about the decision to impose the 23 condition; and 24 (b) the applicant may appeal to the Supreme Court against 25 the imposition within 28 days after the day the 26 information notice is given to the applicant. 27 (3) The regulatory authority may revoke a condition imposed on a 28 practising certificate, on application of the certificate holder in 29 the approved form or on its own initiative, by giving written 30 notice about the revocation to the certificate holder. 31 10 Section 231 (Rules other than legal profession rules)

 


 

s 55 71 s 56 Legal Profession Bill 2007 (4) If a certificate holder applies for the revocation of a condition 1 and the relevant regulatory authority refuses to grant the 2 application-- 3 (a) the authority must give the applicant an information 4 notice about the decision refusing the application; and 5 (b) the applicant may appeal to the Supreme Court against 6 the imposition of the condition within 28 days after the 7 day the information notice is given to the applicant. 8 55 Statutory condition regarding conditions imposed on 9 interstate admission 10 It is a statutory condition of a local practising certificate that 11 the certificate holder must not contravene the following-- 12 (a) a condition that was imposed on the holder's admission 13 to the legal profession under a corresponding law (an 14 imposed condition) if the imposed condition is still in 15 force; 16 (b) an imposed condition as amended from time to time. 17 56 Statutory condition regarding practice as solicitor 18 (1) It is a statutory condition of a local practising certificate for a 19 solicitor that the certificate holder must engage in supervised 20 legal practice only, until the certificate holder has 21 completed-- 22 (a) if the certificate holder completed supervised legal 23 training to qualify for admission to the legal profession 24 in this or another jurisdiction--a period or periods 25 equivalent to 18 months supervised legal practice, 26 worked out under a regulation, after the day the holder's 27 first practising certificate was granted; or 28 (b) if the holder completed other practical legal training to 29 qualify for admission to the legal profession in this or 30 another jurisdiction--a period or periods equivalent to 2 31 years supervised legal practice, worked out under a 32 regulation, after the day the holder's first practising 33 certificate was granted. 34

 


 

s 57 72 s 57 Legal Profession Bill 2007 (2) Subsection (1) has effect subject to any other conditions that 1 relate to engaging in supervised legal practice as a solicitor 2 after a period or periods mentioned in that subsection. 3 (3) The law society may exempt a person or class of persons from 4 the requirement for supervised legal practice under subsection 5 (1) or may reduce a period mentioned in that subsection for a 6 person or class of persons, if satisfied the person or persons do 7 not need to be supervised or need to be supervised only for a 8 shorter period, having regard to-- 9 (a) the length and nature of any legal practice previously 10 engaged in by the person or persons; and 11 (b) the length and nature of any legal practice engaged in by 12 the supervisors, if any, who previously supervised the 13 legal practice engaged in by the person or persons. 14 (4) An exemption under subsection (3) may be given 15 unconditionally or subject to conditions the law society 16 considers appropriate. 17 (5) In this section-- 18 supervised legal training means practical legal training 19 principally under the supervision of an Australian lawyer, 20 whether involving articles of clerkship or otherwise. 21 57 Statutory condition regarding notification of offence 22 (1) It is a statutory condition of a local practising certificate that 23 the certificate holder must give notice to the relevant 24 regulatory authority if the certificate holder is-- 25 (a) convicted of an offence that would have to be disclosed 26 under the admission rules for an application for 27 admission; or 28 (b) charged with a serious offence. 29 (2) The notice must be in the approved form and given to the 30 regulatory authority within 7 days after-- 31 (a) if the certificate holder is convicted of an offence--the 32 day the person is convicted; or 33 (b) if the certificate holder is charged with an offence--the 34 day the person is charged. 35

 


 

s 58 73 s 60 Legal Profession Bill 2007 (3) The regulatory authority's administration rules may state the 1 person to whom, or the address to which, the notice is to be 2 given. 3 (4) This section does not apply to a show cause event to which 4 division 711 applies. 5 58 Compliance with conditions 6 The holder of a current local practising certificate must not 7 contravene, in this jurisdiction or elsewhere, a condition to 8 which the certificate is subject. 9 Example-- 10 If a person engages in unsupervised legal practice and the relevant 11 practising certificate states the certificate holder may only engage in 12 supervised legal practice, the person contravenes a condition of the 13 certificate. The contravention may constitute unsatisfactory professional 14 conduct or professional misconduct under section 420. 15 Division 6 Amendment, suspension or 16 cancellation of local practising 17 certificates 18 59 Application of this division 19 This division does not apply to a show cause event in relation 20 to which a regulatory authority may exercise a power under 21 division 7. 22 60 Grounds for amending, suspending or cancelling a local 23 practising certificate 24 Each of the following is a ground for amending, suspending or 25 cancelling a local practising certificate-- 26 11 Division 7 (Special powers in relation to local practising certificates--show cause events)

 


 

s 61 74 s 61 Legal Profession Bill 2007 (a) the certificate holder is no longer a fit and proper person 1 to hold the certificate;12 2 (b) the certificate holder does not have, or no longer has, 3 professional indemnity insurance that complies with this 4 Act in relation to the certificate; 5 (c) if a condition of the certificate is that the certificate 6 holder is limited to legal practice stated in the 7 certificate--the certificate holder is, or has been, 8 engaging in legal practice that the holder is not entitled 9 to engage in under this Act. 10 61 Amending, suspending or cancelling a local practising 11 certificate 12 (1) If the relevant regulatory authority believes a ground exists to 13 amend, suspend or cancel a person's local practising 14 certificate (the proposed action), the authority must give the 15 person a notice (the show cause notice) that-- 16 (a) states the proposed action and-- 17 (i) if the proposed action is to amend the 18 certificate--states the proposed amendment; and 19 (ii) if the proposed action is to suspend the 20 certificate--states the proposed suspension period; 21 and 22 (b) states the grounds for proposing to take the proposed 23 action; and 24 (c) outlines the facts and circumstances that form the basis 25 for the authority's belief; and 26 (d) invites the certificate holder to make written 27 representations to the authority, within a stated time of 28 not less than 28 days, as to why the proposed action 29 should not be taken. 30 (2) If, after considering all written representations made within 31 the stated time or, in its discretion after the stated time, the 32 12 See section 46 (Suitability to hold local practising certificate).

 


 

s 61 75 s 61 Legal Profession Bill 2007 regulatory authority still believes a ground exists to take the 1 proposed action, the authority may-- 2 (a) if the show cause notice stated the proposed action was 3 to amend the practising certificate--amend the 4 certificate in the way stated, or in a less onerous way the 5 authority considers appropriate because of the written 6 representations; or 7 (b) if the show cause notice stated the proposed action was 8 to suspend the practising certificate for a stated period-- 9 (i) suspend the certificate for a period no longer than 10 the stated period; or 11 (ii) amend the certificate in a less onerous way the 12 authority considers appropriate because of the 13 written representations; or 14 (c) if the show cause notice stated the proposed action was 15 to cancel the practising certificate-- 16 (i) cancel the certificate; or 17 (ii) suspend the certificate for a period; or 18 (iii) amend the certificate in a less onerous way the 19 authority considers appropriate because of the 20 written representations. 21 (3) If the regulatory authority decides to amend, suspend or 22 cancel the local practising certificate-- 23 (a) the authority must give the certificate holder an 24 information notice about the decision; and 25 (b) the certificate holder may appeal to the Supreme Court 26 against the decision within 28 days after the day the 27 information notice is given to the certificate holder. 28 (4) In this section-- 29 amend, in relation to a local practising certificate, means 30 amend or impose a condition that a regulatory authority may 31 impose at the time of granting a local practising certificate, as 32 mentioned in section 53, otherwise than at the request of the 33 holder of the certificate. 34

 


 

s 62 76 s 63 Legal Profession Bill 2007 62 Operation of amendment, suspension or cancellation of 1 local practising certificate 2 (1) This section applies if a decision is made to amend, suspend 3 or cancel a local practising certificate under section 61 or 69. 4 (2) Subject to subsections (3) and (4), the amendment, suspension 5 or cancellation takes effect on the later of the following-- 6 (a) the day that the information notice about the decision is 7 given to the certificate holder; 8 (b) the day stated in the information notice. 9 (3) If the practising certificate is amended, suspended or 10 cancelled because the certificate holder has been convicted of 11 an offence-- 12 (a) the Supreme Court may, on application of the certificate 13 holder, order that the amendment, suspension or 14 cancellation be stayed until-- 15 (i) the end of the time to appeal against the 16 conviction; or 17 (ii) if an appeal is made against the conviction--the 18 appeal is finally decided, lapses or otherwise ends; 19 and 20 (b) the amendment, suspension or cancellation does not 21 have effect during any period for which the stay is in 22 force. 23 (4) If the practising certificate is amended, suspended or 24 cancelled because the certificate holder has been convicted of 25 an offence and a court quashes the conviction-- 26 (a) the amendment or suspension ceases to have effect when 27 the court quashes the conviction; or 28 (b) the cancellation ceases to have effect when the court 29 quashes the conviction and the certificate is restored as 30 if it had merely been suspended. 31 63 Immediate amendment or suspension of local practising 32 certificate 33 (1) This section applies if the relevant regulatory authority in 34 relation to a local legal practitioner considers it necessary in 35

 


 

s 63 77 s 63 Legal Profession Bill 2007 the public interest to take action under this section in relation 1 to that legal practitioner, whether or not action in relation to 2 the legal practitioner has been started otherwise than under 3 this division or division 7. 4 (2) The relevant regulatory authority may immediately amend a 5 local practising certificate of the legal practitioner to provide 6 for either of the following-- 7 (a) imposing or amending conditions about controlling or 8 otherwise regulating conditions about the legal 9 practitioner's trust account; 10 (b) suspending stated operations in relation to the certificate 11 holder's trust account or directing the certificate holder 12 not to operate the account. 13 (3) The relevant regulatory authority may immediately suspend 14 the local practising certificate of the legal practitioner for any 15 of the following reasons, whether it happened before or after 16 the commencement of this section-- 17 (a) there is a show cause event in relation to the legal 18 practitioner; 19 (b) the regulatory authority believes there is any ground 20 mentioned in section 60 that would justify the 21 suspension or cancellation of the local practising 22 certificate under section 61; 23 (c) any other ground that the regulatory authority considers 24 warrants suspension of the local practising certificate in 25 the public interest. 26 (4) The relevant regulatory authority amends or suspends a local 27 practising certificate by giving an information notice to the 28 local legal practitioner about the regulatory authority's 29 decision to amend or suspend. 30 (5) The information notice must also state that the local legal 31 practitioner may make written representations to the 32 regulatory authority about the amendment or suspension. 33 (6) Subject to subsection (9), the practising certificate continues 34 to be subject to the amendment or suspension until the earlier 35 of the following-- 36

 


 

s 64 78 s 65 Legal Profession Bill 2007 (a) the time at which the regulatory authority informs the 1 local legal practitioner of the authority's decision by 2 information notice under section 61(3); 3 (b) the end of 56 days after the information notice is given 4 to the local legal practitioner under this section. 5 (7) If the local legal practitioner makes written representations to 6 the regulatory authority about the amendment or suspension, 7 the authority must consider the written representations. 8 (8) The regulatory authority may revoke the amendment or 9 suspension at any time, whether or not because of written 10 representations made to it by the local legal practitioner. 11 (9) Also, the regulatory authority may apply to the Supreme 12 Court for an order extending the period of the amendment or 13 suspension and, if the court considers it appropriate and the 14 amendment or suspension has not ended under subsection (6), 15 the court may extend the period of the amendment or 16 suspension for a further period of not more than 56 days after 17 the date of the court order. 18 (10) The regulatory authority must give the certificate holder an 19 information notice about its decision to apply under 20 subsection (9) for an order extending the period of the 21 suspension or amendment. 22 64 Removal from local roll 23 (1) If a local legal practitioner's name is removed from the local 24 roll or a local legal practitioner ceases to be an Australian 25 lawyer, the regulatory authority must cancel the practising 26 certificate by information notice given to the legal 27 practitioner. 28 (2) Section 61 does not apply in a case to which this section 29 applies. 30 65 Consensual amendment or cancellation etc. 31 (1) Subsection (2) applies if-- 32 (a) a local legal practitioner applies, in the approved form, 33 to the regulatory authority to amend or cancel the 34 practitioner's practising certificate; or 35

 


 

s 66 79 s 66 Legal Profession Bill 2007 (b) the regulatory authority proposes to amend a local legal 1 practitioner's practising certificate-- 2 (i) only for a formal or clerical reason or in another 3 way that does not adversely affect the practitioner's 4 interests; and 5 (ii) the practitioner agrees in writing to the 6 amendment. 7 (2) The authority may amend or cancel the local practising 8 certificate as mentioned in subsection (1) by written notice 9 given to the legal practitioner. 10 (3) Section 61 does not apply in a case to which this section 11 applies. 12 66 Relationship of div 6 with ch 6 13 (1) An investigator appointed by a regulatory authority may 14 exercise powers under chapter 6 for a matter under this 15 division, as if the matter were the subject of a complaint. 16 (2) Accordingly, the provisions of chapter 6 apply in relation to a 17 matter under this division, and so apply with any necessary 18 changes. 19 (3) Nothing in this division prevents-- 20 (a) a regulatory authority from making a complaint about a 21 matter to which this division relates; or 22 (b) the commissioner from investigating or referring a 23 matter for investigation as mentioned in section 435.13 24 13 Section 435 (Referral by commissioner to law society or bar association)

 


 

s 67 80 s 67 Legal Profession Bill 2007 Division 7 Special powers in relation to local 1 practising certificates--show cause 2 events 3 67 Application for local practising certificate if show cause 4 event happened after first admission 5 (1) This section applies if-- 6 (a) a person is applying for the grant of a local practising 7 certificate under this Act; and 8 (b) a show cause event in relation to the person happened, 9 whether before or after the commencement of this 10 section, after the person was first admitted to the legal 11 profession, however the admission was expressed at the 12 time of that admission. 13 (2) As part of the application, the person must give to the relevant 14 regulatory authority a written statement-- 15 (a) about the show cause event; and 16 (b) explaining why, despite the event, the person considers 17 himself or herself to be a fit and proper person to hold a 18 local practising certificate. 19 (3) However, a person need not give a statement under subsection 20 (2) if the person (as a previous applicant for a local practising 21 certificate or as the holder of a local practising certificate 22 previously in force) has previously given the regulatory 23 authority-- 24 (a) a statement under this section or under the Legal 25 Profession Act 2004, section 62; or 26 (b) a notice and statement under section 68, or under the 27 Legal Profession Act 2004, section 63, for the show 28 cause event; 29 explaining why, despite the event, the person considers 30 himself or herself to be a fit and proper person to hold a local 31 practising certificate. 32 (4) The regulatory authority must give a copy of a statement 33 under subsection (2) to the commissioner. 34

 


 

s 68 81 s 69 Legal Profession Bill 2007 68 Requirement if show cause event 1 (1) If a show cause event happens in relation to a local legal 2 practitioner, the practitioner must give to the relevant 3 regulatory authority both of the following-- 4 (a) within 7 days after the date of the event--notice, in the 5 approved form, that the event happened; 6 (b) within 28 days after the date of the event--a written 7 statement explaining why, despite the event, the 8 practitioner continues to be a fit and proper person to 9 hold a local practising certificate. 10 (2) The regulatory authority must give a copy of the notice and 11 the statement under subsection (1) to the commissioner. 12 (3) However, if a written statement is given after the 28 days 13 mentioned in subsection (1)(b), the regulatory authority may 14 accept the statement and take it into consideration. 15 69 Refusal, amendment, suspension or cancellation of local 16 practising certificate because of failure to show cause 17 (1) The relevant regulatory authority may refuse to grant or 18 renew, or may amend, suspend or cancel, a local practising 19 certificate if the applicant or certificate holder-- 20 (a) is required by section 67 or 68 to give a written 21 statement relating to a matter to the regulatory authority 22 and the applicant or certificate holder has not done so; or 23 (b) has given a written statement under section 67 or 68 but 24 the authority does not consider that the applicant or 25 certificate holder has shown in the statement that the 26 person is a fit and proper person to hold or to continue to 27 hold a local practising certificate. 28 (2) For subsection (1)(b), a written statement accepted by the 29 regulatory authority as mentioned in section 68(3) is taken to 30 be given under section 67. 31 (3) If the regulatory authority decides to refuse to grant or renew, 32 or to amend, suspend or cancel, a local practising certificate-- 33 (a) the authority must give the applicant or certificate 34 holder an information notice about the decision; and 35

 


 

s 70 82 s 71 Legal Profession Bill 2007 (b) the applicant or certificate holder may appeal to the 1 Supreme Court against the decision within 28 days after 2 the day the information notice is given to the applicant 3 or certificate holder. 4 (4) Also, the regulatory authority must give a copy of the 5 information notice to the commissioner. 6 70 Restriction on making further application 7 (1) This section applies if a regulatory authority decides under 8 section 69 to refuse to grant or renew a local practising 9 certificate or to cancel a local practising certificate. 10 (2) The authority may also decide that the applicant or certificate 11 holder is not entitled to apply for the grant of a local practising 12 certificate for a stated period of not more than 5 years. 13 (3) If the authority makes a decision under subsection (2), the 14 authority must include the decision in the information notice 15 required under section 69(3)(a) and the applicant or certificate 16 holder may also appeal to the Supreme Court against the 17 decision within 28 days after the day the information notice is 18 given to the applicant or certificate holder. 19 (4) Subject to a successful appeal against a decision under this 20 section, the Legal Profession Act 2004, section 65, or under a 21 corresponding law, a person against whom the decision has 22 been made is not entitled to apply for the grant of a local 23 practising certificate during the period stated in the decision. 24 71 Relationship of div 7 with ch 6 25 (1) An investigator appointed by a regulatory authority may 26 exercise powers under chapter 6 for a matter under this 27 division, as if the matter were the subject of a complaint. 28 (2) Accordingly, the provisions of chapter 6 apply in relation to a 29 matter under this division, and so apply with any necessary 30 changes. 31 (3) Nothing in this division prevents-- 32 (a) a regulatory authority from making a complaint about a 33 matter to which this division relates; or 34

 


 

s 72 83 s 73 Legal Profession Bill 2007 (b) the commissioner from investigating or referring a 1 matter for investigation as mentioned in section 435.14 2 Division 8 Further provisions relating to local 3 practising certificate 4 72 Surrender and cancellation of local practising certificate 5 (1) The holder of a local practising certificate may surrender the 6 certificate to the relevant regulatory authority. 7 (2) The relevant regulatory authority to which the local practising 8 certificate is surrendered may cancel the certificate. 9 73 Return of local practising certificate 10 (1) This section applies if a local practising certificate is 11 amended, suspended or cancelled by a relevant regulatory 12 authority under division 6 or 7.15 13 (2) The regulatory authority may-- 14 (a) give the certificate holder a notice requiring the holder 15 to return the certificate to the authority in the way stated 16 in the notice within a stated period of not less than 14 17 days; or 18 (b) include in an information notice that the authority must 19 give to the certificate holder under division 6 or 7 a 20 further notice requiring the holder to return the 21 certificate to the authority in the way stated in the notice 22 within a stated period of not less than 14 days. 23 (3) The certificate holder must comply with the requirement, 24 unless the holder has a reasonable excuse. 25 Maximum penalty--50 penalty units. 26 (4) The regulatory authority must return the practising certificate 27 to the certificate holder-- 28 14 Section 435 (Referral by commissioner to law society or bar association) 15 Division 6 (Amendment, suspension or cancellation of local practising certificates) or 7 (Special powers in relation to local practising certificates--show cause events)

 


 

s 74 84 s 74 Legal Profession Bill 2007 (a) if the certificate is amended--after amending it; or 1 (b) if the certificate is suspended and is still current at the 2 end of the suspension period--at the end of the 3 suspension period. 4 Division 9 Interstate legal practitioners 5 74 Requirement for interstate practising certificate and 6 professional indemnity insurance 7 (1) An interstate legal practitioner must not engage in legal 8 practice in this jurisdiction, or represent or advertise that the 9 practitioner is entitled to engage in legal practice in this 10 jurisdiction, unless the practitioner-- 11 (a) is covered by professional indemnity insurance that-- 12 (i) covers legal practice in this jurisdiction; and 13 (ii) has been approved under, or complies with the 14 requirements of, the corresponding law of the 15 practitioner's home jurisdiction; and 16 (iii) is for at least $1.5 million inclusive of defence 17 costs unless, without affecting subparagraph (i) or 18 (ii), the practitioner engages in legal practice solely 19 as or in the manner of a barrister; or 20 (b) is employed by a corporation, other than an incorporated 21 legal practice, and the only legal services provided by 22 the practitioner in this jurisdiction are in-house legal 23 services. 24 Maximum penalty--300 penalty units or 2 years 25 imprisonment. 26 (2) A regulation may require an interstate legal practitioner to 27 disclose information about professional indemnity insurance 28 to clients or prospective clients. 29 (3) This section does not apply to an interstate legal practitioner 30 who-- 31 (a) is a government legal officer; and 32

 


 

s 75 85 s 75 Legal Profession Bill 2007 (b) is engaged in legal practice in this jurisdiction only to 1 the extent that the practitioner is engaging in 2 government work; and 3 (c) has an indemnity or immunity, whether provided by law 4 or governmental policy, that is applicable in relation to 5 that practice. 6 75 Extent of entitlement of interstate legal practitioner to 7 practise in this jurisdiction 8 (1) This part does not authorise an interstate legal practitioner to 9 engage in legal practice in this jurisdiction to a greater extent 10 than a local legal practitioner could be authorised under a 11 local practising certificate. 12 (2) Also, an interstate legal practitioner's right to engage in legal 13 practice in this jurisdiction-- 14 (a) is subject to-- 15 (i) specific provisions under this Act applying to 16 interstate legal practitioners; and 17 (ii) any conditions imposed by the relevant regulatory 18 authority under section 76 in relation to the 19 interstate legal practitioner; and 20 (b) is, to the greatest practicable extent and with all 21 necessary changes-- 22 (i) the same as the practitioner's right to engage in 23 legal practice in the practitioner's home 24 jurisdiction; and 25 (ii) subject to any condition applicable to the 26 practitioner's right to engage in legal practice in 27 that jurisdiction, including any conditions imposed 28 on his or her admission to the legal profession in 29 this or another jurisdiction. 30 (3) If there is an inconsistency between conditions mentioned in 31 subsection (2)(a) and conditions mentioned in subsection 32 (2)(b), the conditions the relevant regulatory authority 33 considers more onerous prevail to the extent of the 34 inconsistency. 35

 


 

s 76 86 s 77 Legal Profession Bill 2007 (4) An interstate legal practitioner must not engage in legal 1 practice in this jurisdiction in a way that is not authorised 2 under this Act or in contravention of any condition mentioned 3 in this section. 4 76 Additional condition on interstate legal practitioner 5 engaging in legal practice in this jurisdiction 6 (1) The relevant regulatory authority may impose a condition on 7 an interstate legal practitioner engaged in legal practice in this 8 jurisdiction that the authority may impose under this Act on a 9 local practising certificate at the time it is granted or renewed. 10 (2) However, conditions imposed under this section must not be 11 more onerous than conditions applying to local legal 12 practitioners. 13 (3) If the regulatory authority imposes a condition on an interstate 14 legal practitioner engaged in legal practice in this 15 jurisdiction-- 16 (a) the authority must give the interstate legal practitioner 17 an information notice about the decision to impose the 18 condition; and 19 (b) the interstate legal practitioner may appeal to the 20 Supreme Court against the decision within 28 days after 21 the day the information notice is given to the certificate 22 holder. 23 (4) An interstate legal practitioner must not contravene a 24 condition imposed under this section. 25 77 Special provision about interstate legal practitioner 26 engaging in unsupervised legal practice in this 27 jurisdiction 28 (1) An interstate legal practitioner must not engage in 29 unsupervised legal practice in this jurisdiction unless-- 30 (a) if the practitioner completed supervised legal training to 31 qualify for admission to the legal profession--the 32 practitioner has undertaken a period or periods 33 equivalent to 18 months supervised legal practice, 34

 


 

s 78 87 s 79 Legal Profession Bill 2007 worked out under a regulation, after the date the 1 practitioner's first practising certificate was granted; or 2 (b) if the interstate legal practitioner completed other 3 practical legal training to qualify for admission to the 4 legal profession in this or another jurisdiction--the 5 practitioner has undertaken a period or periods 6 equivalent to 2 years supervised legal practice, worked 7 out under a regulation, after the date the practitioner's 8 first practising certificate was granted. 9 (2) However, subsection (1)-- 10 (a) does not apply if the interstate legal practitioner is 11 exempt from the requirement for supervised legal 12 practice in the practitioner's home jurisdiction; or 13 (b) applies to the interstate legal practitioner only to the 14 extent of a shorter period if the required period of 15 supervised legal practice has been reduced for the 16 practitioner in the practitioner's home jurisdiction. 17 (3) In this section-- 18 supervised legal training means practical legal training 19 principally under the supervision of an Australian lawyer, 20 whether involving articles of clerkship or otherwise. 21 78 Interstate legal practitioner is officer of Supreme Court 22 An interstate legal practitioner engaged in legal practice in 23 this jurisdiction has all the duties and obligations of an officer 24 of the Supreme Court, and for those duties and obligations, is 25 subject to the jurisdiction of the Supreme Court. 26 Division 10 Miscellaneous 27 79 Protocols 28 (1) A regulatory authority may enter into arrangements 29 (jurisdiction protocols) with regulatory authorities of other 30 jurisdictions about deciding-- 31

 


 

s 80 88 s 80 Legal Profession Bill 2007 (a) the jurisdiction in which an Australian lawyer practises 1 law principally or can reasonably expect to practise law 2 principally; or 3 (b) the circumstances in which an arrangement under which 4 an Australian legal practitioner practises in a 5 jurisdiction-- 6 (i) may be regarded as being of a temporary nature; or 7 (ii) ceases to be of a temporary nature; or 8 (c) the circumstances in which an Australian legal 9 practitioner may reasonably expect to practise law 10 principally in a jurisdiction during the currency of the 11 practitioner's practising certificate. 12 (2) For this Act, and to the extent that jurisdiction protocols are 13 relevant, a matter mentioned in subsection (1)(a), (b) or (c) 14 must be decided under the jurisdiction protocols. 15 (3) The regulatory authority may enter into an arrangement that 16 amends, revokes or replaces a jurisdiction protocol. 17 (4) A jurisdiction protocol, or an amendment, revocation or 18 replacement of a jurisdiction protocol, has effect in this 19 jurisdiction only to the extent it is approved under a 20 regulation. 21 80 Consideration of applicant for local practising certificate 22 and certificate holder 23 (1) The purpose of this section is to enable a regulatory authority 24 to obtain a document or information, or a person's 25 cooperation, to the extent necessary for the authority to 26 consider whether or not-- 27 (a) to grant or renew a local practising certificate; or 28 (b) to amend, suspend or cancel a local practising 29 certificate. 30 (2) The relevant regulatory authority may, by written notice to the 31 applicant or certificate holder, ask the applicant or certificate 32 holder-- 33

 


 

s 81 89 s 81 Legal Profession Bill 2007 (a) to give it a stated document or information that the 1 authority believes is necessary for the authority's 2 consideration about a local practising certificate; or 3 (b) to cooperate in a stated way with the authority in an 4 investigation or inquiry that the authority believes is 5 necessary for the authority's consideration about a local 6 practising certificate. 7 (3) The regulatory authority may decide not to grant or renew a 8 local practising certificate, or to amend, suspend or cancel a 9 local practising certificate, if the applicant or the certificate 10 holder fails-- 11 (a) to give the stated documents or information as requested 12 under subsection (2); or 13 (b) to cooperate with the authority in its investigations or 14 inquiries as requested under subsection (2). 15 81 Register of local practising certificates 16 (1) A regulatory authority must, in the way it considers 17 appropriate, keep a register of the names of Australian 18 lawyers to whom it grants local practising certificates. 19 (2) The register must-- 20 (a) state conditions, if any, imposed on a local practising 21 certificate relating to the certificate holder engaging in 22 legal practice; and 23 (b) include other particulars prescribed under a regulation. 24 (3) A regulatory authority must ensure that an up-to-date version 25 of its register is available, without charge, for public 26 inspection-- 27 (a) at the authority's principal place of business during 28 normal working hours; or 29 (b) on the authority's internet site or an internet site 30 identified on the authority's internet site. 31 (4) However, a regulation may provide for a person's name not to 32 be included in the register or for that person's name as it 33 appears in the register not to be available for public 34 inspection. 35

 


 

s 82 90 s 83 Legal Profession Bill 2007 Example of a regulation-- 1 A regulation may provide for a system of applying to a regulatory 2 authority for the suppression of a person's name if the person is being 3 stalked by a previous client or has been otherwise threatened with 4 violence by someone. 5 82 Supreme Court orders about conditions 6 (1) A regulatory authority may apply to the Supreme Court for an 7 order that an Australian lawyer not contravene a condition 8 imposed under this part. 9 (2) The Supreme Court may make any order it considers 10 appropriate on the application. 11 83 Regulatory authority may charge reasonable fees 12 (1) A regulatory authority may charge fees for services that it 13 provides, including, for example, the services provided by the 14 authority as part of performing its functions under this Act. 15 Example of a service that a regulatory authority provides as part of 16 performing its functions under this Act-- 17 granting or renewing a practising certificate 18 (2) The fee for a service must be reasonable having regard to the 19 cost to the regulatory authority of performing all of its 20 functions under this Act and the funding that the authority has 21 received under this Act, and a fee for a service is not 22 unreasonable only because the particular fee is more than the 23 cost of providing the specific service. 24 (3) The fees set by a regulatory authority must be included in its 25 administration rules. 26 (4) Despite subsection (1), a regulatory authority may not charge 27 a fee for a service provided to another entity that has functions 28 under this Act except so far as the other entity has arranged, 29 on a commercial basis, for the regulatory authority to perform 30 a service associated with the functions of the other entity. 31

 


 

s 84 91 s 85 Legal Profession Bill 2007 Part 2.5 Suitability reports 1 Division 1 Preliminary 2 84 Main purpose of pt 2.5 3 The main purpose of this part is to ensure police reports and 4 health assessment reports may be obtained when this Act has 5 provided for the reports or assessments. 6 85 Definitions for pt 2.5 7 In this part-- 8 commissioner of police means the commissioner of the police 9 service. 10 interstate registration means registration under a 11 corresponding law as a locally registered foreign lawyer under 12 that law. 13 Note-- 14 A person granted interstate registration would be an interstate-registered 15 foreign lawyer under this Act. 16 legal practice includes the practice of foreign law in this 17 jurisdiction by a foreign lawyer. 18 local registration means registration under this Act as a 19 locally registered foreign lawyer. 20 registration means local registration or interstate registration. 21 relevant authority means-- 22 (a) for an applicant for admission--the board; or 23 (b) for an applicant for the grant or renewal of a local 24 practising certificate or local registration, for the holder 25 of a local practising certificate or for a locally registered 26 foreign lawyer--the relevant regulatory authority. 27 subject person means-- 28 (a) an applicant for admission; or 29

 


 

s 86 92 s 86 Legal Profession Bill 2007 (b) an applicant for the grant or renewal of a local practising 1 certificate; or 2 (c) the holder of a local practising certificate; or 3 (d) an applicant for registration as a locally registered 4 foreign lawyer; or 5 (e) a locally registered foreign lawyer. 6 suitability report means a police report or health assessment 7 report prepared under this part, the Legal Profession Act 2004, 8 chapter 7, part 1, or a corresponding law, and includes a copy 9 of a report or a part of a report or copy. 10 Division 2 Police reports 11 86 Relevant authority may ask for police report 12 (1) A relevant authority may ask the commissioner of police for a 13 written report about whether a subject person has any 14 convictions for offences. 15 (2) However, a regulatory authority must not ask for a report 16 about a local legal practitioner or a locally registered foreign 17 lawyer unless the authority considers it appropriate. 18 (3) Subsection (2) applies to the regulatory authority in relation to 19 a local legal practitioner whether or not the practitioner is 20 applying for the renewal of the local practising certificate or 21 applying for another practising certificate. 22 (4) The commissioner of police must give the report to the 23 authority. 24 (5) The report must contain only information in the possession of 25 the commissioner of police or to which the commissioner has 26 access. 27

 


 

s 87 93 s 88 Legal Profession Bill 2007 Division 3 Health assessments 1 87 Health assessment 2 (1) This section applies if a relevant authority believes a subject 3 person currently is unable to satisfactorily carry out the 4 inherent requirements of practice as an Australian legal 5 practitioner. 6 (2) The relevant authority may require the subject person to 7 undergo a health assessment by a person appointed by the 8 relevant authority. 9 (3) If the relevant authority decides to require the health 10 assessment, the authority must give the subject person an 11 information notice about the decision to require the 12 assessment that includes-- 13 (a) the name and qualifications of the person appointed by 14 the authority to conduct the assessment; and 15 (b) a stated date, and a stated time and place, for the 16 assessment that must be reasonable having regard to the 17 circumstances of the subject person as known to the 18 relevant authority. 19 (4) The stated date must be no sooner than 28 days after the 20 information notice is given to the subject person unless the 21 person and the relevant authority agree, in writing, to an 22 earlier date. 23 (5) The subject person may appeal to the Supreme Court against 24 the decision within 28 days after the day the information 25 notice is given to the subject person. 26 88 Appointment of health assessor 27 (1) The relevant authority may appoint 1 or more appropriately 28 qualified persons (health assessors) to conduct all or part of a 29 health assessment under this division of a subject person. 30 (2) At least 1 health assessor must be a registered medical 31 practitioner. 32

 


 

s 89 94 s 89 Legal Profession Bill 2007 (3) If the relevant authority considers the subject person's 1 criminal history is relevant to the assessment, the authority 2 may disclose the history to the health assessor. 3 (4) The Criminal Law (Rehabilitation of Offenders) Act 1986 4 does not apply to the disclosure. 5 (5) Before appointing a person as a health assessor, the relevant 6 authority must be satisfied the person does not have a personal 7 or professional connection with the subject person that may 8 prejudice the way in which the person conducts the 9 assessment. 10 (6) In this section-- 11 appropriately qualified, in relation to a registered medical 12 practitioner or other person conducting a health assessment, 13 includes having the qualifications, experience, skills or 14 knowledge appropriate to conduct the assessment. 15 89 Health assessment report 16 (1) A health assessor conducting all or part of a health assessment 17 of a subject person must prepare a report about the assessment 18 (health assessment report). 19 (2) The health assessment report must include-- 20 (a) the health assessor's findings as to whether the person is 21 currently unable to satisfactorily carry out the inherent 22 requirements of practice as an Australian legal 23 practitioner; and 24 (b) if the health assessor finds that the person is unable to do 25 so, the health assessor's recommendations, if any, as to a 26 condition-- 27 (i) the Supreme Court could impose on the person's 28 admission to the legal profession that would make, 29 or would be likely to make, the person suitable to 30 engage in legal practice; or 31 (ii) the relevant authority could impose on the person's 32 practising certificate or local registration that 33 would make, or would be likely to make, the 34 person suitable to engage in legal practice. 35

 


 

s 90 95 s 91 Legal Profession Bill 2007 (3) The health assessor must give the health assessment report to 1 the relevant authority and a copy to the subject person. 2 90 Payment for health assessment and report 3 (1) The relevant authority that appoints a health assessor to 4 conduct all or part of a health assessment is liable for the cost 5 of the assessment conducted by, and the report prepared by, 6 the health assessor. 7 (2) However, if the report of the health assessor is adverse to a 8 person, the relevant authority may ask the person, by written 9 notice, to pay the authority the amount of the cost of the 10 assessment. 11 (3) The amount requested is a debt to the regulatory authority. 12 91 Use of health assessment report 13 (1) A report about a subject person is not admissible in any 14 proceeding, and a person can not be compelled to produce the 15 report or to give evidence about the report or its contents in 16 any proceeding. 17 (2) Subsection (1) does not apply in relation to-- 18 (a) a proceeding relating to an application by the subject 19 person for admission to the legal profession under this 20 Act, for local registration, for admission to the legal 21 profession in another jurisdiction or for interstate 22 registration; or 23 (b) a proceeding on an appeal by the subject person against 24 a decision of a relevant authority of this or another 25 jurisdiction-- 26 (i) refusing to grant or renew a practising certificate or 27 registration; or 28 (ii) imposing conditions on a practising certificate or 29 registration; or 30 (iii) amending or cancelling a practising certificate or 31 registration. 32

 


 

s 92 96 s 92 Legal Profession Bill 2007 (3) Subsection (1) does not apply if the report is admitted or 1 produced, or evidence about the report or its contents is given, 2 in a proceeding with the consent of-- 3 (a) the health assessor who prepared the report; and 4 (b) the subject person to whom the report relates. 5 (4) In this section-- 6 report means a health assessment report prepared under this 7 division, the Legal Profession Act 2004, chapter 7, part 1, 8 division 3, or a corresponding law, and includes a copy of a 9 report or a part of a report or copy. 10 Division 4 General 11 92 Confidentiality of suitability report 12 (1) A member, officer, employee or agent of a relevant authority 13 must not, directly or indirectly, disclose to anyone else a 14 suitability report, or information in a suitability report, given 15 to the relevant authority whether before or after the 16 commencement of this section. 17 Maximum penalty--200 penalty units. 18 (2) A member, officer, employee or agent of the board does not 19 contravene subsection (1) if-- 20 (a) disclosure of the suitability report or information in it to 21 someone else is authorised by the board to the extent 22 necessary to perform a function or exercise a power 23 under this Act relating to an application for admission; 24 or 25 (b) disclosure of the report or information in it is made to 26 the corresponding authority for the board of another 27 jurisdiction in which the person has applied for 28 admission to the legal profession; or 29 (c) the disclosure is made with the consent of the person to 30 whom it relates and, in the case of a health assessment, 31 the health assessor; or 32 (d) the disclosure is otherwise required or permitted by law. 33

 


 

s 92 97 s 92 Legal Profession Bill 2007 (3) A member, officer, employee or agent of a regulatory 1 authority does not contravene subsection (1) if-- 2 (a) disclosure of the suitability report or information in it to 3 someone else is authorised by the regulatory authority to 4 the extent necessary to perform a function or exercise a 5 power under this Act in relation to-- 6 (i) an application for the grant or renewal of a local 7 practising certificate or for the grant or renewal of 8 local registration; or 9 (ii) the imposition or proposed imposition of 10 conditions on a local practising certificate or local 11 registration; or 12 (iii) the amendment, suspension or cancellation or the 13 proposed amendment, suspension or cancellation, 14 of a local practising certificate or local registration; 15 or 16 (b) disclosure of the suitability report or information in it is 17 made to the regulatory authority of another jurisdiction 18 when the person to whom it relates is an applicant for 19 the grant or renewal of a practising certificate or the 20 grant or renewal of interstate registration, or the holder 21 of an interstate practising certificate or an 22 interstate-registered foreign lawyer, under a 23 corresponding law of the other jurisdiction; or 24 (c) the disclosure is made with the consent of the person to 25 whom it relates and, in the case of a health assessment, 26 the health assessor; or 27 (d) the disclosure is otherwise required or permitted by law. 28 (4) The relevant authority must ensure a suitability report is 29 destroyed after-- 30 (a) the application concerned is finally decided or is 31 withdrawn; or 32 (b) other action relating to the imposition of conditions on a 33 practising certificate or local registration, or the 34 amendment, suspension or cancellation of a practising 35 certificate or local registration, is taken or a decision is 36 taken not to proceed with any other action. 37

 


 

s 93 98 s 94 Legal Profession Bill 2007 (5) Subsection (1) does not apply to information in a suitability 1 report if that information was given or obtained by the 2 relevant authority other than as part of the suitability report. 3 Example for subsection (5)-- 4 A suitability report may contain information that an applicant may have 5 already disclosed, including name, address, or some information about 6 previous convictions or a previous disqualification from being a lawyer. 7 93 Operation of pt 2.5 8 (1) Nothing in this part authorises the board to seek a suitability 9 report about-- 10 (a) an applicant for the grant or renewal of a local practising 11 certificate; or 12 (b) the holder of a local practising certificate. 13 (2) Nothing in this part authorises a relevant authority to seek a 14 suitability report about an applicant for admission. 15 Part 2.6 Inter-jurisdictional provisions 16 regarding admission and 17 practising certificates 18 Division 1 Preliminary 19 94 Main purpose of pt 2.6 20 The main purpose of this part is to provide for the notification 21 of and response to action taken by courts and other regulatory 22 authorities in relation to the admission of persons to the legal 23 profession and their right to engage in legal practice in 24 Australia. 25

 


 

s 95 99 s 97 Legal Profession Bill 2007 95 Relationship of this part with ch 4 1 This part does not affect a function or power under chapter 2 4.16 3 Division 2 Notifications to be given by local 4 authorities to interstate authorities 5 96 Notification to other jurisdictions about application for 6 admission 7 (1) This section applies to each application for admission. 8 (2) The board may give the corresponding authority of another 9 jurisdiction written notice of any of the following to the extent 10 that it is relevant to the corresponding authority's functions or 11 powers-- 12 (a) the making of the application; 13 (b) the board's recommendation under section 3917 in 14 relation to the application; 15 (c) the withdrawal of the application after an investigation 16 or inquiry is made or started, or a suitability report is 17 sought or obtained, in relation to the application or the 18 applicant; 19 (d) the refusal of the Supreme Court to admit the applicant 20 to the legal profession under this Act. 21 (3) The notice must state the applicant's name and address as last 22 known to the board and may contain other relevant 23 information. 24 97 Notification to other jurisdictions about removal from 25 local roll 26 (1) This section applies if a person's name is removed from the 27 local roll, except if the removal happens under section 103. 28 16 Chapter 4 (Complaints and discipline) 17 Section 39 (Role of the board relating to application for admission)

 


 

s 98 100 s 98 Legal Profession Bill 2007 (2) The Brisbane registrar must give the corresponding authority 1 of each other jurisdiction, and the registrar or other proper 2 officer of the High Court of Australia, written notice of the 3 removal. 4 (3) The notice must state the following-- 5 (a) the person's name and address as last known to the 6 Brisbane registrar; 7 (b) the date the person's name was removed from the roll; 8 (c) the reason for removing the person's name; 9 (d) other information prescribed under a regulation. 10 98 Law society and bar association to notify other 11 jurisdictions about particular matters 12 (1) Subsection (2) applies if-- 13 (a) a regulatory authority takes any of the following actions 14 in relation to an Australian lawyer-- 15 (i) a refusal to grant or renew a local practising 16 certificate for the lawyer; 17 (ii) a suspension or cancellation of the lawyer's local 18 practising certificate; or 19 (b) the lawyer successfully appeals against the taking of an 20 action mentioned in paragraph (a). 21 (2) The regulatory authority must give the corresponding 22 authorities written notice of the action taken or the result of 23 the appeal. 24 (3) The notice must state each of the following-- 25 (a) the lawyer's name and address as last known to the 26 regulatory authority; 27 (b) particulars of-- 28 (i) the action taken and the reasons for it; or 29 (ii) the result of the appeal; 30 (c) other relevant information that the authority considers 31 should be included in the notice. 32

 


 

s 99 101 s 100 Legal Profession Bill 2007 (4) The regulatory authority may give the corresponding 1 authorities written notice of a condition imposed on an 2 Australian lawyer's local practising certificate. 3 Division 3 Notifications to be given by lawyers 4 to local authorities 5 99 Lawyer to give notice of removal in another jurisdiction 6 (1) If a local lawyer's name has been removed from an interstate 7 roll, the lawyer must give the Brisbane registrar written notice 8 of the removal. 9 Maximum penalty--100 penalty units. 10 (2) If a local legal practitioner's name has been removed from an 11 interstate roll, the practitioner must give the relevant 12 regulatory authority written notice of the removal. 13 Maximum penalty--100 penalty units. 14 (3) This section does not apply if the name has been removed 15 from an interstate roll under a corresponding law to section 16 103. 17 100 Lawyer to give notice of interstate orders 18 (1) This section applies if an order is made under a corresponding 19 law recommending that the name of a local lawyer be 20 removed from the local roll. 21 (2) As soon as practicable (but not more than 7 days) after the 22 local lawyer is given notice of the action or otherwise 23 becomes aware of it, the lawyer must give the Brisbane 24 registrar written notice of the order. 25 Maximum penalty--200 penalty units. 26 (3) If an order is made under a corresponding law in relation to a 27 local legal practitioner that-- 28 (a) the practitioner's local practising certificate be 29 suspended or cancelled; or 30

 


 

s 101 102 s 102 Legal Profession Bill 2007 (b) a local practising certificate not be granted to the 1 practitioner for a period, or 2 (c) an order that conditions be imposed on the practitioner's 3 local practising certificate; 4 the practitioner must, as soon as practicable (but not more 5 than 7 days) after the practitioner is given notice of the order 6 or otherwise becomes aware of it, give the regulatory 7 authority who granted or renewed the practitioner's local 8 practising certificate written notice of the order. 9 Maximum penalty--200 penalty units. 10 101 Lawyer to give notice of foreign regulatory action 11 (1) This section applies if a foreign regulatory action has been 12 taken in relation to a person. 13 (2) If the person is a local lawyer, as soon as practicable (but not 14 more than 7 days) after the person is given notice of the action 15 or otherwise becomes aware of it, the person must give the 16 Brisbane registrar written notice of the action taken. 17 Maximum penalty--200 penalty units. 18 (3) If the person is a local legal practitioner, as soon as practicable 19 (but not more than 7 days) after the person is given notice of 20 the action or otherwise becomes aware of it, the person must 21 give the regulatory authority who granted or renewed the 22 practitioner's local practising certificate written notice of the 23 action taken. 24 Maximum penalty--200 penalty units. 25 102 Provisions relating to requirement to notify 26 A notice to be given under this division by a person must-- 27 (a) state his or her name and address; and 28 (b) disclose full details of the action to which the notice 29 relates, including the date on which that action was 30 taken; and 31 (c) be accompanied by a copy of any official notification 32 given to him or her in connection with the action. 33

 


 

s 103 103 s 104 Legal Profession Bill 2007 Division 4 Taking of action by local authorities 1 in response to notifications 2 received 3 103 Peremptory removal of local lawyer's name from local roll 4 following removal in another jurisdiction 5 (1) This section applies if the Brisbane registrar is satisfied that-- 6 (a) a local lawyer's name has been removed from an 7 interstate roll; and 8 (b) no order under section 107(1)(a) is, at the time of that 9 removal, in force in relation to the lawyer's name. 10 (2) The Brisbane registrar must remove, or arrange with another 11 registrar for the removal of, the lawyer's name from the local 12 roll. 13 (3) The Brisbane registrar may, but need not, give the lawyer 14 written notice of the date on which the registrar proposes to 15 remove the name from the local roll. 16 (4) The Brisbane registrar must give the former local lawyer 17 written notice of the removal of the name from the local roll, 18 unless notice of the date of the proposed removal was 19 previously given. 20 (5) The name of the former local lawyer is, on his or her 21 application to the Brisbane registrar or on the registrar's own 22 initiative, to be restored to the local roll if the name is restored 23 to the interstate roll. 24 (6) Nothing in this section prevents the former local lawyer from 25 afterwards making an application for admission. 26 104 Peremptory cancellation of local practising certificate 27 following removal of name from interstate roll 28 (1) This section applies if-- 29 (a) a person's name is removed from an interstate roll but he 30 or she remains an Australian lawyer; and 31 (b) the person is the holder of a local practising certificate; 32 and 33

 


 

s 105 104 s 105 Legal Profession Bill 2007 (c) no order under section 107(1)(b) is, at the time of that 1 removal, in force in relation to the person's local 2 practising certificate. 3 (2) The relevant regulatory authority must cancel the local 4 practising certificate. 5 (3) The relevant regulatory authority may, but need not, give the 6 person notice of the date on which it proposes to cancel the 7 local practising certificate. 8 (4) The relevant regulatory authority must give the person notice 9 of the cancellation, unless notice of the date of the proposed 10 cancellation was previously given. 11 (5) Nothing in this section prevents the former local lawyer from 12 applying for a local practising certificate at a later time. 13 105 Show cause procedure for removal of lawyer's name from 14 local roll following foreign regulatory action 15 (1) This section applies if the appropriate authority is satisfied 16 that-- 17 (a) foreign regulatory action has been taken in relation to a 18 local lawyer, whether before or after the commencement 19 of this section; and 20 (b) no order mentioned in section 107(1)(a) is in force in 21 relation to the action taken. 22 (2) The appropriate authority may give the local lawyer a notice 23 stating that the appropriate authority will apply to the 24 Supreme Court for an order that the local lawyer's name be 25 removed from the local roll unless the lawyer shows cause to 26 the appropriate authority why his or her name should not be 27 removed. 28 (3) If the local lawyer does not satisfy the appropriate authority 29 that his or her name should not be removed from the local roll, 30 the appropriate authority may apply to the Supreme Court for 31 an order that the local lawyer's name be removed from the 32 local roll. 33 (4) Before applying for an order that the local lawyer's name be 34 removed, the appropriate authority must afford the local 35

 


 

s 106 105 s 106 Legal Profession Bill 2007 lawyer a reasonable opportunity to show cause why his or her 1 name should not be removed. 2 (5) The Supreme Court may, on application made under this 3 section, order the local lawyer's name be removed from the 4 local roll or may refuse to do so. 5 (6) The local lawyer is entitled to appear before and be heard by 6 the Supreme Court at a hearing relating to an application 7 under this section. 8 (7) In this section-- 9 appropriate authority means-- 10 (a) if the local lawyer holds a local practising 11 certificate--the relevant regulatory authority in relation 12 to the local lawyer; or 13 (b) if the local lawyer does not hold a local practising 14 certificate but holds an interstate practising 15 certificate--the regulatory authority as agreed between 16 the regulatory authorities; or 17 (c) if the local lawyer holds neither a local practising 18 certificate nor an interstate practising certificate--the 19 law society. 20 106 Show cause procedure for cancellation of local practising 21 certificate following foreign regulatory action 22 (1) This section applies if a regulatory authority that granted or 23 renewed a practising certificate is satisfied that-- 24 (a) foreign regulatory action has been taken in relation to a 25 the local legal practitioner, whether before or after the 26 commencement of this section; and 27 (b) no order mentioned in section 107(1)(b) is in force in 28 relation to the foreign regulatory action. 29 (2) The regulatory authority may give the local legal practitioner 30 a notice stating that the regulatory authority proposes to 31 cancel the local practising certificate unless the practitioner 32 shows cause to the authority why the certificate should not be 33 cancelled. 34

 


 

s 107 106 s 107 Legal Profession Bill 2007 (3) The regulatory authority must afford the person a reasonable 1 opportunity to show cause why his or her practising certificate 2 should not be cancelled. 3 (4) If the local legal practitioner does not satisfy the regulatory 4 authority that the practising certificate should not be 5 cancelled, the regulatory authority may cancel the certificate. 6 (5) The regulatory authority must give the local legal practitioner 7 an information notice about its decision to cancel the 8 practising certificate. 9 (6) The person may appeal to the Supreme Court against a 10 decision of the relevant regulatory authority to cancel his or 11 her practising certificate. 12 (7) The Supreme Court may make any order it considers 13 appropriate on the appeal. 14 107 Order for non-removal of name or non-cancellation of 15 local practising certificate 16 (1) If an Australian lawyer reasonably expects his or her name 17 will be removed from an interstate roll or foreign regulatory 18 action will be taken against him or her, the lawyer may apply 19 to the Supreme Court for either or both of the following-- 20 (a) an order that his or her name not be removed from the 21 local roll under section 103 or 105; 22 (b) an order that his or her local practising certificate not be 23 cancelled under section 104 or 106. 24 (2) The Supreme Court-- 25 (a) may make the order or orders applied for if satisfied 26 about each of the following-- 27 (i) the Australian lawyer's name is likely to be 28 removed from the interstate roll or the foreign 29 regulatory action is likely to be taken; 30 (ii) the reason for the removal of the name, or the 31 taking of the foreign regulatory action, will not 32 involve disciplinary action or the possibility of 33 disciplinary action; or 34 (b) may refuse to make an order. 35

 


 

s 108 107 s 109 Legal Profession Bill 2007 (3) An order under this section may be made subject to any 1 conditions the Supreme Court considers appropriate and 2 remains in force for the period stated in it. 3 (4) The Supreme Court may revoke an order made under this 4 section. 5 (5) If the Supreme Court revokes an order made under this 6 section, to the extent relevant, when the revocation takes 7 effect the other provisions of this division apply as if the 8 Australian lawyer's name were removed from the interstate 9 roll or the foreign regulatory action were taken. 10 (6) Nothing in this section affects action being taken in relation to 11 the Australian lawyer under other provisions of this Act. 12 108 Local authority may give information to other local 13 authority 14 (1) A local authority that receives information from an authority 15 of another jurisdiction under provisions of a corresponding 16 law that correspond to this part may give the information to 17 any other local authority. 18 (2) In this section-- 19 local authority means an entity relevant to this jurisdiction 20 that has functions or powers under this Act. 21 Part 2.7 Incorporated legal practices 22 and multi-disciplinary 23 partnerships 24 Division 1 Preliminary 25 109 Main purposes of pt 2.7 26 The main purposes of this part are as follows-- 27

 


 

s 110 108 s 110 Legal Profession Bill 2007 (a) to regulate the provision of legal services by 1 corporations in this jurisdiction; 2 (b) to regulate the provision of legal services in this 3 jurisdiction in conjunction with the provision of other 4 services, whether by a corporation or persons acting in 5 partnership together. 6 110 Definitions for pt 2.7 7 In this part-- 8 corporation means-- 9 (a) a company within the meaning of the Corporations Act; 10 or 11 (b) a body corporate prescribed under a regulation. 12 director means-- 13 (a) in relation to a company within the meaning of the 14 Corporations Act--a director as defined in section 9 of 15 that Act; or 16 (b) in relation to another body corporate prescribed under a 17 regulation--a person stated or described in the 18 regulation as a director. 19 legal practitioner director means a director of an incorporated 20 legal practice who is an Australian legal practitioner holding a 21 practising certificate entitling the practitioner to practise as a 22 principal of a law practice. 23 legal practitioner partner means a partner of a 24 multi-disciplinary partnership who is an Australian legal 25 practitioner holding a practising certificate entitling the 26 practitioner to practise as a principal of a law practice. 27 officer means-- 28 (a) in relation to a company within the meaning of the 29 Corporations Act--an officer as defined in section 9 of 30 that Act; or 31 (b) in relation to any other body corporate, or a body 32 corporate of a kind, prescribed under a regulation--a 33 person stated or described in the regulation. 34

 


 

s 111 109 s 111 Legal Profession Bill 2007 professional obligations, of an Australian legal practitioner, 1 include-- 2 (a) duties to the Supreme Court; and 3 (b) obligations in connection with conflicts of interest; and 4 (c) duties to clients, including disclosure; and 5 (d) ethical rules the legal practitioner must observe. 6 related body corporate means-- 7 (a) in relation to a company within the meaning of the 8 Corporations Act--a related body corporate within the 9 meaning of section 50 of that Act; or 10 (b) in relation to another body corporate prescribed under a 11 regulation--a person prescribed under a regulation as a 12 related body corporate. 13 Division 2 Incorporated legal practices 14 providing legal services 15 111 Nature of incorporated legal practice 16 (1) A corporation is an incorporated legal practice if it engages 17 in legal practice in this jurisdiction, whether or not it provides 18 services that are not legal services. 19 (2) However, a corporation is not an incorporated legal practice if 20 the only legal services that the corporation provides are either 21 or both of the following-- 22 (a) in-house legal services; 23 (b) services that are not legally required to be provided by 24 an Australian legal practitioner and that are provided by 25 an officer or employee of the corporation who is not an 26 Australian legal practitioner. 27 (3) Also, a corporation that provides legal services is not an 28 incorporated legal practice if the corporation is prescribed 29 under a regulation as a corporation that is not an incorporated 30 legal practice. 31

 


 

s 112 110 s 113 Legal Profession Bill 2007 (4) Despite subsection (2) and (3), a corporation that is not an 1 incorporated legal practice as mentioned in those subsections 2 must comply with any regulation applying provisions of this 3 part, with or without changes, to that corporation. 4 (5) Nothing in this part affects or applies to the provision by an 5 incorporated legal practice of legal services in 1 or more other 6 jurisdictions. 7 112 Non-legal services and businesses of incorporated legal 8 practices 9 (1) An incorporated legal practice may provide any service and 10 conduct any business that the corporation may lawfully 11 provide or conduct, except as provided by this section. 12 (2) An incorporated legal practice, or a related body corporate of 13 an incorporated legal practice, must not conduct a managed 14 investment scheme. 15 (3) Also, if a regulation prohibits an incorporated legal practice, 16 or a related body corporate of the practice, from providing a 17 service or conducting a business of a kind stated in the 18 regulation, the practice must not provide the service or 19 conduct the business. 20 Note-- 21 Contravention of this section or a regulation mentioned in subsection (3) 22 is a ground for banning an incorporated legal practice under section 23 132.18 24 113 Corporations eligible to be incorporated legal practices 25 (1) Subject to this part, a corporation is eligible to be an 26 incorporated legal practice. 27 (2) This section does not authorise a corporation to provide legal 28 services if the corporation is prohibited from doing so under 29 an Act or law, whether of this jurisdiction, the Commonwealth 30 or another jurisdiction, under which the corporation is 31 incorporated or its affairs are regulated. 32 18 Section 132 (Banning of incorporated legal practices)

 


 

s 114 111 s 115 Legal Profession Bill 2007 (3) An incorporated legal practice is not required to hold an 1 Australian practising certificate. 2 114 Notice of intention to start providing legal services 3 (1) Before a corporation starts to engage in legal practice in this 4 jurisdiction, the corporation must give the law society notice, 5 in the law society approved form, of its intention to do so. 6 (2) A corporation must not engage in legal practice in this 7 jurisdiction if it has not given a notice under subsection (1). 8 Maximum penalty-- 9 (a) for a person guilty under the Criminal Code, chapter 2, 10 of an offence or for section 702--300 penalty units; or 11 (b) for a corporation--1500 penalty units. 12 (3) A corporation that starts to engage in legal practice in this 13 jurisdiction without giving a notice under subsection (1) is in 14 default of this section until it gives the law society notice, in 15 the law society approved form, of the failure to comply with 16 that subsection and the fact that it has started to engage in 17 legal practice. 18 (4) The giving of a notice under subsection (3) does not affect a 19 liability under subsection (1) or (2). 20 (5) A corporation is not entitled to recover any amount for 21 anything the corporation did in contravention of subsection 22 (2). 23 (6) A person may recover from a corporation, as a debt due to the 24 person, any amount the person paid to or at the direction of 25 the corporation for anything the corporation did in 26 contravention of subsection (2). 27 (7) This section does not apply to a corporation mentioned in 28 section 111(2) or (3). 29 115 Prohibition on corporations or directors etc. representing 30 that corporation is incorporated legal practice 31 (1) A corporation must not, without a reasonable excuse, 32 represent or advertise that the corporation is an incorporated 33

 


 

s 116 112 s 116 Legal Profession Bill 2007 legal practice unless a notice in relation to the corporation has 1 been given under section 114. 2 Maximum penalty--300 penalty units. 3 (2) A director, officer, employee or agent of a corporation must 4 not, without a reasonable excuse, represent or advertise that 5 the corporation is an incorporated legal practice unless a 6 notice in relation to the corporation has been given under 7 section 114. 8 Maximum penalty--300 penalty units or 2 years 9 imprisonment. 10 (3) A reference in this section to representing or advertising that a 11 corporation is an incorporated legal practice includes-- 12 (a) for the corporation--the corporation doing anything that 13 states or implies that the corporation is entitled to 14 engage in legal practice; or 15 (b) for a director, officer, employee or agent of a 16 corporation--the director, officer, employee or agent of 17 the corporation doing anything that states or implies that 18 the corporation is entitled to engage in legal practice. 19 116 Notice of termination of provision of legal services 20 (1) A corporation must, within the period prescribed under a 21 regulation after it stops engaging in legal practice in this 22 jurisdiction as an incorporated legal practice, give the law 23 society notice, in the law society approved form, of that fact. 24 Maximum penalty-- 25 (a) for a person guilty under the Criminal Code, chapter 2, 26 of an offence or for section 702--20 penalty units; or 27 (b) for a corporation--100 penalty units. 28 (2) A regulation may make provision about circumstances that 29 may be taken into account when deciding whether and when a 30 corporation stops engaging in legal practice in this 31 jurisdiction. 32 (3) Circumstances prescribed under a regulation are examples, 33 and do not limit, whether and when a corporation stops 34 engaging in legal practice in this jurisdiction. 35

 


 

s 117 113 s 117 Legal Profession Bill 2007 Division 3 Legal practitioner directors, and 1 other legal practitioners employed 2 by incorporated legal practices 3 117 Incorporated legal practice must have legal practitioner 4 director 5 (1) An incorporated legal practice is required to have at least 1 6 legal practitioner director. 7 (2) Each legal practitioner director of an incorporated legal 8 practice is, for the purposes of this Act, responsible for the 9 management of the legal services provided in this jurisdiction 10 by the practice. 11 (3) Each legal practitioner director of an incorporated legal 12 practice must ensure that appropriate management systems 13 are implemented and kept to enable the provision of legal 14 services by the practice-- 15 (a) under the professional obligations of Australian legal 16 practitioners and other obligations imposed under this 17 Act; and 18 (b) so that the obligations of the Australian legal 19 practitioners who are officers or employees of the 20 practice are not affected by other officers or employees 21 of the practice. 22 (4) If it ought reasonably to be apparent to a legal practitioner 23 director of an incorporated legal practice that the provision of 24 legal services by the practice will result in breaches of the 25 professional obligations of an Australian legal practitioner or 26 other obligations imposed under this Act, the director must 27 take all reasonable action available to the director to ensure 28 that-- 29 (a) the breaches do not happen; and 30 (b) if a breach has happened--appropriate remedial action 31 is taken in relation to the breach. 32 (5) Nothing in this part derogates from the obligations or 33 liabilities of a director of an incorporated legal practice under 34 another law. 35

 


 

s 118 114 s 118 Legal Profession Bill 2007 (6) The reference in subsection (1) to a legal practitioner director 1 does not include a reference to a person who is not validly 2 appointed as a director, but this subsection does not affect the 3 meaning of the expression `legal practitioner director' in other 4 provisions of this Act. 5 118 Obligations of legal practitioner director relating to 6 misconduct 7 (1) Each of the following is capable of constituting unsatisfactory 8 professional conduct or professional misconduct by a legal 9 practitioner director-- 10 (a) unsatisfactory professional conduct or professional 11 misconduct of an Australian legal practitioner employed 12 by the incorporated legal practice; 13 (b) conduct of another director, not being an Australian 14 legal practitioner, of the incorporated legal practice that 15 adversely affects the provision of legal services by the 16 practice; 17 (c) the unsuitability of another director, not being an 18 Australian legal practitioner, of the incorporated legal 19 practice to be a director of a corporation that provides 20 legal services. 21 (2) A legal practitioner director is not guilty of unsatisfactory 22 professional conduct or professional misconduct under 23 subsection (1) if the director establishes that he or she took all 24 reasonable steps to ensure the following as the case requires-- 25 (a) Australian legal practitioners employed by the 26 incorporated legal practice did not engage in conduct or 27 misconduct mentioned in subsection (1)(a); 28 (b) directors, other than Australian legal practitioners, of the 29 incorporated legal practice did not engage in conduct 30 mentioned in subsection (1)(b); 31 (c) unsuitable directors, not being Australian legal 32 practitioners, of the incorporated legal practice were not 33 appointed or holding office as mentioned in subsection 34 (1)(c). 35

 


 

s 119 115 s 119 Legal Profession Bill 2007 (3) A legal practitioner director of an incorporated legal practice 1 must ensure that all reasonable action available to the legal 2 practitioner director is taken to deal with any unsatisfactory 3 professional conduct or professional misconduct of an 4 Australian legal practitioner employed by the practice. 5 119 Incorporated legal practice without legal practitioner 6 director 7 (1) An incorporated legal practice contravenes this subsection if it 8 does not have a legal practitioner director for the corporation 9 for a period exceeding 7 days. 10 (2) If an incorporated legal practice stops having a legal 11 practitioner director, the practice must give notice to the law 12 society of that fact, in the law society approved form, as soon 13 as possible after the practice stops having a legal practitioner 14 director. 15 Maximum penalty-- 16 (a) for a person guilty under the Criminal Code, chapter 2, 17 of an offence or for section 702--60 penalty units; or 18 (b) for a corporation--300 penalty units. 19 (3) An incorporated legal practice must not provide legal services 20 in this jurisdiction during any period it is taken to be in default 21 of legal practitioner director requirements as mentioned in 22 subsection (4). 23 Maximum penalty-- 24 (a) for a person guilty under the Criminal Code, chapter 2, 25 of an offence or for section 702--180 penalty units; or 26 (b) for a corporation--900 penalty units. 27 (4) An incorporated legal practice that contravenes subsection (1) 28 is taken to be in default of legal practitioner director 29 requirements under this section for the period from the end of 30 the period of 7 days until-- 31 (a) it has at least 1 legal practitioner director; or 32 (b) a person is appointed under this section, or the 33 provisions of a corresponding law, in relation to the 34 practice. 35

 


 

s 120 116 s 120 Legal Profession Bill 2007 (5) The law society may, if it considers it appropriate, appoint an 1 Australian legal practitioner who is an employee of the 2 incorporated legal practice or another person nominated by 3 the law society, in the absence of a legal practitioner director, 4 to perform or discharge the functions or duties conferred or 5 imposed on a legal practitioner director under this part. 6 (6) An Australian legal practitioner is not eligible to be appointed 7 under this section unless the legal practitioner holds an 8 unrestricted practising certificate. 9 (7) The appointment under this section of a person to perform or 10 discharge functions or duties of a legal practitioner director 11 does not, for any other purpose, confer or impose on the 12 person any of the other functions or duties of a director of the 13 incorporated legal practice. 14 (8) An incorporated legal practice does not contravene subsection 15 (1) during any period during which a person holds an 16 appointment under subsection (5) in relation to the practice. 17 (9) The reference in this section to a legal practitioner director 18 does not include a reference to a person who is not validly 19 appointed as a director, but this subsection does not affect the 20 meaning of the expression `legal practitioner director' in other 21 provisions of this Act. 22 120 Obligations and privileges of an Australian legal 23 practitioner who is an officer or employee 24 (1) An Australian legal practitioner who provides legal services 25 for an incorporated legal practice in the capacity of an officer 26 or employee of the incorporated legal practice-- 27 (a) is not excused from compliance with the professional 28 obligations, or any obligations under any law, of an 29 Australian legal practitioner; and 30 (b) does not lose the professional privileges of an Australian 31 legal practitioner. 32 (2) For the purpose only of subsection (1), the professional 33 obligations and professional privileges of an Australian legal 34 practitioner apply as if-- 35

 


 

s 121 117 s 121 Legal Profession Bill 2007 (a) for an incorporated legal practice with 2 or more legal 1 practitioner directors--the practice were a partnership 2 of the legal practitioner directors and the employees of 3 the practice were employees of the legal practitioner 4 directors; and 5 (b) for an incorporated legal practice with only 1 legal 6 practitioner director--the practice were a sole 7 practitioner and the employees of the practice were 8 employees of the legal practitioner director. 9 (3) To remove any doubt, it is declared that the law relating to 10 client legal privilege, or other legal professional privilege, is 11 not excluded or otherwise affected because an Australian legal 12 practitioner is acting in the capacity of an officer or employee 13 of an incorporated legal practice. 14 (4) The directors of an incorporated legal practice do not breach 15 their duties as directors merely because legal services are 16 provided pro bono by the Australian legal practitioners 17 employed by the practice. 18 Division 4 Particular matters including 19 application of other provisions of 20 relevant laws 21 121 Professional indemnity insurance 22 (1) An incorporated legal practice must not engage in legal 23 practice in this jurisdiction unless it has professional 24 indemnity insurance that complies with the requirements 25 prescribed under a regulation about professional indemnity 26 insurance for an incorporated legal practice. 27 Maximum penalty-- 28 (a) for a person guilty under the Criminal Code, chapter 2, 29 of an offence or for section 702--300 penalty units or 2 30 years imprisonment; or 31 (b) for a corporation--1500 penalty units. 32

 


 

s 122 118 s 123 Legal Profession Bill 2007 (2) An incorporated legal practice engaging in legal practice in 1 this jurisdiction must comply with its obligations under the 2 indemnity rules. 3 Maximum penalty-- 4 (a) for a person guilty under the Criminal Code, chapter 2, 5 of an offence or for section 702--300 penalty units or 2 6 years imprisonment; or 7 (b) for a corporation--1500 penalty units. 8 (3) Failure by a legal practitioner director of an incorporated legal 9 practice to ensure that the incorporated legal practice 10 complies with subsection (1) or (2) is capable of constituting 11 professional misconduct. 12 122 Conflicts of interest 13 (1) For the application of any law (including the common law) or 14 the legal profession rules relating to conflicts of interest to the 15 conduct of an Australian legal practitioner who is-- 16 (a) a legal practitioner director of an incorporated legal 17 practice; or 18 (b) an officer or employee of an incorporated legal practice; 19 the interests of the incorporated legal practice or any related 20 body corporate are also taken to be those of the practitioner 21 (in addition to any interests that the practitioner has apart from 22 this subsection). 23 (2) Legal profession rules may be made for or in relation to 24 additional duties and obligations in connection with conflicts 25 of interest arising out of the conduct of an incorporated legal 26 practice. 27 123 Disclosure obligations 28 (1) This section applies if a person engages an incorporated legal 29 practice to provide services that the person might reasonably 30 assume to be legal services, but does not apply if the practice 31 provides only legal services in this jurisdiction. 32 (2) Each legal practitioner director of the incorporated legal 33 practice, and any employee who is an Australian legal 34

 


 

s 124 119 s 124 Legal Profession Bill 2007 practitioner and who provides the services for the practice, 1 must ensure that a disclosure, complying with the 2 requirements of this section and a regulation, is made for this 3 section to the person about the services. 4 Maximum penalty--100 penalty units. 5 (3) The disclosure must be made by giving the person a written 6 notice-- 7 (a) setting out the services to be provided; and 8 (b) stating whether or not all the legal services will be 9 provided by an Australian legal practitioner; and 10 (c) if some or all of the legal services to be provided will 11 not be provided by an Australian legal 12 practitioner--identifying those services and indicating 13 the status or qualifications of the person or persons who 14 will provide the legal services; and 15 (d) stating that this Act applies to the provision of legal 16 services but not to the provision of the non-legal 17 services. 18 (4) A regulation may provide for the following matters-- 19 (a) the way in which a disclosure is to be made; 20 (b) additional matters required to be disclosed in connection 21 with the provision of legal services or non-legal services 22 by an incorporated legal practice. 23 (5) Without limiting subsection (4), the additional matters may 24 include the kind of services provided by the incorporated legal 25 practice and whether those services are or are not covered by 26 the provisions of this Act, including, for example, provisions 27 about insurance. 28 (6) A disclosure under this section to a person about the provision 29 of legal services may relate to the provision of legal services 30 on 1 occasion, on more than 1 occasion or on an on-going 31 basis. 32 124 Effect of non-disclosure on provision of particular 33 services 34 (1) This section applies if-- 35

 


 

s 125 120 s 126 Legal Profession Bill 2007 (a) section 123 applies to a service that is provided to a 1 person who has engaged an incorporated legal practice 2 to provide the service and that the person might 3 reasonably assume to be a legal service; and 4 (b) a disclosure has not been made under that section about 5 the service. 6 (2) The standard of care owed by the practice in relation to the 7 service is the standard that would be applicable if the service 8 had been provided by an Australian legal practitioner. 9 125 Application of legal profession rules 10 Legal profession rules, so far as they apply to an Australian 11 legal practitioner, apply to an Australian legal practitioner 12 who is an officer or employee of an incorporated legal 13 practice, unless the rules otherwise provide. 14 126 Requirements relating to advertising 15 (1) A restriction imposed under this Act or another Act in 16 connection with advertising by Australian legal practitioners 17 applies to advertising by an incorporated legal practice in 18 relation to the provision of legal services. 19 (2) If a restriction mentioned in subsection (1) is limited to a 20 particular branch of the legal profession or persons who 21 practise in a particular style of legal practice, the restriction 22 applies only to the extent that the incorporated legal practice 23 carries on the business of that branch of the legal profession or 24 in that particular style of legal practice. 25 (3) An advertisement made in contravention of a restriction under 26 this section is, for the purposes of a disciplinary proceeding 27 taken against an Australian legal practitioner, taken to have 28 been authorised by each legal practitioner director of the 29 incorporated legal practice. 30 (4) This section does not apply if the provision by which the 31 restriction is imposed expressly excludes the application of 32 the restriction to incorporated legal practices. 33

 


 

s 127 121 s 128 Legal Profession Bill 2007 127 Extension to incorporated legal practice of vicarious 1 liability relating to failure to account and dishonesty 2 (1) This section applies to any of the following, being a 3 proceeding based on the vicarious liability of an incorporated 4 legal practice-- 5 (a) a civil proceeding relating to a failure to account for, pay 6 or deliver money or other property received by, or 7 entrusted to, the practice or to any officer or employee 8 of the practice in the course of the provision of legal 9 services by the practice, being money or other property 10 under the direct or indirect control of the practice; 11 (b) a civil proceeding for any other debt owed, or damages 12 payable, to a client because of a dishonest act or 13 omission by an Australian legal practitioner who is an 14 employee of the practice in connection with the 15 provision of legal services to the client. 16 (2) If the incorporated legal practice would not, apart from this 17 section, be vicariously liable for any acts or omissions of its 18 officers and employees in the proceeding, but would be liable 19 for those acts or omissions if the practice and those officers 20 and employees were carrying on business in partnership, the 21 practice is taken to be vicariously liable for those acts or 22 omissions. 23 128 Sharing of receipts, revenue or other income 24 (1) Nothing under this Act prevents an Australian legal 25 practitioner from sharing with an incorporated legal practice 26 receipts, revenue or other income arising from the provision 27 of legal services by the practitioner. 28 (2) This section does not extend to the sharing of receipts, 29 revenue or other income in contravention of section 129, and 30 has effect subject to section 220.19 31 19 Section 220 (Rules for Australian legal practitioners engaged in practice in the manner of barristers)

 


 

s 129 122 s 130 Legal Profession Bill 2007 129 Disqualified persons 1 (1) An incorporated legal practice commits an offence if a person 2 who is a disqualified person-- 3 (a) is an officer or employee of the incorporated legal 4 practice, whether or not the person provides legal 5 services, or is an officer or employee of a related body 6 corporate; or 7 (b) is a partner of the incorporated legal practice in a 8 business that includes the provision of legal services; or 9 (c) shares the receipts, revenue or other income arising from 10 the provision of legal services by the incorporated legal 11 practice; or 12 (d) is engaged or paid for the provision of legal services by 13 the incorporated legal practice. 14 Maximum penalty-- 15 (a) for a person guilty under the Criminal Code, chapter 2, 16 of an offence or for section 702--60 penalty units; or 17 (b) for a corporation--300 penalty units. 18 (2) Failure by a legal practitioner director of an incorporated legal 19 practice to ensure that the incorporated legal practice 20 complies with subsection (1) is capable of constituting 21 unsatisfactory professional conduct or professional 22 misconduct. 23 Division 5 Ensuring compliance with this Act 24 by incorporated legal practices 25 130 Commissioner or law society may audit incorporated 26 legal practice 27 (1) An ILP authority may conduct an audit of an incorporated 28 legal practice about-- 29 (a) the compliance of the practice, and of its officers and 30 employees, with the requirements of-- 31 (i) this part; or 32

 


 

s 131 123 s 132 Legal Profession Bill 2007 (ii) a regulation, the legal profession rules or the 1 administration rules, so far as they apply to 2 incorporated legal practices; and 3 (b) the management of the provision of legal services by the 4 incorporated legal practice, including the supervision of 5 officers and employees providing the services. 6 (2) An audit may be conducted whether or not a complaint has 7 been made against a person in relation to the provision of 8 legal services by the incorporated legal practice. 9 (3) A report of the audit-- 10 (a) must be given to the incorporated legal practice 11 concerned; and 12 (b) may be given to another ILP authority; and 13 (c) may be provided by an ILP authority to a corresponding 14 authority; and 15 (d) may be taken into account for-- 16 (i) a discipline application involving legal practitioner 17 directors or other persons; or 18 (ii) the grant, renewal, amendment, suspension or 19 cancellation of a practising certificate. 20 131 Application of chapter 6 21 Chapter 6 applies to an audit under this division. 22 132 Banning of incorporated legal practices 23 (1) The Supreme Court may, on application of an ILP authority, 24 make an order disqualifying a corporation from providing 25 legal services in this jurisdiction for the period the court 26 considers appropriate if the court is satisfied that-- 27 (a) a ground for disqualifying the corporation under this 28 section has been established; and 29 (b) the disqualification is justified. 30 (2) If the Supreme Court considers it appropriate, an order under 31 this section may be made-- 32

 


 

s 132 124 s 132 Legal Profession Bill 2007 (a) subject to conditions as to the conduct of the 1 incorporated legal practice; or 2 (b) subject to conditions as to when or in what 3 circumstances the order is to take effect; or 4 (c) together with orders to safeguard the interests of clients 5 or employees of the incorporated legal practice. 6 (3) Action may be taken against an incorporated legal practice on 7 any of the following grounds-- 8 (a) a legal practitioner director or an Australian legal 9 practitioner who is an officer or employee of the 10 corporation is found guilty of professional misconduct 11 under a law of this jurisdiction or another jurisdiction; 12 (b) an ILP authority is satisfied, after conducting an audit of 13 the incorporated legal practice, that the incorporated 14 legal practice has failed to implement satisfactory 15 management and supervision of its provision of legal 16 services; 17 (c) the incorporated legal practice, or a related body 18 corporate, has contravened section 11220 or a regulation 19 made under that section; 20 (d) the incorporated legal practice has contravened section 21 129;21 22 (e) an officer of the incorporated legal practice who is 23 acting in the management of the incorporated legal 24 practice is the subject of an order-- 25 (i) under section 133 or provisions of a corresponding 26 law that correspond to that section; or 27 (ii) under section 15822 or provisions of a 28 corresponding law that correspond to that section. 29 20 Section 112 (Non-legal services and businesses of incorporated legal practices) 21 Section 129 (Disqualified persons) 22 Section 158 (Prohibition on partnership with particular partner who is not an Australian legal practitioner)

 


 

s 133 125 s 133 Legal Profession Bill 2007 (4) If a corporation is disqualified under this section, the ILP 1 authority that applied for the order must notify the 2 corresponding authority of every other jurisdiction. 3 (5) If a corporation is disqualified from providing legal services 4 in another jurisdiction under a corresponding law, the 5 commissioner may decide that the corporation is taken to be 6 disqualified from providing legal services in this jurisdiction 7 for the same period, but nothing in this subsection prevents an 8 ILP authority from instead applying for an order under this 9 section. 10 (6) A corporation that provides legal services in contravention of 11 a disqualification under this section commits an offence. 12 Maximum penalty-- 13 (a) for a person guilty under the Criminal Code, chapter 2, 14 of an offence or for section 702--180 penalty units; or 15 (b) for a corporation--900 penalty units. 16 (7) A corporation that is disqualified under this section ceases to 17 be an incorporated legal practice. 18 (8) Conduct of an Australian legal practitioner who provides legal 19 services on behalf of a corporation in the capacity of an officer 20 or employee of the corporation is capable of being 21 unsatisfactory professional conduct or professional 22 misconduct if the practitioner ought reasonably to have known 23 that the corporation is disqualified under this section. 24 (9) A regulation may provide for the publication and notification 25 of orders made under this section, including notification of 26 corresponding authorities of other jurisdictions. 27 133 Disqualification from managing incorporated legal 28 practice 29 (1) The Supreme Court may, on application of an ILP authority, 30 make an order disqualifying a person from managing a 31 corporation that is an incorporated legal practice for the 32 period the court considers appropriate if the court is satisfied 33 that-- 34

 


 

s 134 126 s 134 Legal Profession Bill 2007 (a) the person is a person who could be disqualified under 1 the Corporations Act, section 206C, 206D, 206E or 2 206F,23 from managing corporations; and 3 (b) the disqualification is justified. 4 (2) The Supreme Court may, on application of a person subject to 5 a disqualification order under this section, revoke the order. 6 (3) A disqualification order made under subsection (1) has effect 7 for the purposes only of this Act and does not affect the 8 application or operation of the Corporations Act. 9 (4) A regulation may provide for the publication and notification 10 of orders made under this section. 11 (5) A person who is disqualified from managing a corporation 12 under provisions of a corresponding law that correspond to 13 this section is taken to be disqualified from managing a 14 corporation under this section. 15 134 Disclosure of information to the Australian Securities and 16 Investments Commission 17 (1) This section applies if an ILP authority, in connection with 18 performing functions or exercising powers under this Act, 19 acquired information concerning a corporation that is or was 20 an incorporated legal practice. 21 (2) The ILP authority may disclose to the Australian Securities 22 and Investments Commission information concerning the 23 corporation that is relevant to the commission's functions. 24 (3) Information may be provided under subsection (2) despite any 25 law relating to secrecy or confidentiality, including any 26 provisions of this Act. 27 23 Corporations Act, section 206C (Court power of disqualification--contravention of civil penalty provision), 206D (Court power of disqualification--insolvency and non-payment of debts), 206E (Court power of disqualification--repeated contraventions of Act) or 206F (ASIC's power of disqualification)

 


 

s 135 127 s 135 Legal Profession Bill 2007 Division 6 External administration 1 135 External administration proceedings under Corporations 2 (1) This section applies to a proceeding in any court under the 3 Corporations Act, chapter 524-- 4 (a) relating to a corporation that is an 5 externally-administered body corporate under that Act 6 and that is or was an incorporated legal practice; or 7 (b) relating to a corporation that is or was an incorporated 8 legal practice becoming an externally-administered 9 body corporate under that Act. 10 (2) Each ILP authority is entitled to intervene in the proceeding, 11 unless the court decides that the proceeding does not concern 12 or affect the provision of legal services by the incorporated 13 legal practice. 14 (3) The court may, when exercising its jurisdiction in the 15 proceeding, have regard to the interests of the clients of the 16 incorporated legal practice who have been or are to be 17 provided with legal services by the practice. 18 (4) Subsection (3) does not authorise the court to make any 19 decision that is contrary to a specific provision of the 20 Corporations Act. 21 (5) Subsections (2) and (3) are declared to be Corporations 22 legislation displacement provisions for the purposes of the 23 Corporations Act, section 5G,25 in relation to the provisions of 24 chapter 5 of that Act. 25 Note-- 26 The Corporations Act, section 5G, provides that if a State law declares a 27 provision of a State law to be a Corporations legislation displacement 28 provision, any provision of the Corporations legislation with which the 29 State provision would otherwise be inconsistent does not apply to the 30 extent necessary to avoid the inconsistency. 31 24 Corporations Act, chapter 5 (External administration) 25 Corporations Act, section 5G (Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws)

 


 

s 136 128 s 137 Legal Profession Bill 2007 136 External administration proceedings under other 1 legislation 2 (1) This section applies to a proceeding for the external 3 administration, however expressed, of an incorporated legal 4 practice but does not apply to a proceeding to which section 5 135 applies. 6 (2) Each ILP authority is entitled to intervene in the proceeding, 7 unless the court decides that the proceeding does not concern 8 or affect the provision of legal services by the incorporated 9 legal practice. 10 (3) The court may, when exercising its jurisdiction in the 11 proceeding, have regard to the interests of the clients of the 12 incorporated legal practice who have been or are to be 13 provided with legal services by the practice. 14 (4) Subsection (3) does not authorise the court to make any 15 decision that is contrary to a specific provision of any 16 legislation applicable to the incorporated legal practice. 17 137 Incorporated legal practice that is subject to receivership 18 under this Act and external administration under 19 Corporations Act 20 (1) This section applies if an incorporated legal practice is the 21 subject of both-- 22 (a) the appointment of a chapter 5 receiver; and 23 (b) the appointment of a Corporations Act administrator. 24 (2) The chapter 5 receiver is under a duty to notify the 25 Corporations Act administrator of the appointment of the 26 chapter 5 receiver, whether the appointment precedes, follows 27 or is contemporaneous with the appointment of the 28 Corporations Act administrator. 29 (3) The chapter 5 receiver or the Corporations Act administrator, 30 or both of them jointly, may apply to the Supreme Court for 31 the resolution of issues arising from or in connection with the 32 dual appointments and their respective powers, except if a 33 proceeding mentioned in section 135 has been started. 34 (4) The Supreme Court may make any orders it considers 35 appropriate, and no liability attaches to the chapter 5 receiver 36

 


 

s 138 129 s 138 Legal Profession Bill 2007 or the Corporations Act administrator for any act or omission 1 done by the receiver or administrator in good faith for the 2 purpose of carrying out or acting under the orders. 3 (5) Each ILP authority is entitled to intervene in the proceeding, 4 unless the court decides that the proceeding does not concern 5 or affect the provision of legal services by the incorporated 6 legal practice. 7 (6) The provisions of subsections (3) and (4) are declared to be 8 Corporations legislation displacement provisions for the 9 purposes of the Corporations Act, section 5G, in relation to 10 the provisions of chapter 5 of that Act. 11 (7) In this section-- 12 Corporations Act administrator means-- 13 (a) a receiver, receiver and manager, liquidator (including a 14 provisional liquidator), controller, administrator or deed 15 administrator appointed under the Corporations Act; or 16 (b) a person who is appointed to exercise powers under that 17 Act and who is prescribed under a regulation for this 18 definition. 19 chapter 5 receiver means a receiver appointed under section 20 512.26 21 138 Incorporated legal practice that is subject to receivership 22 under this Act and external administration under other 23 legislation 24 (1) This section applies if an incorporated legal practice is the 25 subject of both-- 26 (a) the appointment of a chapter 5 receiver; and 27 (b) the appointment of an external administrator. 28 (2) The chapter 5 receiver is under a duty to notify the external 29 administrator of the appointment of the chapter 5 receiver, 30 whether the appointment precedes, follows or is 31 contemporaneous with the appointment of the external 32 administrator. 33 26 Section 512 (Appointment of receiver)

 


 

s 139 130 s 140 Legal Profession Bill 2007 (3) The chapter 5 receiver or the external administrator, or both of 1 them jointly, may apply to the Supreme Court for the 2 resolution of issues arising from or in connection with the 3 dual appointments and their respective powers. 4 (4) The Supreme Court may make any orders it considers 5 appropriate, and no liability attaches to the chapter 5 receiver 6 or the external administrator for any act or omission done by 7 the receiver or administrator in good faith for the purpose of 8 carrying out or acting under the orders. 9 (5) Each ILP authority is entitled to intervene in the proceeding, 10 unless the court decides that the proceeding does not concern 11 or affect the provision of legal services by the incorporated 12 legal practice. 13 (6) In this section-- 14 external administrator means a person who is-- 15 (a) appointed to exercise powers under an Act other than 16 this Act, or under an Act of the Commonwealth or 17 another jurisdiction; and 18 (b) prescribed under a regulation for this definition. 19 chapter 5 receiver means a receiver appointed under section 20 512. 21 Division 7 Miscellaneous provisions relating 22 to incorporated legal practices 23 139 Cooperation between courts 24 Courts of this jurisdiction may make arrangements for 25 communicating and cooperating with other courts or tribunals 26 in connection with the exercise of powers under this part. 27 140 Relationship of Act to constitution of incorporated legal 28 practice 29 A provision under this Act that applies in relation to an 30 incorporated legal practice prevails, to the extent of any 31

 


 

s 141 131 s 142 Legal Profession Bill 2007 inconsistency, over the constitution or other constituent 1 documents of the practice. 2 141 Relationship of Act to legislation establishing 3 incorporated legal practice 4 (1) This section applies to a corporation, established by or under a 5 law whether or not of this jurisdiction, that is an incorporated 6 legal practice but is not a company under the Corporations 7 Act. 8 (2) The provisions of this Act that apply to an incorporated legal 9 practice prevail, to the extent of any inconsistency, over 10 provisions of the legislation under which the corporation is 11 established or regulated that are prescribed under a regulation. 12 142 Relationship of Act to Corporations legislation and 13 certain other instruments 14 (1) A regulation may declare a provision under this Act that 15 relates to an incorporated legal practice to be a Corporations 16 legislation displacement provision for the purposes of the 17 Corporations Act, section 5G.27 18 (2) A regulation may declare a matter relating to an incorporated 19 legal practice that is prohibited, required, authorised or 20 permitted under this Act to be an excluded matter for the 21 purposes of the Corporations Act, section 5F,28 in relation 22 to-- 23 (a) the whole of the Corporations legislation; or 24 (b) a stated provision of the Corporations legislation; or 25 (c) the Corporations legislation other than a stated 26 provision; or 27 (d) the Corporations legislation other than to a stated extent. 28 27 Corporations Act, section 5G (Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws) 28 Corporations Act, section 5F (Corporations legislation does not apply to matters declared by State or Territory law to be an excluded matter)

 


 

s 143 132 s 145 Legal Profession Bill 2007 (3) In this section-- 1 matter includes act, omission, body, person or thing. 2 143 Undue influence 3 A person, whether or not an officer or employee of an 4 incorporated legal practice, must not cause or induce, or 5 attempt to cause or induce, a legal practitioner director, or 6 another Australian legal practitioner who provides legal 7 services for the practice, to contravene this Act or the 8 practitioner's professional obligations as an Australian legal 9 practitioner. 10 Maximum penalty--300 penalty units. 11 Division 8 Multi-disciplinary partnerships 12 144 Nature of multi-disciplinary partnership 13 (1) A partnership is a multi-disciplinary partnership if it is a 14 partnership between 1 or more Australian legal practitioners 15 and 1 or more other persons who are not Australian legal 16 practitioners, and the partnership business includes the 17 provision of legal services in this jurisdiction as well as other 18 services. 19 (2) However, a partnership consisting only of 1 or more 20 Australian legal practitioners and 1 or more 21 Australian-registered foreign lawyers is not a 22 multi-disciplinary partnership. 23 (3) Nothing in this part affects or applies to the provision by a 24 multi-disciplinary partnership of legal services in 1 or more 25 other jurisdictions. 26 145 Conduct of multi-disciplinary partnerships 27 (1) An Australian legal practitioner may be in partnership with a 28 person who is not an Australian legal practitioner, if the 29 partnership business includes the provision of legal services. 30

 


 

s 146 133 s 147 Legal Profession Bill 2007 (2) Subsection (1) does not prevent an Australian legal 1 practitioner from being in partnership with a person who is 2 not an Australian legal practitioner, if the partnership business 3 does not include the provision of legal services. 4 (3) A regulation may prohibit an Australian legal practitioner 5 from being in partnership with a person providing a service or 6 conducting a business of a kind stated under the regulation, if 7 the partnership business includes the provision of legal 8 services. 9 146 Notice of intention to start practice in multi-disciplinary 10 partnership 11 (1) Before an Australian legal practitioner starts to provide legal 12 services in this jurisdiction as a partner in a multi-disciplinary 13 partnership, the practitioner must give the law society notice, 14 in the law society approved form, of his or her intention to do 15 so. 16 Maximum penalty--100 penalty units. 17 (2) A regulation may prescribe particulars to be included in the 18 law society approved form. 19 147 General obligations of legal practitioner partners 20 (1) Each legal practitioner partner of a multi-disciplinary 21 partnership is, for the purposes only of this Act, responsible 22 for the management of the legal services provided in this 23 jurisdiction by the partnership. 24 (2) Each legal practitioner partner must ensure that appropriate 25 management systems are implemented and kept to enable the 26 provision of legal services by the multi-disciplinary 27 partnership-- 28 (a) under the professional obligations of Australian legal 29 practitioners and other obligations imposed under this 30 Act; and 31 (b) so that the obligations of legal practitioner partners, and 32 employees who are Australian legal practitioners, are 33 not affected by other partners and employees of the 34 partnership. 35

 


 

s 148 134 s 149 Legal Profession Bill 2007 148 Obligations of legal practitioner partner relating to 1 misconduct 2 (1) Each of the following is capable of constituting unsatisfactory 3 professional conduct or professional misconduct by a legal 4 practitioner partner of a multi-disciplinary partnership-- 5 (a) unsatisfactory professional conduct or professional 6 misconduct of an Australian legal practitioner employed 7 by the multi-disciplinary partnership; 8 (b) conduct of another partner, not being an Australian legal 9 practitioner, of the multi-disciplinary partnership that 10 adversely affects the provision of legal services by the 11 partnership; 12 (c) the unsuitability of another partner, not being an 13 Australian legal practitioner, of the multi-disciplinary 14 partnership to be a member of a partnership that 15 provides legal services. 16 (2) A legal practitioner partner of a multi-disciplinary partnership 17 must ensure that all reasonable action available to the legal 18 practitioner partner is taken to deal with any unsatisfactory 19 professional conduct or professional misconduct of an 20 Australian legal practitioner employed by the partnership. 21 149 Actions of partner who is not an Australian legal 22 practitioner 23 (1) A partner of a multi-disciplinary partnership who is not an 24 Australian legal practitioner does not contravene a provision 25 of this Act merely because of any of the following-- 26 (a) the partner is a member of a partnership and the 27 partnership business includes the provision of legal 28 services; 29 (b) the partner receives a fee, gain or reward for business of 30 the partnership that is the business of an Australian legal 31 practitioner; 32 (c) the partner holds out, advertises or represents himself or 33 herself as a member of a partnership where the 34 partnership business includes the provision of legal 35 services; 36

 


 

s 150 135 s 151 Legal Profession Bill 2007 (d) the partner shares with another partner the receipts of 1 business of the partnership that is the business of an 2 Australian legal practitioner. 3 (2) Subsection (1) is subject to any other provision that expressly 4 applies to a partner of a multi-disciplinary partnership who is 5 not an Australian legal practitioner. 6 150 Obligations and privileges of Australian legal practitioner 7 who is partner or employee 8 (1) An Australian legal practitioner who provides legal services in 9 the capacity of a partner or an employee of a 10 multi-disciplinary partnership-- 11 (a) is not excused from compliance with the professional 12 obligations, or other obligations under any law, of an 13 Australian legal practitioner; and 14 (b) does not lose the professional privileges of an Australian 15 legal practitioner. 16 (2) To remove any doubt, it is declared that the law relating to 17 client legal privilege, or other legal professional privilege, is 18 not excluded or otherwise affected because an Australian legal 19 practitioner is acting in the capacity of a partner or employee 20 of a multi-disciplinary partnership. 21 151 Conflicts of interest 22 (1) For the application of any law (including the common law) or 23 the legal profession rules relating to conflicts of interest to the 24 conduct of an Australian legal practitioner who is-- 25 (a) a legal practitioner partner of a multi-disciplinary 26 partnership; or 27 (b) an employee of a multi-disciplinary partnership; 28 the interests of the partnership or any partner of the 29 multi-disciplinary partnership are also taken to be the interests 30 of the practitioner concerned (in addition to any interests that 31 the practitioner has apart from this subsection). 32 (2) Legal profession rules may be made for or in relation to 33 additional duties and obligations in connection with conflicts 34

 


 

s 152 136 s 152 Legal Profession Bill 2007 of interest arising out of the conduct of a multi-disciplinary 1 partnership. 2 152 Disclosure obligations 3 (1) This section applies if a person engages a multi-disciplinary 4 partnership to provide services that the person might 5 reasonably assume to be legal services. 6 (2) Each legal practitioner partner of the multi-disciplinary 7 partnership, and any employee of the partnership who is an 8 Australian legal practitioner and who provides the services on 9 behalf of the partnership, must ensure that a disclosure that 10 complies with the requirements of this section and a 11 regulation made for this section is made to the person about 12 the services. 13 Maximum penalty--100 penalty units. 14 (3) The disclosure must be made by giving the person a written 15 notice-- 16 (a) setting out the services to be provided; and 17 (b) stating whether or not all the legal services will be 18 provided by an Australian legal practitioner; and 19 (c) if some or all of the legal services to be provided will 20 not be provided by an Australian legal 21 practitioner--identifying those services and indicating 22 the status or qualifications of the person or persons who 23 will provide the legal services; and 24 (d) stating that this Act applies to the provision of legal 25 services but not to the provision of the non-legal 26 services. 27 (4) A regulation may provide for the following matters-- 28 (a) the way in which a disclosure is to be made; 29 (b) additional matters required to be disclosed in connection 30 with the provision of legal services or non-legal services 31 by a multi-disciplinary partnership. 32 (5) Without limiting subsection (4), the additional matters may 33 include the kind of services provided by the multi-disciplinary 34 partnership and whether those services are or are not covered 35

 


 

s 153 137 s 155 Legal Profession Bill 2007 by the provisions of this Act, including, for example, 1 provisions about insurance. 2 (6) A disclosure under this section to a person about the provision 3 of legal services may relate to the provision of legal services 4 on 1 occasion, on more than 1 occasion or on an on-going 5 basis. 6 153 Effect of non-disclosure on provision of particular 7 services 8 (1) This section applies if-- 9 (a) section 152 applies in relation to a service that is 10 provided to a person who has engaged a 11 multi-disciplinary partnership to provide the service and 12 that the person might reasonably assume to be a legal 13 service; and 14 (b) a disclosure has not been made under that section in 15 relation to the service. 16 (2) The standard of care owed by the multi-disciplinary 17 partnership in relation to the service is the standard that would 18 be applicable if the service had been provided by an 19 Australian legal practitioner. 20 154 Application of legal profession rules 21 Legal profession rules, so far as they apply to an Australian 22 legal practitioner, apply to the following unless the rules 23 otherwise provide-- 24 (a) an Australian legal practitioner who is a legal 25 practitioner partner of a multi-disciplinary partnership; 26 (b) an Australian legal practitioner who is an employee of a 27 multi-disciplinary partnership. 28 155 Requirements relating to advertising 29 (1) A restriction imposed under this Act or another Act in 30 connection with advertising by Australian legal practitioners 31 applies to advertising by a multi-disciplinary partnership in 32 relation to the provision of legal services. 33

 


 

s 156 138 s 157 Legal Profession Bill 2007 (2) If a restriction mentioned in subsection (1) is limited to a 1 particular branch of the legal profession or persons who 2 practise in a particular style of legal practice, the restriction 3 applies only to the extent that the multi-disciplinary 4 partnership carries on the business of that branch of the legal 5 profession or that particular style of legal practice. 6 (3) An advertisement by a multi-disciplinary partnership about 7 the provision of services that include legal services is, for the 8 purposes of a disciplinary proceeding against an Australian 9 legal practitioner, taken to have been authorised by each legal 10 practitioner partner of the multi-disciplinary partnership. 11 (4) This section does not apply if the provision by which the 12 restriction is imposed expressly excludes its application to 13 multi-disciplinary partnerships. 14 156 Sharing of receipts, revenue or other income 15 (1) Nothing under this Act prevents a legal practitioner partner of 16 a multi-disciplinary partnership, or an Australian legal 17 practitioner who is an employee of a multi-disciplinary 18 partnership, from sharing with a partner of the partnership 19 who is not an Australian legal practitioner, receipts, revenue 20 or other income arising from the provision of legal services by 21 the partner or practitioner. 22 (2) This section does not extend to the sharing of receipts, 23 revenue or other income in contravention of section 157, and 24 has effect subject to section 220.29 25 157 Disqualified persons 26 A legal practitioner partner of a multi-disciplinary partnership 27 must not knowingly-- 28 (a) be a partner of a disqualified person in the 29 multi-disciplinary partnership; or 30 29 Section 220 (Rules for Australian legal practitioners engaged in practice in the manner of barristers)

 


 

s 158 139 s 158 Legal Profession Bill 2007 (b) share with a disqualified person the receipts, revenue or 1 other income arising from the provision of legal services 2 by the multi-disciplinary partnership; or 3 (c) employ or pay a disqualified person in connection with 4 the provision of legal services by the multi-disciplinary 5 partnership. 6 158 Prohibition on partnership with particular partner who is 7 not an Australian legal practitioner 8 (1) This section applies to a person who-- 9 (a) is not an Australian legal practitioner; and 10 (b) is or was a partner of an Australian legal practitioner. 11 (2) The Supreme Court may, on application by the commissioner 12 or the law society, make an order prohibiting an Australian 13 legal practitioner from being a partner of a person to whom 14 this section applies and who is stated in the order in relation to 15 a business that includes the provision of legal services if the 16 court is satisfied that-- 17 (a) the person is not a fit and proper person to be a partner; 18 or 19 (b) the person has been found guilty of conduct that, if the 20 person were an Australian legal practitioner, would have 21 constituted unsatisfactory professional conduct or 22 professional misconduct; or 23 (c) for a corporation--the corporation has, under section 24 132,30 been disqualified from providing legal services in 25 this jurisdiction or there are grounds for disqualifying 26 the corporation from providing legal services in this 27 jurisdiction. 28 (3) An order made under this section may be revoked by the 29 Supreme Court on application by the law society, the 30 commissioner or by the person against whom the order was 31 made. 32 30 Section 132 (Banning of incorporated legal practices)

 


 

s 159 140 s 160 Legal Profession Bill 2007 (4) The death of an Australian legal practitioner does not prevent 1 an application being made for, or the making of, an order 2 under this section in relation to a person who was a partner of 3 the practitioner. 4 (5) A regulation may make provision about the publication and 5 notification of orders made under this section. 6 159 Undue influence 7 A person, whether or not a partner or employee of a 8 multi-disciplinary partnership, must not cause or induce, or 9 attempt to cause or induce, either of the following persons to 10 contravene this Act or the person's professional obligations as 11 an Australian legal practitioner-- 12 (a) a legal practitioner partner of a multi-disciplinary 13 partnership; 14 (b) an employee of a multi-disciplinary partnership who 15 provides legal services and who is an Australian legal 16 practitioner. 17 Maximum penalty--300 penalty units. 18 Division 9 Miscellaneous 19 160 Obligations of practitioners not affected 20 Except as provided by this part, nothing in this part affects an 21 obligation imposed on-- 22 (a) a legal practitioner director of an incorporated legal 23 practice, or an Australian legal practitioner who is an 24 employee of an incorporated legal practice, under this 25 Act or another Act in his or her capacity as an 26 Australian legal practitioner; or 27 (b) a legal practitioner partner of, or an Australian legal 28 practitioner who is an employee of, a multi-disciplinary 29 partnership under this Act or another Act in his or her 30 capacity as an Australian legal practitioner. 31

 


 

s 161 141 s 162 Legal Profession Bill 2007 161 Regulation 1 (1) A regulation may provide for the following-- 2 (a) the legal services provided by incorporated legal 3 practices or legal practitioner partners or employees of 4 multi-disciplinary partnerships; 5 (b) other services provided by incorporated legal practices 6 or legal practitioner partners or employees of 7 multi-disciplinary partnerships in circumstances where a 8 conflict of interest relating to the provision of legal 9 services may arise. 10 (2) A regulation prevails over any inconsistent provision of the 11 legal profession rules. 12 (3) A regulation may provide that a breach of a provision of a 13 regulation is capable of constituting unsatisfactory 14 professional conduct or professional misconduct-- 15 (a) for an incorporated legal practice--by a legal 16 practitioner director, or by the Australian legal 17 practitioner responsible for the breach, or both; or 18 (b) for a multi-disciplinary partnership--by a legal 19 practitioner partner of the multi-disciplinary 20 partnership, or by the Australian legal practitioner 21 responsible for the breach, or both. 22 Part 2.8 Legal practice by foreign 23 lawyers 24 Division 1 Preliminary 25 162 Main purpose of pt 2.8 26 The main purpose of this part is to encourage and facilitate the 27 internationalisation of legal services and the legal services 28 sector by providing a framework for regulation of the practice 29

 


 

s 163 142 s 164 Legal Profession Bill 2007 of foreign law in this jurisdiction by foreign lawyers as a 1 recognised aspect of legal practice in this jurisdiction. 2 163 Definitions for pt 2.8 3 In this part-- 4 Australia includes the external Territories. 5 Australian law means law of the Commonwealth or of a 6 jurisdiction. 7 foreign law practice means a partnership or corporate entity 8 that is entitled to engage in legal practice in a foreign country. 9 foreign registration authority means an entity in a foreign 10 country having the function, conferred by the law of the 11 foreign country, of registering persons to engage in legal 12 practice in the foreign country. 13 local registration certificate means a registration certificate 14 given under this part. 15 overseas-registered foreign lawyer means an individual who 16 is properly registered to engage in legal practice in a foreign 17 country by the foreign registration authority for the country. 18 practise foreign law means doing work, or transacting 19 business, in this jurisdiction concerning foreign law, being 20 work or business of a kind that, if it concerned the law of this 21 jurisdiction, would ordinarily be done or transacted by an 22 Australian legal practitioner. 23 registered, when used in connection with a foreign country, 24 means having all necessary licences, approvals, admissions, 25 certificates or other forms of authorisation (including 26 practising certificates) required under legislation for engaging 27 in legal practice in that country. 28 164 This part does not apply to Australian legal practitioners 29 (1) This part does not apply to an Australian legal practitioner, 30 including an Australian legal practitioner who is also an 31 overseas-registered foreign lawyer. 32 (2) Accordingly, nothing in this part requires or enables an 33 Australian legal practitioner, including an Australian legal 34

 


 

s 165 143 s 166 Legal Profession Bill 2007 practitioner who is also an overseas-registered foreign lawyer, 1 to be registered as a foreign lawyer under this Act in order to 2 practise foreign law in this jurisdiction. 3 Division 2 Practice of foreign law 4 165 Requirement for registration 5 (1) A person must not practise foreign law in this jurisdiction 6 unless the person is-- 7 (a) an Australian-registered foreign lawyer; or 8 (b) an Australian legal practitioner. 9 Maximum penalty--200 penalty units. 10 (2) However, a person does not contravene subsection (1) if the 11 person is an overseas-registered foreign lawyer-- 12 (a) who-- 13 (i) practises foreign law in this jurisdiction for 1 or 14 more periods that do not exceed in aggregate 90 15 days in any period of 12 months; or 16 (ii) is subject to a restriction imposed under the 17 Migration Act 1958 (Cwlth) that has the effect of 18 limiting the period during which work may be 19 done, or business transacted, in Australia by the 20 person; and 21 (b) who-- 22 (i) does not keep an office for the purpose of 23 practising foreign law in this jurisdiction; or 24 (ii) does not become a partner or director of a law 25 practice. 26 166 Entitlement of Australian-registered foreign lawyer to 27 practise in this jurisdiction 28 An Australian-registered foreign lawyer is, subject to this Act, 29 entitled to practise foreign law in this jurisdiction. 30

 


 

s 167 144 s 168 Legal Profession Bill 2007 167 Scope of practice 1 (1) An Australian-registered foreign lawyer may provide only the 2 following legal services in this jurisdiction-- 3 (a) doing work, or transacting business, concerning the law 4 of a foreign country if the lawyer is registered by the 5 foreign registration authority for the country; 6 (b) legal services, including appearances, in relation to an 7 arbitration proceeding of a kind prescribed under a 8 regulation; 9 (c) legal services, including appearances, in relation to a 10 proceeding before a body other than a court, being a 11 proceeding in which the body concerned is not required 12 to apply the rules of evidence and in which knowledge 13 of the foreign law of a country mentioned in paragraph 14 (a) is essential; 15 (d) legal services for conciliation, mediation and other 16 forms of consensual dispute resolution of a kind 17 prescribed under a regulation. 18 (2) Nothing in this part authorises an Australian-registered 19 foreign lawyer to appear in any court, except on the lawyer's 20 own behalf, or to practise Australian law in this jurisdiction. 21 (3) Despite subsection (2), an Australian-registered foreign 22 lawyer may advise on the effect of an Australian law if-- 23 (a) the giving of advice on Australian law is necessarily 24 incidental to the practice of foreign law; and 25 (b) the advice is expressly based on advice given on the 26 Australian law by an Australian legal practitioner who is 27 not an employee of the foreign lawyer. 28 168 Form of practice 29 (1) An Australian-registered foreign lawyer may, subject to any 30 conditions attaching to the foreign lawyer's registration, 31 practise foreign law-- 32 (a) on the foreign lawyer's own account; or 33 (b) in partnership with 1 or more Australian-registered 34 foreign lawyers or 1 or more Australian legal 35

 


 

s 169 145 s 169 Legal Profession Bill 2007 practitioners, or both, in circumstances where, if the 1 Australian-registered foreign lawyer were an Australian 2 legal practitioner, the partnership would be permitted 3 under a law of this jurisdiction; or 4 (c) as a director or employee of an incorporated legal 5 practice or a partner or employee of a multi-disciplinary 6 partnership that is permitted by a law of this jurisdiction; 7 or 8 (d) as an employee of an Australian legal practitioner or law 9 firm in circumstances where, if the Australian-registered 10 foreign lawyer were an Australian legal practitioner, the 11 employment would be permitted under a law of this 12 jurisdiction; or 13 (e) as an employee of an Australian-registered foreign 14 lawyer. 15 (2) An affiliation mentioned in subsection (1)(b) to (e) does not 16 entitle the Australian-registered foreign lawyer to practise 17 Australian law in this jurisdiction. 18 169 Application of Australian professional ethical and 19 practice standards 20 (1) An Australian-registered foreign lawyer must not engage in 21 any conduct in practising foreign law that would, if the 22 conduct were engaged in by an Australian legal practitioner in 23 practising Australian law in this jurisdiction, be capable of 24 constituting unsatisfactory professional conduct or 25 professional misconduct. 26 (2) Chapter 431 applies to a person who-- 27 (a) is an Australian-registered foreign lawyer; or 28 (b) was an Australian-registered foreign lawyer when the 29 relevant conduct allegedly happened, but is no longer an 30 Australian-registered foreign lawyer (in which case 31 chapter 4 applies as if the person were an 32 Australian-registered foreign lawyer); 33 31 Chapter 4 (Complaints and discipline)

 


 

s 170 146 s 170 Legal Profession Bill 2007 and so applies as if references in chapter 3 to an Australian 1 legal practitioner were references to a person of that kind. 2 (3) A regulation may make provision in relation to the 3 application, with or without changes, of the provisions of 4 chapter 4 for the purposes of this section. 5 (4) Without limiting the matters that may be taken into account in 6 deciding whether a person should be disciplined for a 7 contravention of subsection (1), the following matters may be 8 taken into account-- 9 (a) whether the conduct of the person was consistent with 10 the standard of professional conduct of the legal 11 profession in any foreign country where the person is 12 registered; 13 (b) whether the person contravened the subsection wilfully 14 or without reasonable excuse. 15 (5) Without limiting another provision of this section or the 16 orders that may be made under chapter 4 as applied by this 17 section, the following orders may be made under that chapter 18 as applied by this section-- 19 (a) an order that a person's registration under this Act as a 20 foreign lawyer be cancelled; 21 (b) an order that a person's registration under a 22 corresponding law as a foreign lawyer be cancelled. 23 170 Designation 24 (1) An Australian-registered foreign lawyer may use only the 25 following designations-- 26 (a) the lawyer's own name; 27 (b) a title or business name that the lawyer is authorised by 28 law to use in a foreign country where the lawyer is 29 registered by a foreign registration authority; 30 (c) subject to this section, the name of a foreign law 31 practice with which the lawyer is affiliated or associated 32 whether as a partner, director, employee or otherwise; 33 (d) if the lawyer is a principal of any law practice in 34 Australia whose principals include both 1 or more 35

 


 

s 171 147 s 171 Legal Profession Bill 2007 Australian-registered foreign lawyers and 1 or more 1 Australian legal practitioners--a description of the 2 practice that includes reference to both Australian legal 3 practitioners and Australian-registered foreign lawyers. 4 Examples for paragraph (d)-- 5 solicitors and locally registered foreign lawyers 6 Australian solicitors and US attorneys 7 (2) An Australian-registered foreign lawyer who is a principal of 8 a foreign law practice may use the practice's name in or in 9 connection with practising foreign law in this jurisdiction only 10 if-- 11 (a) the lawyer indicates, on the lawyer's letterhead or 12 another document used in this jurisdiction to identify the 13 lawyer as an overseas-registered foreign lawyer, that the 14 foreign law practice practises only foreign law in this 15 jurisdiction; and 16 (b) the lawyer has provided the law society with acceptable 17 evidence that the lawyer is a principal of the foreign law 18 practice. 19 (3) An Australian-registered foreign lawyer who is a principal of 20 a foreign law practice may use the name of the practice as 21 mentioned in this section whether or not other principals of 22 the practice are Australian-registered foreign lawyers. 23 (4) This section does not authorise the use of a name or other 24 designation that contravenes any requirements of the law of 25 this jurisdiction concerning the use of business names or that 26 is likely to lead to any confusion with the name of any 27 established domestic law practice or foreign law practice in 28 this jurisdiction. 29 171 Letterhead and other identifying documents 30 (1) An Australian-registered foreign lawyer must indicate, in each 31 public document distributed by the lawyer in connection with 32 the lawyer's practice of foreign law, the fact that the lawyer is 33 an Australian-registered foreign lawyer and is restricted to the 34 practice of foreign law. 35

 


 

s 172 148 s 172 Legal Profession Bill 2007 (2) Subsection (1) is satisfied if the lawyer includes in the public 1 document the words-- 2 (a) `registered foreign lawyer' or `registered foreign 3 practitioner'; and 4 (b) `entitled to practise foreign law only'. 5 (3) An Australian-registered foreign lawyer may, but need not, 6 include any or all of the following on any public document-- 7 (a) an indication of all foreign countries in which the lawyer 8 is registered to engage in legal practice; 9 (b) a description of himself or herself, and any law practice 10 with which the lawyer is affiliated or associated, in any 11 of the ways designated in section 170. 12 (4) In this section-- 13 public document includes any business letter, statement of 14 account, invoice, business card, and promotional and 15 advertising material. 16 172 Advertising 17 (1) An Australian-registered foreign lawyer is required to comply 18 with any advertising restrictions imposed by the law society or 19 by law on the legal practice engaged in by an Australian legal 20 practitioner that are relevant to the practice of law in this 21 jurisdiction. 22 (2) Without limiting subsection (1), an Australian-registered 23 foreign lawyer must not advertise, or use any description on 24 the lawyer's letterhead or another document used in this 25 jurisdiction to identify the lawyer as a lawyer, in any way 26 that-- 27 (a) might reasonably be regarded as-- 28 (i) false, misleading or deceptive; or 29 (ii) suggesting that the Australian-registered foreign 30 lawyer is an Australian legal practitioner; or 31 (b) contravenes a regulation. 32

 


 

s 173 149 s 174 Legal Profession Bill 2007 173 Foreign lawyer employing Australian legal practitioner 1 (1) An Australian-registered foreign lawyer may employ 1 or 2 more Australian legal practitioners. 3 (2) Employment of an Australian legal practitioner does not 4 entitle an Australian-registered foreign lawyer to practise 5 Australian law in this jurisdiction. 6 (3) An Australian legal practitioner employed by an 7 Australian-registered foreign lawyer may practise foreign law. 8 (4) An Australian legal practitioner employed by an 9 Australian-registered foreign lawyer must not do either of the 10 following-- 11 (a) provide advice on Australian law to, or for use by, the 12 Australian-registered foreign lawyer; 13 (b) otherwise practise Australian law in this jurisdiction in 14 the course of that employment. 15 (5) Subsection (4) does not apply to an Australian legal 16 practitioner employed by a law firm, a partner of which is an 17 Australian-registered foreign lawyer, if at least 1 other partner 18 is an Australian legal practitioner. 19 (6) Any period of employment of an Australian legal practitioner 20 by an Australian-registered foreign lawyer can not be used to 21 satisfy a requirement imposed by a condition on a local 22 practising certificate to complete a period of supervised legal 23 practice. 24 174 Trust money and trust accounts 25 (1) Subject to this section, the provisions of part 3.3 and any other 26 provisions under this Act relating to requirements about trust 27 money and trust accounts apply to Australian-registered 28 foreign lawyers in the same way as they apply to law practices 29 and Australian legal practitioners. 30 (2) A regulation may make provision in relation to the 31 application, with or without changes, of the provisions of this 32 Act relating to trust money and trust accounts for the purposes 33 of this section. 34

 


 

s 175 150 s 175 Legal Profession Bill 2007 (3) In this section-- 1 money includes money other than in this jurisdiction. 2 175 Professional indemnity insurance 3 (1) An Australian-registered foreign lawyer must, at all times 4 while practising foreign law in this jurisdiction, comply with 5 1 of the following-- 6 (a) the foreign lawyer must have professional indemnity 7 insurance that conforms with the requirements for 8 professional indemnity insurance applicable for 9 Australian legal practitioners in any jurisdiction; 10 (b) if the foreign lawyer does not have professional 11 indemnity insurance that complies with paragraph (a), 12 the foreign lawyer-- 13 (i) must have professional indemnity insurance that 14 covers the practice of foreign law in this 15 jurisdiction and that complies with the relevant 16 requirements of a foreign law or foreign 17 registration authority; and 18 (ii) if the insurance is for less than $1.5 million 19 (inclusive of defence costs), must provide a 20 disclosure statement to each client disclosing the 21 level of cover; 22 (c) if the foreign lawyer does not have professional 23 indemnity insurance that complies with paragraph (a) or 24 (b), the foreign lawyer must provide a disclosure 25 statement to each client stating that the lawyer does not 26 have complying professional indemnity insurance. 27 (2) A disclosure statement must be made in writing before, or as 28 soon as practicable after, the foreign lawyer is retained in the 29 matter. 30 (3) A disclosure statement provided to a person before the foreign 31 lawyer is retained in a matter is taken to be provided to the 32 person as a client for the purposes of this section. 33 (4) A disclosure statement is not valid unless it is given under, 34 and complies with, any applicable requirements of a 35 regulation. 36

 


 

s 176 151 s 178 Legal Profession Bill 2007 176 Fidelity cover 1 A regulation may provide that provisions of part 3.6 apply to 32 2 prescribed classes of Australian-registered foreign lawyers 3 and so apply with any changes stated in the regulation. 4 Division 3 Local registration of foreign lawyers 5 generally 6 177 Local registration of foreign lawyers 7 Overseas-registered foreign lawyers may be registered as 8 foreign lawyers under this Act. 9 178 Duration of registration 10 (1) Registration as a foreign lawyer granted under this Act is in 11 force from the day stated in the local registration certificate 12 until the end of the financial year in which it is granted, unless 13 the registration is sooner suspended or cancelled. 14 (2) Registration as a foreign lawyer renewed under this Act is in 15 force until the end of the financial year following its previous 16 period of currency, unless the registration is sooner suspended 17 or cancelled. 18 (3) If an application for the renewal of registration as a foreign 19 lawyer has not been decided by the following 1 July, the 20 registration-- 21 (a) continues in force on and from that 1 July until the law 22 society renews or refuses to renew the registration or the 23 holder withdraws the application for renewal, unless the 24 registration is sooner suspended or cancelled; and 25 (b) if renewed, is taken to have been renewed on and from 26 that 1 July. 27 32 Part 3.6 (Fidelity cover)

 


 

s 179 152 s 181 Legal Profession Bill 2007 179 Local registered foreign lawyer is not officer of Supreme 1 Court 2 A locally registered foreign lawyer is not an officer of the 3 Supreme Court. 4 Division 4 Application for grant or renewal of 5 local registration 6 180 Application for grant or renewal of registration 7 An overseas-registered foreign lawyer may apply to the law 8 society for the grant or renewal of registration as a foreign 9 lawyer under this Act. 10 181 Manner of application 11 (1) An application for the grant or renewal of registration as a 12 foreign lawyer must be-- 13 (a) made in the law society approved form; and 14 (b) accompanied by the fees prescribed under a regulation. 15 (2) Different fees may be set according to different factors 16 decided by the law society. 17 (3) The fees are not to be greater than the maximum fees for a 18 local practising certificate. 19 (4) The law society may also require the applicant to pay any 20 reasonable costs and expenses incurred by it in considering 21 the application, including, for example, costs and expenses of 22 making inquiries and obtaining information or documents 23 about whether the applicant meets the criteria for registration. 24 (5) The fees and costs must not include any component for 25 compulsory membership of any professional association. 26 (6) The law society approved form may require the applicant to 27 disclose-- 28 (a) matters that may affect the law society's consideration 29 of the application for the grant or renewal of 30 registration; and 31

 


 

s 182 153 s 182 Legal Profession Bill 2007 (b) particulars of any offences for which the applicant has 1 been convicted in Australia or a foreign country, 2 whether before or after the commencement of this 3 section. 4 (7) The law society approved form may indicate that convictions 5 of a particular kind need not be disclosed for the purposes of 6 the current application. 7 (8) The law society approved form may indicate that stated kinds 8 of matters or particulars previously disclosed in a particular 9 way need not be disclosed for the purposes of the current 10 application. 11 182 Requirements regarding applications for the grant or 12 renewal of registration 13 (1) An application for the grant of registration as a foreign lawyer 14 under this Act must state the applicant's educational and 15 professional qualifications. 16 (2) An application for the grant or renewal of registration must-- 17 (a) state that the applicant is registered to engage in legal 18 practice by 1 or more stated foreign registration 19 authorities in 1 or more foreign countries; and 20 (b) state that the applicant is not an Australian legal 21 practitioner; and 22 (c) state that the applicant is not the subject of any 23 disciplinary proceeding in Australia or a foreign 24 country, including any preliminary investigations or 25 action that might lead to a disciplinary proceeding in his 26 or her capacity as-- 27 (i) an overseas-registered foreign lawyer; or 28 (ii) an Australian-registered foreign lawyer; or 29 (iii) an Australian lawyer; and 30 (d) state whether the applicant has been convicted of an 31 offence in Australia or a foreign country, and if so-- 32 (i) the nature of the offence; and 33 (ii) how long ago the offence was committed; and 34

 


 

s 182 154 s 182 Legal Profession Bill 2007 (iii) the applicant's age when the offence was 1 committed; and 2 (e) state that the applicant's registration is not cancelled or 3 currently suspended in any place as a result of any 4 disciplinary action in Australia or a foreign country; and 5 (f) state-- 6 (i) that the applicant is not otherwise personally 7 prohibited from engaging in legal practice in any 8 place or bound by any undertaking not to engage in 9 legal practice in any place; and 10 (ii) whether or not the applicant is subject to any 11 special conditions in engaging in legal practice in 12 any place; 13 as a result of any criminal, civil or disciplinary 14 proceeding in Australia or a foreign country; and 15 (g) state any special conditions imposed in Australia or a 16 foreign country as a restriction on legal practice engaged 17 in by the applicant or any undertaking given by the 18 applicant restricting the applicant's practice of law; and 19 (h) give consent to the making of inquiries of, and the 20 exchange of information with, any foreign registration 21 authorities that the law society considers appropriate 22 regarding the applicant's activities in engaging in legal 23 practice in the places concerned or otherwise regarding 24 matters relevant to the application; and 25 (i) state which provisions under section 175(1) the 26 applicant proposes to rely on and be accompanied by 27 supporting proof of the relevant matters; and 28 (j) provide the information, or be accompanied by the other 29 information or documents, or both, that is stated in the 30 application form or in material accompanying the 31 application form. 32 (3) The application must, if the law society so requires, be 33 accompanied by an original instrument, or a copy of an 34 original instrument, from each foreign registration authority 35 stated in the application that-- 36

 


 

s 183 155 s 183 Legal Profession Bill 2007 (a) verifies the applicant's educational and professional 1 qualifications; and 2 (b) verifies the applicant's registration by the authority to 3 engage in legal practice in the foreign country 4 concerned and the date of registration; and 5 (c) describes anything done by the applicant in engaging in 6 legal practice in that foreign country of which the 7 authority is aware and that the authority believes has had 8 or is likely to have had an adverse effect on the 9 applicant's professional standing within the legal 10 profession of that place. 11 (4) The applicant must, if the law society so requires, certify in 12 the application that the accompanying instrument is the 13 original or a complete and accurate copy of the original. 14 (5) The law society may require the applicant to verify the 15 statements in the application by statutory declaration or by 16 other proof acceptable to the law society. 17 (6) If the accompanying instrument is not in English, it must be 18 accompanied by a translation in English that is authenticated 19 or certified to the satisfaction of the law society. 20 Division 5 Grant or renewal of registration 21 183 Grant or renewal of local registration 22 (1) The law society must consider an application that has been 23 made for the grant or renewal of registration as a foreign 24 lawyer and may-- 25 (a) grant or refuse to grant the registration; or 26 (b) renew or refuse to renew the registration. 27 (2) The law society may, when granting or renewing registration, 28 impose conditions as mentioned in section 203.33 29 33 Section 203 (Conditions imposed by law society)

 


 

s 184 156 s 184 Legal Profession Bill 2007 (3) If the law society grants or renews the registration, the law 1 society must give the applicant a registration certificate or a 2 notice of renewal. 3 (4) If the law society decides not to grant or renew the 4 registration, or imposes a condition on the registration that the 5 applicant has not agreed to as part of the grant or renewal of 6 the registration-- 7 (a) the law society must give the person an information 8 notice about the law society's decision; and 9 (b) the person may appeal to the Supreme Court against the 10 decision within 28 days after the day the information 11 notice is given to the person. 12 (5) A notice of renewal may be in the form of a new registration 13 certificate or another form the law society considers 14 appropriate. 15 184 Requirement to grant or renew registration if criteria 16 satisfied 17 (1) The law society must grant an application for registration as a 18 foreign lawyer if the law society-- 19 (a) is satisfied the applicant is registered to engage in legal 20 practice in 1 or more foreign countries and is not an 21 Australian legal practitioner; and 22 (b) considers an effective system exists for regulating 23 engaging in legal practice in 1 or more of the foreign 24 countries; and 25 (c) considers the applicant is not, as a result of a criminal, 26 civil or disciplinary proceeding, subject to-- 27 (i) any special conditions in engaging in legal practice 28 in any of the foreign countries; and 29 (ii) any undertakings concerning engaging in legal 30 practice in any of the foreign countries; 31 that would make it inappropriate to register the person; 32 and 33

 


 

s 185 157 s 185 Legal Profession Bill 2007 (d) is satisfied the applicant demonstrates an intention to 1 commence practising foreign law in this jurisdiction 2 within a reasonable period if registration were granted; 3 unless the law society refuses the application under this part. 4 (2) The law society must grant an application for renewal of an 5 applicant's registration, unless the law society refuses renewal 6 under this part. 7 (3) Residence or domicile in this jurisdiction is not to be a 8 prerequisite for or a factor in entitlement to the grant or 9 renewal of registration. 10 185 Refusal to grant or renew registration 11 (1) The law society may refuse to consider an application that 12 purports to be an application if it is not made under this Act. 13 (2) The law society may refuse to grant or renew an applicant's 14 registration if-- 15 (a) the application is not accompanied by, or does not 16 contain, the information required under this part; or 17 (b) the applicant has contravened this Act or a 18 corresponding law; or 19 (c) the applicant has contravened an order of a disciplinary 20 body or a corresponding disciplinary body, including 21 but not limited to an order to pay any fine or costs; or 22 (d) the applicant has contravened an order of a regulatory 23 authority of any jurisdiction to pay any fine or costs; or 24 (e) the applicant has failed to comply with a requirement 25 under this Act to pay a contribution to, or levy for, the 26 fidelity fund; or 27 (f) the applicant has contravened a requirement under this 28 Act about professional indemnity insurance; or 29 (g) the applicant has failed to pay any expenses of external 30 intervention payable under this Act; or 31 (h) the applicant's foreign legal practice is in receivership 32 (however described). 33

 


 

s 185 158 s 185 Legal Profession Bill 2007 (3) The law society may refuse to grant or renew an applicant's 1 registration if the regulatory authority of another jurisdiction 2 has under a corresponding law-- 3 (a) refused to grant or renew the applicant's registration; or 4 (b) suspended or cancelled the applicant's registration. 5 (4) The law society may refuse to grant registration if satisfied 6 that the applicant is not a fit and proper person to be registered 7 after considering-- 8 (a) the nature of any offence for which the applicant has 9 been convicted in Australia or a foreign country, 10 whether before or after the commencement of this 11 section; and 12 (b) how long ago the offence was committed; and 13 (c) the person's age when the offence was committed. 14 (5) The law society may refuse to renew registration if satisfied 15 that the applicant is not a fit and proper person to continue to 16 be registered after considering-- 17 (a) the nature of any offence for which the applicant has 18 been convicted in Australia or a foreign country, 19 whether before or after the commencement of this 20 section, other than an offence disclosed in a previous 21 application to the law society; and 22 (b) how long ago the offence was committed; and 23 (c) the person's age when the offence was committed. 24 (6) The law society may refuse to grant or renew registration on 25 any ground on which registration could be suspended or 26 cancelled. 27 (7) If the law society refuses to grant or renew an application for 28 registration as a locally registered foreign lawyer under this 29 section-- 30 (a) the law society must give the person an information 31 notice about the law society's decision; and 32

 


 

s 186 159 s 187 Legal Profession Bill 2007 (b) the person may appeal to the Supreme Court against the 1 decision within 28 days after the day the information 2 notice is given to the person. 3 (8) Nothing in this section affects the operation of division 7.34 4 Division 6 Amendment, suspension or 5 cancellation of local registration 6 186 Application of pt 2.8, div 6 7 This part does not apply to a matter mentioned in division 7. 8 187 Grounds for amending, suspending or cancelling 9 registration 10 (1) Each of the following is a ground for amending, suspending or 11 cancelling a person's registration as a foreign lawyer-- 12 (a) the registration was obtained because of incorrect or 13 misleading information; 14 (b) the person fails to comply with a requirement of this 15 part; 16 (c) the person fails to comply with a condition imposed on 17 the person's registration; 18 (d) the person becomes the subject of disciplinary 19 proceedings, including any preliminary investigations or 20 action that might lead to disciplinary proceedings, in 21 Australia or a foreign country in his or her capacity as-- 22 (i) an overseas-registered foreign lawyer; or 23 (ii) an Australian-registered foreign lawyer; or 24 (iii) an Australian lawyer; 25 (e) the person has been convicted of an offence in Australia 26 or a foreign country; 27 34 Division 7 (Special powers in relation to local registration--show cause events)

 


 

s 188 160 s 188 Legal Profession Bill 2007 (f) the person's registration is cancelled or currently 1 suspended in any place as a result of any disciplinary 2 action in Australia or a foreign country; 3 (g) the person does not meet the requirements of section 4 175;35 5 (h) another ground the law society considers sufficient. 6 (2) Subsection (1) does not limit the grounds on which conditions 7 may be imposed on registration as a foreign lawyer under 8 section 203.36 9 188 Amending, suspending or cancelling registration 10 (1) If the law society believes a ground exists to amend, suspend 11 or cancel a person's registration in this jurisdiction as a 12 foreign lawyer (the proposed action), the law society must 13 give the person a notice (the show cause notice) that-- 14 (a) states the proposed action and-- 15 (i) if the proposed action is to amend the person's 16 registration--the proposed amendment; or 17 (ii) if the proposed action is to suspend the person's 18 registration--the proposed suspension period; and 19 (b) states the grounds for proposing to take the proposed 20 action; and 21 (c) states an outline of the facts and circumstances that form 22 the basis for the law society's belief; and 23 (d) invites the person to make written representations to the 24 law society, within a stated time of not less than 28 days, 25 as to why the proposed action should not be taken. 26 (2) If, after considering all written representations made within 27 the stated time or, in its discretion, after the stated time, the 28 law society still believes a ground exists to take the proposed 29 action, the law society may-- 30 35 Section 175 (Professional indemnity insurance) 36 Section 203 (Conditions imposed by law society)

 


 

s 189 161 s 189 Legal Profession Bill 2007 (a) if the show cause notice stated the proposed action was 1 to amend the person's registration--amend the 2 registration in the way stated, or in another way the law 3 society considers appropriate because of the written 4 representations; or 5 (b) if the show cause notice stated the proposed action was 6 to suspend the person's registration for a stated 7 period--suspend the registration for a period no longer 8 than the stated period; or 9 (c) if the show cause notice stated the proposed action was 10 to cancel the person's registration-- 11 (i) cancel the registration; or 12 (ii) suspend the registration for a period; or 13 (iii) amend the registration in a less onerous way the 14 law society considers appropriate because of the 15 written representations. 16 (3) If the law society decides to amend, suspend or cancel the 17 person's registration-- 18 (a) the law society must give the person an 19 information notice about the law society's 20 decision; and 21 (b) the person may appeal to the Supreme Court 22 against the decision within 28 days after the day 23 the information notice is given to the person. 24 (4) In this section-- 25 amend, in relation to registration, means amend the 26 registration under section 203 during its currency, otherwise 27 than at the request of the foreign lawyer concerned. 28 189 Operation of amendment, suspension or cancellation of 29 registration 30 (1) This section applies if a decision is made to amend, suspend 31 or cancel a person's registration under section 188. 32 (2) Subject to subsections (3) and (4), the amendment, suspension 33 or cancellation of the person's registration takes effect on the 34 later of the following-- 35

 


 

s 190 162 s 190 Legal Profession Bill 2007 (a) the day the information notice about the decision is 1 given to the person; 2 (b) the day stated in the information notice. 3 (3) If the person's registration is amended, suspended or 4 cancelled because the person has been convicted of an 5 offence-- 6 (a) the Supreme Court may, on application of the person, 7 order that the amendment, suspension or cancellation be 8 stayed until-- 9 (i) the end of the time to appeal against the 10 conviction; or 11 (ii) if an appeal is made against the conviction--the 12 appeal is finally decided, lapses or otherwise ends; 13 and 14 (b) the amendment, suspension or cancellation does not 15 have effect during any period for which the stay is in 16 force. 17 (4) If the person's registration is amended, suspended or 18 cancelled because the person has been convicted of an offence 19 and the conviction is quashed-- 20 (a) the amendment or suspension ceases to have effect when 21 the conviction is quashed; or 22 (b) the cancellation ceases to have effect when the 23 conviction is quashed and the person's registration is 24 restored as if it had merely been suspended. 25 190 Other ways of amending or cancelling registration 26 (1) This section applies if-- 27 (a) a locally registered foreign lawyer requests the law 28 society to amend or cancel the person's registration and 29 the law society proposes to give effect to the request; or 30 (b) the law society proposes to amend a locally registered 31 foreign lawyer's registration only for a formal or clerical 32 reason or in another way that does not adversely affect 33 the person's interests. 34

 


 

s 191 163 s 192 Legal Profession Bill 2007 (2) The law society may amend or cancel the registration as 1 mentioned in subsection (1) by written notice given to the 2 person. 3 (3) Section 188 does not apply to an amendment or cancellation 4 under this section. 5 191 Relationship of this division with ch 4 6 Nothing in this division prevents a complaint being made or 7 an investigation matter being started under chapter 437 about a 8 matter to which this division relates. 9 Division 7 Special powers in relation to local 10 registration--show cause events 11 192 Applicant for local registration--show cause event 12 (1) This section applies if-- 13 (a) a person is applying for registration as a foreign lawyer 14 under this Act; and 15 (b) a show cause event in relation to the person happened, 16 whether before or after the commencement of this 17 section, after the person first became an 18 overseas-registered foreign lawyer. 19 (2) As part of the application, the applicant must give the law 20 society a written statement, as required under a regulation-- 21 (a) about the show cause event; and 22 (b) explaining why, despite the event, the applicant is a fit 23 and proper person to be a locally registered foreign 24 lawyer. 25 (3) However, the applicant need not give a statement under 26 subsection (2) if the applicant has previously given the law 27 society a statement under this section, or a notice and 28 statement under section 193, for the event explaining why, 29 37 Chapter 4 (Complaints and discipline)

 


 

s 193 164 s 194 Legal Profession Bill 2007 despite the event, the applicant is a fit and proper person to be 1 a locally registered foreign lawyer. 2 193 Locally registered foreign lawyer--show cause event 3 (1) This section applies to a show cause event that happens in 4 relation to a locally registered foreign lawyer. 5 (2) The locally registered foreign lawyer must give the law 6 society both of the following-- 7 (a) within 7 days after the day of the event--notice, in the 8 law society approved form, that the event happened; 9 (b) within 28 days after the day of the event--a written 10 statement explaining why, despite the event, the person 11 considers himself or herself to be a fit and proper person 12 to be a locally registered foreign lawyer. 13 (3) However, if a written statement is provided after the 28 days 14 mentioned in subsection (2)(b), the law society may accept the 15 statement and take it into consideration. 16 194 Refusal, amendment, suspension or cancellation of local 17 registration--failure to show cause 18 (1) The law society may refuse to grant or renew, or may amend, 19 suspend or cancel, local registration if the applicant for 20 registration or the locally registered foreign lawyer-- 21 (a) is required by section 192 or 193 to give a written 22 statement relating to a matter to the law society and the 23 applicant or foreign lawyer has not done so; or 24 (b) has given a written statement under section 192 or 193 25 but the law society does not consider the applicant or 26 foreign lawyer has shown in the statement that, despite 27 the show cause event concerned, he or she is a fit and 28 proper person to be a locally registered foreign lawyer. 29 (2) For subsection (1)(b), a written statement accepted by the law 30 society as mentioned in section 193(3) is taken to have been 31 given under section 193. 32 (3) If the law society decides to refuse to grant or renew an 33 application for local registration, or to amend, suspend or 34

 


 

s 195 165 s 196 Legal Profession Bill 2007 cancel the registration of, a locally registered foreign 1 lawyer-- 2 (a) the law society must give the person an information 3 notice about the decision; and 4 (b) the person may appeal to the Supreme Court against the 5 decision within 28 days after the day the information 6 notice is given to the person. 7 195 Restriction on making further applications 8 (1) If the law society decides under this division to cancel a 9 person's registration, the law society may also decide that the 10 person is not entitled to apply for registration under this part 11 for a stated period of not more than 5 years. 12 (2) A person in relation to whom a decision has been made under 13 this section, or under a provision of a corresponding law that 14 corresponds to this section, is not entitled to apply for 15 registration under this part during the period stated in the 16 decision. 17 (3) If the law society makes a decision under this section-- 18 (a) the law society must give the person an information 19 notice about the decision; and 20 (b) the person may appeal to the Supreme Court against the 21 decision within 28 days after the day the information 22 notice is given to the person. 23 196 Relationship of this division with pt 4.6 and ch 6 24 (1) The law society has and may exercise powers under part 4.6 25 and chapter 6, in relation to a matter under this division, as if 26 the matter were the subject of a complaint under chapter 4. 27 (2) Accordingly, the provisions of part 4.6 and chapter 6, apply in 28 relation to a matter under this division, and so apply with any 29 necessary changes. 30 (3) Nothing in this division prevents a complaint being made or 31 an investigation matter being started under chapter 4 about a 32 matter to which this part relates. 33

 


 

s 197 166 s 197 Legal Profession Bill 2007 Division 8 Further provisions relating to local 1 registration 2 197 Immediate suspension of registration 3 (1) This section applies, despite sections 188 and 189,38 if the law 4 society considers it necessary in the public interest to 5 immediately suspend a person's registration as a foreign 6 lawyer. 7 (2) The law society may immediately suspend the person's 8 registration for any of the following reasons, whether they 9 happened before or after the commencement of this section-- 10 (a) the locally registered foreign lawyer has become an 11 insolvent under administration; 12 (b) the locally registered foreign lawyer has been convicted 13 of a serious offence or tax offence; 14 (c) a ground exists on which the certificate could be 15 suspended or cancelled under section 188. 16 (3) The law society suspends the person's registration by giving 17 an information notice to the person about the law society's 18 decision to suspend. 19 (4) The information notice must also state that the person may 20 make written representations to the law society about the 21 suspension. 22 (5) Subject to subsection (8), the person's registration continues 23 to be suspended until the earlier of the following-- 24 (a) the time at which the law society informs the person of 25 the law society's decision by information notice under 26 section 188; 27 (b) the end of 56 days after the information notice is given 28 to the person under this section. 29 (6) If the person makes written representations to the law society 30 about the suspension, the law society must consider the 31 written representations. 32 38 Sections 188 (Amending, suspending or cancelling registration) and 189 (Operation of amendment, suspension or cancellation of registration)

 


 

s 198 167 s 200 Legal Profession Bill 2007 (7) The law society may revoke the suspension at any time, 1 whether or not because of written representations made to it 2 by the person. 3 (8) Also, the law society may apply to the Supreme Court for an 4 order extending the period of the suspension and, if the court 5 considers it appropriate and the suspension has not ended 6 under subsection (5), the court may extend the period of the 7 suspension for a further period of not more than a further 56 8 days after the date of the court order. 9 (9) The law society must give the person written notice about its 10 decision to apply under subsection (8) for an order extending 11 the period of the suspension. 12 198 Surrender of local registration certificate and 13 cancellation of registration 14 (1) A person registered as a foreign lawyer under this part may 15 surrender the local registration certificate or notice of renewal 16 to the law society. 17 (2) If a local registration certificate or notice of renewal is 18 surrendered, the law society may cancel the registration. 19 199 Automatic cancellation of registration on grant of 20 practising certificate 21 A person's registration under this part is taken to be cancelled 22 if the person becomes an Australian legal practitioner. 23 200 Suspension or cancellation of registration not to affect 24 disciplinary processes 25 The suspension or cancellation of a person's registration as a 26 foreign lawyer under this part does not affect any disciplinary 27 processes in relation to matters happening before the 28 suspension or cancellation. 29

 


 

s 201 168 s 202 Legal Profession Bill 2007 201 Return of local registration certificate on amendment, 1 suspension or cancellation of registration 2 (1) This section applies if a person's registration as a foreign 3 lawyer under this part is amended, suspended or cancelled. 4 (2) The law society may-- 5 (a) give the person a notice requiring the person to return 6 the registration certificate or notice of renewal to the law 7 society in the way stated in the notice within a stated 8 period of not less than 14 days; or 9 (b) include in an information notice, that the law society 10 must give to the person under this part, further notice 11 requiring the person to return the registration certificate 12 or notice of renewal to the law society in the way stated 13 in the notice within a stated period of not less than 14 14 days. 15 (3) The person must comply with the requirement, unless the 16 person has a reasonable excuse. 17 Maximum penalty--50 penalty units. 18 (4) The law society must return the registration certificate or 19 notice of renewal to the person-- 20 (a) if the certificate or notice is amended--after amending 21 it; or 22 (b) if the certificate or notice is suspended and is still 23 current at the end of the suspension period--at the end 24 of the suspension period. 25 Division 9 Conditions on registration 26 202 Conditions generally 27 The registration of a person as a foreign lawyer under this part 28 is subject to the following-- 29 (a) any conditions imposed by the law society; 30 (b) any statutory conditions imposed under this Act or 31 another Act; 32

 


 

s 203 169 s 204 Legal Profession Bill 2007 (c) any conditions imposed under the legal profession rules; 1 (d) any conditions imposed under chapter 4 or under 2 provisions of a corresponding law that correspond to 3 chapter 4. 4 203 Conditions imposed by law society 5 (1) The law society may impose conditions on a person's 6 registration as a foreign lawyer-- 7 (a) when it is granted or renewed; or 8 (b) at any time during its currency. 9 (2) A condition imposed under this section-- 10 (a) may be about any matter in relation to which a condition 11 could be imposed on a local practising certificate or any 12 other matter agreed to by the foreign lawyer; and 13 (b) must be reasonable and relevant. 14 (3) The law society must not impose a condition under subsection 15 (2)(a) that is more onerous than a condition that it would 16 impose on a local practising certificate of a local legal 17 practitioner in the same or similar circumstances. 18 (4) The law society may vary or revoke a condition imposed by it 19 under this section. 20 204 Statutory condition regarding notification of offence 21 (1) It is a statutory condition of a registration as a foreign lawyer 22 that the lawyer must give notice, in a law society approved 23 form, to the law society if the lawyer is-- 24 (a) convicted of an offence that would have to be disclosed 25 in relation to an application for registration as a foreign 26 lawyer; or 27 (b) charged with a serious offence. 28 (2) The notice must be given to the law society within 7 days after 29 the conviction or the day the lawyer is charged. 30 (3) A regulation may state the person to whom, or the address to 31 which, the notice is to be given. 32

 


 

s 205 170 s 207 Legal Profession Bill 2007 (4) This section does not apply to an offence to which division 739 1 applies. 2 205 Conditions imposed by regulation 3 A regulation may make provision in relation to an 4 Australian-registered foreign lawyer, including, for 5 example-- 6 (a) imposing conditions on the registration of persons as 7 foreign lawyers or any class of foreign lawyers; or 8 (b) authorising conditions to be imposed on the registration 9 of persons as foreign lawyers or any class of foreign 10 lawyers. 11 206 Compliance with conditions 12 A locally registered foreign lawyer must not contravene a 13 condition to which the person's registration is subject. 14 Maximum penalty--50 penalty units. 15 Division 10 Interstate-registered foreign 16 lawyers 17 207 Extent of entitlement of interstate-registered foreign 18 lawyer to practise in this jurisdiction 19 (1) This part does not authorise an interstate-registered foreign 20 lawyer to practise foreign law in this jurisdiction to a greater 21 extent than a locally registered foreign lawyer could be 22 authorised under a local registration certificate. 23 (2) Also, an interstate-registered foreign lawyer's right to practise 24 foreign law in this jurisdiction-- 25 (a) is subject to any conditions imposed by the law society 26 under section 208, and any conditions imposed under 27 the legal profession rules as mentioned under that 28 section; and 29 39 Division 7 (Special powers in relation to local registration--show cause events)

 


 

s 208 171 s 208 Legal Profession Bill 2007 (b) is to the greatest extent and with all necessary 1 changes-- 2 (i) the same as the interstate-registered foreign 3 lawyer's right to practise foreign law in the 4 lawyer's home jurisdiction; and 5 (ii) subject to any condition on the interstate-registered 6 foreign lawyer's right to practise foreign law in 7 that jurisdiction. 8 (3) If there is an inconsistency between conditions mentioned in 9 subsection (2)(a) and conditions mentioned in subsection 10 (2)(b), the conditions that the law society believes are the 11 more onerous prevail to the extent of the inconsistency. 12 (4) An interstate-registered foreign lawyer must not practise 13 foreign law in this jurisdiction in a way that is not authorised 14 by this Act or in contravention of any condition mentioned in 15 this section. 16 208 Additional conditions on practice of interstate-registered 17 foreign lawyers 18 (1) An interstate-registered foreign lawyer's right to practise 19 foreign law in this jurisdiction is subject to any condition 20 imposed under this Act. 21 (2) Without limiting subsection (1), the law society may impose 22 any condition on the interstate-registered foreign lawyer's 23 practice of foreign law in this jurisdiction that it may impose 24 under this Act in relation to a locally registered foreign 25 lawyer. 26 (3) Conditions imposed under a regulation, the legal profession 27 rules or subsection (2) must not be more onerous than 28 conditions applying to locally registered foreign lawyers in 29 the same or similar circumstances. 30 (4) If the law society imposes a condition under subsection (1)-- 31 (a) the law society must give the interstate-registered 32 foreign lawyer an information notice about the law 33 society's decision; and 34

 


 

s 209 172 s 210 Legal Profession Bill 2007 (b) the person may appeal to the Supreme Court against the 1 decision within 28 days after the day the information 2 notice is given to the person. 3 Division 11 Miscellaneous 4 209 Consideration and investigation of applicants and locally 5 registered foreign lawyers 6 (1) To help it consider whether or not to grant, renew, amend, 7 suspend or cancel registration under this part, the law society 8 may, by notice to the applicant or a locally registered foreign 9 lawyer, require the applicant or locally registered foreign 10 lawyer-- 11 (a) to give it stated documents or information; or 12 (b) to cooperate with any inquiries that it considers 13 appropriate. 14 (2) A failure to comply with a notice under subsection (1) by the 15 date stated in the notice and in the way required by the notice 16 is a ground for making an adverse decision in relation to the 17 action being considered by the law society. 18 210 Register of locally registered foreign lawyers 19 (1) The law society must keep a register of the names of locally 20 registered foreign lawyers. 21 (2) The register must-- 22 (a) state any conditions imposed by it on a foreign lawyer's 23 registration; and 24 (b) otherwise include the particulars prescribed under a 25 regulation. 26 (3) The register may be kept in the way the law society decides. 27 (4) The law society must ensure that an up-to-date version of the 28 register is available, without charge, for public inspection-- 29 (a) at the law society's principal place of business during 30 normal working hours; or 31

 


 

s 211 173 s 214 Legal Profession Bill 2007 (b) on the law society's internet site or an internet site 1 identified on the law society's internet site. 2 211 Publication of information about locally registered 3 foreign lawyers 4 The law society may publish, in circumstances that it 5 considers appropriate, the names of persons registered by it as 6 foreign lawyers under this part and any relevant particulars 7 concerning those persons. 8 212 Supreme Court orders about conditions 9 (1) The law society may apply to the Supreme Court for an order 10 that an Australian-registered foreign lawyer not contravene a 11 condition imposed under this part. 12 (2) The Supreme Court may make any order it considers 13 appropriate relating to the application. 14 213 Exemption by law society 15 (1) The law society may exempt an Australian-registered foreign 16 lawyer, or class of Australian-registered foreign lawyers, from 17 compliance with a stated provision under this Act that would 18 otherwise apply to the Australian-registered foreign lawyer or 19 class of Australian-registered foreign lawyers. 20 (2) An exemption may be granted unconditionally or subject to 21 conditions stated in writing. 22 (3) The law society may revoke or vary a condition imposed 23 under this section or impose new conditions. 24 214 Membership of professional association 25 (1) An Australian-registered foreign lawyer is not required to join 26 any professional association. 27 (2) However, subsection (1) does not prevent an 28 Australian-registered foreign lawyer joining a professional 29 association if the person is eligible to do so. 30

 


 

s 215 174 s 216 Legal Profession Bill 2007 215 Refund of fees 1 (1) A regulation may provide for the refund of a portion of a fee 2 paid in relation to registration as a foreign lawyer if the 3 registration is suspended or cancelled during its currency. 4 (2) Without limiting subsection (1), a regulation may state-- 5 (a) the circumstances in which a refund is to be made; and 6 (b) the amount of the refund or the way in which the 7 amount of the refund is to be decided. 8 Chapter 3 Conduct of legal practice 9 Part 3.1 Preliminary 10 216 Simplified outline of ch 3 11 (1) This chapter contains provisions regulating various aspects of 12 the legal profession with the aim of ensuring that law 13 practices and lawyers operate effectively in the interests of 14 justice, their clients and the public interest. 15 (2) The following is a general outline of the contents of this 16 chapter-- 17 (a) part 3.2 provides for the making of legal profession 18 rules to regulate persons who may engage in legal 19 practice, or the practice of foreign law, in this 20 jurisdiction and for the regulatory bodies to provide for 21 administrative matters in administration rules (including 22 indemnity rules); 23 (b) part 3.3 regulates the receipt, handling of and 24 accounting for trust money by law practices; 25 (c) part 3.4 sets out the requirements for law practices for 26 disclosures to clients regarding legal costs, the making 27 and setting aside of costs agreements in relation to legal 28 services, the billing of costs for legal services and the 29 assessment of legal costs; 30

 


 

s 217 175 s 218 Legal Profession Bill 2007 (d) part 3.5 requires particular lawyers and foreign lawyers 1 to obtain professional indemnity insurance covering 2 their legal practice in this jurisdiction; 3 (e) part 3.6 establishes a system for compensation for 4 defaults by law practices arising from acts or omissions 5 of associates. 6 (3) Sub-section (2) is intended only as a guide to readers as to the 7 general scheme of this chapter. 8 Part 3.2 Manner of legal practice 9 Division 1 Preliminary 10 217 Main purposes of pt 3.2 11 The main purposes of this part are as follows-- 12 (a) to promote the maintenance of high standards of 13 professional conduct by providing for legal profession 14 rules to regulate persons who may engage in legal 15 practice, or the practice of foreign law, in this 16 jurisdiction; 17 (b) to allow each regulatory authority to provide for 18 administrative matters by providing for administration 19 rules. 20 218 Definitions for pt 3.2 21 In this section-- 22 barristers rules means rules made by the bar association 23 under this part. 24 legal profession rules means solicitors rules or barristers 25 rules. 26 solicitors rules means rules made by the law society under 27 this part. 28

 


 

s 219 176 s 221 Legal Profession Bill 2007 Division 2 Rules for Australian legal 1 practitioners and other individuals 2 219 Rules for Australian legal practitioners engaged in 3 practice as solicitors and others 4 (1) The law society may make rules about legal practice in this 5 jurisdiction engaged in by Australian legal practitioners as 6 solicitors. 7 (2) The law society may make rules about engaging in legal 8 practice in this jurisdiction as an Australian-registered foreign 9 lawyer. 10 220 Rules for Australian legal practitioners engaged in 11 practice in the manner of barristers 12 (1) The bar association may make rules about legal practice in 13 this jurisdiction engaged in by Australian legal practitioners as 14 barristers. 15 (2) The barristers rules may provide for a barrister to be 16 prohibited from any or all of the following-- 17 (a) engaging in legal practice-- 18 (i) otherwise than as a sole practitioner; or 19 (ii) in partnership with any person; or 20 (iii) as the employee of an entity; 21 (b) holding office as a legal practitioner director of an 22 incorporated legal practice; 23 (c) being a legal practitioner partner in a multi-disciplinary 24 partnership. 25 221 Legal profession rules may provide for application to 26 government legal officers 27 Legal profession rules may provide that the rules apply to 28 government legal officers. 29

 


 

s 222 177 s 223 Legal Profession Bill 2007 222 Subject matter of legal profession rules 1 (1) Legal profession rules may make provision about any aspect 2 of legal practice, including standards of conduct expected of 3 the following persons to whom they apply-- 4 (a) for solicitors rules--Australian legal practitioners, 5 government legal officers and Australian-registered 6 foreign lawyers; 7 (b) for barristers rules--Australian legal practitioners and 8 government legal officers. 9 (2) The power to make legal profession rules is not limited to 10 matters for which this Act specifically authorises the making 11 of legal profession rules or administration rules. 12 223 Public notice of proposed legal profession rules 13 (1) A regulatory authority that proposes to make a legal 14 profession rule under this division must ensure that a notice is 15 published in a daily newspaper circulating in this 16 jurisdiction-- 17 (a) explaining the object of the proposed rule; and 18 (b) advising where or how a copy of the proposed rule may 19 be accessed, obtained or inspected; and 20 (c) inviting comments and submissions within a stated 21 period of not less than 21 days from the date of first 22 publication of the notice. 23 (2) The regulatory authority must ensure that a copy of the 24 proposed rule is given to the Minister and the commissioner 25 before the notice is published. 26 (3) The regulatory authority must-- 27 (a) ensure that any comments and submissions received 28 within the period stated in the notice for making 29 comments and submissions are appropriately 30 considered; and 31 (b) give advice to the Minister about the comments and 32 submissions and, if requested, give copies of the 33 submission to the Minister. 34

 


 

s 224 178 s 224 Legal Profession Bill 2007 (4) After the end of the period stated in the notice for making 1 comments and submissions, the regulatory authority may 2 make legal profession rules. 3 (5) However, subsections (1) to (4) do not apply if the Minister is 4 consulted about the proposal and decides, by written notice to 5 the regulatory authority, that publication is not warranted 6 because of the urgent nature, or minor or technical nature, of 7 the proposed legal profession rules. 8 Division 3 Rules for incorporated legal 9 practices and multi-disciplinary 10 partnerships 11 224 Rules 12 (1) The law society may make legal profession rules in relation to 13 the following matters-- 14 (a) the provision of legal services by or in connection with 15 incorporated legal practices or multi-disciplinary 16 partnerships, and in particular the provision of legal 17 services by-- 18 (i) officers or employees of incorporated legal 19 practices; or 20 (ii) partners or employees of multi-disciplinary 21 partnerships; 22 (b) the provision of services that are not legal services by or 23 in connection with incorporated legal practices or 24 multi-disciplinary partnerships, but only if the provision 25 of those services by-- 26 (i) officers or employees of incorporated legal 27 practices; or 28 (ii) partners or employees of multi-disciplinary 29 partnerships; 30 may give rise to a conflict of interest relating to the 31 provision of legal services. 32

 


 

s 225 179 s 225 Legal Profession Bill 2007 (2) Without limiting subsection (1), legal profession rules may be 1 made in relation to professional obligations relating to legal 2 services provided by or in connection with incorporated legal 3 practices or multi-disciplinary partnerships. 4 (3) However, the legal profession rules can not-- 5 (a) regulate any services that an incorporated legal practice 6 may provide or conduct (other than the provision of 7 legal services or other services that may give rise to a 8 conflict of interest relating to the provision of legal 9 services); or 10 (b) regulate or prohibit the conduct of officers or employees 11 of an incorporated legal practice (other than in 12 connection with the provision of legal services or other 13 services that may give rise to a conflict of interest 14 relating to the provision of legal services); or 15 (c) regulate any services that a multi-disciplinary 16 partnership or partners or employees of a 17 multi-disciplinary partnership may provide or conduct 18 (other than the provision of legal services or other 19 services that may give rise to a conflict of interest 20 relating to the provision of legal services); or 21 (d) regulate or prohibit the conduct of partners or 22 employees of a multi-disciplinary partnership (other 23 than in connection with the provision of legal services or 24 other services that may give rise to a conflict of interest 25 relating to the provision of legal services). 26 (4) The power to make rules is not limited to matters for which 27 this Act specifically authorises the making of legal profession 28 rules or administration rules. 29 Division 4 Notice about making of legal 30 professional rules and role of 31 committee 32 225 Minister to give notice of solicitors and barristers rules 33 (1) The following have no effect unless the Minister notifies the 34 making of them-- 35

 


 

s 226 180 s 228 Legal Profession Bill 2007 (a) solicitors rules; 1 (b) barrister rules. 2 (2) A notice under subsection (1) is subordinate legislation. 3 226 Monitoring role of committee 4 (1) The committee may make a recommendation to the Minister 5 in relation to legal profession rules. 6 (2) For subsection (1), the committee is-- 7 (a) to monitor the adequacy of legal profession rules; and 8 (b) to consider any particular matter about which the 9 Minister asks the committee to make a recommendation 10 for legal profession rules. 11 Division 5 General provisions for legal 12 profession rules 13 227 Binding nature of legal profession rules 14 (1) Legal profession rules are binding on Australian legal 15 practitioners, Australian-registered foreign lawyers and 16 government legal officers to whom they apply. 17 (2) Failure to comply with legal profession rules is capable of 18 constituting unsatisfactory professional conduct or 19 professional misconduct. 20 228 Legal profession rules may prohibit practices relating to 21 mortgage financing 22 (1) Legal professional rules may prohibit Australian legal 23 practitioners and Australian-registered foreign lawyers from 24 engaging in mortgage financing and activities and practices 25 relating to mortgage financing. 26 (2) Subsection (1) applies despite anything to the contrary in this 27 Act, including, for example, section 224. 28

 


 

s 229 181 s 231 Legal Profession Bill 2007 229 Relationship of legal profession rules to this Act and 1 regulation 2 (1) A regulation may be made in relation to any matter for which 3 legal profession rules may be made. 4 (2) A provision of legal profession rules does not have effect to 5 the extent that it is inconsistent with this Act or a regulation. 6 230 Availability of rules 7 A regulatory authority must ensure that an up-to-date version 8 of the legal profession rules made by it, and about which 9 notice has been given under section 225, is available, without 10 charge, for public inspection-- 11 (a) at the authority's principal place of business during 12 normal working hours; or 13 (b) on the authority's internet site or on an internet site 14 identified on the authority's internet site. 15 Division 6 Administration rules 16 231 Rules other than legal profession rules 17 (1) To the extent a regulatory authority does not have power under 18 another Act or otherwise to make rules for a matter mentioned 19 in subsection (2) and no provision under another Act prevents 20 rules being made about the matter, the regulatory authority 21 may make rules about the matter that apply to-- 22 (a) Australian legal practitioners, including interstate legal 23 practitioners practising in this jurisdiction; and 24 (b) if the regulatory authority is the law society--an 25 incorporated legal practice, a multi-disciplinary 26 partnership or Australian-registered foreign lawyers. 27 (2) The matters about which a regulatory authority may make 28 rules are as follows-- 29 (a) types of practising certificates that the regulatory 30 authority may grant or renew; 31

 


 

s 231 182 s 231 Legal Profession Bill 2007 (b) the courses of study that an Australian lawyer is 1 required to complete for different types of practising 2 certificates, including, for example-- 3 (i) a practising certificate by the law society for 4 unsupervised legal practice or for practice as a 5 principal; or 6 (ii) a practising certificate by the bar association for 7 practice as a barrister; 8 (c) matters relating to the courses of study mentioned in 9 paragraph (b) including enrolment procedures, fees 10 payable, minimum course attendance requirements, 11 examinations, assessments and procedures for the 12 review of assessments, and appeals against assessments; 13 (d) exempting a person who applies for a type of practising 14 certificate from the requirement to have completed a 15 course of study for the type, as mentioned in paragraph 16 (b), given the length and nature of the person's 17 experience in legal practice; 18 (e) requiring a local legal practitioner to undertake 19 education or training for the purpose of continuing 20 professional development as a condition for the grant or 21 renewal of a type of practising certificate; 22 (f) the nature of, and the standards for, education or training 23 required under paragraph (e), and by whom and when it 24 may be provided; 25 (g) exempting, in whole or part, a local legal practitioner 26 from a requirement to undertake education or training 27 required under paragraph (e); 28 (h) exempting a person who applies for the grant or renewal 29 of a practising certificate from requirements under 30 section 56 to complete supervised legal practice or 31 reducing the required period of supervised legal 32 practice; 33 (i) approved forms to be used for an application to the 34 regulatory authority and the way an approved form is to 35 be given to the authority, including the time for giving 36 the form to it; 37

 


 

s 231 183 s 231 Legal Profession Bill 2007 (j) setting fees, contributions and levies, other than levies 1 imposed by the law society as mentioned in section 2 369,40 the payment of the fees, contributions and levies 3 including the levies imposed by the law society under 4 that section, and other matters relating to payments, 5 including the timing and way of making payments; 6 (k) other matters that may be approved by the regulatory 7 authority under this Act; 8 (l) matters relating to indemnity against loss arising from 9 claims in relation to every description of civil liability 10 incurred by any of the following-- 11 (i) a local legal practitioner in connection with the 12 practitioner's practice or in connection with any 13 trust of which the practitioner is or was a trustee; 14 (ii) a former local legal practitioner, including a person 15 who was a solicitor at any time before the 16 commencement of this section, in connection with 17 the practitioner's practice or in connection with 18 any trust of which the practitioner is or was a 19 trustee; 20 (iii) an incorporated legal practice in connection with it 21 engaging in legal practice in this jurisdiction or in 22 connection with any trust of which it, or 1 of its 23 associates, is or was a trustee; 24 (iv) an incorporated legal practice in connection with it 25 formerly engaging in legal practice in this 26 jurisdiction or in connection with any trust of 27 which it, or 1 of its associates, is or was a trustee; 28 (v) an Australian-registered foreign lawyer in 29 connection with the lawyer's practice of foreign 30 law in this jurisdiction or in connection with any 31 trust of which the lawyer is or was a trustee; 32 (vi) a former Australian-registered foreign lawyer in 33 connection with the lawyer's practice of foreign 34 law in this jurisdiction or in connection with any 35 trust of which the lawyer is or was a trustee. 36 40 Section 369 (Levy for benefit of fidelity fund)

 


 

s 231 184 s 231 Legal Profession Bill 2007 (3) Rules about a matter mentioned in subsection (2) are 1 administration rules, whether or not the rules are made-- 2 (a) under this section; or 3 (b) if the regulatory authority has power under another Act 4 or otherwise to make the rules for the matter--under 5 that other Act or otherwise. 6 (4) Administration rules about a matter mentioned in subsection 7 (2)(l) are indemnity rules. 8 (5) This division does not affect a regulatory authority's power 9 under another Act or otherwise to make rules but rules made 10 under another Act or otherwise that are administration rules 11 are taken to be made under this Act. 12 Example for subsection (5)-- 13 If a provision of this Act provides that the right to engage in legal 14 practice is subject to provisions under this Act, the right of practice is 15 subject to relevant administration rules. 16 (6) To remove any doubt, it is declared that administration rules 17 are statutory instruments under the Statutory Instruments Act 18 1992. 19 Note-- 20 Under the Statutory Instruments Act 1992, sections 24 and 25,41 21 administration rules may provide for a fee in relation to specified 22 exceptions and factors or different persons or matters. 23 (7) Rules made under subsection (2)(b) or (f) must allow for the 24 provision of educational or training programs to be open to all 25 service providers meeting a standard approved by the 26 regulatory authority. 27 (8) Rules made under subsection (2) about education or training 28 for the purpose of continuing professional development must 29 have-- 30 (a) sufficient regard to opportunities for participation by 31 legal practitioners in rural and regional areas; and 32 (b) provisions for exemptions having regard to hardship. 33 41 Statutory Instruments Act 1992, sections 24 (Statutory instrument may be of general or limited application) and 25 (Statutory instrument may make different provision for different categories)

 


 

s 232 185 s 232 Legal Profession Bill 2007 232 Indemnity rules 1 (1) Indemnity rules-- 2 (a) may authorise or require the regulatory authority to 3 establish and keep a fund or funds; or 4 (b) may authorise or require the regulatory authority to take 5 out and keep insurance with insurers carrying on 6 insurance business and approved by the authority for the 7 purposes of the insurance; or 8 (c) may require local legal practitioners holding practising 9 certificates granted or renewed by the authority, or a 10 class of certificate holders, to take out and keep 11 insurance with insurers carrying on insurance business 12 and approved by the authority for the purposes of the 13 insurance; or 14 (d) may require any of the following to take out and keep 15 insurance with insurers carrying on insurance business 16 and approved by the law society for the purposes of the 17 insurance-- 18 (i) an incorporated legal practice engaged in legal 19 practice in this jurisdiction; 20 (ii) a legal practitioner director of the incorporated 21 legal practice; 22 (iii) an Australian legal practitioner who is an officer or 23 employee of the incorporated legal practice; or 24 (e) may make provision in relation to insurance for 25 Australian-registered foreign lawyers engaged in the 26 practice of foreign law in this jurisdiction. 27 (2) Indemnity rules-- 28 (a) may state the terms and conditions on which indemnity 29 is to be available and any circumstances in which the 30 right to indemnity is to be excluded or modified; and 31 (b) may provide for the management, administration and 32 protection of any fund established and kept under the 33 indemnity rules, and require certificate holders of 34 practising certificates granted or renewed by the 35 authority, or a class of certificate holders, to make 36 payments to a fund; and 37

 


 

s 232 186 s 232 Legal Profession Bill 2007 (c) may require certificate holders of practising certificates 1 granted or renewed by the regulatory authority, or a 2 class of certificate holders, to make payments (by way 3 of levy) on any insurance policy taken out and kept by 4 the authority under the indemnity rules; and 5 (d) may require an Australian legal practitioner or 6 incorporated legal practice required to be insured under 7 the rule, or an Australian-registered foreign lawyer with 8 or applying for insurance under the rule, to disclose the 9 following-- 10 (i) information about professional indemnity 11 insurance to clients or prospective clients; 12 (ii) information to the regulatory authority that is 13 necessary for the regulatory authority to calculate 14 insurance levies applicable to the practitioner, 15 practice or lawyer; and 16 (e) may prescribe terms and conditions with which an 17 insurance policy, required by the indemnity rules made 18 for the purposes of subsection (1)(c), must comply; and 19 (f) may authorise the regulatory authority to decide the 20 amount of a payment required by the indemnity rules, 21 subject to limits under the rules; and 22 (g) may authorise the regulatory authority or insurer to take 23 a proceeding against a certificate holder or former 24 certificate holder for amounts paid by way of indemnity 25 in connection with a matter in relation to which he or 26 she has failed to comply with the indemnity rules, and 27 may state circumstances in which the proceeding may 28 be taken; and 29 (h) may empower the regulatory authority to take steps as it 30 considers necessary or expedient to find out whether or 31 not the indemnity rules are being complied with. 32 (3) Indemnity rules may provide in relation to an incorporated 33 legal practice for any matter that it may, under subsection (2), 34 provide in relation to a certificate holder. 35 (4) Insurance levies or other amounts payable under the 36 indemnity rules by an incorporated legal practice may be 37 decided by reference to the total number of Australian legal 38

 


 

s 233 187 s 234 Legal Profession Bill 2007 practitioners employed by the practice and other relevant 1 matters. 2 (5) This section does not limit section 230(2)(l). 3 233 Relationship of administration rules to this Act and 4 regulation 5 (1) A regulation may be made in relation to any matter mentioned 6 in section 231(2) for which administration rules may be made. 7 (2) A provision of a regulatory authority's administration rules 8 does not have effect to the extent that it is inconsistent with 9 this Act, a regulation or legal profession rules relevant to the 10 authority. 11 (3) Despite another Act, administration rules can not provide that 12 a contravention of the rules-- 13 (a) is an offence; or 14 (b) is capable of constituting unsatisfactory professional 15 conduct or professional misconduct. 16 Note-- 17 Under the Statutory Instruments Act 1992, section 23,42 a regulation 18 may apply, adopt or incorporate administration rules. 19 234 Relationship between legal profession rules and 20 administration rules 21 (1) A regulation may identify a provision of administration rules 22 as a provision that the holder of a practising certificate, 23 granted or renewed by the regulatory authority that made the 24 administration rules, must comply with. 25 (2) If a provision is identified as mentioned in subsection (1), a 26 contravention of the provision is capable of constituting 27 unsatisfactory professional conduct or professional 28 misconduct. 29 42 Statutory Instruments Act 1992, section 23 (Statutory instrument may make provision by applying another document)

 


 

s 235 188 s 237 Legal Profession Bill 2007 235 Availability of administration rules 1 A regulatory authority must ensure that an up-to-date version 2 of the administration rules of the regulatory authority is 3 available, without charge, for public inspection-- 4 (a) at the authority's principal place of business during 5 normal working hours; or 6 (b) on the authority's internet site or an internet site 7 identified on the authority's internet site. 8 Part 3.3 Trust money and trust 9 accounts 10 Division 1 Preliminary 11 236 Main purposes of pt 3.3 12 The main purposes of this part are as follows-- 13 (a) to ensure trust money is held by law practices in a way 14 that protects the interests of persons for whom money is 15 held, both inside and outside this jurisdiction; 16 (b) to minimise compliance requirements for law practices 17 that provide legal services within and outside this 18 jurisdiction; 19 (c) to ensure the law society can work effectively with 20 corresponding authorities in other jurisdictions in 21 relation to the regulation of trust money and trust 22 accounts. 23 237 Definitions for pt 3.3 24 (1) In this part-- 25 approved ADI means an ADI approved under section 280 by 26 the law society. 27

 


 

s 237 189 s 237 Legal Profession Bill 2007 controlled money means money received or held by a law 1 practice for which the practice has a written direction to 2 deposit the money in an account, other than a general trust 3 account, over which the practice has or will have exclusive 4 control. 5 Note-- 6 Section 251(6) prevents pooling of controlled money. 7 controlled money account means an account kept by a law 8 practice with an ADI for the holding of controlled money 9 received by the practice. 10 deposit record includes a deposit slip or duplicate deposit slip. 11 general trust account means an account kept by a law 12 practice with an approved ADI for the holding of trust money 13 received by the practice, other than controlled money or 14 transit money. 15 permanent form, in relation to a trust record, means printed 16 or, on request, capable of being printed, in English on paper or 17 other material. 18 transit money means money received by a law practice 19 subject to instructions to pay or deliver it to a third party, other 20 than an associate of the practice. 21 trust account means an account kept by a law practice with an 22 approved ADI to hold trust money. 23 trust money means money entrusted to a law practice in the 24 course of or in connection with the provision of legal services 25 by the practice, and includes-- 26 (a) money received by the practice on account of legal costs 27 in advance of providing the services; and 28 (b) controlled money received by the practice; and 29 (c) transit money received by the practice; and 30 (d) money received by the practice, that is the subject of a 31 power, exercisable by the practice or an associate of the 32 practice, to deal with the money for another person. 33 trust records includes the following documents-- 34 (a) receipts; 35

 


 

s 237 190 s 237 Legal Profession Bill 2007 (b) cheque butts or cheque requisitions; 1 (c) records of authorities to withdraw by electronic funds 2 transfer; 3 (d) deposit records; 4 (e) trust account ADI statements; 5 (f) trust account receipts and payments cash books; 6 (g) trust ledger accounts; 7 (h) records of monthly trial balances; 8 (i) records of monthly reconciliations; 9 (j) trust transfer journals; 10 (k) statements of account required to be given under a 11 regulation; 12 (l) registers required to be kept under a regulation; 13 (m) monthly statements required to be kept under a 14 regulation; 15 (n) files relating to trust transactions or bills of costs or 16 both; 17 (o) written directions, authorities or other documents 18 required to be kept under this Act or a regulation; 19 (p) supporting information required to be kept under a 20 regulation in relation to powers to deal with trust money. 21 (2) A reference in this part to a law practice's trust account or 22 trust records includes a reference to an associate's trust 23 account or trust records. 24 (3) A reference in this part to a power given to a law practice or 25 an associate of the practice to deal with money for another 26 person is a reference to a power given to the practice or 27 associate that is exercisable by-- 28 (a) the practice alone; or 29 (b) an associate of the practice alone, otherwise than in a 30 private and personal capacity; or 31

 


 

s 238 191 s 238 Legal Profession Bill 2007 (c) the practice or an associate of the practice jointly or 1 severally, or jointly and severally, with either or both of 2 the following-- 3 (i) 1 or more associates of the practice; 4 (ii) the person, or 1 or more nominees of the person, 5 for whom or on whose behalf the money may or is 6 to be dealt with under the power. 7 238 Money involved in financial services or investments 8 (1) Money that is entrusted to or held by a law practice in 9 connection with either of the following is not trust money 10 under this Act-- 11 (a) a financial service provided by the practice or an 12 associate of the practice in circumstances in which the 13 practice or associate is required to hold an Australian 14 financial services licence covering the provision of the 15 service (whether or not the licence is held at any relevant 16 time); 17 (b) a financial service provided by the practice or an 18 associate of the practice in circumstances in which the 19 practice or associate provides the service as a 20 representative of another person who carries on a 21 financial services business (whether or not the practice 22 or associate is an authorised representative at any 23 relevant time). 24 (2) Without limiting subsection (1), money that is entrusted to or 25 held by a law practice for a managed investment scheme, or 26 mortgage financing, undertaken by the practice is not trust 27 money under this Act. 28 (3) Without limiting subsections (1) and (2), money that is 29 entrusted to or held by a law practice for investment purposes, 30 whether on its own account or as agent, is not trust money 31 under this Act, unless-- 32 (a) the money was entrusted to or held by the practice-- 33 (i) in the ordinary course of legal practice; and 34 (ii) primarily in connection with the provision of legal 35 services to or at the direction of the client; and 36

 


 

s 239 192 s 240 Legal Profession Bill 2007 (b) the investment is or is to be made-- 1 (i) in the ordinary course of legal practice; and 2 (ii) for the ancillary purpose of keeping or enhancing 3 the value of the money or property pending 4 completion of the matter or further stages of the 5 matter or pending payment or delivery of the 6 money or property to or at the direction of the 7 client. 8 239 Decisions about status of money 9 (1) This section applies to money received by a law practice if the 10 law society considers that there is doubt or a dispute as to 11 whether the money is trust money. 12 (2) The law society may decide that the money is or is not trust 13 money. 14 (3) Under the Acts Interpretation Act 1954, section 24AA, the law 15 society may amend or repeal a decision under this section. 16 (4) While a decision under this section is in force that money is 17 trust money, the money is taken to be trust money under this 18 Act. 19 (5) While a decision under this section is in force that money is 20 not trust money, the money is taken not to be trust money 21 under this Act. 22 (6) This section has effect subject to a decision of a court made in 23 relation to the money concerned. 24 240 Application of part to law practices and trust money 25 (1) This part applies to the following law practices in relation to 26 trust money received by them in this jurisdiction-- 27 (a) a law practice that has an office in this jurisdiction, 28 whether or not the practice has an office in another 29 jurisdiction; 30 (b) a law practice that does not have an office in any 31 jurisdiction at all. 32

 


 

s 241 193 s 241 Legal Profession Bill 2007 Note-- 1 It is intended that a law practice that receives trust money in this 2 jurisdiction, that does not have an office in this jurisdiction, but 3 has an office in another jurisdiction, must deal with the money 4 under the corresponding law of the other jurisdiction. 5 (2) This part applies to the following law practices in relation to 6 trust money received by them in another jurisdiction-- 7 (a) a law practice that has an office in this jurisdiction and 8 in no other jurisdiction; 9 (b) a law practice that has an office in this jurisdiction and 10 in one or more other jurisdictions but not in the 11 jurisdiction in which the trust money was received, 12 unless the money is dealt with under the corresponding 13 law of another jurisdiction. 14 (3) However, this part does not apply to law practices or kinds of 15 trust money prescribed under a regulation. 16 (4) A reference in this section to having an office in a jurisdiction 17 is a reference to having, or engaging in legal practice from, an 18 office or business address in the jurisdiction. 19 Note-- 20 Section 174 applies this part to Australian-registered foreign lawyers. 21 241 Protocols for deciding where trust money is received 22 (1) The law society may enter into arrangements (trust money 23 protocols) with corresponding authorities about any or all of 24 the following-- 25 (a) deciding the jurisdiction where a law practice receives 26 trust money; 27 (b) sharing information about whether, and if so how, trust 28 money is being dealt with under this Act or a 29 corresponding law. 30 (2) For this Act, to the extent that a trust money protocol is 31 relevant, the jurisdiction where a law practice receives trust 32 money must be decided under the relevant protocol. 33 (3) The law society may enter into arrangements that amend, 34 revoke or replace a trust money protocol. 35

 


 

s 242 194 s 243 Legal Profession Bill 2007 (4) A trust money protocol, or an amendment, revocation or 1 replacement of a trust money protocol, has effect in this 2 jurisdiction only to the extent it is approved under a 3 regulation. 4 242 When money is received 5 (1) For this Act, a law practice receives money when-- 6 (a) the practice obtains possession or control of it directly; 7 or 8 (b) the practice obtains possession or control of it indirectly 9 as a result of its delivery to an associate of the practice; 10 or 11 (c) the practice, or an associate of the practice (otherwise 12 than in a private and personal capacity) is given a power 13 to deal with the money on behalf of another person. 14 (2) For this Act, a law practice or associate is taken to have 15 received money if the money is available to the practice or 16 associate by means of an instrument or other way of 17 authorising an ADI to credit or debit an amount to an account 18 with the ADI, including, for example, an electronic funds 19 transfer, credit card transaction or telegraphic transfer. 20 243 Discharge by legal practitioner associate of obligations 21 of law practice 22 (1) The following actions, if taken by a legal practitioner 23 associate of a law practice on behalf of the practice in relation 24 to trust money received by the practice, discharge the 25 corresponding obligations of the practice in relation to the 26 money-- 27 (a) the establishment of a trust account; 28 (b) the keeping of a trust account; 29 (c) the payment of trust money into and out of a trust 30 account and other dealings with trust money; 31 (d) the keeping of trust records; 32 (e) engaging an external examiner to examine trust records; 33

 


 

s 244 195 s 246 Legal Profession Bill 2007 (f) the payment of an amount into a prescribed account 1 under section 285; 2 (g) an action of a kind prescribed under a regulation. 3 (2) If the legal practitioner associate keeps a trust account in 4 relation to trust money received by the law practice, this part 5 and a regulation made under this part apply to the associate in 6 the same way as they apply to a law practice. 7 (3) Subsection (1) does not apply to the extent that the associate is 8 prevented under a regulation from taking any action 9 mentioned in that subsection. 10 244 Liability of principals of law practice 11 (1) A provision of this part or a regulation made under this part 12 expressed as imposing an obligation on a law practice 13 imposes the same obligation on the principals of the law 14 practice jointly and severally, but discharge of the practice's 15 obligation also discharges the corresponding obligation 16 imposed on the principals. 17 (2) A reference in this part or a regulation made under this part to 18 a law practice includes a reference to the principals of the law 19 practice. 20 245 Former practices, principals and associates 21 This part applies in relation to former law practices and 22 former principals and associates of law practices in relation to 23 conduct occurring while they were respectively law practices, 24 principals and associates in the same way as it applies to law 25 practices, principals and associates, and so applies with any 26 necessary changes. 27 246 Barristers not to receive trust money 28 (1) A barrister is not, in the course of practising as a barrister, to 29 receive trust money. 30 (2) Subsection (1) does not-- 31 (a) prevent a barrister receiving money in payment of legal 32 services that the barrister has performed; and 33

 


 

s 247 196 s 248 Legal Profession Bill 2007 (b) limit the bar association's power to make legal 1 profession rules in relation to banking arrangements for 2 fees received in advance by a barrister. 3 Division 2 Trust accounts and trust money 4 247 Keeping general trust account 5 (1) A law practice that receives trust money to which this part 6 applies must keep a general trust account in this jurisdiction. 7 Maximum penalty--100 penalty units. 8 (2) A law practice that is required to keep a general trust account 9 in this jurisdiction must establish and keep the account in the 10 way prescribed under a regulation. 11 Maximum penalty--100 penalty units. 12 (3) Subsection (1) does not apply to a law practice in relation to 13 any period during which the practice receives or holds only 14 either or both of the following-- 15 (a) controlled money; 16 (b) transit money received in a form other than cash. 17 (4) Subject to any requirements under a regulation, a requirement 18 of this section for a law practice to keep, or establish and 19 keep, a general trust account in this jurisdiction does not 20 prevent the practice from keeping, or establishing and 21 keeping, more than one general trust account in this 22 jurisdiction, whether during the same period or during 23 different periods. 24 (5) Without limiting the other provisions of this section, a 25 regulation may provide that a law practice must not close a 26 general trust account except as permitted under the regulation. 27 248 Certain trust money to be deposited in general trust 28 account 29 (1) Subject to section 255, as soon as practicable after receiving 30 trust money, a law practice must deposit the money in a 31 general trust account of the practice unless-- 32

 


 

s 249 197 s 249 Legal Profession Bill 2007 (a) the practice has a written direction by an appropriate 1 person to deal with it otherwise than by depositing it in 2 the account; or 3 (b) the money is controlled money; or 4 (c) the money is transit money; or 5 (d) the money is the subject of a power given to the practice 6 or an associate of the practice to deal with the money for 7 or on behalf of another person. 8 Maximum penalty--100 penalty units. 9 (2) Subject to section 255, a law practice that has received money 10 that is the subject of a written direction mentioned in 11 subsection (1)(a) must deal with the money in accordance 12 with the direction-- 13 (a) within the period, if any, stated in the direction; or 14 (b) subject to paragraph (a), as soon as practicable after it is 15 received. 16 Maximum penalty--100 penalty units. 17 (3) The law practice must keep a written direction mentioned in 18 subsection (1)(a) for the period prescribed under a regulation. 19 Maximum penalty--100 penalty units. 20 (4) A person is an appropriate person for this section if the 21 person is legally entitled to give the law practice directions in 22 relation to dealings with the trust money. 23 249 Holding, disbursing and accounting for trust money 24 (1) A law practice must-- 25 (a) hold trust money deposited in a general trust account of 26 the practice exclusively for the person on whose behalf 27 it is received; and 28 (b) disburse the trust money only under a direction given by 29 the person. 30 Maximum penalty--50 penalty units. 31 (2) Subsection (1) applies subject to an order of a court of 32 competent jurisdiction or as authorised by law. 33

 


 

s 250 198 s 250 Legal Profession Bill 2007 (3) The law practice must account for the trust money in the way 1 prescribed under a regulation. 2 Maximum penalty--50 penalty units. 3 250 Withdrawing trust money from general trust account 4 (1) A law practice must not withdraw trust money from a general 5 trust account otherwise than by-- 6 (a) cheque; or 7 (b) if the practice is authorised by the law society to 8 withdraw trust money from a general trust account by 9 electronic funds transfer--electronic funds transfer. 10 Maximum penalty--50 penalty units. 11 (2) Without limiting subsection (1), the following are specifically 12 prohibited by the subsection-- 13 (a) cash withdrawals; 14 (b) ATM withdrawals or transfers; 15 (c) telephone banking withdrawals or transfers; 16 (d) unless the law practice is authorised by the law society 17 to withdraw trust money from a general trust account by 18 electronic funds transfer--withdrawals by electronic 19 funds transfer. 20 (3) A regulation may make provision in relation to withdrawals 21 by cheque or electronic funds transfer, including, for example, 22 the matters the law society must have regard to in deciding to 23 authorise a law practice to withdraw trust money from a 24 general trust account by electronic funds transfer. 25 (4) This section has effect despite anything to the contrary in a 26 direction given to the law practice concerned, even if the 27 direction is given by a person who is otherwise legally entitled 28 to give the law practice directions in relation to dealings with 29 the trust money. 30

 


 

s 251 199 s 251 Legal Profession Bill 2007 251 Controlled money 1 (1) As soon as practicable after receiving controlled money, a law 2 practice must deposit the money in the account stated in the 3 written direction relating to the money. 4 Maximum penalty--50 penalty units. 5 (2) The law practice must hold controlled money deposited in a 6 controlled money account under subsection (1) exclusively for 7 the person on whose behalf it was received. 8 Maximum penalty--50 penalty units. 9 (3) The law practice that holds controlled money deposited in a 10 controlled money account under subsection (1) must not 11 disburse the money other than under-- 12 (a) the written direction mentioned in that subsection; or 13 (b) a later written direction given by or on behalf of the 14 person on whose behalf the money was received. 15 Maximum penalty--50 penalty units. 16 (4) The law practice must keep the controlled money account, and 17 account for the controlled money, in the way prescribed under 18 a regulation. 19 Maximum penalty--50 penalty units. 20 (5) The law practice must keep a written direction mentioned in 21 this section for the period prescribed under a regulation. 22 Maximum penalty--50 penalty units. 23 (6) The law practice must ensure that the controlled money 24 account is used for the deposit of controlled money received 25 on behalf of the person mentioned in subsection (2), and not 26 for the deposit of controlled money received on behalf of any 27 other person, except to the extent that a regulation otherwise 28 permits. 29 Maximum penalty--50 penalty units. 30 (7) Subsection (3) applies subject to an order of a court of 31 competent jurisdiction or as authorised by law. 32

 


 

s 252 200 s 253 Legal Profession Bill 2007 252 Withdrawing controlled money from controlled money 1 account 2 (1) A law practice must not withdraw controlled money from a 3 controlled money account otherwise than by-- 4 (a) cheque; or 5 (b) if the practice is authorised by the law society to 6 withdraw controlled money from a controlled money 7 account by electronic funds transfer--electronic funds 8 transfer. 9 Maximum penalty--50 penalty units. 10 (2) Without limiting subsection (1), the following are specifically 11 prohibited by the subsection-- 12 (a) cash withdrawals; 13 (b) ATM withdrawals or transfers; 14 (c) telephone banking withdrawals or transfers; 15 (d) unless the law practice is authorised by the law society 16 to withdraw controlled money from a controlled money 17 account by electronic funds transfer--withdrawals by 18 electronic funds transfer. 19 (3) A regulation may make provision in relation to withdrawals 20 by cheque or electronic funds transfer, including, for example, 21 the matters the law society must have regard to in deciding to 22 authorise a law practice to withdraw controlled money from a 23 controlled money account by electronic funds transfer. 24 (4) This section has effect despite anything to the contrary in a 25 direction given to the law practice concerned even if the 26 direction is given by a person who is otherwise legally entitled 27 to give the law practice directions in relation to dealings with 28 the controlled money. 29 253 Transit money 30 (1) Subject to section 255, a law practice that has received transit 31 money must pay or deliver the money as required by the 32 instructions relating to the money-- 33 (a) within the period, if any, stated in the instructions; or 34

 


 

s 254 201 s 255 Legal Profession Bill 2007 (b) subject to paragraph (a), as soon as practicable after it is 1 received. 2 Maximum penalty--50 penalty units. 3 (2) The law practice must account for the money in the way 4 prescribed under a regulation. 5 Maximum penalty--50 penalty units. 6 254 Trust money subject to specific powers 7 (1) Subject to section 255, a law practice must ensure that trust 8 money that is the subject of a power given to the practice or an 9 associate of the practice is dealt with by the practice or 10 associate only under the power relating to the money. 11 Maximum penalty--50 penalty units. 12 (2) The law practice must account for the money in the way 13 prescribed under a regulation. 14 Maximum penalty--50 penalty units. 15 255 Trust money received in the form of cash 16 (1) A law practice must deposit general trust money received in 17 the form of cash in a general trust account of the practice. 18 Maximum penalty--100 penalty units. 19 (2) If the law practice has a written direction by an appropriate 20 person to deal with general trust money received in the form 21 of cash otherwise than by first depositing it in a general trust 22 account of the practice-- 23 (a) the money must nevertheless be deposited in a general 24 trust account of the practice under subsection (1); and 25 (b) after it is deposited in the general trust account, the 26 money is to be dealt with under the applicable terms of 27 the direction so far as those terms are not inconsistent 28 with paragraph (a). 29 (3) Controlled money received in the form of cash must be 30 deposited in a controlled money account under section 251. 31

 


 

s 256 202 s 256 Legal Profession Bill 2007 (4) A law practice must deposit transit money received in the 1 form of cash in a general trust account of the practice before 2 the money is otherwise dealt with under the instructions 3 relating to the money. 4 Maximum penalty--100 penalty units. 5 (5) A law practice must deposit trust money that is received in the 6 form of cash and is the subject of a power in a general trust 7 account, or a controlled money account in the case of 8 controlled money, of the practice before the money is 9 otherwise dealt with under the power. 10 Maximum penalty--100 penalty units. 11 (6) This section has effect despite anything to the contrary in any 12 relevant direction, instruction or power. 13 (7) In this section-- 14 appropriate person, in relation to trust money, means a person 15 who is legally entitled to give the law practice concerned 16 directions in relation to dealings with the money. 17 general trust money means trust money, other than-- 18 (a) controlled money; and 19 (b) transit money; and 20 (c) money that is the subject of a power. 21 256 Protection of trust money 22 (1) Money standing to the credit of a trust account kept by a law 23 practice is not available for the payment of debts of the 24 practice or any of its associates. 25 (2) Money standing to the credit of a trust account kept by a law 26 practice is not liable to be attached or taken in execution for 27 satisfying a judgment against the practice or any of its 28 associates. 29 (3) This section does not apply to money to which a law practice 30 or associate is entitled. 31

 


 

s 257 203 s 259 Legal Profession Bill 2007 257 Intermixing money 1 (1) A law practice must not, otherwise than as permitted under 2 subsection (2), mix trust money with other money. 3 Maximum penalty--100 penalty units. 4 (2) A law practice is permitted to mix trust money with other 5 money to the extent only that is authorised by the law society 6 and under any conditions imposed by the law society in 7 relation to the authorisation. 8 258 Dealing with trust money--legal costs and unclaimed 9 money 10 (1) A law practice may do any of the following in relation to trust 11 money held in a general trust account or controlled money 12 account of the practice for a person-- 13 (a) exercise a lien, including a general retaining lien, for the 14 amount of legal costs reasonably due and owing by the 15 person to the practice; 16 (b) withdraw money for payment to the practice's account 17 for legal costs owing to the practice if the relevant 18 procedures or requirements under this Act or prescribed 19 under a regulation are complied with; 20 (c) after deducting any legal costs properly owing to the 21 practice, deal with the balance as unclaimed money 22 under section 713. 23 (2) Subsection (1) applies despite any other provision of this part 24 but has effect subject to part 3.4. 25 259 Deficiency in trust account 26 (1) An Australian legal practitioner must not, without reasonable 27 excuse, cause-- 28 (a) a deficiency in any trust account or trust ledger account; 29 or 30 (b) a failure to pay or deliver any trust money. 31 Maximum penalty--200 penalty units. 32

 


 

s 260 204 s 260 Legal Profession Bill 2007 (2) A reference in subsection (1) to an account includes a 1 reference to an account of the practitioner or of the law 2 practice of which the practitioner is an associate. 3 (3) In this section-- 4 cause includes be responsible for. 5 deficiency, in a trust account or trust ledger account, includes 6 the non-inclusion or exclusion of the whole or any part of an 7 amount that is required to be included in the account. 8 260 Reporting certain irregularities and suspected 9 irregularities 10 (1) As soon as practicable after a legal practitioner associate of a 11 law practice becomes aware that there is an irregularity in any 12 of the practice's trust accounts or trust ledger accounts, the 13 associate must give written notice of the irregularity to-- 14 (a) the law society; and 15 (b) if a corresponding authority is responsible for the 16 regulation of the accounts concerned--the 17 corresponding authority. 18 Maximum penalty--50 penalty units. 19 (2) If an Australian legal practitioner believes on reasonable 20 grounds that there is an irregularity in connection with the 21 receipt, recording or disbursement of any trust money 22 received by a law practice of which the practitioner is not a 23 legal practitioner associate, the practitioner must, as soon as 24 practicable after forming the belief, give written notice of it 25 to-- 26 (a) the law society; and 27 (b) if a corresponding authority is responsible for the 28 regulation of the accounts relating to the trust money 29 concerned--the corresponding authority. 30 Maximum penalty--50 penalty units. 31 (3) An Australian legal practitioner is not liable for any loss or 32 damage suffered by another person as a result of the 33 practitioner's compliance with subsection (1) or (2). 34

 


 

s 261 205 s 263 Legal Profession Bill 2007 261 Keeping trust records 1 (1) A law practice must keep in permanent form trust records in 2 relation to trust money received by the practice. 3 Maximum penalty--100 penalty units. 4 (2) The law practice must keep the trust records-- 5 (a) in the way prescribed under a regulation; and 6 (b) in a way that at all times discloses the true position in 7 relation to trust money received for any person; and 8 (c) in a way that enables the trust records to be conveniently 9 and properly investigated or externally examined; and 10 (d) for the period prescribed under a regulation. 11 Maximum penalty--100 penalty units. 12 262 False names 13 (1) A law practice must not knowingly receive money or record 14 receipt of money in the practice's trust records under a false 15 name. 16 Maximum penalty--100 penalty units. 17 (2) If a person on whose behalf trust money is received by a law 18 practice is commonly known by more than one name, the 19 practice must ensure that the practice's trust records record all 20 names by which the person is known. 21 Maximum penalty--100 penalty units. 22 Division 3 Investigations 23 263 Investigations 24 (1) The law society may, on its own initiative or if asked by the 25 commissioner, investigate the affairs of a law practice under 26 this division. 27 (2) The investigation may be in relation to particular allegations 28 or suspicions regarding trust money, trust property, trust 29 accounts or any other aspect of the affairs of the law practice. 30

 


 

s 264 206 s 265 Legal Profession Bill 2007 (3) The principal purposes of an investigation are-- 1 (a) to find out whether the law practice has complied with 2 or is complying with this part; and 3 (b) to detect and prevent defaults in relation to the law 4 practice. 5 (4) Subsection (3) does not limit the scope of the investigation or 6 the powers of the investigator conducting the investigation. 7 (5) An investigation of the affairs of a law practice under this 8 division is a trust account investigation. 9 Note-- 10 Chapter 6 applies to a trust account investigation--see section 540. 11 264 Investigator's report 12 (1) As soon as practicable after completing a trust account 13 investigation, the investigator must give a written report of the 14 investigation to the law society. 15 (2) If the trust account investigation relates to a complaint or 16 investigation matter, or was started at the request of the 17 commissioner, the law society must as soon as practicable 18 give a copy of the report to the commissioner. 19 265 When costs of investigation are debt 20 (1) If-- 21 (a) an investigator states in his or her report of a trust 22 account investigation that there is evidence that a breach 23 of this Act has been committed or that a default has 24 happened in relation to the law practice whose affairs 25 are under investigation; and 26 (b) the law society is satisfied that the breach or default is 27 wilful or of a substantial nature; 28 the law society may decide that the whole or part of the costs 29 of carrying out the investigation is payable to the society and 30 may decide the amount payable. 31

 


 

s 266 207 s 266 Legal Profession Bill 2007 (2) The amount decided by the law society is a debt payable to the 1 society by the law practice whose affairs are under 2 investigation. 3 (3) The law society must, before seeking to recover the amount 4 payable, give the law practice an information notice about the 5 decision and the amount payable. 6 (4) The law practice may appeal, to a court having jurisdiction for 7 the amount payable, against the decision within 28 days after 8 the day the information notice is given to the practice. 9 266 Law society or commissioner may give information to 10 professional accounting association 11 (1) This section applies if, on considering a report given under 12 section 264 about a law practice, the law society or the 13 commissioner is satisfied the report discloses conduct that 14 shows an external examiner may have breached the 15 professional accounting or audit standards in relation to an 16 external examination of the practice's trust records. 17 (2) The law society or commissioner may give to the professional 18 accounting association of which the external examiner is, or 19 was, a member-- 20 (a) a copy of the report or the part of the report relevant to 21 the disclosure of the conduct; or 22 (b) another document the law society or commissioner 23 considers relevant to the disclosure of the conduct. 24 (3) If the professional accounting association investigates the 25 conduct of the external examiner-- 26 (a) the investigator who gave the report may, with the 27 approval of the law society, give information to the 28 association about the trust account investigation to 29 which the report relates; and 30 (b) an officer or employee of the law society may, with the 31 approval of the law society, give information to the 32 association about the content of the report. 33 (4) However, a report or a part of a report, or another document or 34 information given under subsection (2) or (3), must not 35 include confidential information about a law practice. 36

 


 

s 267 208 s 267 Legal Profession Bill 2007 (5) In this section-- 1 confidential information, about a law practice, means 2 information that identifies a client of the practice or a party to 3 a matter in which the practice acts. 4 professional accounting association means-- 5 (a) CPA Australia ACN 008 392 452; or 6 (b) The Institute of Chartered Accountants in Australia 7 ARBN 084 642 571; or 8 (c) another entity prescribed under a regulation. 9 professional accounting or audit standards means-- 10 (a) the accounting standards issued by the Australian 11 Accounting Standards Board; or 12 (b) the auditing standards issued by the Auditing and 13 Assurance Standards Board. 14 Division 4 External examinations 15 267 Appointment and qualifications of external examiner 16 (1) A law practice must, within 14 days after becoming a law 17 practice to which this part applies, appoint an individual as the 18 external examiner for the practice. 19 Maximum penalty--50 penalty units. 20 (2) If an individual appointed as a law practice's external 21 examiner stops being the practice's external examiner, the law 22 practice must, within 14 days after the individual stops being 23 the external examiner, appoint another individual as the 24 external examiner for the practice. 25 Maximum penalty--50 penalty units. 26 (3) A law practice may appoint an individual as an external 27 examiner for the practice under this section only if satisfied 28 the individual-- 29 (a) has the qualifications or experience prescribed under a 30 regulation; and 31

 


 

s 268 209 s 269 Legal Profession Bill 2007 (b) is not disqualified from being an external examiner 1 under section 278. 2 268 Law practice must have trust records externally 3 examined 4 (1) A law practice must, for each financial period for the practice 5 and within 60 days after the end of the period, have its trust 6 records externally examined by the practice's external 7 examiner. 8 Maximum penalty--100 penalty units. 9 (2) If the law society is satisfied a law practice has not had its 10 trust records externally examined under this section or that an 11 external examination of the practice's trust records has not 12 been carried out in the way prescribed under a regulation, the 13 law society may appoint an external examiner to examine the 14 practice's trust records. 15 (3) Without limiting the generality of section 298, this section has 16 effect subject to any exemptions provided by or given under a 17 regulation from the requirement to have trust records 18 examined as otherwise required by this section. 19 (4) In this section-- 20 financial period, for an entity that is a law practice, means-- 21 (a) for the first period after the entity becomes a law 22 practice--the period of not more than 12 months 23 starting on the day the entity becomes a law practice and 24 ending on 31 March; or 25 (b) otherwise--12 months ending on 31 March. 26 269 Restriction on appointment of associates as external 27 examiner 28 (1) The law society may appoint an associate of a law practice as 29 an external examiner under this division only if satisfied it is 30 appropriate to do so. 31 (2) However, an associate of a law practice can not be appointed 32 as an external examiner under this division to examine the 33 practice's trust records. 34

 


 

s 270 210 s 272 Legal Profession Bill 2007 270 Law practice to give notice of external examiner 1 (1) A law practice must, within 30 days after becoming a law 2 practice to which this part applies, give the law society notice 3 in the approved form of the practice's external examiner. 4 Maximum penalty--50 penalty units. 5 (2) A law practice must, immediately after an individual stops 6 being the practice's external examiner, give the law society 7 written notice of the fact. 8 Maximum penalty--50 penalty units. 9 (3) A law practice must, within 30 days after an individual stops 10 being the practice's external examiner, give the law society 11 notice in the approved form of the practice's external 12 examiner appointed under section 267(2) (the replacement 13 external examiner). 14 Maximum penalty--50 penalty units. 15 (4) A notice given under subsection (1) or (3) must be signed by 16 the external examiner or replacement external examiner. 17 271 Notice if person stops being external examiner 18 If an individual stops being the external examiner for a law 19 practice, the individual must immediately give the law society 20 notice of the fact in the approved form. 21 Maximum penalty--50 penalty units. 22 272 Examination of affairs in examining trust records 23 (1) An external examiner appointed to examine a law practice's 24 trust records may, in carrying out an examination of the trust 25 records, examine the affairs of the practice. 26 (2) If the law practice is an incorporated legal practice or 27 multi-disciplinary partnership, the reference in subsection (1) 28 to the affairs of the law practice extends to the affairs of the 29 incorporated legal practice or multi-disciplinary partnership 30 or of an associate, so far as they are relevant to trust money, 31 trust records and associated matters. 32

 


 

s 273 211 s 275 Legal Profession Bill 2007 (3) A reference in this division to trust records includes a 1 reference to the affairs of a law practice that may be examined 2 under this section in the carrying out of an examination of the 3 practice's trust records. 4 273 Carrying out external examination 5 (1) An external examination of a law practice's trust records is to 6 be carried out in the way prescribed under a regulation. 7 (2) Without limiting subsection (1), a regulation may provide for 8 the following-- 9 (a) the standards to be adopted and the procedures to be 10 followed by external examiners; 11 (b) the form and content of an external examiner's report on 12 an external examination. 13 274 External examiner's report on external examination 14 (1) If a law practice has its trust records examined by an external 15 examiner under section 268(1), the practice must, within 60 16 days after the end of the period to which the examination 17 relates, give to the law society a copy of the external 18 examiner's report on the examination, unless the practice has 19 a reasonable excuse. 20 Maximum penalty--50 penalty units. 21 (2) If an external examiner appointed by the law society carries 22 out an external examination of a law practice's trust records, 23 the external examiner must give to the law society a copy of 24 the external examiner's report on the examination. 25 Maximum penalty--50 penalty units. 26 275 External examiner to give other reports 27 (1) This section applies if, in carrying out an external examination 28 of a law practice's trust records, an external examiner 29 becomes aware of a matter that-- 30 (a) is reasonably likely-- 31

 


 

s 276 212 s 276 Legal Profession Bill 2007 (i) to adversely affect the financial position of the law 1 practice to a material extent; or 2 (ii) to constitute a breach of this part by the law 3 practice; or 4 (b) is otherwise an irregularity in relation to the trust 5 records or trust accounts of the law practice of which the 6 law society ought reasonably to be made aware. 7 (2) The external examiner must, within 7 days after becoming 8 aware of the matter, give the law society a written report on 9 the matter. 10 Maximum penalty--100 penalty units. 11 276 Final examination of trust records 12 (1) This section applies if a law practice-- 13 (a) ceases to be authorised to receive trust money; or 14 (b) ceases to engage in legal practice in this jurisdiction. 15 (2) The law practice must appoint an individual as an external 16 examiner to examine the practice's trust records-- 17 (a) in relation to the period since an external examination of 18 the practice's trust records was last conducted; and 19 (b) in relation to each period after the period mentioned in 20 paragraph (a), comprising a completed period of 12 21 months or any remaining partly completed period, 22 during which the practice continued to hold trust money. 23 Maximum penalty--50 penalty units. 24 (3) The law practice must give to the law society-- 25 (a) a report of each examination under subsection (2) within 26 60 days after the end of the period to which the 27 examination relates; and 28 (b) a statutory declaration in the law society approved form 29 within 60 days of ceasing to hold trust money. 30 Maximum penalty--20 penalty units. 31

 


 

s 277 213 s 278 Legal Profession Bill 2007 (4) If an Australian legal practitioner dies, the practitioner's legal 1 personal representative must comply with this section as if the 2 representative were the practitioner. 3 (5) Nothing in this section affects any other requirements under 4 this part. 5 277 Law practice liable for costs of examination 6 (1) A law practice whose trust accounts have been externally 7 examined must pay the costs of the examination. 8 (2) If the law society appointed the external examiner to carry out 9 the examination, the law society may decide the reasonable 10 amount payable as the costs of the examination, and the 11 amount is a debt payable to it by the law practice. 12 (3) The law society must, before seeking to recover an amount 13 mentioned in subsection (2), give the law practice an 14 information notice about the decision stating the amount 15 payable. 16 (4) The law practice may appeal, to a court having jurisdiction for 17 the amount payable, against the decision within 28 days after 18 the day the information notice is given to the practice. 19 278 Disqualification of person as external examiner 20 (1) This section applies if the law society is satisfied that an 21 individual who is an external examiner-- 22 (a) has not carried out an external examination in an 23 appropriate way; or 24 (b) does not have the qualifications or experience prescribed 25 under a regulation for section 267(3)(a). 26 (2) The law society may, by information notice given to the 27 individual, disqualify the individual from being an external 28 examiner. 29 (3) The disqualification has effect on the day the individual 30 receives the information notice. 31 (4) If the disqualification is for a period, the information notice 32 must state the period of the disqualification. 33

 


 

s 279 214 s 280 Legal Profession Bill 2007 (5) If an individual who is disqualified under subsection (2) was 1 appointed as an external examiner by a law practice, the law 2 society must give the practice a notice stating-- 3 (a) the individual has been disqualified from being an 4 external examiner under this section; and 5 (b) if the disqualification is for a period--the period of the 6 disqualification. 7 (6) An individual who is disqualified under subsection (2) may 8 appeal to the District Court against the decision within 28 9 days after receiving the information notice. 10 279 Offence about carrying on external examination 11 An individual who is disqualified from being an external 12 examiner under section 278 must not carry out, or help 13 another person to carry out, an external examination. 14 Maximum penalty--50 penalty units. 15 Division 5 Provisions relating to ADIs 16 280 Approval of ADIs 17 (1) The law society may approve ADIs at which trust accounts to 18 hold trust money may be kept. 19 (2) However, the law society may give an ADI an approval under 20 subsection (1) only if the ADI has entered into an arrangement 21 with the chief executive under section 287. 22 (3) In giving an approval under subsection (1), the law society 23 may have regard to, and impose conditions on the approval, 24 about-- 25 (a) the way in which the law society is informed of amounts 26 held in trust accounts; and 27 (b) the auditing of trust accounts; and 28 (c) other matters relating to the law society's supervision of 29 trust accounts under this Act; and 30 (d) other relevant matters prescribed under a regulation. 31

 


 

s 281 215 s 282 Legal Profession Bill 2007 (4) The law society-- 1 (a) may impose a condition under subsection (3) when the 2 approval is given or during the currency of the approval; 3 and 4 (b) may amend or revoke any conditions imposed. 5 281 ADIs not subject to certain obligations and liabilities 6 (1) An ADI at which a trust account is kept by a law practice-- 7 (a) is not under an obligation to control or supervise 8 transactions in relation to the account or to oversee the 9 application of money disbursed from the account; and 10 (b) does not have, in relation to any liability of the law 11 practice to the ADI, any recourse or right, whether by 12 way of set-off counterclaim, charge or otherwise, 13 against money in the account. 14 (2) Subsection (1) does not relieve an ADI from any liability to 15 which it is subject apart from this Act. 16 282 Reports, records and information 17 (1) An ADI at which a trust account is kept must, as soon as 18 practicable after becoming aware that the account is 19 overdrawn, report the fact to the law society. 20 Maximum penalty--50 penalty units. 21 (2) An ADI at which a trust account is kept must report a 22 suspected offence in relation to the trust account to the law 23 society as soon as practicable after forming the suspicion. 24 Maximum penalty--50 penalty units. 25 (3) An ADI must give to the law society reports about trust 26 accounts as required under a regulation. 27 Maximum penalty--50 penalty units. 28 (4) An ADI at which a law practice's trust account is kept must, if 29 asked by an investigator or external examiner and on 30 production to the ADI of evidence of the appointment of the 31 investigator or external examiner in relation to the law 32 practice-- 33

 


 

s 283 216 s 283 Legal Profession Bill 2007 (a) produce for inspection or copying by the investigator or 1 external examiner any records relating to the trust 2 account or trust money deposited in the trust account; 3 and 4 (b) provide the investigator or external examiner with full 5 details of any transactions relating to the trust account or 6 trust money. 7 Maximum penalty--50 penalty units. 8 (5) An ADI must produce the records and provide the details 9 under subsection (4) without charge. 10 (6) Subsections (1) to (4) apply despite any duty of confidence to 11 the contrary. 12 (7) An ADI or an officer or employee of an ADI is not liable to 13 any action for any loss or damage suffered by another person 14 as a result of-- 15 (a) reporting a matter under subsection (1); or 16 (b) making or giving a report under subsection (2) or (3); or 17 (c) producing records or providing details under subsection 18 (4). 19 Division 6 Prescribed accounts and Legal 20 Practitioner Interest on Trust 21 Accounts Fund 22 Subdivision 1 Preliminary 23 283 Main purposes of pt 3.3, div 6 24 The main purposes of this division are as follows-- 25 (a) to provide for the making of a regulation requiring 26 particular law practices to deposit amounts into 27 prescribed accounts; 28 (b) to allow the chief executive to enter into agreements 29 with ADIs, with which law practices have deposited 30

 


 

s 284 217 s 285 Legal Profession Bill 2007 amounts under a regulation, for the payment of interest 1 on the trust accounts; 2 (c) to establish the Legal Practitioner Interest on Trust 3 Accounts Fund into which amounts received as interest 4 must be paid; 5 (d) to ensure the interest paid into the fund, and other 6 moneys received for the fund, do not become part of the 7 consolidated fund; 8 (e) to provide for persons to whom or purposes for which 9 amounts may be paid from the fund. 10 284 Definitions for pt 3.3, div 6 11 In this division-- 12 fund means the Legal Practitioner Interest on Trust Accounts 13 Fund established under section 288. 14 law practice means a law practice to which part 3.3 applies. 15 Note-- 16 See section 240. 17 prescribed account means an account prescribed under a 18 regulation as an account into which a law practice must 19 deposit moneys. 20 Subdivision 2 Prescribed accounts 21 285 Regulation for prescribed account 22 (1) A regulation may make provision for, and for matters relating 23 to, prescribed accounts. 24 (2) Without limiting subsection (1), the regulation may prescribe 25 as follows-- 26 (a) a law practice to whom the regulation applies must 27 deposit an amount into a prescribed account; 28 (b) the way to work out an amount mentioned in paragraph 29 (a), including, for example, on the basis of the minimum 30

 


 

s 286 218 s 287 Legal Profession Bill 2007 amount held by a law practice in the law practice's trust 1 account for a calendar month or year; 2 (c) the way in which amounts may be paid to a law practice 3 from a prescribed account; 4 (d) the way in which the law society may supervise 5 compliance with the regulation; 6 (e) the way in which the chief executive of the department 7 may ensure compliance with this Act, including, for 8 example, provisions about the law society giving the 9 chief executive information about prescribed accounts. 10 286 Deposits to prescribed account 11 (1) No action at law or in equity may lie against any law practice 12 relating to a matter or thing done by the law practice for 13 complying with a regulation as mentioned in section 285 that 14 applied to the law practice. 15 (2) However, this section does not affect in any way the rights and 16 remedies of a claimant against the law practice in the event of 17 negligence or dishonesty of the law practice in relation to trust 18 money. 19 Subdivision 3 Interest on trust accounts paid to 20 department 21 287 Arrangement with financial institution 22 The chief executive may enter into an arrangement with an 23 ADI about the ADI paying interest to the department on-- 24 (a) prescribed accounts; and 25 (b) trust accounts kept by law practices. 26

 


 

s 288 219 s 288 Legal Profession Bill 2007 Subdivision 4 Legal Practitioner Interest on Trust 1 Accounts Fund 2 288 Establishment of fund 3 (1) The Legal Practitioner Interest on Trust Accounts Fund 4 established under the Legal Profession Act 2004, section 208, 5 is continued in existence under this Act. 6 (2) Accounts for the fund must be kept as part of the departmental 7 accounts of the department. 8 (3) Amounts received for the fund must be deposited in a 9 departmental financial-institution account of the department 10 used only for amounts received for the fund. 11 (4) Amounts received for the fund include-- 12 (a) all interest payable to the department under an 13 arrangement entered into under section 287; and 14 (b) other amounts payable for the fund under an Act. 15 (5) For the Financial Administration and Audit Act 1977, the 16 amounts received for the fund are not received or held for the 17 State. 18 Note-- 19 The amounts are other moneys under the Financial Administration and 20 Audit Act 1977. 21 (6) An amount is payable from the fund only under section 289. 22 (7) In this section-- 23 departmental accounts, of a department, means the accounts 24 of the department kept under the Financial Administration 25 and Audit Act 1977, section 12.43 26 departmental financial-institution account, of a department, 27 means an account of the department kept under the Financial 28 Administration and Audit Act 1977, section 18.44 29 43 Financial Administration and Audit Act 1977, section 12 (Departmental accounts) 44 Financial Administration and Audit Act 1977, section 18 (Departmental financial-institution accounts)

 


 

s 289 220 s 289 Legal Profession Bill 2007 289 Payments from fund 1 (1) The chief executive may make payments from the fund to or 2 for any of the following-- 3 (a) Legal Aid Queensland; 4 (b) the fidelity fund; 5 (c) the Supreme Court Library; 6 (d) the commissioner; 7 (e) a disciplinary body; 8 (f) the board; 9 (g) part of the cost of the regulatory functions of the law 10 society or bar association, including costs associated 11 with implementing a relevant law whether incurred 12 before or after the commencement of this section; 13 (h) grants approved by the Minister for any of the following 14 purposes-- 15 (i) the advancement of law reform; 16 (ii) the collection, assessment and dissemination of 17 information concerning legal education, the law, 18 the legal system, law reform, the legal profession 19 and legal services; 20 (iii) facilitating access to the legal system, legal 21 information and education and legal services for 22 members of the community, particularly 23 economically or socially disadvantaged members 24 of the community; 25 (i) the department for any of the following-- 26 (i) the cost of administering this part; 27 (ii) liabilities of the department attributable to the costs 28 and expenses relating to the fund before or after the 29 commencement of this section; 30 (iii) expenses of the department associated with the 31 replacement of the Solicitors Board, Barristers 32 Board and Office of the Legal Ombudsman, 33 whether the expenses were incurred before or after 34 the commencement of this section. 35

 


 

s 290 221 s 291 Legal Profession Bill 2007 (2) The chief executive must not make a payment under 1 subsection (1) unless the Minister has decided the amount 2 may be paid and has given written authority to the chief 3 executive to pay the amount. 4 290 Minister to decide distribution 5 (1) The Minister must decide-- 6 (a) whether a payment is to be made under section 289; and 7 (b) if the Minister decides a payment is to be made, the 8 amount of the payment and any conditions applicable to 9 the payment. 10 (2) For subsection (1), the chief executive must make 11 recommendations to the Minister. 12 (3) The amount used for each of the following must not be more 13 than the amount prescribed for it under a regulation for this 14 subsection-- 15 (a) the fidelity fund as mentioned in section 289(1)(b); 16 (b) grants approved by the Minister as mentioned in section 17 289(1)(h). 18 291 Submission of budgets 19 (1) To help the Minister in making decisions under section 290, 20 the chief executive may ask a potential beneficiary to prepare 21 and submit a budget to the chief executive, for the period the 22 chief executive directs, concerning the income and 23 expenditure of the potential beneficiary, including projected 24 income and expenditure. 25 (2) The budget is to include the information the chief executive 26 directs. 27 (3) In particular, the chief executive may require the provision of 28 information about the administration of the potential 29 beneficiary. 30 (4) In this section-- 31

 


 

s 292 222 s 292 Legal Profession Bill 2007 potential beneficiary, of a payment, means the entity to which 1 or in relation to which a payment would be paid for a purpose 2 mentioned in section 289(1). 3 Division 7 Miscellaneous 4 292 Restrictions on receipt of trust money 5 (1) A law practice, other than an incorporated legal practice, must 6 not receive trust money unless a principal holds an Australian 7 practising certificate authorising the receipt of trust money. 8 Maximum penalty--200 penalty units. 9 (2) An incorporated legal practice must not receive trust money 10 unless-- 11 (a) at least one legal practitioner director of the practice 12 holds an Australian practising certificate authorising the 13 receipt of trust money; or 14 (b) a person is holding an appointment under section 11945 15 in relation to the practice and the person holds an 16 Australian practising certificate authorising the receipt 17 of trust money; or 18 (c) if money is received during a period in which the 19 practice does not have a legal practitioner director-- 20 (i) the practice is not in default of director 21 requirements under section 119; and 22 (ii) there was, immediately before the start of that 23 period, at least one legal practitioner director of the 24 practice who held an Australian practising 25 certificate authorising the receipt of trust money. 26 Maximum penalty--200 penalty units. 27 45 Section 119 (Incorporated legal practice without legal practitioner director)

 


 

s 293 223 s 294 Legal Profession Bill 2007 293 Application of Act to incorporated legal practices and 1 multi-disciplinary partnerships 2 (1) The obligations imposed on a law practice under this Act 3 relating to trust money and trust accounts apply to an 4 incorporated legal practice or multi-disciplinary partnership 5 only in relation to legal services provided by the practice or 6 partnership. 7 (2) A regulation may provide that a provision of this Act, a 8 regulation or the legal profession rules, relating to trust money 9 and trust accounts, does not apply to incorporated legal 10 practices or multi-disciplinary partnerships or both or applies 11 to them with stated changes. 12 294 Disclosure to clients--money not received or held as 13 trust money 14 (1) If money entrusted to a law practice is or becomes non-trust 15 money, the practice must notify the person who entrusted the 16 money to the practice that-- 17 (a) the money is not treated as trust money under this Act 18 and is not subject to any supervision, investigation or 19 audit requirements of this Act; and 20 (b) a claim against the fidelity fund can not be made in 21 relation to the money. 22 Maximum penalty--50 penalty units. 23 (2) The notification must be in writing and given to the person-- 24 (a) if the money is non-trust money when it is entrusted to 25 the law practice--when the money is entrusted to the 26 practice; or 27 (b) if the money was trust money when it was entrusted to 28 the practice but becomes non-trust money because of a 29 decision under section 239--as soon as practicable after 30 the decision is made. 31 (3) The notification must be given in the way, and contain the 32 information, prescribed under a regulation, if any, for this 33 section. 34 (4) In this section-- 35

 


 

s 295 224 s 297 Legal Profession Bill 2007 non-trust money means money that is not trust money under 1 this Act because of section 238 or because of a decision under 2 section 239. 3 295 Disclosure of accounts used to hold money entrusted to 4 legal practitioners 5 (1) A law practice must notify the law society of each account 6 kept at an ADI in which the law practice or a legal practitioner 7 associate of the law practice holds money entrusted to the law 8 practice or legal practitioner associate. 9 Maximum penalty--50 penalty units. 10 (2) The notification must be given to the law society in the way, 11 and include the details about the account, prescribed under a 12 regulation. 13 (3) Subsection (1) applies to a law practice whether or not the 14 money is trust money and whether or not section 238 or 239 15 applies to the money. 16 296 Report about law society's functions 17 (1) The Minister may, by written notice, ask the law society to 18 give to the Minister or commissioner a report at any time, for 19 a period stated in the Minister's request, about the law 20 society's functions under this part. 21 (2) The report must include the information the Minister 22 considers appropriate, including, for example, information 23 about a law practice's compliance with section 268. 24 (3) If the Minister makes a request under subsection (1), the law 25 society must comply with the request and give the relevant 26 report to the Minister or commissioner by the day stated in the 27 notice for that purpose. 28 297 Report about law practice 29 (1) The commissioner may, by written notice, ask the law society 30 to give to the commissioner a report about a law practice's 31 compliance with this part. 32

 


 

s 298 225 s 298 Legal Profession Bill 2007 (2) The report must be prepared from relevant information in the 1 law society's possession. 2 (3) If the commissioner makes a request under subsection (1), the 3 law society must comply with the request and give the report 4 to the commissioner by the day stated in the notice for that 5 purpose. 6 298 Regulation-making power relating to trust money and 7 trust accounts 8 (1) The Governor in Council may make regulations about a 9 matter to which this part applies. 10 (2) A regulation may provide for the following-- 11 (a) the establishment, keeping and closure of general trust 12 accounts and controlled money accounts; 13 (b) the manner of receiving, depositing, withdrawing, 14 making records about and otherwise dealing with and 15 accounting for trust money; 16 (c) without limiting paragraph (a) or (b)-- 17 (i) the keeping and reconciliation of trust records; and 18 (ii) the establishment and keeping of trust ledger 19 accounts; and 20 (iii) the establishment and keeping of records about 21 controlled money and transit money; and 22 (iv) the establishment and keeping of registers of 23 powers and estates in relation to trust money; and 24 (v) the recording of information about the investment 25 of trust money; and 26 (vi) the giving of statements regarding trust money; 27 (d) the notification to the law society of information relating 28 directly or indirectly to matters to which this part 29 relates, including information about-- 30 (i) trust accounts, trust money and trust records; and 31 (ii) the proposed or actual termination of a law practice 32 that holds trust money; and 33

 


 

s 299 226 s 299 Legal Profession Bill 2007 (iii) the proposed or actual termination of engaging in 1 legal practice in this jurisdiction by a law practice 2 that holds trust money; and 3 (iv) the proposed or actual restructuring of the business 4 of a law practice so that it no longer holds or no 5 longer will hold trust money; 6 (e) the carrying out of unannounced examinations of a law 7 practice's trust records by an external examiner; 8 (f) the creation and exercise of liens over trust money; 9 (g) exemptions, or the giving of exemptions, from all or any 10 stated requirements of this part. 11 Part 3.4 Costs disclosure and 12 assessment 13 Division 1 Preliminary 14 299 Main purposes of pt 3.4 15 The main purposes of this part are as follows-- 16 (a) to provide for law practices to make disclosures to 17 clients regarding legal costs; 18 (b) to regulate the making of costs agreements relating to 19 legal services, including conditional costs agreements; 20 (c) to regulate the billing of costs for legal services; 21 (d) to provide a mechanism for the assessment of legal costs 22 and the setting aside of particular costs agreements; 23 (e) to provide for the maximum payment for a law 24 practice's conduct of a speculative personal injury 25 claim, other than practice as or in the manner of a 26 barrister. 27

 


 

s 300 227 s 300 Legal Profession Bill 2007 300 Definitions for pt 3.4 1 In this part-- 2 associated third party payer see section 301(2). 3 conditional costs agreement means a costs agreement that 4 provides that the payment of some or all of the legal costs is 5 conditional on the successful outcome of the matter to which 6 those costs relate, as mentioned in section 323, but does not 7 include a costs agreement to the extent to which section 8 325(1) applies. 9 costs agreement means an agreement about the payment of 10 legal costs. 11 costs application means an application under section 335, 336 12 or 337 for an assessment of the whole or any part of legal 13 costs. 14 costs assessment means an assessment of legal costs under 15 division 7. 16 costs assessor means a person appointed under the Uniform 17 Civil Procedure Rules as a cost assessor. 18 disbursements includes outlays. 19 itemised bill means a bill stating, in detail, how the legal costs 20 are made up in a way that would allow the legal costs to be 21 assessed under division 7. 22 litigious matter means a matter that involves, or is likely to 23 involve, the issue of proceedings in a court or tribunal. 24 Note-- 25 A matter is litigious matter when proceedings are initiated or at any 26 stage when proceedings are reasonably likely. 27 lump sum bill means a bill that describes the legal services to 28 which it relates and specifies the total amount of the legal 29 costs. 30 non-associated third party payer see section 301(3). 31 public authority means an authority or body, whether a body 32 corporate or not, established or incorporated for a public 33 purpose by a law of a jurisdiction or of the Commonwealth, 34 and includes a body corporate incorporated under a law of a 35

 


 

s 301 228 s 301 Legal Profession Bill 2007 jurisdiction or of the Commonwealth in which a jurisdiction 1 or the Commonwealth has a controlling interest. 2 scale of costs includes the costs for a court prescribed under 3 the Supreme Court of Queensland Act 1991 in relation to a 4 matter. 5 sophisticated client means a client to whom, because of 6 section 311(1)(c) or (d), disclosure under section 308 or 7 309(1) is not or was not required. 8 third party payer see section 301(1). 9 uplift fee means additional legal costs, excluding 10 disbursements, payable under a costs agreement on the 11 successful outcome of the matter to which the agreement 12 relates. 13 301 Terms relating to third party payers 14 (1) A person is a third party payer, in relation to a client of a law 15 practice, if the person is not the client and-- 16 (a) is under a legal obligation to pay all or any part of the 17 legal costs for legal services provided to the client; or 18 (b) being under that obligation, has already paid all or a part 19 of those legal costs. 20 (2) A third party payer is an associated third party payer if the 21 legal obligation mentioned in subsection (1)(a) is owed to the 22 law practice, whether or not it is also owed to the client or 23 another person. 24 (3) A third payer is a non-associated third party payer if the legal 25 obligation mentioned in subsection (1)(a) is owed to the client 26 or another person but not the law practice. 27 (4) A legal obligation mentioned in subsection (1) can arise by or 28 under contract or legislation or otherwise. 29 (5) A law practice that retains another law practice on behalf of a 30 client is not on that account a third party payer in relation to 31 that client. 32

 


 

s 302 229 s 303 Legal Profession Bill 2007 Division 2 Application of this part 1 302 Application of part--first instructions rule 2 This part applies to a matter if the client first instructs the law 3 practice in relation to the matter in this jurisdiction. 4 303 Part also applies by agreement or at client's election 5 (1) This part applies to a matter if-- 6 (a) either-- 7 (i) this part does not currently apply to the matter; or 8 (ii) it is not possible to decide the jurisdiction in which 9 the client first instructs the law practice in relation 10 to the matter; and 11 (b) either or both of the following-- 12 (i) the legal services are or will be provided wholly or 13 primarily in this jurisdiction; 14 (ii) the matter has a substantial connection with this 15 jurisdiction; and 16 (c) either-- 17 (i) the client accepts, in writing or by other conduct, a 18 written offer to enter into an agreement under 19 subsection (2)(a) for the matter; or 20 (ii) the client gives notice under subsection (2)(b) for 21 the matter. 22 (2) For subsection (1)(c), the client may-- 23 (a) accept, in writing or by other conduct, a written offer 24 that complies with subsection (3) to enter into an 25 agreement with the law practice that this part is to apply 26 to the matter; or 27 (b) notify the law practice in writing that the client requires 28 this part to apply to the matter. 29 (3) An offer mentioned in subsection (2)(a) must clearly state-- 30

 


 

s 304 230 s 304 Legal Profession Bill 2007 (a) that it is an offer to enter into an agreement that this part 1 is to apply to the matter; and 2 (b) that the client may accept it in writing or by other 3 conduct; and 4 (c) the type of conduct that will constitute acceptance. 5 (4) A notice has no effect for subsection (2)(b) if it is given after 6 the period of 28 days after the law practice discloses to the 7 client, under a corresponding law, information about the 8 client's right to give notice of that kind, but nothing in this 9 subsection prevents an agreement mentioned in subsection 10 (2)(a) from coming into effect at any time. 11 304 Displacement of part 12 (1) This section applies if this part applies to a matter under 13 section 302 or 303. 14 (2) This part ceases to apply to the matter if-- 15 (a) either or both of the following apply-- 16 (i) the legal services are or will be provided wholly or 17 primarily in another jurisdiction; 18 (ii) the matter has a substantial connection with 19 another jurisdiction; and 20 (b) either-- 21 (i) the client, under the corresponding law of the other 22 jurisdiction, enters into an agreement with the law 23 practice that the corresponding provisions of the 24 corresponding law apply to the matter; or 25 (ii) the client notifies, under the corresponding law of 26 the other jurisdiction and within the time allowed 27 by the corresponding law, the law practice in 28 writing that the client requires the corresponding 29 provisions of the corresponding law to apply to the 30 matter. 31 (3) Nothing in this section prevents the application of this part to 32 the matter by means of a later agreement or notice under 33 section 303. 34

 


 

s 305 231 s 307 Legal Profession Bill 2007 305 How and where does a client first instruct a law practice 1 A client first instructs a law practice in relation to a matter in a 2 particular jurisdiction if the law practice first receives 3 instructions from or on behalf of the client in relation to the 4 matter in that jurisdiction, whether in person or by post, 5 telephone, fax, email or other form of communication. 6 306 When does a matter have a substantial connection with 7 this jurisdiction 8 A regulation may prescribe the circumstances in which, or the 9 rules to be used to decide whether, a matter has or does not 10 have a substantial connection with this jurisdiction for the 11 purposes of this part. 12 307 What happens when different laws apply to a matter 13 (1) This section applies if this part applies to a matter for a period 14 and a corresponding law applies for another period. 15 (2) If this part applied to a matter for a period and a 16 corresponding law applies to the matter afterwards, this part 17 continues to apply in relation to legal costs, if any, incurred 18 while this part applied to the matter. 19 (3) If a corresponding law applied to a matter for a period and this 20 part applies to the matter afterwards, this part does not apply 21 in relation to legal costs, if any, incurred while the 22 corresponding law applied to the matter, so long as the 23 corresponding law continues to apply in relation to those 24 costs. 25 (4) However-- 26 (a) the client may enter into a written agreement with the 27 law practice that the cost assessment provisions of this 28 part are to apply in relation to all legal costs incurred in 29 relation to the matter, and division 746 accordingly 30 applies in relation to those legal costs; or 31 (b) if the client enters into a written agreement with the law 32 practice that the cost assessment provisions of a 33 46 Division 7 (Costs assessment)

 


 

s 308 232 s 308 Legal Profession Bill 2007 corresponding law are to apply in relation to all legal 1 costs incurred in relation to the matter, division 7 2 accordingly does not apply in relation to those legal 3 costs. 4 (5) A written agreement mentioned in subsection (4) need not be 5 signed by the client but in that case the client's acceptance 6 must be communicated to the law practice by fax, email or 7 some other written form. 8 (6) If a corresponding law applied to a matter for a period and this 9 part applies to the matter afterwards, this part does not require 10 disclosure of any matters to the extent that they have already 11 been disclosed under a corresponding law. 12 (7) This section has effect despite any other provisions of this 13 part. 14 Division 3 Costs disclosure 15 308 Disclosure of costs to clients 16 (1) A law practice must disclose to a client under this division-- 17 (a) the basis on which legal costs will be calculated, 18 including whether a scale of costs applies to any of the 19 legal costs; and 20 (b) the client's right to-- 21 (i) negotiate a costs agreement with the law practice; 22 and 23 (ii) receive a bill from the law practice; and 24 (iii) request an itemised bill after receipt of a lump sum 25 bill; and 26 (iv) be notified under section 315 of any substantial 27 change to the matters disclosed under this section; 28 and 29 (c) an estimate of the total legal costs if reasonably 30 practicable or, if that is not reasonably practicable, a 31 range of estimates of the total legal costs and an 32

 


 

s 308 233 s 308 Legal Profession Bill 2007 explanation of the major variables that will affect the 1 calculation of those costs; and 2 (d) details of the intervals, if any, at which the client will be 3 billed; and 4 (e) the rate of interest, if any, that the law practice charges 5 on overdue legal costs, whether that rate is a stated rate 6 of interest or is a benchmark rate of interest as 7 mentioned in subsection (2); and 8 (f) if the matter is a litigious matter, an estimate of-- 9 (i) the range of costs that may be recovered if the 10 client is successful in the litigation; and 11 (ii) the range of costs the client may be ordered to pay 12 if the client is unsuccessful; and 13 (g) the client's right to progress reports under section 317; 14 and 15 (h) details of the person whom the client may contact to 16 discuss the legal costs; and 17 (i) the following avenues that are open under this Act to the 18 client in the event of a dispute in relation to legal 19 costs-- 20 (i) costs assessment under division 7; 21 (ii) the setting aside of a costs agreement under section 22 328;47 and 23 (j) any time limits that apply to the taking of any action 24 mentioned in paragraph (i); and 25 (k) that the law of this jurisdiction applies to legal costs in 26 relation to the matter; and 27 (l) information about the client's right-- 28 (i) to accept under a corresponding law a written offer 29 to enter into an agreement with the law practice 30 that the corresponding provisions of the 31 corresponding law apply to the matter; or 32 47 Section 328 (Setting aside costs agreements)

 


 

s 309 234 s 309 Legal Profession Bill 2007 (ii) to notify under a corresponding law, and within the 1 time allowed by the corresponding law, the law 2 practice in writing that the client requires the 3 corresponding provisions of the corresponding law 4 to apply to the matter. 5 Note for paragraph (l)-- 6 The client's right to enter into an agreement or give a notification 7 as mentioned in paragraph (l) will be under provisions of the law 8 of the other jurisdiction that correspond to section 303. 9 (2) For subsection (1)(e), a benchmark rate of interest is a rate of 10 interest for the time being equal to or calculated by reference 11 to a rate of interest that is stated or decided from time to time 12 by an ADI or another body or organisation, or by or under 13 other legislation, and that is publicly available. 14 (3) A regulation may make provision for the use of benchmark 15 rates of interest, and in particular in relation to permitting, 16 regulating or preventing the use of particular benchmark rates 17 or particular kinds of benchmark rates. 18 (4) For subsection (1)(f), the disclosure must include-- 19 (a) a statement that an order by a court for the payment of 20 costs in favour of the client will not necessarily cover 21 the whole of the client's legal costs; and 22 (b) if applicable, a statement that disbursements may be 23 payable by the client even if the client enters a 24 conditional costs agreement. 25 (5) A law practice may disclose any or all of the details 26 mentioned in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and 27 (l) in or to the effect of a form approved by the chief executive 28 for this subsection, and if it does so the practice is taken to 29 have complied with this section in relation to the details so 30 disclosed. 31 309 Disclosure if another law practice is to be retained 32 (1) If a law practice intends to retain another law practice on 33 behalf of a client, the first law practice must disclose to the 34 client the details mentioned in section 308(1)(a), (c) and (d) in 35 relation to the other law practice, in addition to any 36

 


 

s 310 235 s 311 Legal Profession Bill 2007 information required to be disclosed to the client under 1 section 308. 2 (2) A law practice retained or to be retained on behalf of a client 3 by another law practice is not required to make disclosure to 4 the client under section 308, but must disclose to the other law 5 practice the information necessary for the other law practice 6 to comply with subsection (1). 7 (3) This section does not apply if the first law practice ceases to 8 act for the client in the matter when the other law practice is 9 retained. 10 Example-- 11 If a barrister is retained by a firm of solicitors on behalf of a client of the 12 firm, the barrister must disclose to the firm details of the barrister's legal 13 costs and billing arrangements, and the firm must disclose those details 14 to the client. The barrister is not required to make a disclosure directly 15 to the client. 16 310 How and when must disclosure be made to a client 17 (1) Disclosure under section 308 must be made in writing before, 18 or as soon as practicable after, the law practice is retained in 19 the matter. 20 (2) Disclosure under section 309(1) must be made in writing 21 before, or as soon as practicable after, the other law practice is 22 retained. 23 (3) Disclosure made to a person before the law practice is 24 retained in a matter is taken to be disclosure to the client for 25 sections 308 and 309. 26 311 Exceptions to requirement for disclosure 27 (1) Disclosure under section 308 or 309(1) is not required to be 28 made in any of the following circumstances-- 29 (a) if the total legal costs in the matter, excluding 30 disbursements, are not likely to exceed $750 exclusive 31 of GST or, if a higher amount is prescribed under a 32 regulation, the prescribed amount; 33 (b) if-- 34

 


 

s 311 236 s 311 Legal Profession Bill 2007 (i) the client has received 1 or more disclosures under 1 section 308 or 309(1) from the law practice in the 2 previous 12 months; and 3 (ii) the client has agreed in writing to waive the right to 4 disclosure; and 5 (iii) a principal of the law practice decides on 6 reasonable grounds that, having regard to the 7 nature of the previous disclosures and the relevant 8 circumstances, the further disclosure is not 9 warranted; 10 (c) if the client is-- 11 (i) a law practice or an Australian legal practitioner; 12 or 13 (ii) a public company, a subsidiary of a public 14 company, a large proprietary company, a foreign 15 company, a subsidiary of a foreign company or a 16 registered Australian body, each within the 17 meaning of the Corporations Act; or 18 (iii) a financial services licensee within the meaning of 19 the Corporations Act; or 20 (iv) a liquidator, administrator or receiver, as 21 mentioned in the Corporations Act; or 22 (v) a partnership that carries on the business of 23 providing professional services if the partnership 24 consists of more than 20 members or if the 25 partnership would be a large proprietary company, 26 within the meaning of the Corporations Act, if it 27 were a company; or 28 (vi) a proprietary company, within the meaning of the 29 Corporations Act, formed for the purpose of 30 carrying out a joint venture, if any shareholder of 31 the company is a person to whom disclosure of 32 costs is not required; or 33 (vii) an unincorporated group of participants in a joint 34 venture, if-- 35

 


 

s 311 237 s 311 Legal Profession Bill 2007 (A) 1 or more members of the group are persons 1 to whom disclosure of costs is not required; 2 and 3 (B) 1 or more members of the group (the 4 relevant members) are persons to whom 5 disclosure is required; and 6 (C) all relevant members have indicated that they 7 waive their right to disclosure; or 8 (viii) a Minister of the Crown in right of a jurisdiction or 9 the Commonwealth acting in his or her capacity as 10 a Minister, or a government department or public 11 authority of a jurisdiction or the Commonwealth; 12 (d) if the legal costs or the basis on which they will be 13 calculated have or has been agreed as a result of a tender 14 process; 15 (e) if the client will not be required to pay the legal costs or 16 they will not otherwise be recovered by the law practice; 17 Example of paragraph (e)-- 18 if the law practice acts in the matter on a pro bono basis 19 (f) in any circumstances prescribed under a regulation. 20 (2) Despite subsection (1)(a), if a law practice becomes aware 21 that the total legal costs are likely to exceed $750 or a higher 22 prescribed amount, the law practice must disclose the matters 23 under section 308 or 309, as required, to the client as soon as 24 practicable. 25 (3) A law practice must ensure that a written record of a 26 principal's decision that further disclosure is not warranted as 27 mentioned in subsection (1)(b) is made and kept with the files 28 relating to the matter concerned. 29 (4) The reaching of a decision mentioned in subsection (3) 30 otherwise than on reasonable grounds is capable of 31 constituting unsatisfactory professional conduct or 32 professional misconduct on the part of the principal. 33 (5) Nothing in this section affects or takes away from any client's 34 right-- 35

 


 

s 312 238 s 314 Legal Profession Bill 2007 (a) to progress reports under section 317, unless section 1 317(5) applies; or 2 (b) to obtain reasonable information from the law practice 3 in relation to any of the matters stated in section 308; or 4 (c) to negotiate a costs agreement with a law practice and to 5 obtain a bill from the law practice. 6 312 Additional disclosure--settlement of litigious matters 7 (1) If a law practice negotiates the settlement of a litigious matter 8 on behalf of a client, before the settlement is executed, the law 9 practice must disclose the following to the client-- 10 (a) a reasonable estimate of the amount of legal costs 11 payable by the client if the matter is settled, including 12 any legal costs of another party that the client is to pay; 13 (b) a reasonable estimate of any contributions towards those 14 costs likely to be received from another party. 15 (2) However, a regulation may provide for matters relevant to 16 subsection (1) when there is more than 1 law practice acting 17 on behalf of a client. 18 313 Additional disclosure--uplift fees 19 (1) If a costs agreement involves an uplift fee, the law practice 20 must, before entering into the agreement, disclose to the client 21 in writing-- 22 (a) the law practice's legal costs; and 23 (b) the uplift fee, or the basis of calculation of the uplift fee; 24 and 25 (c) the reasons why the uplift fee is warranted. 26 (2) A law practice is not required to make a disclosure under 27 subsection (1) to a sophisticated client. 28 314 Form of disclosure 29 (1) Written disclosures to a client under this division-- 30 (a) must be expressed in clear plain language; and 31

 


 

s 315 239 s 316 Legal Profession Bill 2007 (b) may be in a language other than English if the client is 1 more familiar with that language. 2 (2) If the law practice is aware that the client is unable to read, the 3 law practice must arrange for the information required to be 4 given to a client under this division to be conveyed orally to 5 the client in addition to providing the written disclosure. 6 315 Ongoing obligation to disclose 7 A law practice must, in writing, disclose to a client any 8 substantial change to anything included in a disclosure 9 already made under this division as soon as is reasonably 10 practicable after the law practice becomes aware of that 11 change. 12 316 Effect of failure to disclose 13 (1) If a law practice does not disclose to a client or an associated 14 third party payer anything required by this division to be 15 disclosed, the client or associated third party payer, as the case 16 may be, need not pay the legal costs unless they have been 17 assessed under division 7. 18 Note-- 19 Under section 341, the costs of an assessment in these circumstances are 20 generally payable by the law practice. 21 (2) A law practice that does not disclose to a client or an 22 associated third party payer anything required by this division 23 to be disclosed may not maintain proceedings against the 24 client or associated third party payer, as the case may be, for 25 the recovery of legal costs unless the costs have been assessed 26 under division 7. 27 (3) If a law practice does not disclose to a client or an associated 28 third party payer anything required by this division to be 29 disclosed and the client or associated third party payer has 30 entered into a costs agreement with the law practice, the client 31 or associated third party payer may also apply under section 32 328 for the costs agreement to be set aside. 33 (4) If a law practice does not disclose to a client or an associated 34 third party payer anything required by this division to be 35

 


 

s 317 240 s 317 Legal Profession Bill 2007 disclosed, then, on an assessment of the relevant legal costs, 1 the amount of the costs may be reduced by an amount 2 considered by the costs assessor to be proportionate to the 3 seriousness of the failure to disclose. 4 (5) If a law practice retains another law practice on behalf of a 5 client and the first law practice fails to disclose something to 6 the client solely because the retained law practice failed to 7 disclose relevant information to the first law practice as 8 required by section 309(2), then subsections (1) to (4)-- 9 (a) do not apply to the legal costs owing to the first law 10 practice on account of legal services provided by it, to 11 the extent that the non-disclosure by the first law 12 practice was caused by the failure of the retained law 13 practice to disclose the relevant information; and 14 (b) do apply to the legal costs owing to the retained law 15 practice. 16 (6) In a matter involving both a client and an associated third 17 party payer if disclosure has been made to 1 of them but not 18 the other-- 19 (a) subsection (1) does not affect the liability of the 1 to 20 whom disclosure was made to pay the legal costs; and 21 (b) subsection (2) does not prevent proceedings being 22 maintained against the 1 to whom the disclosure was 23 made for the recovery of those legal costs. 24 (7) Failure by a law practice to comply with this division is 25 capable of constituting unsatisfactory professional conduct or 26 professional misconduct on the part of any Australian legal 27 practitioner, or Australian-registered foreign lawyer, involved 28 in the failure. 29 317 Progress reports 30 (1) A law practice must give a client, on reasonable request-- 31 (a) a written report of the progress of the matter in which 32 the law practice is retained; and 33 (b) a written report of the legal costs incurred by the client 34 to date, or since the last bill (if any), in the matter. 35

 


 

s 318 241 s 318 Legal Profession Bill 2007 (2) A law practice may charge a client a reasonable amount for a 1 report under subsection (1)(a) but must not charge a client for 2 a report under subsection (1)(b). 3 (3) A law practice retained on behalf of a client by another law 4 practice is not required to give a report to the client under 5 subsection (1), but must disclose to the other law practice any 6 information necessary for the other law practice to comply 7 with that subsection. 8 (4) Subsection (3) does not apply if the other law practice ceases 9 to act for the client in the matter when the law practice is 10 retained. 11 (5) A law practice is not required to give a report under 12 subsection (1) to a sophisticated client. 13 318 Disclosure to associated third party payers 14 (1) If a law practice is required to make a disclosure to a client of 15 the practice under this division, the law practice must, under 16 subsections (2) and (3), also make the same disclosure to any 17 associated third party payer for the client, but only to the 18 extent that the details or matters disclosed are relevant to the 19 associated third party payer and relate to costs that are payable 20 by the associated third party payer in relation to legal services 21 provided to the client. 22 (2) A disclosure under subsection (1) must be made in writing-- 23 (a) at the time the disclosure to the client is required under 24 this division; or 25 (b) if the law practice only afterwards becomes aware of the 26 legal obligation of the associated third party payer to 27 pay legal costs of the client--as soon as practicable after 28 the law practice became aware of the obligation. 29 (3) Section 314 applies to a disclosure to an associated third party 30 payer under subsection (1) in the same way as it applies to a 31 client. 32 (4) An associated third party payer for a client of a law practice 33 has the same right to obtain reports under section 317(1)(b) of 34 legal costs incurred by the client, but only to the extent that 35 the costs are payable by the associated third party payer in 36

 


 

s 319 242 s 321 Legal Profession Bill 2007 relation to legal services provided to the client, and the law 1 practice must comply with that section accordingly. 2 Division 4 Legal costs generally 3 319 On what basis are legal costs recoverable 4 Subject to division 2, legal costs are recoverable-- 5 (a) under a costs agreement made under division 5 or the 6 corresponding provisions of a corresponding law; or 7 (b) if paragraph (a) does not apply--under the applicable 8 scale of costs; or 9 (c) if neither paragraph (a) nor (b) applies--according to 10 the fair and reasonable value of the legal services 11 provided. 12 Note for paragraph (c)-- 13 See section 341(2) for the criteria that are to be applied on a 14 costs assessment to decide whether legal costs are fair and 15 reasonable. 16 320 Security for legal costs 17 A law practice may-- 18 (a) take reasonable security from a client for legal costs, 19 including security for the payment of interest on unpaid 20 legal costs; and 21 (b) refuse to act, or stop acting, for a client who does not 22 provide reasonable security. 23 321 Interest on unpaid legal costs 24 (1) A law practice may charge interest on unpaid legal costs-- 25 (a) if a costs agreement provides for charging interest on 26 unpaid legal costs--under the costs agreement; or 27 (b) otherwise--if the costs are unpaid 30 days or more after 28 the law practice has given a bill for the costs under this 29 part. 30

 


 

s 322 243 s 322 Legal Profession Bill 2007 (2) However, a law practice must not charge interest under 1 subsection (1) on unpaid legal costs unless the bill for the 2 costs contains a statement that interest is payable and of the 3 rate of interest. 4 (3) A law practice may not charge interest under this section, 5 including under a costs agreement, at a rate that is more than 6 the rate prescribed under a regulation. 7 Division 5 Costs agreements 8 322 Making costs agreements 9 (1) A costs agreement may be made between-- 10 (a) a client and a law practice retained by the client; or 11 (b) a client and a law practice retained on behalf of the 12 client by another law practice; or 13 (c) a law practice and another law practice that retained that 14 law practice on behalf of a client; or 15 (d) a law practice and an associated third party payer. 16 (2) The costs agreement must be written or evidenced in writing. 17 (3) The costs agreement may consist of a written offer under 18 subsection (4) that is accepted in writing or by other conduct. 19 Note-- 20 Acceptance by other conduct is not permitted for conditional costs 21 agreements--see section 323(3)(c)(i). 22 (4) The offer must clearly state-- 23 (a) that it is an offer to enter into a costs agreement; and 24 (b) that the offer can be accepted in writing or by other 25 conduct; and 26 (c) the type of conduct that will constitute acceptance. 27

 


 

s 323 244 s 323 Legal Profession Bill 2007 (5) Except as provided by section 344,48 a costs agreement can 1 not provide that the legal costs to which it relates are not 2 subject to costs assessment under division 7. 3 Note-- 4 Under section 327(1), if a costs agreement attempts to provide that the 5 legal costs are not subject to a costs assessment, the costs agreement will 6 be void. 7 (6) A reference in section 328, or in a provision of this part 8 prescribed under a regulation, to a client is, in relation to a 9 costs agreement that is entered into between a law practice 10 and an associated third party payer as mentioned in subsection 11 (1)(d) and to which a client of the law practice is not a party, a 12 reference to the associated third party payer. 13 323 Conditional costs agreements 14 (1) A costs agreement may provide that the payment of some or 15 all of the legal costs is conditional on the successful outcome 16 of the matter to which those costs relate. 17 (2) A conditional costs agreement may relate to any matter, 18 except a matter that involves criminal proceedings or 19 proceedings under the Family Law Act 1975 (Cwlth). 20 (3) A conditional costs agreement-- 21 (a) must set out the circumstances that constitute the 22 successful outcome of the matter to which it relates; and 23 (b) may provide for disbursements to be paid irrespective of 24 the outcome of the matter; and 25 (c) must be-- 26 (i) in writing; and 27 (ii) in clear plain language; and 28 (iii) signed by the client; and 29 (d) must contain a statement that the client has been 30 informed of the client's right to seek independent legal 31 advice before entering into the agreement; and 32 48 Section 344 (Contracting out of div 7 by sophisticated clients etc.)

 


 

s 324 245 s 324 Legal Profession Bill 2007 (e) must contain a cooling-off period of not less than 5 clear 1 business days during which the client, by written notice, 2 may terminate the agreement. 3 (4) Subsection (3)(c)(iii), (d) and (e) do not apply to either of the 4 following-- 5 (a) a conditional costs agreement as mentioned in section 6 322(1)(c); 7 (b) a conditional costs agreement made with a sophisticated 8 client. 9 (5) If a client terminates an agreement within the period 10 mentioned in subsection (3)(e), the law practice-- 11 (a) may recover only those legal costs for legal services 12 performed for the client before that termination that 13 were performed on the instructions of the client and 14 with the client's knowledge that the legal services would 15 be performed during that period; and 16 (b) without affecting the generality of paragraph (a), may 17 not recover the uplift fee (if any). 18 324 Conditional costs agreements involving uplift fees 19 (1) A conditional costs agreement may provide for the payment 20 of an uplift fee. 21 (2) The basis of calculation of the uplift fee must be separately 22 identified in the agreement. 23 (3) The agreement must contain an estimate of the uplift fee or, if 24 that is not reasonably practicable, both of the following-- 25 (a) a range of estimates of the uplift fee; 26 (b) an explanation of the major variables that will affect the 27 calculation of the uplift fee. 28 (4) If a conditional costs agreement relates to a litigious matter, 29 the uplift fee must not exceed 25% of the legal costs, 30 excluding disbursements, otherwise payable. 31 (5) However, this Act does not affect the right of a law practice to 32 discount its fees and, if a law practice does discount its fees, 33 the reference in subsection (4) to legal costs is the fees the law 34

 


 

s 325 246 s 327 Legal Profession Bill 2007 practice would have charged if the law practice's fees had not 1 been discounted. 2 (6) A law practice must not enter into a costs agreement in 3 contravention of this section. 4 Maximum penalty--100 penalty units. 5 325 Contingency fees are prohibited 6 (1) A law practice must not enter into a costs agreement under 7 which the amount payable to the law practice, or any part of 8 that amount, is calculated by reference to the amount of any 9 award or settlement or the value of any property that may be 10 recovered in any proceedings to which the agreement relates. 11 Maximum penalty--100 penalty units. 12 (2) Subsection (1) does not apply to the extent that the costs 13 agreement adopts an applicable scale of costs. 14 (3) A law practice must not enter into a costs agreement under 15 which all or part of the client's interest in any proceedings to 16 which the agreement relates is transferred to the law practice 17 instead of the client being required to pay an amount payable 18 to the law practice. 19 Maximum penalty--100 penalty units. 20 326 Effect of costs agreement 21 Subject to this division and division 7, a costs agreement may 22 be enforced in the same way as any other contract. 23 327 Particular costs agreements are void 24 (1) A costs agreement that contravenes, or is entered into in 25 contravention of, any provision of this division is void. 26 (2) Subject to this section and division 7, legal costs under a void 27 costs agreement are recoverable as set out in section 319(b) or 28 (c). 29 (3) However, a law practice is not entitled to recover, as set out in 30 section 319(b) or (c), any amount in excess of the amount the 31 law practice would have been entitled to recover if the costs 32

 


 

s 328 247 s 328 Legal Profession Bill 2007 agreement had not been void and must repay any excess 1 amount received. 2 (4) A law practice that has entered into a costs agreement in 3 contravention of section 324 is not entitled to recover the 4 whole or any part of the uplift fee and must repay the amount 5 received in relation to the uplift fee to the person from whom 6 it was received. 7 (5) A law practice that has entered into a costs agreement in 8 contravention of section 325 is not entitled to recover any 9 amount relating to the provision of legal services in the matter 10 to which the costs agreement related and must repay any 11 amount received relating to those services to the person from 12 whom it was received. 13 (6) If a law practice does not repay an amount required by 14 subsection (3), (4) or (5) to be repaid, the person entitled to be 15 repaid may recover the amount from the law practice as a debt 16 in a court of competent jurisdiction. 17 328 Setting aside costs agreements 18 (1) On application by a client, the Supreme Court may order that 19 a costs agreement be set aside if satisfied the agreement is not 20 fair or reasonable. 21 (2) In deciding whether or not a costs agreement is fair or 22 reasonable, and without limiting the matters to which the 23 Supreme Court can have regard, the Supreme Court may have 24 regard to any or all of the following matters-- 25 (a) whether the client was induced to enter into the 26 agreement by the fraud or misrepresentation of the law 27 practice or of any representative of the law practice; 28 (b) whether any Australian legal practitioner or 29 Australian-registered foreign lawyer acting on behalf of 30 the law practice has been found guilty of unsatisfactory 31 professional conduct or professional misconduct in 32 relation to the provision of legal services to which the 33 agreement relates; 34 (c) whether the law practice failed to make any of the 35 disclosures required under division 3; 36

 


 

s 328 248 s 328 Legal Profession Bill 2007 (d) the circumstances and conduct of the parties before and 1 when the agreement was made; 2 (e) the circumstances and the conduct of the parties in the 3 matters after the agreement was made; 4 (f) whether and how the agreement addresses the effect on 5 costs of matters and changed circumstances that might 6 foreseeably arise and affect the extent and nature of 7 legal services provided under the agreement; 8 (g) whether and how billing under the agreement addresses 9 changed circumstances affecting the extent and nature 10 of legal services provided under the agreement. 11 (3) The Supreme Court may adjourn the hearing of an application 12 under this section pending the completion of any investigation 13 or decision concerning a complaint or investigation matter 14 about the conduct of any Australian legal practitioner or 15 Australian-registered foreign lawyer. 16 (4) If the Supreme Court orders a costs agreement be set aside, it 17 may make an order as it considers appropriate in relation to 18 the payment of legal costs the subject of the agreement. 19 (5) Without limiting subsection (4), in making an order under that 20 subsection, the Supreme Court may-- 21 (a) apply the applicable scale of costs, if any; or 22 (b) decide the fair and reasonable legal costs in relation to 23 the work to which the agreement related, taking into 24 account-- 25 (i) the seriousness of the conduct of the law practice 26 or any Australian legal practitioner or 27 Australian-registered foreign lawyer acting on its 28 behalf; and 29 (ii) whether or not it was reasonable to carry out the 30 work; and 31 (iii) whether or not the work was carried out in a 32 reasonable manner. 33 (6) However, in making an order under subsection (4), the 34 Supreme Court may not order the payment of an amount in 35 excess of the amount the law practice would have been 36

 


 

s 328 249 s 328 Legal Profession Bill 2007 entitled to recover if the costs agreement had not been set 1 aside. 2 (7) For subsection (5)(b), the Supreme Court may have regard to 3 any or all of the following matters-- 4 (a) whether the law practice and any Australian legal 5 practitioner or Australian-registered foreign lawyer 6 acting on its behalf complied with this Act; 7 (b) any disclosures made by the law practice under division 8 3, or the failure to make a disclosure required under that 9 division; 10 (c) any relevant advertisement as to-- 11 (i) the law practice's costs; or 12 (ii) the skills of the law practice or of any Australian 13 legal practitioner or Australian-registered foreign 14 lawyer acting on its behalf; 15 (d) the skill, labour and responsibility displayed on the part 16 of the Australian legal practitioner or 17 Australian-registered foreign lawyer responsible for the 18 matter; 19 (e) the retainer and whether the work done was within the 20 scope of the retainer; 21 (f) the complexity, novelty or difficulty of the matter; 22 (g) the quality of the work done; 23 (h) the place where, and circumstances in which, the work 24 was done; 25 (i) the time within which the work was required to be done; 26 (j) any other relevant matter. 27 (8) The Supreme Court may decide whether or not a costs 28 agreement exists. 29 (9) The Supreme Court may order the payment of the costs of and 30 incidental to a hearing under this section. 31 (10) In this section-- 32 client means a person to whom or for whom legal services are 33 or have been provided. 34

 


 

s 329 250 s 330 Legal Profession Bill 2007 Note-- 1 See also section 322(6) which extends the application of this section to 2 associated third parties. 3 Division 6 Billing 4 329 Legal costs can not be recovered unless bill has been 5 served 6 (1) A law practice must not start legal proceedings to recover 7 legal costs from a person until at least 30 days after the law 8 practice has given a bill to the person under sections 330 and 9 331 or under provisions of a corresponding law that 10 correspond to sections 330 and 331. 11 (2) A court of competent jurisdiction may make an order 12 authorising a law practice to start legal proceedings against a 13 person sooner if satisfied the person is about to leave this 14 jurisdiction. 15 (3) A court of competent jurisdiction before which any 16 proceedings are brought in contravention of subsection (1) 17 must stay those proceedings on the application of a party or on 18 its own initiative. 19 (4) This section applies whether or not the legal costs are the 20 subject of a costs agreement. 21 330 Bills 22 (1) A bill may be in the form of a lump sum bill or an itemised 23 bill. 24 (2) A bill must be signed on behalf of a law practice by an 25 Australian legal practitioner or an employee of the law 26 practice. 27 (3) It is sufficient compliance with subsection (2) if a letter signed 28 on behalf of a law practice by an Australian legal practitioner 29 or an employee of the law practice is attached to, or enclosed 30 with, the bill. 31 (4) A bill or letter is taken to have been signed by a law practice 32 that is an incorporated legal practice if it-- 33

 


 

s 330 251 s 330 Legal Profession Bill 2007 (a) has the practice's seal affixed to it; or 1 (b) is signed by a legal practitioner director of the practice 2 or an officer or employee of the practice who is an 3 Australian legal practitioner. 4 (5) A bill is to be given to a person-- 5 (a) by delivering it personally to the person or to an agent of 6 the person; or 7 (b) by sending it by post to the person or agent at-- 8 (i) the usual or last known business or residential 9 address of the person or agent; or 10 (ii) an address nominated for the purpose by the person 11 or agent; or 12 (c) by leaving it for the person or agent at-- 13 (i) the usual or last known business or residential 14 address of the person or agent; or 15 (ii) an address nominated for the purpose by the person 16 or agent; 17 with a person on the premises who is apparently at least 18 16 years old and apparently employed or residing there; 19 or 20 (d) if the legal costs or the basis on which they have been 21 calculated have or has been agreed as a result of a tender 22 process--in a way provided as part of the tender process 23 or by later agreement between the client and the law 24 practice. 25 (6) A reference in subsection (5) to a way of giving a bill to a 26 person includes a reference to arranging for the bill to be 27 given to that person by that way, including, for example, by 28 delivery by courier. 29 (7) Despite anything in subsections (2) to (6), a bill may be given 30 to a client electronically-- 31 (a) if the client is a sophisticated client and requested the 32 bill to be given electronically; or 33 (b) in other circumstances prescribed under a regulation. 34 (8) In this section-- 35

 


 

s 331 252 s 332 Legal Profession Bill 2007 agent, of a person, means an agent, law practice or Australian 1 legal practitioner who has authority to accept service of legal 2 process on behalf of the person. 3 331 Notification of client's rights 4 (1) A bill must include or be accompanied by a written statement 5 setting out-- 6 (a) the following avenues that are open under this Act to the 7 client in the event of a dispute in relation to legal 8 costs-- 9 (i) costs assessment under division 7; 10 (ii) the setting aside of a costs agreement under section 11 328; and 12 (b) any time limits that apply to the taking of any action 13 mentioned in paragraph (a). 14 (2) Subsection (1) does not apply in relation to a sophisticated 15 client. 16 (3) A law practice may provide the written statement mentioned 17 in subsection (1) in or to the effect of a form approved by the 18 chief executive for this subsection, and if it does so the 19 practice is taken to have complied with this section in relation 20 to the statement. 21 332 Request for itemised bill 22 (1) If a bill is given by a law practice in the form of a lump sum 23 bill, any person who is entitled to apply for an assessment of 24 the legal costs to which the bill relates may request the law 25 practice to give the person an itemised bill. 26 Note-- 27 A bill in the form of a lump sum bill includes a bill other than an 28 itemised bill. 29 (2) The law practice must comply with the request within 28 days 30 after the date on which the request is made. 31 (3) If the person making the request is liable to pay only a part of 32 the legal costs to which the bill relates, the request for an 33

 


 

s 333 253 s 335 Legal Profession Bill 2007 itemised bill may only be made in relation to those costs that 1 the person is liable to pay. 2 (4) Subject to subsection (5), a law practice must not commence 3 legal proceedings to recover legal costs from a person who has 4 been given a lump sum bill until at least 30 days after the date 5 on which the person is given the bill. 6 (5) If the person makes a request for an itemised bill within 30 7 days after receiving the lump sum bill, the law practice must 8 not commence proceedings to recover the legal costs from the 9 person until 30 days after complying with the request. 10 (6) A law practice is not entitled to charge a person for the 11 preparation of an itemised bill requested under this section. 12 (7) Section 330(2) to (8) apply to the giving of an itemised bill 13 under this section. 14 333 Interim bills 15 (1) A law practice may give a person an interim bill covering part 16 only of the legal services the law practice was retained to 17 provide. 18 (2) Legal costs that are the subject of an interim bill may be 19 assessed under division 7, either at the time of the interim bill 20 or at the time of the final bill, whether or not the interim bill 21 has previously been assessed or paid. 22 Division 7 Costs assessment 23 334 Definition for div 7 24 In this division-- 25 client means a person to whom or for whom legal services are 26 or have been provided. 27 335 Application by clients or third party payers for costs 28 assessment 29 (1) A client may apply for an assessment of the whole or any part 30 of legal costs. 31

 


 

s 335 254 s 335 Legal Profession Bill 2007 (2) A third party payer may apply for an assessment of the whole 1 or any part of legal costs payable by the third party payer. 2 (3) The costs application may be made even if the legal costs have 3 been wholly or partly paid. 4 (4) If any legal costs have been paid without a bill, the client or 5 third party payer may nevertheless make the costs application. 6 (5) A costs application by a client or a third party payer must be 7 made within 12 months after-- 8 (a) the bill was given, or the request for payment was made, 9 to the client or third party payer; or 10 (b) the costs were paid if neither a bill was given nor a 11 request was made. 12 (6) However, a costs application made out of time, otherwise than 13 by any of the following, may be dealt with by a costs assessor 14 or a court if, under the Uniform Civil Procedure Rules, the 15 assessor or the court decides to deal with it after considering 16 the reasons for delay-- 17 (a) a sophisticated client; 18 (b) a third party payer who would be a sophisticated client 19 if the third party payer were a client of the law practice 20 concerned. 21 (7) If the third party payer is a non-associated third party payer, 22 the law practice must provide the third party payer, on the 23 written request of the third party payer, with sufficient 24 information to allow the third party payer to consider making, 25 and if thought fit to make, a costs application. 26 (8) If there is an associated third party payer for a client of a law 27 practice-- 28 (a) nothing in this section prevents-- 29 (i) the client from making 1 or more costs applications 30 in relation to costs for which the client is solely 31 liable; and 32 (ii) the associated third party payer from making 1 or 33 more costs applications in relation to costs for 34 which the associated third party payer is solely 35 liable; 36

 


 

s 335 255 s 335 Legal Profession Bill 2007 and those costs applications may be made by them at the 1 same time or at different times and may be dealt with 2 jointly or separately; and 3 (b) the client or the associated third party payer-- 4 (i) may participate in the costs assessment process 5 where the other of them makes a costs application 6 in relation to costs for which they are both liable; 7 and 8 (ii) is taken to be a party to the assessment and is 9 bound by the assessment; and 10 (c) the law practice-- 11 (i) must participate in the costs assessment process if 12 a costs application is made under subsection (2) by 13 the associated third party payer in the same way as 14 the law practice must participate in the process if 15 an application is made under subsection (1) by a 16 client; and 17 (ii) is taken to be a party to the assessment and is 18 bound by the costs assessment. 19 (9) If there is a non-associated third party payer for a client of a 20 law practice-- 21 (a) nothing in this section prevents-- 22 (i) the client from making 1 or more costs applications 23 in relation to costs for which the client is liable; 24 and 25 (ii) the non-associated third party payer from making 1 26 or more costs applications in relation to costs for 27 which the non-associated third party payer is 28 liable; 29 and those applications may be made by them at the same 30 time or at different times but must be dealt with 31 separately; and 32 (b) the client-- 33 (i) may participate in the costs assessment process if 34 the non-associated third party payer makes a costs 35 application under subsection (2) in relation to the 36

 


 

s 336 256 s 336 Legal Profession Bill 2007 legal costs for which the non-associated third party 1 is liable; and 2 (ii) is taken to be a party to the assessment and is 3 bound by the assessment; and 4 (c) the law practice-- 5 (i) must participate in the costs assessment process; 6 and 7 (ii) is taken to be a party to the assessment; and 8 (d) despite any other provision of this division, the 9 assessment of the costs payable by the non-associated 10 third party payer does not affect the amount of legal 11 costs payable by the client to the law practice. 12 (10) Subject to this section, a costs application under subsection 13 (1) or (2) must be made in the way provided under the 14 Uniform Civil Procedure Rules. 15 (11) In this section-- 16 client includes the following-- 17 (a) an executor or administrator of a client; 18 (b) a trustee of the estate of a client. 19 third party payer includes the following-- 20 (a) an executor or administrator of a third party payer; 21 (b) a trustee of the estate of a third party payer. 22 336 Application for costs assessment by law practice 23 retaining another law practice 24 (1) A law practice that retains another law practice to act on 25 behalf of a client may apply for an assessment of the whole or 26 any part of the legal costs. 27 (2) If any legal costs have been paid without a bill, the law 28 practice may nevertheless apply for the costs assessment. 29 (3) The costs application may be made even if the legal costs have 30 been wholly or partly paid. 31 (4) The costs application must be made within 60 days after-- 32

 


 

s 337 257 s 338 Legal Profession Bill 2007 (a) the bill was given or the request for payment was made; 1 or 2 (b) the costs were paid if neither a bill was given nor a 3 request was made. 4 (5) A costs application can not be made if there is a costs 5 agreement between the client and the other law practice. 6 (6) Subject to this section, the costs application under subsection 7 (1) must be made in the way provided under the Uniform Civil 8 Procedure Rules. 9 337 Application for costs assessment by law practice giving 10 bill 11 (1) A law practice that has given a bill under division 649 may 12 apply for an assessment of the whole or any part of the legal 13 costs to which the bill relates. 14 (2) If any legal costs have been paid without a bill, the law 15 practice may nevertheless apply for a costs assessment. 16 (3) The costs application may be made even if any of the legal 17 costs have been paid without a bill. 18 (4) A costs application may not be made unless at least 30 days 19 have passed since-- 20 (a) the bill was given or the request for payment was made; 21 or 22 (b) the costs were paid if neither a bill was given nor a 23 request was made; or 24 (c) a costs application has been made under this division by 25 another person relating to the legal costs. 26 (5) Subject to this section, a costs application under subsection 27 (1) must be made in the way provided for under the Uniform 28 Civil Procedure Rules. 29 338 Consequences of application 30 If a costs application is made-- 31 49 Division 6 (Billing)

 


 

s 339 258 s 340 Legal Profession Bill 2007 (a) a person liable for the legal costs concerned can not be 1 required to pay money into court on account of the legal 2 costs; and 3 (b) subject to the leave of the court, the law practice must 4 not start any proceedings to recover the legal costs until 5 the costs assessment has been completed. 6 339 Persons to be notified of application 7 (1) The applicant for a costs assessment must, under the Uniform 8 Civil Procedure Rules, give notice of the costs application to 9 any other person the applicant knows is 1 of the following-- 10 (a) a law practice to whom the legal costs have been paid or 11 are payable; 12 (b) the law practice that retained a law practice to whom the 13 legal costs have been paid or are payable; 14 (c) the client; 15 (d) a third party payer. 16 (2) A person given notice of the costs application under 17 subsection (1)-- 18 (a) is entitled to participate in the costs assessment process; 19 and 20 (b) is taken to be a party to the assessment; and 21 (c) if the costs assessor so decides, is bound by the 22 assessment. 23 340 Assessment of complying costs agreements 24 (1) A costs assessor for a costs application must assess any 25 disputed costs that are subject to a costs agreement by 26 reference to the provisions of the costs agreement if-- 27 (a) a relevant provision of the costs agreement specifies the 28 amount, or a rate or other means for calculating the 29 amount, of the costs; and 30 (b) the agreement has not been set aside under section 328; 31 unless the costs assessor is satisfied that-- 32

 


 

s 341 259 s 341 Legal Profession Bill 2007 (c) the costs agreement does not comply in a material 1 respect with any disclosure requirements of division 3; 2 or 3 (d) division 5 precludes the law practice concerned from 4 recovering the amount of the costs; or 5 (e) the parties otherwise agree. 6 (2) The costs assessor is not required to initiate an examination of 7 the matters mentioned in subsection (1)(c) and (d). 8 341 Criteria for assessment 9 (1) In conducting a costs assessment, the costs assessor must 10 consider-- 11 (a) whether or not it was reasonable to carry out the work to 12 which the legal costs relate; and 13 (b) whether or not the work was carried out in a reasonable 14 way; and 15 (c) the fairness and reasonableness of the amount of legal 16 costs in relation to the work, except to the extent that 17 section 340 applies to any disputed costs. 18 (2) In considering what is a fair and reasonable amount of legal 19 costs, the costs assessor may have regard to any or all of the 20 following matters-- 21 (a) whether the law practice and any Australian legal 22 practitioner or Australian-registered foreign lawyer 23 acting on its behalf complied with this Act; 24 (b) any disclosures made by the law practice under division 25 3; 26 (c) any relevant advertisement as to-- 27 (i) the law practice's costs; or 28 (ii) the skills of the law practice, or of any Australian 29 legal practitioner or Australian-registered foreign 30 lawyer acting on its behalf; 31 (d) the skill, labour and responsibility displayed on the part 32 of the Australian legal practitioner or 33

 


 

s 342 260 s 343 Legal Profession Bill 2007 Australian-registered foreign lawyer responsible for the 1 matter; 2 (e) the retainer and whether the work done was within the 3 scope of the retainer; 4 (f) the complexity, novelty or difficulty of the matter; 5 (g) the quality of the work done; 6 (h) the place where, and circumstances in which, the legal 7 services were provided; 8 (i) the time within which the work was required to be done; 9 (j) any other relevant matter. 10 (3) In conducting an assessment of legal costs payable by a 11 non-associated third party payer, the costs assessor must also 12 consider whether it is fair and reasonable in the circumstances 13 for the non-associated third party payer to be charged the 14 amount claimed. 15 342 Costs of assessment 16 Unless a costs assessor otherwise decides-- 17 (a) the law practice to which the costs of the costs 18 assessment are payable or were paid must pay the costs 19 if-- 20 (i) the legal costs in dispute are reduced by 15% or 21 more on the costs assessment; or 22 (ii) the costs assessor is satisfied the law practice failed 23 to comply with division 3; and 24 (b) if not, the applicant or applicants must the pay the costs 25 of the costs assessment as stated by the costs assessor in 26 the costs assessment. 27 343 Referral for disciplinary action 28 (1) This section applies to-- 29 (a) a costs assessor deciding a costs assessment under the 30 Uniform Civil Procedure Rules; or 31 (b) a court reviewing a costs assessment under the rules. 32

 


 

s 344 261 s 346 Legal Profession Bill 2007 (2) If the costs assessor or court reduces the legal costs payable 1 by 15% or more, the costs assessor may, or the court may 2 direct the registrar for the court to, refer the matter to the 3 commissioner to consider whether disciplinary action should 4 be taken against an Australian legal practitioner or 5 Australian-registered foreign lawyer involved in the matter. 6 (3) Also, if the costs assessor or a court considers-- 7 (a) the legal costs charged by a law practice are grossly 8 excessive; or 9 (b) the costs assessment raises another matter that may 10 amount to professional misconduct on the part of an 11 Australian legal practitioner or Australian-registered 12 foreign lawyer involved in the matter; 13 the costs assessor must, or the court may direct the registrar 14 for the court to, refer the matter to the commissioner to 15 consider whether disciplinary action should be taken against 16 the practitioner or foreign lawyer. 17 344 Contracting out of div 7 by sophisticated clients etc. 18 A sophisticated client of a law practice, or an associated third 19 party payer who would be a sophisticated client if the third 20 party payer were a client of the law practice concerned, may 21 contract out of this division. 22 Division 8 Speculative personal injury claims 23 345 Main purpose of div 8 24 The main purpose of this division is to provide for the 25 maximum payment for a law practice's conduct of a 26 speculative personal injury claim. 27 346 Definitions for div 8 28 In this division-- 29 legal costs means amounts that a person has been or may be 30 charged by, or is or may become liable to pay to, a law 31

 


 

s 347 262 s 347 Legal Profession Bill 2007 practice for the provision of legal services including interest 1 on the amounts, but excluding disbursements and interest on 2 disbursements. 3 speculative personal injury claim means a claim for, or 4 substantially for, damages for personal injury if the right of a 5 law practice to charge and recover legal costs from a client for 6 work done is dependent on the client's success in pursuing the 7 claim. 8 347 Maximum payment for conduct of speculative personal 9 injury claim 10 (1) The maximum amount of legal costs (inclusive of GST) that a 11 law practice may charge and recover from a client for work 12 done in relation to a speculative personal injury claim must be 13 worked out under the costs agreement with the client for the 14 claim or this Act but in no case can those legal costs be more 15 than the amount worked out using the formula-- 16 [ E - ( R + D ) ] 0.5 17 where-- 18 E means the amount to which the client is entitled under a 19 judgment or settlement, including an amount the client is 20 entitled to receive for costs under the judgment or settlement. 21 R means the total amount the client must, under an Act, a law 22 of the Commonwealth or another jurisdiction, or otherwise, 23 refund on receipt of the amount to which the client is entitled 24 under the judgment or settlement. 25 D means the total amount of disbursements or expenses for 26 which the client is liable if that liability is incurred by or on 27 behalf of the client either by the law practice or on the advice 28 or recommendation of the law practice, in obtaining goods or 29 services (other than legal services from that law practice) for 30 the purpose of investigating or progressing the client's claim, 31 regardless of how or by whom those disbursements or 32 expenses are paid, but does not include interest on the 33 disbursements or expenses. 34

 


 

s 347 263 s 347 Legal Profession Bill 2007 Examples for D-- 1 1 The disbursements or expenses may be paid by the client direct or 2 through a law practice or by a person funding the client for those 3 disbursements or expenses. 4 2 If a client obtains a loan to fund the payment of disbursements and 5 expenses on the firm's recommendation and pays for medical and 6 expert reports direct to the provider, the expenses fall within D (but 7 the interest payable by the client on those expenses do not). 8 (2) If-- 9 (a) the amount of legal costs that a law practice may charge 10 and recover from a client is more than the amount 11 calculated under subsection (1); and 12 (b) the law practice wishes to charge and recover the 13 amount (the greater amount) from the client; 14 the law practice may apply under subsection (3) for approval 15 to charge and recover the greater amount. 16 (3) The application must be made in writing to-- 17 (a) if the law practice is a barrister--the bar association; or 18 (b) otherwise--the law society. 19 (4) A relevant regulatory authority may, in writing, approve an 20 application made to it for an amount up to the greater amount. 21 (5) This section applies to a barrister only if the barrister has not 22 been retained by another law practice. 23 (6) This section applies despite section 319 and division 5.50 24 (7) Also, this section applies to any request for payment made on 25 or after the day this section commences, whether or not a 26 client agreement was entered into before that date. 27 50 Section 319 (On what basis are legal costs recoverable) and division 5 (Costs agreements)

 


 

s 348 264 s 349 Legal Profession Bill 2007 Division 9 Miscellaneous 1 348 Application of part to incorporated legal practices and 2 multi-disciplinary partnerships 3 A regulation may provide that stated provisions of this part-- 4 (a) do not apply to incorporated legal practices or 5 multi-disciplinary partnerships; or 6 (b) apply, with stated changes, to incorporated legal 7 practices or multi-disciplinary partnerships. 8 349 Imputed acts, omission or knowledge 9 For this part-- 10 (a) anything done or omitted by, to or in relation to-- 11 (i) an Australian legal practitioner; or 12 (ii) an Australian-registered foreign lawyer, except for 13 the purposes of section 324(4)51 or for the purposes 14 of any provision of this part prescribed under a 15 regulation; 16 in the course of acting on behalf of a law practice is 17 taken to have been done or omitted by, to or in relation 18 to the law practice; and 19 (b) without limiting paragraph (a), the law practice is taken 20 to become or be aware of, or to have a belief as to, any 21 matter if-- 22 (i) an Australian legal practitioner; or 23 (ii) an Australian-registered foreign lawyer (except for 24 the purposes of section 324(4) or for the purposes 25 of any provision of this part prescribed under a 26 regulation); 27 becomes or is aware of, or has a belief as to, the matter 28 in the course of acting on behalf of the law practice. 29 51 Section 324 (Conditional costs agreements involving uplift fees)

 


 

s 350 265 s 352 Legal Profession Bill 2007 350 Preservation of confidentiality 1 (1) If a person gains confidential information because of being, or 2 an opportunity given by being, a costs assessor, the person 3 must not make a record of the information or intentionally or 4 recklessly disclose the information other than under 5 subsection (2). 6 (2) The person may make a record of confidential information, or 7 disclose it to someone else-- 8 (a) for this Act; or 9 (b) to discharge a function under another law; or 10 (c) for a proceeding in a court or tribunal; or 11 (d) if authorised under a regulation or another law; or 12 (e) if authorised by the person to whom the confidential 13 information relates. 14 (3) In this section-- 15 confidential information includes information about a 16 person's affairs, but does not include-- 17 (a) information already publicly disclosed unless further 18 disclosure of the information is prohibited by law; or 19 (b) statistical or other information that could not reasonably 20 be expected to result in the identification of the person 21 to whom the information relates. 22 351 Preservation of privilege 23 Privilege attaching to a document or thing, including, for 24 example, legal professional privilege, continues despite 25 disclosure of the document or thing to a costs assessor. 26 352 Ordinary protection and immunity allowed 27 (1) In performing the functions of costs assessor, the person 28 appointed as a costs assessor has the same protection and 29 immunity as a judge performing the functions of a judge. 30 (2) A party appearing in a costs assessment, and the party's 31 lawyer or agent, has the same protection and immunity the 32

 


 

s 353 266 s 353 Legal Profession Bill 2007 party would have if the dispute were being heard before the 1 Supreme Court. 2 (3) A witness attending in an costs assessment has the same 3 protection and immunity as a witness attending before the 4 Supreme Court. 5 (4) A document produced at, or used for, a costs application or 6 costs assessment has the same protection during the costs 7 assessment it would have if produced before the Supreme 8 Court. 9 Part 3.5 Professional indemnity 10 insurance 11 353 Professional indemnity insurance 12 (1) This section applies to each of the following persons who 13 makes an application for the grant or renewal of a local 14 practising certificate-- 15 (a) an Australian lawyer who is a government legal officer 16 and who, in the lawyer's application for the grant or 17 renewal of the certificate, stated the lawyer did not 18 intend to engage in legal practice other than engaging in 19 government work; 20 (b) an Australian lawyer who is employed by a corporation, 21 that is not an incorporated legal practice, and who 22 provides only in-house legal services to the corporation 23 or a related body corporate; 24 (c) another Australian lawyer, other than an Australian 25 lawyer to whom this section applies under paragraph (a) 26 or (b). 27 (2) A relevant regulatory authority must not grant or renew a local 28 practising certificate unless the authority-- 29 (a) for an application by an Australian lawyer mentioned in 30 subsection (1)(a)--imposes a condition on the 31 certificate that the lawyer is not to engage in legal 32

 


 

s 354 267 s 354 Legal Profession Bill 2007 practice other than as a government legal officer 1 engaged in government work; or 2 (b) for an application by an Australian lawyer mentioned in 3 subsection (1)(b)--imposes a condition on the 4 certificate that the lawyer is not to engage in legal 5 practice other than for providing in-house legal services; 6 or 7 (c) for an application by an Australian lawyer mentioned in 8 subsection (1)(c)--is satisfied the lawyer will, during 9 the currency of the practising certificate, be covered by 10 professional indemnity insurance that complies with this 11 Act. 12 (3) Professional indemnity insurance complies with this Act in 13 relation to a practising certificate if it complies with the 14 requirements prescribed under a regulation. 15 (4) A regulation may, for example, require professional indemnity 16 insurance in relation to a practising certificate to be of a kind 17 approved, or provided under a scheme approved, or provided 18 by an insurer approved, or arranged, by the relevant regulatory 19 authority for the practising certificate. 20 (5) An approval mentioned in subsection (4) may relate to 21 professional indemnity insurance approved under a 22 corresponding law. 23 354 Continuing obligation for professional indemnity 24 insurance 25 (1) A local legal practitioner must not engage in legal practice in 26 this jurisdiction, or represent or advertise that the practitioner 27 is entitled to engage in legal practice in this jurisdiction, 28 unless-- 29 (a) if conditions are imposed under section 353 on the 30 practitioner's practising certificate--the practitioner 31 complies with the conditions; and 32 (b) if the practitioner must, under that section, have 33 professional indemnity insurance--the practitioner 34 complies with the requirements prescribed under a 35 regulation mentioned in section 353(3) for professional 36 indemnity insurance. 37

 


 

s 355 268 s 356 Legal Profession Bill 2007 Maximum penalty--300 penalty units or 2 years 1 imprisonment. 2 (2) If a person must, under section 353, have professional 3 indemnity insurance and the person becomes aware that the 4 person will not be covered by professional indemnity 5 insurance that complies with the requirements prescribed 6 under a regulation mentioned in section 353(3), the person 7 must notify the regulatory authority of that fact, in the 8 approved form. 9 (3) A contravention of subsection (1) or (2) is capable of 10 constituting unsatisfactory professional conduct or 11 professional misconduct. 12 Part 3.6 Fidelity cover 13 Division 1 Preliminary 14 355 Main purpose of pt 3.6 15 The main purpose of this part is to establish and keep a fund to 16 provide a source of compensation for defaults by law practices 17 arising from, or constituted by, acts or omissions of associates. 18 356 Definitions for pt 3.6 19 In this part-- 20 capping and sufficiency provisions means-- 21 (a) for this jurisdiction--sections 396 and 397;52 or 22 (b) for another jurisdiction--the provisions of the 23 corresponding law of that jurisdiction that correspond to 24 those sections. 25 claim means a claim under this part. 26 52 Sections 396 (Caps on payments) and 397 (Sufficiency of fidelity fund)

 


 

s 357 269 s 357 Legal Profession Bill 2007 claimant means a person who makes a claim. 1 concerted interstate default means a default of a law practice 2 arising from or constituted by an act or omission-- 3 (a) that was committed jointly by 2 or more associates of 4 the practice; or 5 (b) parts of which were committed by different associates of 6 the practice or different combinations of associates of 7 the practice; 8 if this jurisdiction is the relevant jurisdiction for at least 1 of 9 the associates and another jurisdiction is the relevant 10 jurisdiction for at least 1 of the associates. 11 default, in relation to a law practice, means-- 12 (a) a failure of the practice to pay or deliver trust money or 13 trust property that was received by the practice in the 14 course of legal practice by the practice, if the failure 15 arises from an act or omission of an associate that 16 involves dishonesty; or 17 (b) a fraudulent dealing with trust property that was 18 received by the law practice in the course of legal 19 practice by the practice, if the fraudulent dealing arises 20 from or is constituted by an act or omission of an 21 associate that involves dishonesty. 22 pecuniary loss, in relation to a default, means-- 23 (a) the amount of trust money, or the value of trust property, 24 that is not paid or delivered; or 25 (b) the amount of money that a person loses or is deprived 26 of, or the loss of value of trust property, as a result of a 27 fraudulent dealing. 28 relevant jurisdiction, for division 3, see section 371. 29 357 Application of pt 3.6 30 (1) This part does not apply to a default of a law practice 31 consisting of a barrister. 32

 


 

s 358 270 s 360 Legal Profession Bill 2007 (2) A regulation may provide that this part applies to an entity 1 prescribed under the regulation as a community legal service 2 as if it were a law practice and how the part applies. 3 358 Time of default 4 (1) This section applies for the purpose of deciding which 5 jurisdiction's law applies in relation to a default. 6 (2) A default of a law practice is taken to have happened when the 7 act or omission giving rise to, or constituting, the default 8 happened. 9 (3) An omission is taken to have happened on-- 10 (a) the date on or by which the act not performed ought 11 reasonably to have been performed; or 12 (b) if a date can not be decided under paragraph (a)--on 13 another date decided under a regulation. 14 Division 2 Fidelity fund 15 359 Establishment of fidelity fund 16 (1) The Legal Practitioners' Fidelity Guarantee Fund established 17 under the Queensland Law Society Act 1952, section 12, and 18 continued in existence under the Legal Profession Act 2004, 19 section 147, is continued in existence under this Act. 20 (2) The fund continued in existence under subsection (1) (the 21 fidelity fund) continues to be vested in the law society. 22 (3) Subject to section 366, the law society must manage and 23 administer the fidelity fund. 24 360 Insurance 25 (1) The law society may arrange with an insurer for insurance in 26 relation to claims, and liabilities arising out of claims, against 27 the fidelity fund. 28

 


 

s 361 271 s 362 Legal Profession Bill 2007 (2) Without limiting subsection (1), the law society may arrange 1 for insurance relating to particular claims or particular classes 2 of claims. 3 (3) The proceeds paid under a policy of insurance against 4 particular claims or particular classes of claims are to be paid 5 into the fidelity fund, and a claimant is not entitled to have 6 direct recourse to the proceeds or any part of the proceeds. 7 (4) No liability, including liability in defamation, is incurred by a 8 protected person in relation to anything done or omitted to be 9 done in good faith for the purpose of arranging for insurance 10 of the fidelity fund. 11 (5) In this section-- 12 protected person means-- 13 (a) the law society or a council member; or 14 (b) a person acting at the direction of the law society or a 15 council member. 16 361 Limitation on borrowing powers of law society for fidelity 17 fund 18 (1) Despite the Statutory Bodies Financial Arrangements Act 19 1982, the law society can not borrow money for the purposes 20 of the fidelity fund. 21 (2) Subsection (1) does not apply to an advance to the fund by the 22 law society under section 370.53 23 362 Fund to be kept in separate account 24 All moneys constituting the fund, pending the investment or 25 application of that money under this Act or another Act, must 26 continue to be kept in, or paid or transferred into, an ADI to 27 the credit of a separate account to be called `The Legal 28 Practitioners' Fidelity Guarantee Fund Account'. 29 53 Section 370 (Law society may advance moneys from its general funds to fidelity fund)

 


 

s 363 272 s 364 Legal Profession Bill 2007 363 Moneys payable into fidelity fund 1 The fidelity fund consists of the following-- 2 (a) all amounts paid to or on account of the fund by 3 Australian legal practitioners under this Act as 4 contributions or levies; 5 (b) the interest accruing from the investment of the amount 6 of all or part of the fund under the Statutory Bodies 7 Financial Arrangements Act 1982; 8 (c) all amounts given or advanced to the fund by the law 9 society under section 370; 10 (d) all amounts properly payable to the fund and recovered 11 for the law society in the exercise of any right of action 12 conferred under this Act; 13 (e) all other amounts that may be lawfully paid into the 14 fund. 15 364 Expenditure from fund 16 Subject to this Act, the following may be paid out of the fund 17 as required-- 18 (a) the amount of all claims, including costs and interest 19 allowed or established against the fund under a relevant 20 law; 21 (b) all legal expenses and costs incurred in defending claims 22 made against the fund or otherwise incurred in relation 23 to the fund; 24 (c) all premiums payable in relation to contracts of 25 insurance entered into by the law society under section 26 360; 27 (d) the expenses incurred in the administration of the fund; 28 (e) the amount of repayments for amounts given or 29 advanced to the fund by the law society under section 30 370; 31

 


 

s 365 273 s 367 Legal Profession Bill 2007 (f) all unpaid charges on the fund, and liabilities of the 1 fund, as mentioned in section 397;54 2 (g) all other moneys payable out of the fund under this Act. 3 365 Audit of accounts 4 (1) This section applies in addition to the Financial 5 Administration and Audit Act 1977, section 73.55 6 (2) At least once a year, the auditor-general must audit the 7 accounts of the fidelity fund separately to the audit of the law 8 society. 9 (3) However, the auditor-general may audit the accounts more 10 often than required under subsection (2). 11 (4) For an audit of the accounts of the fidelity fund, the 12 auditor-general may perform the functions and exercise the 13 powers of the auditor-general under the Financial 14 Administration and Audit Act 1977, part 6. 15 366 Law society may delegate its powers in relation to the 16 fidelity fund to a committee of management 17 (1) This section applies if the law society establishes a committee 18 of management for the fidelity fund and delegates any or all of 19 its powers in relation to the fidelity fund to the committee of 20 management. 21 (2) The committee must consist of not less than 3 nor more than 5 22 council members. 23 (3) The majority of members of the committee must be council 24 members. 25 367 Minister may require report about fund 26 (1) This section applies if, at any time, the Minister believes that 27 the fidelity fund is not sufficient to satisfy the liabilities of the 28 fund at or about that time. 29 54 Section 397 (Sufficiency of fidelity fund) 55 Financial Administration and Audit Act 1977, section 73 (Auditor-general to audit consolidated fund and public sector entities unless exempted)

 


 

s 368 274 s 369 Legal Profession Bill 2007 (2) The Minister may, by written notice to the council, require the 1 law society to give the Minister a written report about the fund 2 on the matters stated in the notice. 3 (3) The law society must comply with the requirement within 14 4 days after receiving the notice or within the further time 5 allowed by the Minister. 6 368 Contribution to fidelity fund 7 (1) A person who applies to the law society for the grant or 8 renewal of a local practising certificate in relation to a 9 financial year must pay a contribution for the financial year to 10 the fidelity fund under the administration rules of the law 11 society. 12 (2) A payment of a contribution under this section is in addition 13 to all other fees payable in relation to the application. 14 (3) Without limiting section 231,56 the administration rules of the 15 law society may provide for different contributions to be 16 payable by different classes of local legal practitioners or law 17 practices. 18 (4) This section does not apply to-- 19 (a) a government legal officer whose local practising 20 certificate is subject to a condition that the officer is not 21 to engage in legal practice other than as a government 22 legal officer engaged in government work; or 23 (b) local legal practitioners of a particular class prescribed 24 under a regulation. 25 369 Levy for benefit of fidelity fund 26 (1) This section applies if, at a particular time, the law society 27 believes that the fidelity fund is not sufficient to satisfy the 28 liabilities of the fidelity fund at or about that time. 29 (2) The law society may, by resolution, impose on each local 30 legal practitioner who must pay a contribution under section 31 368 for the relevant financial year, or local legal practitioners 32 56 Section 231 (Rules other than legal professional rules)

 


 

s 370 275 s 371 Legal Profession Bill 2007 of a particular class, a levy of an amount that the law society 1 considers reasonable. 2 (3) Without limiting section 231, the administration rules of the 3 law society may provide for different levies to be payable by 4 different classes of local legal practitioners or law practices. 5 (4) The amount of the levy is payable into the fidelity fund by a 6 date and in a way stated in the resolution. 7 370 Law society may advance moneys from its general funds 8 to fidelity fund 9 The law society may, from its general funds, give or advance 10 on terms as the law society considers reasonable an amount 11 for the fidelity fund. 12 Division 3 Defaults to which this part applies 13 371 Meaning of relevant jurisdiction 14 (1) The relevant jurisdiction, for an associate of a law practice 15 whose act or omission, whether alone or with 1 or more other 16 associates of the practice, gives rise to or constitutes a default 17 of the practice, is the relevant jurisdiction decided under this 18 section. 19 (2) For a default involving trust money received in Australia, 20 whether or not it was paid into an Australian trust account, the 21 relevant jurisdiction for the associate is-- 22 (a) if the trust money was paid into an Australian trust 23 account and the associate, whether alone or with a 24 co-signatory, was authorised to withdraw any or all of 25 the trust money from the only or last Australian trust 26 account in which the trust money was held before the 27 default--the jurisdiction under whose law that trust 28 account was kept; or 29 (b) otherwise--the associate's home jurisdiction. 30 (3) For a default involving trust money received outside Australia 31 and paid into an Australian trust account, the relevant 32 jurisdiction for the associate is-- 33

 


 

s 372 276 s 372 Legal Profession Bill 2007 (a) if the associate, whether alone or with a co-signatory, 1 was authorised to withdraw any or all of the trust money 2 from the only or last Australian trust account in which 3 the trust money was held before the default--the 4 jurisdiction under whose law that trust account was 5 kept; or 6 (b) otherwise--the associate's home jurisdiction. 7 (4) For a default involving trust property received in Australia, or 8 received outside Australia and brought into Australia, the 9 relevant jurisdiction for the associate is the associate's home 10 jurisdiction. 11 Note-- 12 Section 40157 provides that the law society may treat the default as 13 consisting of 2 or more defaults for the purpose of deciding the liability 14 of the fidelity fund. 15 372 Defaults to which this part applies 16 (1) This part applies to a default of a law practice arising from or 17 constituted by an act or omission of 1 or more associates of 18 the practice, if this jurisdiction is the relevant jurisdiction for 19 the only associate or 1 or more of the associates involved. 20 (2) Each of the following is immaterial-- 21 (a) the jurisdiction where the default happened; 22 (b) that the act or omission giving rise to or constituting a 23 default does not constitute a crime or other offence 24 under the law of this jurisdiction, the Commonwealth or 25 another jurisdiction; 26 (c) that a proceeding has not been started, or if started has 27 not ended, in relation to a crime or other offence of that 28 kind. 29 57 Section 401 (Defaults involving interstate elements if committed by 1 associate only)

 


 

s 373 277 s 373 Legal Profession Bill 2007 373 Defaults relating to financial services or investments 1 (1) This part does not apply to a default of a law practice to the 2 extent that the default happens in relation to money or 3 property that is entrusted to or held by the practice for or in 4 connection with-- 5 (a) a financial service provided by the practice, or an 6 associate of the practice, in circumstances where the 7 practice or associate-- 8 (i) is required to hold an Australian financial services 9 licence covering the provision of the service, 10 whether or not an Australian financial services 11 licence is held at any relevant time; or 12 (ii) provides the service as a representative of another 13 person who carries on a financial services business, 14 whether or not the practice or associate is an 15 authorised representative at any relevant time; or 16 (b) a managed investment scheme, or mortgage financing, 17 undertaken by the practice. 18 (2) Without limiting subsection (1), this part does not apply to a 19 default of a law practice if the default happens in relation to 20 money or property that was entrusted to or held by the 21 practice for an investment purpose, whether or not on its own 22 account or as agent, unless-- 23 (a) the money or property was entrusted to or held by the 24 practice-- 25 (i) in the ordinary course of legal practice; and 26 (ii) primarily in connection with the provision of legal 27 services to or at the direction of the client; and 28 (b) the investment is or is to be made-- 29 (i) in the ordinary course of legal practice; and 30 (ii) for the ancillary purpose of keeping or enhancing 31 the value of the money or property pending 32 completion of the matter or further stages of the 33 matter or pending payment or delivery of the 34 money or property to or at the direction of the 35 client. 36

 


 

s 374 278 s 375 Legal Profession Bill 2007 Division 4 Claims about defaults 1 374 Claims about defaults 2 (1) A person who suffers pecuniary loss because of a default to 3 which this part applies may make a claim against the fidelity 4 fund to the law society about the default. 5 (2) The claim must be made in the law society approved form. 6 (3) The law society may require the person who makes a claim to 7 do either or both of the following-- 8 (a) to give further information about the claim or any 9 dispute to which the claim relates; 10 (b) to verify the claim, or any further information, by 11 statutory declaration. 12 375 Time limit for making claims 13 (1) Subject to section 377, a claim does not lie against the fidelity 14 fund unless the prospective claimant notifies the law society 15 of the default concerned-- 16 (a) within 6 months after the prospective claimant becomes 17 aware of the default; or 18 (b) within a further period allowed by the law society; or 19 (c) if, on appeal to the Supreme Court against the refusal of 20 the law society to allow a further period for the claim, 21 the court allows a further period for making the 22 claim--within the period allowed by the court. 23 (2) The Supreme Court or law society may allow a further period 24 mentioned in subsection (1) only if satisfied that-- 25 (a) it would be reasonable to do so after taking into account 26 all ascertained and contingent liabilities of the fidelity 27 fund; and 28 (b) it would be appropriate to do so in the particular case 29 having regard to matters the Supreme Court or law 30 society considers relevant. 31

 


 

s 376 279 s 376 Legal Profession Bill 2007 376 Advertisements 1 (1) If the law society considers that there has been, or may have 2 been, a default by a law practice, it may publish either or both 3 of the following-- 4 (a) a notice that seeks information about the default; 5 (b) a notice that invites claims relating to the default and 6 fixes a final date after which claims relating to the 7 default can not be made. 8 (2) The final date fixed by the notice must be a date that is-- 9 (a) at least 3 months after the date of the first or only 10 publication of the notice; and 11 (b) not more than 1 year after the date of that first or only 12 publication. 13 (3) The notice must be published-- 14 (a) in a newspaper circulating generally throughout 15 Australia; and 16 (b) in a newspaper circulating generally in each jurisdiction 17 where the law society believes the law practice has an 18 office or, at any relevant time, had an office; and 19 (c) on the law society internet site. 20 (4) The law society may provide information to persons making 21 inquiries in response to the notice published under this 22 section. 23 (5) Apart from extending the period during which claims can be 24 made under this part, if relevant, publication of the notice 25 under this section does not confer any entitlements in relation 26 to any claim, or the default to which it relates, or provide any 27 grounds affecting the decision of any claim. 28 (6) Neither the publication in good faith of the notice under this 29 section, nor the provision of information in good faith under 30 this section, subjects a protected person to any liability 31 including liability in defamation. 32 (7) In this section-- 33 protected person means-- 34 (a) the law society or a council member; or 35

 


 

s 377 280 s 378 Legal Profession Bill 2007 (b) the proprietor, editor or publisher of a newspaper; or 1 (c) an internet service provider or internet content host; or 2 (d) a person acting at the direction of a person or entity 3 mentioned in paragraph (a), (b) or (c). 4 377 Time limit for making claims following advertisement 5 (1) This section applies if the law society publishes a notice under 6 section 376 fixing a final date after which claims relating to a 7 default of a law practice can not be made. 8 (2) A claim may be made-- 9 (a) up to and including the final date fixed under the notice; 10 or 11 (b) within a further period allowed by the law society; or 12 (c) if the Supreme Court allows a further period after the 13 law society refuses to do so--within the period allowed 14 by the court. 15 (3) A claim may be made under subsection (2) even though it 16 would have been barred under section 375 had the notice not 17 been published. 18 (4) The Supreme Court or law society may allow a further period 19 mentioned in subsection (2) only if satisfied that-- 20 (a) it would be reasonable to do so after taking into account 21 all ascertained and contingent liabilities of the fidelity 22 fund; and 23 (b) it would be appropriate to do so in the particular case 24 having regard to matters the Supreme Court or law 25 society considers relevant. 26 378 Claims not affected by certain matters 27 (1) A claim may be made about a law practice's default despite a 28 change in the status of the practice or the associate concerned 29 after the happening of the act or omission giving rise to or 30 constituting the default. 31 (2) A claim that has been made is not affected by a later change in 32 the status of the practice or associate. 33

 


 

s 379 281 s 380 Legal Profession Bill 2007 (3) In this section-- 1 change in status includes-- 2 (a) for a partnership--a change in the membership or 3 staffing of, or the dissolution of, the partnership; and 4 (b) for an incorporated legal practice--a change in the 5 directorship or staffing of, or the winding-up or 6 dissolution of, the practice; and 7 (c) for an associate who was an Australian legal 8 practitioner--the fact that the associate has ceased to 9 practise or to hold an Australian practising certificate; 10 and 11 (d) for an associate who was an individual--the associate's 12 death. 13 379 Investigation of claims 14 The law society may investigate a claim made to it in the same 15 way it may investigate a complaint referred to it by the 16 commissioner.58 17 380 Advance payments 18 (1) The law society may, at its absolute discretion, make 19 payments to a claimant in advance of the decision of a claim if 20 satisfied that-- 21 (a) the claim is likely to be allowed; and 22 (b) payment is warranted to alleviate hardship. 23 (2) Any payments made in advance are to be taken into account 24 when the claim is decided. 25 (3) Payments under this section are to be made from the fidelity 26 fund. 27 (4) If the claim is disallowed, the amounts paid under this section 28 are recoverable by the law society as a debt due to the fidelity 29 fund. 30 58 Complaints may be referred by the commissioner to the law society under section 435.

 


 

s 381 282 s 381 Legal Profession Bill 2007 (5) If the claim is allowed but the amount payable is less than the 1 amount paid under this section, the excess paid under this 2 section is recoverable by the law society as a debt due to the 3 fidelity fund. 4 Division 5 Deciding claims 5 381 Law society to decide claim 6 (1) The law society may decide a claim by wholly or partly 7 allowing or disallowing it. 8 (2) The law society may disallow a claim to the extent that the 9 claim does not relate to a default of a law practice for which 10 the fidelity fund is liable. 11 (3) The law society may wholly or partly disallow a claim, or 12 reduce a claim, to the extent that-- 13 (a) the claimant knowingly assisted in or contributed 14 towards, or was a party or accessory to, the act or 15 omission giving rise to the claim; or 16 (b) for a claim mentioned in section 398(2)--the negligence 17 of the claimant contributed to the loss; or 18 (c) the conduct of the transaction with the law practice in 19 relation to which the claim is made was illegal, and the 20 claimant knew or ought reasonably to have known of 21 that illegality; or 22 (d) proper and usual records were not brought into existence 23 during the conduct of the transaction, or were destroyed, 24 and the claimant knew or ought reasonably to have 25 known that records of that kind would not be kept or 26 would be destroyed; or 27 (e) the claimant has unreasonably refused to disclose 28 information or documents to or cooperate with-- 29 (i) the law society in the investigation of the claim; or 30 (ii) another entity in the investigation of the claim, 31 including, for example, an investigator or a police 32 officer. 33

 


 

s 382 283 s 383 Legal Profession Bill 2007 (4) Subsections (2) and (3) do not limit the law society's power to 1 disallow a claim on another ground. 2 (5) Without limiting subsection (2) or (3), the law society may 3 reduce the amount otherwise payable on a claim to the extent 4 the law society considers appropriate if satisfied that the 5 claimant-- 6 (a) assisted in or contributed towards, or was a party or 7 accessory to, the act or omission giving rise to the claim; 8 or 9 (b) unreasonably failed to mitigate losses arising from the 10 act or omission giving rise to the claim; or 11 (c) has unreasonably hindered the investigation of the 12 claim. 13 (6) The law society must, in allowing a claim, state the amount 14 payable. 15 382 Maximum amount allowable 16 (1) The amount payable in relation to a default of a law practice 17 must not be more than the pecuniary loss resulting from the 18 default. 19 (2) This section does not apply to costs payable under section 383 20 or to interest payable under section 384. 21 383 Costs 22 (1) If the law society wholly or partly allows a claim, it must pay 23 the claimant's reasonable legal costs involved in making and 24 proving the claim, unless the law society considers that 25 special circumstances exist warranting-- 26 (a) a reduction in the amount of costs; or 27 (b) a decision that no amount should be paid for costs. 28 (2) If the law society wholly disallows a claim, the law society 29 may pay the whole or part of the claimant's reasonable legal 30 costs involved in making and attempting to prove the claim, if 31 the law society considers it is appropriate to make the 32 payment. 33

 


 

s 384 284 s 385 Legal Profession Bill 2007 (3) The amount of a payment under subsection (1) or (2) is 1 payable from the fidelity fund. 2 384 Interest 3 (1) In deciding the amount of pecuniary loss resulting from a 4 default of a law practice, the law society is to add interest on 5 the amount payable (excluding interest), unless it considers 6 that special circumstances exist warranting-- 7 (a) a reduction in the amount of interest; or 8 (b) a decision that no amount should be paid by way of 9 interest. 10 (2) The interest is to be calculated from the date on which the 11 claim was made to the date the law society notifies the 12 claimant that the claim has been allowed at the rate stated in 13 or prescribed under a regulation. 14 (3) To the extent a regulation does not provide for a rate for 15 subsection (2), interest is to be calculated at the rate of 5% per 16 year. 17 (4) The interest is payable from the fidelity fund. 18 385 Reduction of claim because of other benefits 19 (1) A person is not entitled to recover from the fidelity fund any 20 amount equal to amounts, or to the value of other benefits, 21 from other sources relating to the pecuniary loss to which a 22 claim relates-- 23 (a) that have already been paid to or received by the person, 24 whether before or after the commencement of this 25 section; or 26 (b) that have already been decided and are payable to or 27 receivable by the person; or 28 (c) that the law society believes are likely to be paid to or 29 received by the person; or 30 (d) that the law society believes might, but for neglect or 31 failure on the person's part, have been paid or payable to 32 or received or receivable by the person. 33

 


 

s 386 285 s 387 Legal Profession Bill 2007 (2) The law society may, at its absolute discretion, pay to a person 1 the whole or part of an amount mentioned in subsection (1)(c) 2 if satisfied that payment is warranted to alleviate hardship, but 3 nothing in this subsection affects section 388. 4 386 Subrogation 5 (1) On payment of a claim from the fidelity fund, the law society 6 is subrogated to the rights and remedies of the claimant 7 against any person in relation to the default to which the claim 8 relates. 9 (2) Without limiting subsection (1), that subsection extends to a 10 right or remedy against-- 11 (a) the associate about whom the claim is made; or 12 (b) the person authorised to administer the estate of the 13 associate about whom the claim is made and who is 14 deceased or an insolvent under administration. 15 (3) Subsection (1) does not apply to a right or remedy against an 16 associate if, had the associate been a claimant in relation to 17 the default, the claim would not be disallowed on any of the 18 grounds set out in section 381(3). 19 (4) The law society may exercise its rights and remedies under 20 this section in its own name or in the name of the claimant. 21 (5) If the law society brings a proceeding under this section in the 22 name of the claimant, it must indemnify the claimant against 23 any costs awarded against the claimant in the proceeding. 24 (6) The law society may exercise its rights and remedies under 25 this section even though any limitation periods under this part 26 have expired. 27 (7) The law society must pay into the fidelity fund any money 28 recovered in exercising its rights and remedies under this 29 section. 30 387 Proceedings brought under right of subrogation 31 In any proceeding brought in a court under section 386-- 32 (a) evidence of any admission or confession by, or other 33 evidence that would be admissible against, an Australian 34

 


 

s 388 286 s 389 Legal Profession Bill 2007 legal practitioner or other person in relation to an act or 1 omission giving rise to a claim is admissible to prove the 2 act or omission despite the fact that the practitioner or 3 other person is not a defendant in, or a party to, the 4 proceeding; and 5 (b) any defence that would have been available to the 6 practitioner or other person is available to the law 7 society. 8 388 Repayment of surplus amount 9 (1) This section applies if a claimant-- 10 (a) receives a payment from the fidelity fund relating to a 11 claim; and 12 (b) receives or recovers from another source or sources a 13 payment on account of the pecuniary loss; and 14 (c) there is a surplus after deducting the amount of the 15 pecuniary loss from the total amount received or 16 recovered by the claimant from both or all sources. 17 (2) The amount of the surplus is a debt payable by the claimant to 18 the fidelity fund. 19 (3) However, the amount payable by the claimant can not be more 20 than the amount the claimant received from the fidelity fund 21 in relation to the claim. 22 (4) This section applies whether or not-- 23 (a) the claim was made before or after the commencement 24 of this section; and 25 (b) a payment mentioned in subsection (1)(a) or (b) was 26 received before or after the commencement of this 27 section. 28 389 Notification of delay in making decision 29 (1) If the law society considers that a claim is not likely to be 30 decided within 1 year after the claim was made, the law 31 society must give written notice to the claimant that the claim 32 is not likely to be decided within that period. 33

 


 

s 390 287 s 391 Legal Profession Bill 2007 (2) The notice must contain a brief statement of reasons for the 1 delay. 2 390 Notification of decision 3 After the law society makes a decision mentioned in this 4 division about a claim, the law society must give the claimant 5 an information notice about the decision. 6 Division 6 Right of action against external 7 examiner 8 391 External examiner guilty of neglect 9 (1) This section applies if-- 10 (a) an external examiner is guilty of neglect in relation to an 11 external examination of the trust records of a law 12 practice and there has been a default in relation to the 13 law practice; and 14 (b) the law society pays an amount from the fidelity fund to 15 reimburse persons who suffered loss because of the 16 default. 17 (2) The law society has an action for damages against the external 18 examiner in relation to the external examination. 19 (3) The right of action is similar to the action for damages that the 20 law practice, or any legal practitioner associate of the practice, 21 would have had against the external examiner. 22 (4) If the default arises from or is constituted by an act or 23 omission of the law practice, or 1 or more legal practitioner 24 associates of the law practice, subsection (2) applies as if the 25 default arises from or is constituted by an act or omission of a 26 lay associate of the law practice. 27 (5) The amount of damages the law society may claim under this 28 section must not be more than the total amount paid from the 29 fidelity fund to reimburse all persons who suffered loss 30 because of the default. 31

 


 

s 392 288 s 392 Legal Profession Bill 2007 Division 7 Appeals 1 392 Appeal against decision on claim 2 (1) A claimant may appeal to the Supreme Court against either of 3 the following decisions of the law society but not a decision to 4 limit the amount payable, or to decline to pay an amount, 5 made under the capping and sufficiency provisions of this 6 jurisdiction-- 7 (a) a decision to wholly or partly disallow a claim; 8 (b) a decision to reduce the amount allowed in relation to a 9 claim. 10 (2) An appeal against a decision must be lodged within 30 days of 11 receiving the information notice about the decision. 12 (3) On an appeal under this section-- 13 (a) the appellant must establish that all or part of the 14 amount sought to be recovered from the fidelity fund is 15 not reasonably available from other sources, unless the 16 law society waives that requirement; and 17 (b) the court may, on application by the law society, stay the 18 appeal pending further action being taken to seek 19 recovery of that amount from other sources. 20 (4) The Supreme Court may review the merits of the law society's 21 decision. 22 (5) The Supreme Court may-- 23 (a) affirm the decision; or 24 (b) if satisfied there are reasons for varying or setting aside 25 the law society's decision-- 26 (i) vary the decision; or 27 (ii) set aside the decision and make a decision in 28 substitution for the decision set aside; or 29 (iii) set aside the decision and remit the matter for 30 reconsideration by the law society under a 31 direction or recommendation of the court. 32

 


 

s 393 289 s 393 Legal Profession Bill 2007 (6) For subsection (5), the Supreme Court may make other orders 1 as it considers appropriate. 2 (7) However, an order for costs is not to be made on an appeal 3 under this section unless the Supreme Court is satisfied that an 4 order for costs should be made in the interests of justice. 5 393 Appeal against failure to decide claim within 1 year 6 (1) A claimant may appeal to the Supreme Court against a failure 7 of the law society to decide a claim after 1 year after the claim 8 was made. 9 (2) An appeal against a failure to decide a claim may be made at 10 any time after the period of 1 year after the claim was made 11 and while the failure continues. 12 (3) On an appeal under this section-- 13 (a) the appellant must establish that the whole or part of the 14 amount sought to be recovered from the fidelity fund is 15 not reasonably available from other sources, unless the 16 law society waives that requirement; and 17 (b) the Supreme Court may, on application by the law 18 society, stay the appeal pending further action being 19 taken to seek recovery of that amount from other 20 sources. 21 (4) The Supreme Court may decide the appeal-- 22 (a) by giving directions to the law society to decide the 23 matter expeditiously and-- 24 (i) if the court is satisfied that there has been 25 unreasonable delay--ordering that interest be paid 26 at a stated rate that is higher than the rate 27 applicable under section 384,59 until further order 28 or the decision for the claim; or 29 (ii) otherwise--ordering that, if delay continues in 30 circumstances of a stated kind, interest be paid for 31 a stated period at a stated rate that is higher than 32 59 Section 384 (Interest)

 


 

s 394 290 s 395 Legal Profession Bill 2007 the rate applicable under section 384, until further 1 order or the decision for the claim; or 2 (b) by deciding not to give a direction or make an order 3 under paragraph (a). 4 (5) An order for costs must not be made on an appeal under this 5 section unless the Supreme Court is satisfied that an order for 6 costs should be made in the interests of justice. 7 394 Proceedings on appeal 8 In any proceeding brought in a court under section 392-- 9 (a) evidence of any admission or confession by, or other 10 evidence that would be admissible against, an Australian 11 legal practitioner or other person in relation to an act or 12 omission giving rise to a claim is admissible to prove the 13 act or omission despite the fact that the practitioner or 14 other person is not a defendant in, or a party to, the 15 proceeding; and 16 (b) any defence that would have been available to the 17 practitioner or other person is available to the law 18 society. 19 Division 8 Payments from fidelity fund for 20 defaults 21 395 Payments for defaults 22 (1) The fidelity fund is to be applied by the law society for 23 compensating claimants in relation to claims allowed under 24 this part for defaults to which this part applies. 25 (2) An amount payable from the fidelity fund in relation to a 26 claim is payable to-- 27 (a) the claimant; or 28 (b) another person at the claimant's direction. 29

 


 

s 396 291 s 397 Legal Profession Bill 2007 396 Caps on payments 1 (1) A regulation may fix either or both of the following-- 2 (a) the maximum amounts, or the method of calculating 3 maximum amounts, that may be paid from the fidelity 4 fund for individual claims or classes of individual 5 claims; 6 (b) the maximum aggregate amount, or the method of 7 calculating the maximum aggregate amount, that may 8 be paid from the fidelity fund for all claims made in 9 relation to individual law practices or classes of law 10 practices. 11 (2) Amounts must not be paid from the fidelity fund that are more 12 than the amounts fixed, or calculated by a method fixed, under 13 subsection (1). 14 (3) Payments from the fidelity fund under subsection (2) are 15 made in full and final settlement of the claims concerned. 16 (4) Despite subsection (2), the law society may authorise payment 17 of a larger amount if satisfied that it would be reasonable to do 18 so after taking into account the position of the fidelity fund 19 and the circumstances of the particular case. 20 (5) No proceeding can be brought, by way of appeal or otherwise, 21 to require the payment of a larger amount or to require the law 22 society to consider payment of a larger amount. 23 397 Sufficiency of fidelity fund 24 (1) If the law society believes that the fidelity fund is likely to be 25 insufficient to meet the fund's ascertained and contingent 26 liabilities, it may do any or all of the following-- 27 (a) postpone all payments relating to all or any class of 28 claims out of the fund; 29 (b) impose a levy under section 369;60 30 (c) make partial payments of the amounts of 1 or more 31 allowed claims out of the fund with payment of the 32 balance being a charge on the fund; 33 60 Section 369 (Levy for benefit of fidelity fund)

 


 

s 398 292 s 398 Legal Profession Bill 2007 (d) make partial payments of the amounts of 2 or more 1 allowed claims out of the fund on a pro rata basis, with 2 payment of the balance ceasing to be a liability of the 3 fund. 4 (2) In deciding whether to do any or all of the things mentioned in 5 subsection (1), the law society-- 6 (a) must have regard to cases of hardship if it knows 7 relevant information; and 8 (b) must endeavour to treat outstanding claims equally and 9 equitably, but may make special adjustments in cases of 10 hardship. 11 (3) If the law society declares that a decision is made under 12 subsection (1)(d)-- 13 (a) the balance stated in the declaration ceases to be a 14 liability of the fidelity fund; and 15 (b) the law society may, but need not, revoke the declaration 16 in relation to either all or a stated part of the balance, 17 and the balance or that part of the balance again 18 becomes a liability of the fund. 19 (4) A decision of the law society made under this section is final 20 and not subject to appeal or review. 21 Division 9 Claims by law practices or 22 associates 23 398 Claims by law practices or associates about defaults 24 (1) This section applies to a default of a law practice arising from 25 or constituted by an act or omission of an associate of the 26 practice. 27 (2) A claim may be made under section 37461 by-- 28 (a) the law practice, if the practice is an incorporated legal 29 practice and it suffers pecuniary loss because of the 30 default; or 31 61 Section 374 (Claims about defaults)

 


 

s 399 293 s 400 Legal Profession Bill 2007 (b) another associate of the law practice, if the other 1 associate suffers pecuniary loss because of the default. 2 399 Claims by law practices or associates about notional 3 defaults 4 (1) This section applies if a default of a law practice arising from 5 or constituted by an act or omission of an associate of the 6 practice was avoided, remedied or reduced by a financial 7 contribution made by the practice or by 1 or more other 8 associates. 9 (2) The default, to the extent that it was avoided, remedied or 10 reduced, is a notional default. 11 (3) This part applies to a notional default in the same way as it 12 applies to other defaults of law practices, but only the law 13 practice or the other associate or associates concerned are 14 eligible to make claims about the notional default. 15 Division 10 Defaults involving interstate 16 elements 17 400 Concerted interstate defaults 18 (1) The law society may treat a concerted interstate default as if 19 the default consisted of 2 or more separate defaults-- 20 (a) 1 of which is a default to which this part applies, if this 21 jurisdiction is the relevant jurisdiction for 1 or more of 22 the associates involved; and 23 (b) the other or others of which are defaults to which this 24 part does not apply, if another jurisdiction or 25 jurisdictions are the relevant jurisdictions for 1 or more 26 of the associates involved. 27 (2) The law society may treat a claim about a concerted interstate 28 default as if the claim consisted of-- 29 (a) 1 or more claims made under this part; and 30 (b) 1 or more claims made under a corresponding law or 31 laws. 32

 


 

s 401 294 s 401 Legal Profession Bill 2007 (3) A claim about a concerted interstate default is to be assessed 1 on the basis that the fidelity funds of the relevant jurisdictions 2 involved are to contribute-- 3 (a) in equal shares in relation to the default, regardless of 4 the number of associates involved in each of those 5 jurisdictions, and disregarding the capping and 6 sufficiency provisions of those jurisdictions; or 7 (b) in other shares as agreed by the law society and the 8 corresponding authority or authorities involved. 9 (4) Subsection (3) does not affect the application of the capping 10 and sufficiency requirements of this jurisdiction in relation to 11 the amount payable from the fidelity fund after the claim has 12 been assessed. 13 401 Defaults involving interstate elements if committed by 1 14 associate only 15 (1) This section applies to a default of a law practice arising from 16 or constituted by an act or omission that was committed by 17 only 1 associate of the practice, if the default involves more 18 than 1 of the cases mentioned in section 371(2) to (4).62 19 (2) The law society may treat the default to which this section 20 applies as if the default consisted of 2 or more separate 21 defaults-- 22 (a) 1 of which is a default to which this part applies, if this 23 jurisdiction is the relevant jurisdiction; and 24 (b) the other or others of which are defaults to which this 25 part does not apply, if another jurisdiction or 26 jurisdictions are the relevant jurisdictions. 27 (3) The law society may treat a claim about the default to which 28 this section applies as if the claim consisted of-- 29 (a) 1 or more claims made under this part; and 30 (b) 1 or more claims made under a corresponding law or 31 laws. 32 62 Section 371 (Meaning of relevant jurisdiction)

 


 

s 402 295 s 402 Legal Profession Bill 2007 (4) A claim about a default to which this section applies is to be 1 assessed on the basis that the fidelity funds of the relevant 2 jurisdictions involved are to contribute-- 3 (a) in equal shares in relation to the default, and 4 disregarding the capping and sufficiency provisions of 5 those jurisdictions; or 6 (b) in other shares as agreed by the law society and the 7 corresponding authority or authorities involved. 8 (5) Subsection (4) does not affect the application of the capping 9 and sufficiency requirements of this jurisdiction in relation to 10 the amount payable from the fidelity fund after the claim has 11 been assessed. 12 Division 11 Inter-jurisdictional provisions 13 402 Protocols 14 (1) A regulation may authorise the law society to enter into 15 arrangements (fidelity protocols) with corresponding 16 authorities in relation to matters to which this part relates. 17 (2) Without limiting subsection (1), a regulation may authorise 18 the making of a fidelity protocol that provides that the law 19 society is taken to have-- 20 (a) requested a corresponding authority to act as agent of 21 the law society in stated classes of cases; or 22 (b) agreed to act as agent of a corresponding authority in 23 stated classes of cases. 24 (3) A regulation may provide for the amendment, revocation or 25 replacement of a fidelity protocol. 26 (4) A fidelity protocol, or an amendment, revocation or 27 replacement of a fidelity protocol, has effect in this 28 jurisdiction only to the extent it is approved under a 29 regulation. 30

 


 

s 403 296 s 405 Legal Profession Bill 2007 403 Forwarding claims to corresponding authority in another 1 jurisdiction 2 (1) If a claim is made to the law society about a default of a law 3 practice that appears to be a default to which a corresponding 4 law applies, the law society must give the claim or a copy of it 5 to a corresponding authority of the jurisdiction concerned. 6 (2) If a claim is made to a corresponding authority about a default 7 that appears to be a default to which this part applies and the 8 claim or a copy of it is given under a corresponding law to the 9 law society by the corresponding authority, the claim is 10 taken-- 11 (a) to have been made under this part; and 12 (b) to have been so made when the claim was received by 13 the corresponding authority. 14 404 Investigation of defaults to which this part applies 15 (1) This section applies if a default of a law practice appears to be 16 a default to which this part applies and to have happened-- 17 (a) solely in another jurisdiction; or 18 (b) in more than 1 jurisdiction; or 19 (c) in circumstances in which it can not be decided 20 precisely in which jurisdiction the default happened. 21 (2) The law society may request a corresponding authority of 22 another jurisdiction, or corresponding authorities of other 23 jurisdictions, to act as agent or agents for the law society, for 24 processing or investigating a claim about the default or 25 aspects of the claim. 26 405 Investigation of defaults to which a corresponding law 27 applies 28 (1) This section applies if a default of a law practice appears to be 29 a default to which a corresponding law applies and to have-- 30 (a) happened solely in this jurisdiction; or 31 (b) happened in more than 1 jurisdiction including this 32 jurisdiction; or 33

 


 

s 406 297 s 407 Legal Profession Bill 2007 (c) happened in circumstances in which it can not be 1 decided precisely in which jurisdiction the default 2 happened. 3 (2) The law society may act as agent of a corresponding authority 4 of another jurisdiction, if requested to do so by the 5 corresponding authority, for the purpose of processing or 6 investigating a claim about the default or aspects of the claim. 7 (3) If the law society agrees to act as agent of a corresponding 8 authority under subsection (2), the law society may exercise 9 any of its functions or powers in relation to processing or 10 investigating the claim or aspects of the claim as if the claim 11 had been made under this part. 12 406 Investigation of concerted interstate defaults and other 13 defaults involving interstate elements 14 (1) This section applies if either of the following appears to have 15 happened-- 16 (a) a concerted interstate default; 17 (b) a default to which section 401 applies. 18 (2) The law society may request a corresponding authority or 19 corresponding authorities to act as agent or agents for the law 20 society, for processing or investigating a claim about the 21 default or aspects of the claim. 22 (3) The law society may act as agent of a corresponding authority, 23 if requested to do so by the corresponding authority, for 24 processing or investigating a claim about the default or 25 aspects of the claim. 26 (4) If the law society agrees to act as agent of a corresponding 27 authority under subsection (3), the law society may perform 28 and exercise any of its functions and powers in relation to 29 processing or investigating the claim or aspects of the claim as 30 if the claim had been made wholly under this part. 31 407 Recommendations by law society to corresponding 32 authority 33 If the law society is acting as agent of a corresponding 34 authority in relation to a claim made under a corresponding 35

 


 

s 408 298 s 409 Legal Profession Bill 2007 law, the law society may make recommendations about the 1 decision that the corresponding authority might make about 2 the claim. 3 408 Recommendations to and decisions by law society after 4 receiving recommendations from corresponding 5 authority 6 (1) If a corresponding authority makes recommendations about 7 the decision the law society might make about a claim in 8 relation to which the corresponding authority was acting as 9 agent of the law society, the law society may-- 10 (a) make its decision about the claim in conformity with the 11 recommendations, whether with or without further 12 consideration, investigation or inquiry; or 13 (b) disregard the recommendations. 14 (2) A corresponding authority can not, as agent of the law society, 15 make a decision about the claim under division 5.63 16 409 Request to another jurisdiction to investigate aspects of 17 claim 18 (1) The law society may request a corresponding authority to 19 arrange for the investigation of any aspect of a claim being 20 dealt with by the law society and to provide a report on the 21 result of the investigation. 22 (2) A report on the result of the investigation received from either 23 of the following may be used and taken into consideration by 24 the law society in the course of dealing with the claim under 25 this part-- 26 (a) the corresponding authority; 27 (b) a person or entity authorised by the corresponding 28 authority to conduct the investigation. 29 63 Division 5 (Deciding claims)

 


 

s 410 299 s 412 Legal Profession Bill 2007 410 Request from another jurisdiction to investigate aspects 1 of claim 2 (1) If a request, made under a corresponding law, is received by 3 the law society from a corresponding authority to arrange for 4 the investigation of any aspect of a claim being dealt with 5 under a corresponding law, the law society may conduct the 6 investigation. 7 (2) The provisions of this part relating to the investigation of a 8 claim apply, with any necessary changes, in relation to the 9 investigation of the relevant aspect of the claim that is the 10 subject of the request. 11 (3) The law society must provide a report on the result of the 12 investigation to the corresponding authority. 13 411 Cooperation with other authorities 14 (1) When dealing with a claim under this part involving a law 15 practice or an Australian legal practitioner, the law society 16 may consult and cooperate with an entity that has functions or 17 powers under the corresponding law of another jurisdiction in 18 relation to the law practice or the practitioner. 19 (2) For subsection (1), the law society and the entity may 20 exchange information concerning the claim. 21 Division 12 Miscellaneous 22 412 Interstate legal practitioner becoming authorised to 23 withdraw from local trust account 24 (1) This section applies to an interstate legal practitioner who, 25 whether alone or with a co-signatory, becomes authorised to 26 withdraw money from a local trust account. 27 (2) A regulation may do either or both of the following-- 28 (a) require the practitioner to notify the law society of the 29 authorisation; 30 (b) require the practitioner to make contributions and pay 31 levies to the fidelity fund as if the practitioner were a 32 local legal practitioner. 33

 


 

s 413 300 s 413 Legal Profession Bill 2007 (3) Without limiting subsection (2), a regulation may provide 1 for-- 2 (a) the way in which the notice is to be given and the 3 information or material that is to be included in or to 4 accompany the notice; and 5 (b) the amount of the contributions, their frequency and the 6 way in which they are to be made. 7 413 Application of part to incorporated legal practices 8 (1) A regulation may provide that stated provisions of this part, 9 and other provisions of this Act relating to the fidelity fund, 10 do not apply to incorporated legal practices or apply with 11 stated changes. 12 (2) For the application to an incorporated legal practice of the 13 provisions of this part and other provisions of this Act relating 14 to the fidelity fund, a reference in those provisions to a default 15 of a law practice extends to a default of an incorporated legal 16 practice, but only if it happens in connection with the 17 provision of legal services. 18 (3) Nothing in this section affects any obligation of an Australian 19 legal practitioner who is an officer or employee of an 20 incorporated legal practice to comply with the provisions of 21 this Act relating to the fidelity fund. 22 (4) An incorporated legal practice is required to make payments 23 to or on account of the fidelity fund under this Act as if it were 24 an Australian lawyer applying for or holding a local practising 25 certificate from the law society. 26 (5) The incorporated legal practice must not engage in legal 27 practice in this jurisdiction if any payment is not made by the 28 due date and while the practice remains in default of 29 subsection (4). 30 (6) The law society may suspend the local practising certificate of 31 a legal practitioner director of the practice if any payment is 32 not made by the due date. 33 (7) The amounts payable to the fidelity fund by an incorporated 34 legal practice may be decided by reference to the total number 35

 


 

s 414 301 s 415 Legal Profession Bill 2007 of Australian legal practitioners employed by the practice and 1 other relevant matters. 2 414 Application of part to multi-disciplinary partnerships 3 (1) A regulation may provide that stated provisions of this part, 4 and other provisions of this Act relating to the fidelity fund, 5 do not apply to multi-disciplinary partnerships or apply with 6 stated changes. 7 (2) For the application to a multi-disciplinary partnership of the 8 provisions of this part and other provisions of this Act relating 9 to the fidelity fund, a reference in those provisions to a default 10 of a law practice extends to a default of a multi-disciplinary 11 partnership, or a partner or employee of a multi-disciplinary 12 partnership, whether or not any person involved is an 13 Australian legal practitioner, but only if it happens in 14 connection with the provision of legal services. 15 (3) Nothing in this section affects any obligation of an Australian 16 legal practitioner who is a partner or employee of a 17 multi-disciplinary partnership to comply with the provisions 18 of this Act relating to the fidelity fund. 19 (4) The amounts payable to the fidelity fund by the legal 20 practitioner partners of a multi-disciplinary partnership may 21 be decided by reference to the total number of Australian legal 22 practitioners employed by the partnership and other relevant 23 matters. 24 415 Application of part to Australian lawyers whose 25 practising certificates have lapsed 26 (1) This section applies if an Australian lawyer is not an 27 Australian legal practitioner because his or her Australian 28 practising certificate has lapsed and the lawyer was a sole 29 practitioner immediately before the certificate lapsed, but 30 does not apply where-- 31 (a) the certificate has been suspended or cancelled under 32 this Act or a corresponding law; or 33 (b) the lawyer's application for the grant or renewal of an 34 Australian practising certificate has been refused under 35

 


 

s 416 302 s 416 Legal Profession Bill 2007 this Act or a corresponding law and the lawyer would be 1 an Australian legal practitioner had it been granted. 2 (2) For other provisions of this part, the practising certificate is 3 taken not to have lapsed, and accordingly the lawyer is taken 4 to continue to be an Australian legal practitioner. 5 (3) Subsection (2) ceases to apply whenever the first of the 6 following happens-- 7 (a) a manager or receiver is appointed under this Act or a 8 corresponding law for the law practice; 9 (b) the end of 6 months after the practising certificate 10 actually lapses; 11 (c) the lawyer's application for the grant or renewal of an 12 Australian practising certificate is refused under this Act 13 or a corresponding law. 14 Chapter 4 Complaints and discipline 15 Part 4.1 Preliminary 16 416 Main purposes of ch 4 17 The main purposes of this chapter are as follows-- 18 (a) to provide for the discipline of the legal profession; 19 (b) to promote and enforce the professional standards, 20 competence and honesty of the legal profession; 21 (c) to provide a means of redress for complaints about 22 lawyers; 23 (d) to otherwise protect members of the public from 24 unlawful operators. 25

 


 

s 417 303 s 419 Legal Profession Bill 2007 417 Application of chapter to lawyers, former lawyers and 1 former practitioners 2 (1) This chapter applies to Australian lawyers and former 3 Australian lawyers in relation to conduct happening while 4 they were Australian lawyers (but not Australian legal 5 practitioners) in the same way as it applies to Australian legal 6 practitioners and former Australian legal practitioners, and so 7 applies with any necessary changes. 8 (2) This chapter applies to former Australian legal practitioners in 9 relation to conduct happening while they were Australian 10 legal practitioners in the same way as it applies to persons 11 who are Australian legal practitioners, and so applies with any 12 necessary changes. 13 (3) In this section-- 14 former Australian legal practitioner includes a person who 15 was a solicitor or barrister in this jurisdiction before 1 July 16 2004. 17 Part 4.2 Key concepts 18 418 Meaning of unsatisfactory professional conduct 19 Unsatisfactory professional conduct includes conduct of an 20 Australian legal practitioner happening in connection with the 21 practice of law that falls short of the standard of competence 22 and diligence that a member of the public is entitled to expect 23 of a reasonably competent Australian legal practitioner. 24 419 Meaning of professional misconduct 25 (1) Professional misconduct includes-- 26 (a) unsatisfactory professional conduct of an Australian 27 legal practitioner, if the conduct involves a substantial or 28 consistent failure to reach or keep a reasonable standard 29 of competence and diligence; and 30

 


 

s 420 304 s 420 Legal Profession Bill 2007 (b) conduct of an Australian legal practitioner, whether 1 happening in connection with the practice of law or 2 happening otherwise than in connection with the 3 practice of law that would, if established, justify a 4 finding that the practitioner is not a fit and proper person 5 to engage in legal practice. 6 (2) For finding that an Australian legal practitioner is not a fit and 7 proper person to engage in legal practice as mentioned in 8 subsection (1), regard may be had to the suitability matters 9 that would be considered if the practitioner were an applicant 10 for admission to the legal profession under this Act or for the 11 grant or renewal of a local practising certificate. 12 420 Conduct capable of constituting unsatisfactory 13 professional conduct or professional misconduct 14 The following conduct is capable of constituting 15 unsatisfactory professional conduct or professional 16 misconduct-- 17 (a) conduct consisting of a contravention of a relevant law, 18 whether the conduct happened before or after the 19 commencement of this section; 20 Note-- 21 Under the Acts Interpretation Act 1954, section 7, and the 22 Statutory Instruments Act 1992, section 7, a contravention in 23 relation to this Act would include a contravention of a regulation 24 or legal profession rules and a contravention in relation to a 25 previous Act would include a contravention of a legal profession 26 rule under the Legal Profession Act 2004. 27 (b) charging of excessive legal costs in connection with the 28 practice of law; 29 (c) conduct for which there is a conviction for-- 30 (i) a serious offence; or 31 (ii) a tax offence; or 32 (iii) an offence involving dishonesty; 33 (d) conduct of an Australian legal practitioner as or in 34 becoming an insolvent under administration; 35

 


 

s 421 305 s 421 Legal Profession Bill 2007 (e) conduct of an Australian legal practitioner in becoming 1 disqualified from managing or being involved in the 2 management of any corporation under the Corporations 3 Act; 4 (f) conduct of an Australian legal practitioner in failing to 5 comply with an order of a disciplinary body made under 6 this Act or an order of a corresponding disciplinary 7 body made under a corresponding law, including a 8 failure to pay wholly or partly a fine imposed under this 9 Act or a corresponding law; 10 (g) conduct of an Australian legal practitioner in failing to 11 comply with a compensation order made under this Act 12 or a corresponding law. 13 (2) Also, conduct that happened before the commencement of 14 this subsection that, at the time it happened, consisted of a 15 contravention of a relevant law or a corresponding law is 16 capable of constituting unsatisfactory professional conduct or 17 professional misconduct. 18 (3) This section does not limit section 418 or 419. 19 421 Meaning of respondent 20 A respondent is any of the following-- 21 (a) if a complaint is made about an Australian legal 22 practitioner to whom this chapter applies--the 23 practitioner; 24 (b) if a complaint is made about a law practice employee in 25 relation to conduct to which this chapter applies--the 26 law practice concerned and the law practice employee; 27 (c) if a complaint is made about an unlawful operator--the 28 unlawful operator; 29 (d) otherwise--a person to whom this chapter applies and 30 about whom the commissioner, on his or her own 31 initiative, starts an investigation under section 435.64 32 64 Section 435 (Referral by commissioner to law society or bar association)

 


 

s 422 306 s 423 Legal Profession Bill 2007 Part 4.3 Application of this chapter 1 422 Practitioners to whom this chapter applies 2 This chapter applies to an Australian legal practitioner for 3 conduct to which this chapter applies, whether or not-- 4 (a) the practitioner is a local lawyer; or 5 (b) the practitioner holds a local practising certificate; or 6 (c) the practitioner holds an interstate practising certificate; 7 or 8 (d) the practitioner resides or has an office in this 9 jurisdiction; or 10 (e) if a complaint is made about the practitioner--the 11 complainant resides, works or has an office in this 12 jurisdiction. 13 423 Conduct to which this chapter applies--generally 14 (1) Subject to subsection (3), this chapter applies to conduct of an 15 Australian legal practitioner happening in this jurisdiction 16 whether before or after the commencement of this section. 17 (2) Also, this chapter applies to an Australian legal practitioner's 18 conduct happening outside this jurisdiction, whether or not 19 the conduct was engaged in before or after the 20 commencement of this section, but only-- 21 (a) if the conduct is part of a course of conduct that 22 happened partly in this jurisdiction and partly in another 23 jurisdiction, and either-- 24 (i) the corresponding authority of each other 25 jurisdiction in which the conduct happened 26 consents to it being dealt with under this Act; or 27 (ii) the practitioner and, if a complaint is made by a 28 person about the practitioner, the complainant 29 consent to it being dealt with under this Act; or 30 (b) if the conduct happened in Australia but entirely outside 31 this jurisdiction and the practitioner is a local lawyer or 32 a local legal practitioner, and either-- 33

 


 

s 424 307 s 424 Legal Profession Bill 2007 (i) the corresponding authority of each jurisdiction in 1 which the conduct happened consents to it being 2 dealt with under this Act; or 3 (ii) the practitioner and, if a complaint is made by a 4 person about the practitioner, the complainant 5 consent to it being dealt with under this Act; or 6 (c) if the conduct happened entirely or partly outside 7 Australia and the practitioner is a local lawyer or a local 8 legal practitioner. 9 (3) This chapter does not apply to conduct happening in this 10 jurisdiction if-- 11 (a) the commissioner consents to the conduct being dealt 12 with under a corresponding law; or 13 (b) the Australian legal practitioner and, if a complaint is 14 made by a person about the practitioner, the complainant 15 consent to the conduct being dealt with under a 16 corresponding law. 17 (4) Subsection (3) does not apply if the conduct is not capable of 18 being dealt with under a corresponding law. 19 (5) The commissioner may give consent for subsection (3)(a), and 20 may do so conditionally or unconditionally. 21 Note-- 22 Conduct before the commencement of this provision, that contravened 23 the Personal Injuries Proceedings Act 2002, chapter 3, part 1, and had 24 not been dealt with, or finally dealt with, under that Act, may be dealt 25 with under this Act. See the Personal Injuries Proceedings Act 2002, 26 section 85 (Provision for advertising of personal injury services and 27 touting). 28 424 Conduct to which this chapter applies--insolvency, 29 serious offences and tax offences 30 (1) This chapter applies to the following conduct of a local legal 31 practitioner whether happening in Australia or elsewhere or 32 whether engaged in before or after the commencement of this 33 section-- 34 (a) conduct of the practitioner in relation to which there is a 35 conviction for-- 36

 


 

s 425 308 s 426 Legal Profession Bill 2007 (i) a serious offence; or 1 (ii) a tax offence; or 2 (iii) an offence involving dishonesty; 3 (b) conduct of the practitioner as or in becoming an 4 insolvent under administration; 5 (c) conduct of the practitioner in becoming disqualified 6 from managing or being involved in the management of 7 any corporation under the Corporations Act. 8 (2) This section has effect despite anything in section 423. 9 425 Chapter also applies to law practice employees 10 (1) This chapter applies to the conduct of a law practice employee 11 in relation to the relevant practice whether or not-- 12 (a) the conduct is part of a course of conduct that happened 13 partly in this jurisdiction and partly in another 14 jurisdiction; or 15 (b) the conduct was engaged in before or after the 16 commencement of this section. 17 (2) Also, this chapter applies to former law practice employees in 18 relation to conduct happening while they were law practice 19 employees in the same way as it applies to persons who are 20 law practice employees, and so applies with necessary 21 changes. 22 (3) In this section-- 23 former law practice employee includes a person who was a 24 law practice employee in this jurisdiction before the 25 commencement of this section but is not a law practice 26 employee on the commencement. 27 426 Chapter also extends to other persons in particular 28 circumstances 29 This chapter applies to the conduct of all persons, including 30 Australian legal practitioners and law practice employees, 31

 


 

s 427 309 s 429 Legal Profession Bill 2007 suspected of contravening the Personal Injuries Proceedings 1 Act 2002, chapter 3, part 1.65 2 427 Chapter also applies to unlawful operators 3 This chapter applies to the conduct of an unlawful operator, 4 constituting a contravention of section 24 or 25, whether or 5 not the conduct was engaged in before or after the 6 commencement of this section. 7 Part 4.4 Complaints about Australian 8 legal practitioners 9 428 Conduct about which complaint may be made 10 (1) A complaint may be made under this chapter about-- 11 (a) an Australian legal practitioner's conduct to which this 12 chapter applies; or 13 (b) the conduct of a law practice employee to which this 14 chapter applies; or 15 (c) the conduct of an unlawful operator in relation to 16 conduct that constitutes a contravention of section 24 or 17 25. 18 (2) A complaint may be made under this chapter about conduct 19 happening outside this jurisdiction, but the complaint must not 20 be dealt with under this chapter unless this chapter is or 21 becomes applicable to the conduct. 22 429 Making a complaint 23 (1) Subject to subsection (4), an entity may make a complaint in 24 the approved form to the commissioner about the conduct of 25 65 Personal Injuries Proceedings Act 2002, chapter 3 (Other matters), part 1 (Restriction on advertising of personal injury services and touting)

 


 

s 430 310 s 430 Legal Profession Bill 2007 an Australian legal practitioner, law practice employee or 1 unlawful operator, including, for example, an entity that-- 2 (a) is or was a client of the law practice; or 3 (b) is the relevant regulatory authority. 4 (2) However for a government legal officer, only the following 5 entities may make a complaint about the conduct of the officer 6 in relation to the government work engaged in by the officer-- 7 (a) an Australian legal practitioner; 8 (b) a relevant regulatory authority; 9 (c) the chief executive officer, however expressed, of the 10 department or agency in which the officer is a 11 government legal officer or, if the chief executive officer 12 may delegate that power, a delegate. 13 (3) The complaint must-- 14 (a) identify the complainant; and 15 (b) if possible, identify the person about whom the 16 complaint is made; and 17 (c) describe the alleged conduct the subject of the 18 complaint. 19 (4) The approved form for a complaint may only be approved by 20 the commissioner. 21 (5) The commissioner may accept a complaint made in writing 22 other than in the approved form. 23 430 Complaints made over 3 years after conduct concerned 24 (1) This section applies if a complaint is received by the 25 commissioner more than 3 years after the conduct happened 26 that is the subject of the complaint, including conduct that 27 happened before the commencement of this section. 28 (2) The commissioner may-- 29 (a) refer the complaint to mediation; or 30 (b) dismiss the complaint unless the commissioner decides 31 that-- 32

 


 

s 431 311 s 431 Legal Profession Bill 2007 (i) it is just and fair to deal with the complaint having 1 regard to the extent of, and reasons for, the delay; 2 or 3 (ii) the complaint involves conduct of the following 4 type and it is in the public interest to deal with the 5 complaint-- 6 (A) conduct of an Australian legal practitioner 7 that the commissioner considers may be 8 professional misconduct; 9 (B) conduct of a law practice employee that the 10 commissioner considers may be misconduct 11 of the employee in relation to the relevant 12 practice. 13 (3) If the commissioner dismisses the complaint, the 14 commissioner must give an information notice to the 15 complainant about the decision. 16 (4) For working out whether it is more than 3 years since conduct 17 that is the subject of the complaint happened, the 18 commissioner must calculate from the last day that the 19 conduct happened. 20 (5) This section does not limit the commissioner's power to 21 dismiss a complaint under section 424. 22 (6) In this section-- 23 complaint does not include a complaint about the conduct of 24 an unlawful operator. 25 431 Further information and verification 26 (1) The commissioner may, by written notice to a complainant, 27 require the complainant to do 1 or more of the following-- 28 (a) give further information about the complaint; 29 (b) verify the complaint, or any further information, by 30 statutory declaration; 31

 


 

s 432 312 s 432 Legal Profession Bill 2007 (c) sign an approved form that acknowledges the waiver of 1 legal professional privilege, or the benefit of a duty of 2 confidentiality, as mentioned in section 492.66 3 (2) The notice must state a date, that is reasonable, by which the 4 complainant must comply with the notice. 5 (3) The commissioner may extend the time for the complainant to 6 comply with subsection (1) on application by the complainant 7 whether before or after the date stated in the notice. 8 432 Summary dismissal of complaints 9 (1) The commissioner may dismiss a complaint for 1 or more of 10 the following reasons-- 11 (a) the commissioner has given the complainant a notice 12 under section 431 and, within the time stated in the 13 notice or under an extension under that section, the 14 complainant has not complied with the notice; 15 (b) the complaint does not disclose conduct that the 16 commissioner considers may be-- 17 (i) conduct to which this chapter applies; or 18 (ii) unsatisfactory professional conduct or professional 19 misconduct of an Australian legal practitioner or 20 misconduct of a law practice employee in relation 21 to the relevant practice; 22 (c) the commissioner considers the complaint is vexatious, 23 misconceived, frivolous or lacking in substance; 24 (d) the conduct complained about has been the subject of a 25 previous complaint that has been dismissed or dealt 26 with, and the commissioner considers that the complaint 27 discloses no reason to reconsider the matter; 28 (e) it is not in the public interest to deal with the complaint 29 having regard to the fact that the name of the Australian 30 legal practitioner to whom the complaint relates has 31 66 Section 492 (Waiver of legal professional privilege or benefit of duty of confidentiality)

 


 

s 433 313 s 433 Legal Profession Bill 2007 already been removed from any Australian roll in which 1 he or she was enrolled. 2 (2) The commissioner may dismiss a complaint under this section 3 without completing an investigation if, having considered the 4 complaint, the commissioner forms the view that the 5 complaint requires no further investigation. 6 (3) If a complaint is dismissed for the reason mentioned in 7 subsection (1)(a), the dismissal does not prevent the 8 complainant from making a fresh complaint under section 9 429. 10 (4) In this section-- 11 complaint does not include a complaint about the conduct of 12 an unlawful operator. 13 previous complaint includes-- 14 (a) a complaint under the Queensland Law Society Act 1952 15 or the Legal Profession Act 2004, if the complaint was 16 made under that Act before the commencement of this 17 section; and 18 (b) a complaint made to the bar association if the complaint 19 was made before 1 July 2004. 20 433 Withdrawal of complaints 21 (1) The complainant may withdraw the complaint by notice to the 22 commissioner. 23 (2) If the notice about the withdrawal is oral, the commissioner 24 must do each of the following unless the complainant gives 25 the commissioner written confirmation of the withdrawal-- 26 (a) make a written record of the withdrawal; 27 (b) give the complainant a copy of the record, or send a 28 copy of it addressed to the complainant at the 29 complainant's address last known to the commissioner. 30 (3) However, the withdrawal of the complaint does not prevent 31 action being taken on a complaint by another person, or by the 32 commissioner on the commissioner's own initiative. 33

 


 

s 434 314 s 435 Legal Profession Bill 2007 (4) In this section-- 1 complaint does not include a complaint about the conduct of 2 an unlawful operator. 3 withdrawal, of a complaint, includes withdrawal of some only 4 or part only of the matters that form the subject of the 5 complaint. 6 434 Commissioner may delay dealing with complaint 7 (1) The commissioner may delay dealing with a complaint for 1 8 or more of the following reasons-- 9 (a) the complainant has asked for a delay and the 10 commissioner considers the request reasonable; 11 (b) for a complaint about an Australian legal 12 practitioner--the practitioner is under investigation in 13 this jurisdiction or another jurisdiction and, under this 14 Act or a corresponding law of that other jurisdiction, the 15 practitioner's name may be removed from the local roll 16 or interstate roll; 17 (c) the matter that is the subject of the complaint is being or 18 about to be dealt with in another way; 19 (d) the commissioner considers that it is in the public 20 interest to delay dealing with the complaint. 21 (2) Subsection (1) applies despite sections 18 and 450.67 22 435 Referral by commissioner to law society or bar 23 association 24 (1) This section applies if-- 25 (a) a complaint is received by the commissioner and is not 26 dismissed under section 430(2)(b) or 432 or withdrawn 27 under section 433;68 or 28 67 Sections 18 (Timing for doing things) and 450 (Duty to deal with complaints efficiently and expeditiously) 68 Section 430 (Complaints made over 3 years after conduct concerned), 432 (Summary dismissal of complaints) or 433 (Withdrawal of complaints)

 


 

s 436 315 s 436 Legal Profession Bill 2007 (b) a complaint is withdrawn under section 433 but the 1 commissioner has continued to investigate the matter on 2 the commissioner's own initiative; or 3 (c) the commissioner believes that an investigation about a 4 matter (an investigation matter) should be started into 5 the conduct of-- 6 (i) an Australian legal practitioner, law practice 7 employee or unlawful operator; or 8 (ii) any person, including an Australian legal 9 practitioner, a law practice employee in relation to 10 a relevant practice or an unlawful operator, 11 suspected of contravening the Personal Injuries 12 Proceedings Act 2002, chapter 3, part 1.69 13 (2) The commissioner may refer the complaint or the 14 investigation matter to the relevant regulatory authority. 15 (3) The referral may state a date by which the regulatory authority 16 is to report to the commissioner about the complaint or 17 investigation matter and directions to the authority about the 18 way in which the authority is to conduct the investigation. 19 (4) The commissioner may extend the date for the report but may 20 require the authority to give the commissioner an interim 21 report. 22 (5) At any time while the regulatory authority is carrying out its 23 investigation, including after the commissioner is given an 24 interim report, the commissioner may give directions or 25 further directions about the way in which the authority is to 26 conduct the investigation. 27 436 Commissioner investigating a complaint or investigation 28 matter 29 (1) The commissioner must investigate a complaint or an 30 investigation matter if the commissioner is satisfied-- 31 69 Personal Injuries Proceedings Act 2002, chapter 3 (Other matters), part 1 (Restriction on advertising of personal injury services and touting)

 


 

s 437 316 s 437 Legal Profession Bill 2007 (a) it is inconsistent with the public interest for the relevant 1 regulatory authority to investigate the complaint or 2 investigation matter; or 3 (b) it is in the public interest for the commissioner to 4 investigate the complaint or investigation matter. 5 (2) Also, the commissioner must investigate a complaint or 6 investigation matter that is not mentioned in subsection (1) but 7 is not referred to a regulatory authority under section 435(2). 8 (3) If the commissioner considers it appropriate to start or 9 continue an investigation into a complaint or investigation 10 matter that was referred to a regulatory authority under 11 section 435(2), the commissioner may do so by giving a 12 written notice of the commissioner's decision to the authority. 13 (4) A regulatory authority given a notice under subsection (3) 14 must give to the commissioner all documents relating to the 15 investigation into the complaint or investigation matter. 16 437 Australian lawyer to be notified of complaint or 17 investigation matter 18 (1) The entity carrying out an investigation as mentioned in 19 section 435 or 436 must ensure that written notice of the 20 following is given to the respondent-- 21 (a) the making of the complaint or the investigation into an 22 investigation matter; 23 (b) the nature of the complaint or investigation matter; 24 (c) for a complaint, the identity of the complainant; 25 (d) action taken by the entity in relation to the complaint or 26 investigation matter before giving the notice. 27 (2) Also, the notice must advise the respondent that he or she may 28 make submissions to the entity by a stated date that is 29 reasonable. 30 (3) However, subsection (1) does not apply if the entity believes 31 giving the notice will or is likely to-- 32 (a) prejudice the investigation of the complaint or 33 investigation matter; or 34

 


 

s 437 317 s 437 Legal Profession Bill 2007 (b) prejudice an investigation by the police, or another 1 investigatory or law enforcement body, of a matter with 2 which the complaint or investigation matter is 3 concerned; or 4 (c) place the complainant or another person at risk of 5 intimidation or harassment; or 6 (d) prejudice pending court proceedings. 7 (4) If the entity has a belief mentioned in subsection (3), the 8 entity-- 9 (a) may postpone giving the respondent the written notice 10 mentioned in subsection (1) until the entity believes it is 11 appropriate to do so; or 12 (b) may give the respondent a written notice that states-- 13 (i) the general nature of the complaint or investigation 14 matter; and 15 (ii) if the entity believes the respondent has sufficient 16 information to make submissions about the 17 complaint or investigation matter--the 18 respondent's right to make submissions within a 19 stated period. 20 (5) Nothing in this section requires the entity to give written 21 notice to the respondent until the entity has had time to do the 22 following to its satisfaction-- 23 (a) consider the complaint or investigation matter; 24 (b) seek further information about the complaint from the 25 complainant or otherwise seek further information about 26 the investigation matter; 27 (c) otherwise undertake preliminary enquiries into the 28 complaint or investigation matter; 29 (d) properly prepare the notice. 30

 


 

s 438 318 s 439 Legal Profession Bill 2007 438 Submissions by respondent 1 (1) A respondent given a notice under section 453 may, by the 2 date stated in that notice, make written submissions to the 3 commissioner or the stated relevant regulatory authority about 4 the complaint or investigation matter. 5 (2) At the request of the respondent or the regulatory authority, 6 the commissioner may substitute a later date by which 7 submissions may be made. 8 (3) The commissioner or regulatory authority must consider the 9 submissions made before the stated date or any later date 10 before deciding whether to make a discipline application 11 relating to the complaint or investigation matter. 12 439 Role of law society or bar association 13 (1) If a complaint or investigation matter is referred to a 14 regulatory authority, it must investigate the complaint or 15 investigation matter and report to the commissioner about the 16 complaint or matter by the stated date or a later date stated in 17 an extension by the commissioner. 18 (2) For subsection (1), the regulatory authority may investigate a 19 complaint or investigation matter by an investigator 20 investigating the complaint or matter and presenting evidence 21 to the authority for its consideration and report. 22 (3) The report to the commissioner by the regulatory authority 23 must-- 24 (a) be in an approved form approved by the commissioner; 25 and 26 (b) include a recommendation about whether a proceeding 27 before a disciplinary body in relation to the complaint or 28 investigation matter should be started. 29 (4) Without limiting the matters to which the regulatory authority 30 may have regard when making a recommendation as 31 mentioned in subsection (3)(b), the authority may have regard 32 to the following-- 33 (a) the public interest in the complaint or investigation 34 matter being heard and decided by a disciplinary body; 35

 


 

s 440 319 s 440 Legal Profession Bill 2007 (b) the likelihood of a finding of-- 1 (i) unsatisfactory professional conduct or professional 2 misconduct against an Australian legal 3 practitioner; or 4 (ii) misconduct of a law practice employee in relation 5 to a relevant practice; 6 (c) any other action or proceeding that may have started or 7 finished in relation to the conduct the subject of the 8 complaint or investigation matter or to the same 9 practitioner or law practice employee. 10 (5) If the regulatory authority recommends making a discipline 11 application, the report must also include a draft of the 12 application and the evidence to support the application. 13 Part 4.5 Mediation for complaints 14 involving consumer dispute 15 440 Definition for pt 4.5 16 In this part-- 17 consumer dispute means a dispute between a person and a 18 law practice about conduct of-- 19 (a) an Australian legal practitioner to the extent the 20 commissioner considers that the dispute does not 21 involve an issue of unsatisfactory professional conduct 22 or professional misconduct; or 23 (b) a law practice employee of a relevant practice to the 24 extent the commissioner considers that the dispute does 25 not involve an issue of misconduct in relation to the 26 relevant practice. 27

 


 

s 441 320 s 442 Legal Profession Bill 2007 441 Mediation of complaint involving consumer dispute 1 solely 2 (1) This section applies to a complaint that involves a consumer 3 dispute. 4 (2) The commissioner may-- 5 (a) suggest to the complainant and the respondent that they 6 enter into a process of mediation; and 7 (b) refer the matter to the relevant regulatory authority to 8 see if the authority may help in the mediation or 9 otherwise in the resolution of the complaint. 10 (3) The commissioner is then not required to take further action 11 on the complaint. 12 442 Mediation of hybrid complaint 13 (1) This section applies to a complaint that involves both of the 14 following-- 15 (a) a consumer dispute; 16 (b) an issue of unsatisfactory professional conduct or 17 professional misconduct by an Australian legal 18 practitioner or of misconduct by a law practice 19 employee in relation to the relevant practice. 20 (2) The commissioner may-- 21 (a) suggest to the complainant and the respondent that they 22 enter into a process of mediation; and 23 (b) refer the matter to the relevant regulatory authority to 24 see if the authority may help in the mediation or 25 otherwise in the resolution of the complaint. 26 (3) The complaint must continue to be dealt with under this 27 chapter after or during the mediation or attempt at mediation. 28

 


 

s 443 321 s 443 Legal Profession Bill 2007 Part 4.6 Investigations 1 443 Powers for investigations 2 (1) The entity carrying out an investigation as mentioned in 3 section 435 or 43670 may, for the investigation-- 4 (a) require an Australian legal practitioner who is the 5 subject of the investigation-- 6 (i) to give the entity, in writing or personally, within a 7 stated reasonable time a full explanation of the 8 matter being investigated; or 9 (ii) to appear before the entity at a stated reasonable 10 time and place; or 11 (iii) to produce to the entity within a stated reasonable 12 time any document in the practitioner's custody, 13 possession or control that the practitioner is 14 entitled at law to produce; or 15 (b) engage a person, whom the entity considers is qualified 16 because the person has the necessary expertise or 17 experience, to report on the reasonableness of an 18 Australian legal practitioner's bill of costs. 19 (2) Subject to subsection (6), the Australian legal practitioner 20 must comply with a requirement under subsection (1)(a). 21 Maximum penalty--50 penalty units. 22 (3) If the practitioner fails to comply with the requirement, the 23 entity may give the practitioner written notice that, if the 24 failure continues for a further 14 days after the notice is given, 25 the practitioner may be dealt with for professional 26 misconduct. 27 (4) If notice under subsection (3) is given and the failure 28 continues for the 14 day period-- 29 (a) the Australian legal practitioner is taken to have 30 committed professional misconduct, unless the 31 70 Section 435 (Referral by commissioner to law society or bar association) or 436 (Commissioner investigating a complaint or investigation matter)

 


 

s 444 322 s 444 Legal Profession Bill 2007 practitioner has a reasonable excuse for not complying 1 with the requirement within the period; and 2 (b) the commissioner may apply to the tribunal for an order 3 in relation to the charge that the practitioner has 4 committed professional misconduct as stated in 5 paragraph (a) as if the application were an application in 6 relation to a complaint against the practitioner. 7 (5) In a hearing before the tribunal about a charge of professional 8 misconduct, a copy of the notice mentioned in subsection (3) 9 and any enclosures with the notice are evidence of the matters 10 in the notice and the enclosures. 11 (6) An Australian legal practitioner may refuse to give the entity 12 an explanation of a matter being investigated if-- 13 (a) the practitioner satisfies the entity that to give the 14 explanation would contravene, or invalidate, a policy for 15 professional indemnity insurance held by the 16 practitioner; or 17 (b) the explanation would tend to incriminate the 18 practitioner. 19 (7) A regulation may provide for how part 4.9 applies to an 20 application to the tribunal for an order in relation to a charge 21 that a legal practitioner has committed professional 22 misconduct as stated in subsection (4)(a) and may be dealt 23 with under that part as an application in relation to a 24 complaint against the practitioner. 25 444 Referral of costs for assessment 26 For the purpose of investigating a complaint, the entity 27 carrying out an investigation as mentioned in section 435 or 28 436 may refer a matter to a person, whom the entity considers 29 is qualified because the person has the necessary expertise or 30 experience, to assess costs charged or claimed by a law 31 practice. 32

 


 

s 445 323 s 447 Legal Profession Bill 2007 445 Regulation may provide for covering cost of assessment 1 under s 443 or 444 2 A regulation may provide for the way in which the cost of an 3 assessment under section 443 or 444 is to be met, including 4 requiring an amount to be paid before the assessment or 5 recovering the amount of the assessment as a debt. 6 446 Powers of commissioner relating to complaint or 7 investigation matter relating to unlawful operator 8 (1) This section applies after a complaint or investigation matter 9 about an unlawful operator has been investigated. 10 (2) As the commissioner considers it appropriate, the 11 commissioner may-- 12 (a) start proceedings to prosecute the unlawful operator 13 under this Act; or 14 (b) give to the commissioner of police the results of the 15 investigation; or 16 (c) refer the complaint or investigation matter to the law 17 society for further investigation; or 18 (d) decide to no longer deal with the matter the subject of 19 the complaint or investigation matter. 20 (3) Subsection (2)(a) does not limit the Acts Interpretation Act 21 1954, section 42.71 22 (4) For subsection (2)(b), the commissioner may enter into 23 arrangements with the commissioner of police. 24 Part 4.7 Decision of commissioner 25 447 Decision of commissioner to start proceeding under ch 4 26 As the commissioner considers appropriate in relation to a 27 complaint or investigation matter that has been or continues to 28 71 Acts Interpretation Act 1954, section 42 (Any person may prosecute etc.)

 


 

s 448 324 s 450 Legal Profession Bill 2007 be investigated, other than a complaint or investigation matter 1 about the conduct of an unlawful operator, the commissioner 2 may start a proceeding under this chapter before a disciplinary 3 body. 4 448 Dismissal of complaint 5 (1) The commissioner may dismiss the complaint or investigation 6 matter if satisfied that-- 7 (a) there is no reasonable likelihood of a finding by a 8 disciplinary body of-- 9 (i) for an Australian legal practitioner--either 10 unsatisfactory professional conduct or professional 11 misconduct; or 12 (ii) for a law practice employee--misconduct in 13 relation to the relevant practice; or 14 (b) it is in the public interest to do so. 15 (2) The commissioner must give the respondent and any 16 complainant written notice about the commissioner's decision 17 to dismiss the complaint or investigation matter. 18 449 Record of decision 19 The commissioner must cause a record of his or her decision 20 about a complaint or an investigation matter, together with 21 reasons for the decision, to be kept for each complaint or 22 investigation matter dealt with under this part. 23 Part 4.8 General procedural matters 24 450 Duty to deal with complaints efficiently and expeditiously 25 The commissioner must, under this Act, deal with complaints 26 as efficiently and expeditiously as is practicable.72 27 72 See section 434 (Commissioner may delay dealing with complaint).

 


 

s 451 325 s 452 Legal Profession Bill 2007 451 Duty to inform complainant about action taken for 1 complaint 2 (1) The commissioner must keep a complainant informed about 3 the way the complaint is dealt with. 4 (2) Without limiting subsection (1), the commissioner must give 5 the complainant-- 6 (a) notice of the receipt of the complaint by the 7 commissioner; and 8 (b) a copy of any discipline application made because of the 9 complaint; and 10 (c) written notice of the date set down for starting the 11 hearing for the discipline application; and 12 (d) written notice of a decision of a disciplinary body 13 relating to the complaint. 14 (3) This section is subject to section 650.73 15 Part 4.9 Proceedings in disciplinary 16 body 17 452 Starting proceeding before a disciplinary body 18 (1) The commissioner may apply-- 19 (a) to the tribunal for an order against an Australian legal 20 practitioner in relation to a complaint against the legal 21 practitioner or an investigation matter; or 22 (b) to the committee for an order-- 23 (i) against an Australian legal practitioner in relation 24 to a complaint against the legal practitioner or an 25 investigation matter; or 26 73 Section 650 (Prohibited publication about hearing of a disciplinary application)

 


 

s 453 326 s 455 Legal Profession Bill 2007 (ii) against a law practice employee in relation to a 1 complaint against the employee or an investigation 2 matter involving the employee. 3 (2) An application under subsection (1) is a discipline 4 application. 5 453 Hearings 6 The disciplinary body must hear and decide each allegation 7 stated in the discipline application. 8 454 Joinder 9 A disciplinary body may, subject to its rules, order the joinder 10 of more than 1 discipline application involving the same 11 Australian legal practitioner or law practice employee or 12 different Australian legal practitioners or law practice 13 employees. 14 455 Variation of discipline application 15 (1) The disciplinary body may, on the commissioner's 16 application, vary a discipline application by omitting 17 allegations or including additional allegations, if the body is 18 satisfied that it is reasonable to do so having regard to all the 19 circumstances. 20 (2) Without limiting subsection (1), when considering whether or 21 not it is reasonable to vary a discipline application, the 22 disciplinary body must have regard to whether varying the 23 application will affect the fairness of the proceeding. 24 (3) The inclusion of an additional allegation is not precluded on 25 any or all of the following grounds-- 26 (a) the additional allegation has not been the subject of a 27 complaint; 28 (b) the additional allegation has not been the subject of an 29 investigation; 30 (c) the alleged conduct happened more than 3 years ago, 31 including conduct that happened before the 32 commencement of section 430. 33

 


 

s 456 327 s 456 Legal Profession Bill 2007 456 Decisions of tribunal about an Australian legal 1 practitioner 2 (1) If, after the tribunal has completed a hearing of a discipline 3 application in relation to a complaint or an investigation 4 matter against an Australian legal practitioner, the tribunal is 5 satisfied that the practitioner is guilty of unsatisfactory 6 professional conduct or professional misconduct, the tribunal 7 may make any order as it thinks fit, including any 1 or more of 8 the orders stated in this section. 9 (2) The tribunal may, under this subsection, make 1 or more of 10 the following in a way it considers appropriate-- 11 (a) an order recommending that the name of the Australian 12 legal practitioner be removed from the local roll; 13 (b) an order that the practitioner's local practising certificate 14 be suspended for a stated period or cancelled; 15 (c) an order that a local practising certificate not be granted 16 to the practitioner before the end of a stated period; 17 (d) an order that-- 18 (i) imposes stated conditions on the practitioner's 19 practising certificate granted or to be issued under 20 this Act; and 21 (ii) imposes the conditions for a stated period; and 22 (iii) specifies the time, if any, after which the 23 practitioner may apply to the tribunal for the 24 conditions to be amended or removed; 25 (e) an order publicly reprimanding the practitioner or, if 26 there are special circumstances, privately reprimanding 27 the practitioner; 28 (f) an order that no law practice in this jurisdiction may, for 29 a period stated in the order of not more than 5 years-- 30 (i) employ or continue to employ the practitioner in a 31 law practice in this jurisdiction; or 32 (ii) employ or continue to employ the practitioner in 33 this jurisdiction unless the conditions of 34 employment are subject to conditions stated in the 35 order. 36

 


 

s 456 328 s 456 Legal Profession Bill 2007 (3) The tribunal may, under this subsection, make 1 or more of 1 the following-- 2 (a) an order recommending that the name of the Australian 3 legal practitioner be removed under a corresponding law 4 from an interstate roll; 5 (b) an order recommending that the practitioner's interstate 6 practising certificate be suspended for a stated period or 7 cancelled under a corresponding law; 8 (c) an order recommending that an interstate practising 9 certificate not be, under a corresponding law, granted to 10 the practitioner until the end of a stated period; 11 (d) an order recommending-- 12 (i) that stated conditions be imposed on the 13 practitioner's interstate practising certificate; and 14 (ii) that the conditions be imposed for a stated period; 15 and 16 (iii) a stated time, if any, after which the practitioner 17 may apply to the tribunal for the conditions to be 18 amended or removed. 19 (4) The tribunal may, under this subsection, make 1 or more of 20 the following-- 21 (a) an order that the Australian legal practitioner pay a 22 penalty of a stated amount, not more than $100000; 23 (b) a compensation order; 24 (c) an order that the practitioner undertake and complete a 25 stated course of further legal education; 26 (d) an order that, for a stated period, the practitioner engage 27 in legal practice under supervision as stated in the order; 28 (e) an order that the practitioner do or refrain from doing 29 something in connection with the practitioner engaging 30 in legal practice; 31 (f) an order that the practitioner stop accepting instructions 32 as a public notary in relation to notarial services; 33

 


 

s 457 329 s 457 Legal Profession Bill 2007 (g) an order that engaging in legal practice by the 1 practitioner is to be managed for a stated period in a 2 stated way or subject to stated conditions; 3 (h) an order that engaging in legal practice by the 4 practitioner is to be subject to periodic inspection by a 5 person nominated by the relevant regulatory authority 6 for a stated period; 7 (i) an order that the practitioner seek advice from a stated 8 person in relation to the practitioner's management of 9 engaging in legal practice; 10 (j) an order that the practitioner must not apply for a local 11 practising certificate for a stated period. 12 (5) To remove any doubt, it is declared that the tribunal may make 13 any number of orders mentioned in any or all of subsections 14 (2), (3) and (4). 15 (6) Also, the tribunal may make ancillary orders, including an 16 order for payment by the Australian legal practitioner of 17 expenses associated with orders under subsection (4), as 18 assessed in or under the order or as agreed. 19 (7) The tribunal may find a person guilty of unsatisfactory 20 professional conduct even though the discipline application 21 alleged professional misconduct. 22 457 Orders to be filed in Supreme Court and information 23 notices to be given to parties etc. 24 (1) This section applies to the Brisbane registrar after the tribunal 25 makes-- 26 (a) an order under section 456 or 462 or part 4.1074 in 27 relation to a discipline application; or 28 (b) an order under section 46975 in relation to a discipline 29 application that the tribunal dealt with on an appeal from 30 the committee. 31 74 Section 456 (Decisions of tribunal about an Australian legal practitioner) or 462 (Costs) or part 4.10 (Compensation orders) 75 Section 469 (Appeal to tribunal against committee's decision)

 


 

s 458 330 s 458 Legal Profession Bill 2007 (2) The Brisbane registrar must-- 1 (a) file the order in a Supreme Court registry; and 2 (b) give the parties in relation to the discipline application a 3 copy of the order and an information notice about the 4 final decision about the discipline application; and 5 (c) give the Minister a copy of the order. 6 (3) On being filed, the order is an order of the Supreme Court and 7 may be enforced accordingly. 8 (4) Subsection (3) is subject to section 463.76 9 458 Decisions of committee about discipline application 10 (1) This section applies if, after a committee has completed a 11 hearing of a discipline application in relation to a complaint or 12 an investigation matter against an Australian legal practitioner 13 or law practice employee, the committee is satisfied-- 14 (a) for the practitioner--that the practitioner is guilty of 15 unsatisfactory professional conduct; or 16 (b) for the employee--that the employee is guilty of 17 misconduct in relation to the relevant practice. 18 (2) The committee may make 1 or more of the following in 19 relation to an Australian legal practitioner-- 20 (a) an order publicly reprimanding the practitioner or, if 21 there are special circumstances, privately reprimanding 22 the practitioner; 23 (b) an order that the practitioner pay a penalty of a stated 24 amount, not more than $10000; 25 (c) a compensation order; 26 (d) an order that the practitioner do or refrain from doing 27 something in connection with the practitioner engaging 28 in legal practice; 29 76 Section 463 (Other remedies not affected)

 


 

s 459 331 s 459 Legal Profession Bill 2007 (e) an order that engaging in legal practice by the 1 practitioner is to be managed for a stated period in a 2 stated way or subject to stated conditions; 3 (f) an order that engaging in legal practice by the 4 practitioner is to be subject to periodic inspection by a 5 person nominated by the relevant regulatory authority 6 for a stated period; 7 (g) an order that the practitioner seek advice from a person 8 nominated by the relevant regulatory authority in 9 relation to the practitioner's management of engaging in 10 legal practice. 11 (3) Also, the committee may make ancillary orders, including an 12 order for payment by the Australian legal practitioner of 13 expenses associated with orders under subsection (2), as 14 assessed in or under the order or as agreed. 15 (4) For a law practice employee, the committee may order that the 16 law practice concerned and all other law practices in this 17 jurisdiction must not, for a period stated in the order of not 18 more than 5 years-- 19 (a) continue to employ or employ the employee in a law 20 practice in this jurisdiction; or 21 (b) employ or continue to employ the employee in this 22 jurisdiction unless the conditions of employment are 23 subject to conditions stated in the order. 24 (5) In this section-- 25 law practice employee includes a person who was a law 26 practice employee. 27 459 Orders to be filed in Supreme Court and information 28 notices to be given to parties etc. 29 (1) This section applies after the committee makes an order under 30 section 458 or 462 or part 4.10 in relation to a discipline 31 application. 32 (2) The commissioner must-- 33 (a) give the other party or parties in relation to the discipline 34 application a copy of the order and an information 35

 


 

s 460 332 s 461 Legal Profession Bill 2007 notice about the final decision about the discipline 1 application; and 2 (b) give the Minister a copy of the order. 3 (3) If there is no appeal from the decision within the 28 days 4 allowed for the appeal, the commissioner must file the order 5 in a Supreme Court registry. 6 (4) On being filed, the order is an order of the Supreme Court and 7 may be enforced accordingly. 8 (5) Subsection (4) is subject to section 463. 9 460 Interlocutory and interim orders 10 (1) A disciplinary body may make an interlocutory or interim 11 order as it considers appropriate before making its final 12 decision about a discipline application. 13 (2) Without limiting subsection (1), an order under section 456 or 14 474 may be made as an interlocutory or interim order. 15 461 Compliance with decisions and orders 16 (1) To the extent an entity has a function or power under this Act 17 relevant to an order of a disciplinary body, the entity must-- 18 (a) give effect to an order made under section 456(2), 19 458(2) or 460; and 20 (b) enforce an order made under section 456(4) or (6), 21 458(2), (3) or (4) or 460 so far as the order relates to the 22 legal practice of, or other matters affecting, the 23 Australian legal practitioner concerned in this 24 jurisdiction. 25 (2) The commissioner must ensure that entities having functions 26 or powers under a corresponding law of another jurisdiction 27 are notified of the making and contents of-- 28 (a) an order of the tribunal made under section 456(3) or 29 460 in relation to that corresponding law; and 30 (b) an order of the body made under section 456(4) or (6), 31 458(2), (3) or (4) or 460 so far as the order relates to the 32 legal practice of, or other matters affecting, the 33

 


 

s 462 333 s 462 Legal Profession Bill 2007 Australian legal practitioner concerned in that other 1 jurisdiction. 2 (3) If the tribunal makes an order recommending that the name of 3 an Australian legal practitioner be removed from the local 4 roll, the Brisbane registrar must remove, or arrange with 5 another registrar for the removal of, the name from the local 6 roll. 7 462 Costs 8 (1) A disciplinary body must make an order requiring a person 9 whom it has found guilty to pay costs, including costs of the 10 commissioner and the complainant, unless the disciplinary 11 body is satisfied exceptional circumstances exist. 12 (2) A disciplinary body may make an order requiring a person 13 whom it has not found guilty to pay costs, including costs of 14 the commissioner and the complainant, if the disciplinary 15 body is satisfied that-- 16 (a) the sole or principal reason why the proceeding was 17 started in the disciplinary body was the person's failure 18 to cooperate with the commissioner or a relevant 19 regulatory authority; or 20 (b) there is some other reason warranting the making of an 21 order in the particular circumstances. 22 (3) Without limiting subsection (2), a disciplinary body that 23 makes an order under section 460 may make a further order 24 requiring an Australian legal practitioner, in relation to whom 25 the order under section 460 relates, to pay costs in relation to 26 the order. 27 (4) A disciplinary body may make an order requiring the 28 commissioner to pay costs, but may do so only if it is satisfied 29 that-- 30 (a) the Australian legal practitioner or law practice 31 employee is not guilty; and 32 (b) the body considers that special circumstances warrant 33 the making of the order. 34 (5) An order for costs-- 35

 


 

s 463 334 s 464 Legal Profession Bill 2007 (a) may be for a stated amount; or 1 (b) may be for an unstated amount but must state the basis 2 on which the amount must be decided. 3 (6) An order for costs may state the terms on which costs must be 4 paid. 5 (7) In this section-- 6 guilty means guilty of unsatisfactory professional conduct or 7 professional misconduct, or of misconduct in relation to a 8 relevant practice, as mentioned in section 456(1) or 458(1). 9 463 Other remedies not affected 10 This part does not affect any other remedy available to a 11 complainant. 12 Part 4.10 Compensation orders 13 464 Meaning of compensation order 14 A compensation order is 1 or more of the following-- 15 (a) an order that a law practice can not recover or must 16 repay the whole or a stated part of the amount that the 17 law practice charged a complainant for stated legal 18 services; 19 (b) an order discharging a lien possessed by a law practice 20 in relation to a stated document or class of documents; 21 (c) an order that a law practice carry out stated work for a 22 stated person without a fee or for a stated fee; 23 (d) an order that a law practice pay to a complainant an 24 amount by way of compensation for pecuniary loss 25 suffered because of conduct that has been found to be-- 26 (i) unsatisfactory professional conduct or professional 27 misconduct of an Australian legal practitioner 28 involved in the relevant practice; or 29

 


 

s 465 335 s 466 Legal Profession Bill 2007 (ii) misconduct of a law practice employee in relation 1 to the relevant practice. 2 465 Compensation order relating to pecuniary loss 3 (1) Unless the parties agree, a compensation order that is the type 4 of order mentioned in section 464(d) must not be made unless 5 the disciplinary body making the order is satisfied-- 6 (a) if there is a complainant in relation to the discipline 7 application--that the complainant has suffered 8 pecuniary loss because of the conduct concerned; and 9 (b) that it is in the interests of justice that an order of that 10 type be made. 11 (2) Also, a compensation order of the type mentioned in section 12 464(d) for a pecuniary loss for which the relevant complainant 13 has received or is entitled to receive either of the following 14 must not be made-- 15 (a) compensation under an order that has been made by a 16 court; 17 (b) compensation from the fidelity fund, or a fund of 18 another jurisdiction under a corresponding law of that 19 jurisdiction, if a claim for payment from the fidelity 20 fund or other fund has been made or decided. 21 466 Effect of compensation order 22 (1) A compensation order preventing recovery of an amount of 23 the type mentioned in section 464(a) is effective even if a 24 proceeding to recover the amount, or any part of it, has been 25 started by or for the law practice. 26 (2) A compensation order requiring repayment of an amount of 27 the type mentioned in section 464(a) is effective even if a 28 court has ordered payment of the amount, or an amount of 29 which it is part, in a proceeding brought by or for the law 30 practice. 31 (3) A compensation order requiring payment of an amount of 32 more than $7500 by way of monetary compensation of the 33 type mentioned in section 464(d) must not be made unless the 34 complainant and the law practice both consent to the order. 35

 


 

s 467 336 s 469 Legal Profession Bill 2007 467 Other remedies not affected 1 The recovery of an amount awarded by a compensation order 2 does not affect any other remedy available to a complainant, 3 but an amount so awarded must be taken into account in 4 another proceeding by or for the complainant in relation to the 5 same loss. 6 Part 4.10A Appeals from decisions of 7 disciplinary bodies 8 468 Appeal may be made to Court of Appeal from tribunal's 9 decision 10 (1) The following may appeal a decision of the tribunal to the 11 Court of Appeal-- 12 (a) a party dissatisfied with the tribunal's decision; 13 (b) the Minister. 14 (2) The appeal is by way of a rehearing on the evidence given in 15 the matter before the tribunal. 16 (3) However, subsection (2) does not prevent the Court of Appeal 17 from giving leave to introduce further evidence, whether 18 fresh, additional or substituted, if the court considers the 19 further evidence may be material to the appeal. 20 (4) The appeal must be made-- 21 (a) if the appeal is being made by the Minister--within 28 22 days after a copy of the tribunal's order is given to the 23 Minister; or 24 (b) otherwise--within 28 days after the tribunal's order is 25 made. 26 469 Appeal to tribunal against committee's decision 27 (1) A party dissatisfied with a final decision of the committee 28 about a discipline application may appeal to the tribunal 29 against the decision within 28 days after the day the 30

 


 

s 470 337 s 471 Legal Profession Bill 2007 information notice mentioned in section 459(2)77 is given to 1 the party. 2 (2) If a party appeals to the tribunal against the decision of the 3 committee, the appeal is to be by way of rehearing, and fresh 4 evidence or evidence in addition to or in substitution for the 5 evidence before the committee may be given on the appeal. 6 (3) On an appeal under this section, the tribunal may make an 7 order, including an order for costs, as it considers appropriate 8 to decide the discipline application. 9 470 Appeal to Court of Appeal in relation to a decision of 10 committee 11 (1) This section applies to a decision of the committee that, under 12 section 459(4), has become an order of the Supreme Court. 13 (2) A person may, with the leave of the Court of Appeal, appeal 14 against the order by appealing to that court. 15 (3) The appeal is by way of a rehearing on the evidence given in 16 the matter before the committee. 17 (4) However, subsection (3) does not prevent the Court of Appeal 18 from giving leave to introduce further evidence, whether 19 fresh, additional or substituted, if the court considers the 20 further evidence may be material to the appeal. 21 Part 4.11 Publicising disciplinary action 22 471 Definition for pt 4.11 23 In this part-- 24 disciplinary action means-- 25 (a) the making of an order by a court or the tribunal that 26 finds an Australian legal practitioner guilty of 27 77 Section 459 (Orders to be filed in Supreme Court and information notices to be given to parties etc.)

 


 

s 472 338 s 472 Legal Profession Bill 2007 professional misconduct under this Act, a previous Act 1 or under a corresponding law; or 2 (b) any of the following actions under this Act or under a 3 corresponding law, following a finding by a court or the 4 tribunal of unsatisfactory professional conduct or 5 professional misconduct by an Australian legal 6 practitioner-- 7 (i) the removal of the practitioner's name from an 8 Australian roll; 9 (ii) the suspension or cancellation of an Australian 10 practising certificate of the practitioner; 11 (iii) the refusal to grant or renew an Australian 12 practising certificate to the practitioner; 13 (iv) the appointment of a receiver of all or any of the 14 practitioner's property or the appointment of a 15 manager for the practitioner's law practice; or 16 (c) the making of an order by the committee under section 17 458(4).78 18 472 Discipline register 19 (1) The commissioner must keep a register (the discipline 20 register) about the following-- 21 (a) disciplinary action taken under this Act against an 22 Australian legal practitioner or in relation to a law 23 practice employee; 24 (b) disciplinary action taken under a corresponding law 25 against an Australian legal practitioner who is or was 26 admitted to the legal profession under this Act or a 27 previous Act or practising in this jurisdiction, when the 28 conduct that is the subject of the disciplinary action 29 happened. 30 (2) The discipline register must include-- 31 78 Section 458 (Decisions of committee about discipline application)

 


 

s 473 339 s 473 Legal Profession Bill 2007 (a) the full name of the person against whom the 1 disciplinary action was taken and the law practice who 2 employs or employed the person; and 3 (b) the person's business address or former business 4 address; and 5 (c) for an Australian legal practitioner--the practitioner's 6 home jurisdiction; and 7 (d) particulars of the disciplinary action taken; and 8 (e) other particulars prescribed under a regulation. 9 (3) The discipline register may be kept in a form decided by the 10 commissioner, including forming part of other registers. 11 (4) The discipline register must be available for public inspection 12 on-- 13 (a) the internet site of the commissioner; or 14 (b) an internet site identified on the internet site of the 15 commissioner. 16 (5) Information recorded in the discipline register may be given to 17 members of the public in another way approved by the 18 commissioner. 19 (6) The commissioner may cause any error in or omission from 20 the discipline register to be corrected. 21 (7) The requirement to keep the discipline register applies only in 22 relation to disciplinary action taken after the commencement 23 of this section, but details relating to earlier disciplinary action 24 may be included in the register. 25 473 Other means of publicising disciplinary action 26 (1) The commissioner may publicise disciplinary action taken 27 against a person in any way the commissioner considers 28 appropriate. 29 (2) Nothing in this section affects the provisions of this part 30 relating to the discipline register. 31

 


 

s 474 340 s 475 Legal Profession Bill 2007 474 Quashing of disciplinary action 1 (1) If disciplinary action is quashed on appeal or review, any 2 reference to that disciplinary action must be removed from the 3 discipline register. 4 (2) If disciplinary action is quashed on appeal or review after the 5 action was publicised by the commissioner under section 473, 6 the result of the appeal or review must be publicised in the 7 same way by the commissioner. 8 475 Liability for publicising disciplinary action 9 (1) No liability is incurred by a protected person in relation to 10 anything done or omitted to be done in good faith for the 11 purpose of-- 12 (a) publicising disciplinary action taken against a person or 13 relating to a law practice; or 14 (b) performing the functions or exercising the powers of the 15 commissioner under this chapter; or 16 (c) keeping, publishing or enabling access to the discipline 17 register. 18 (2) Without limiting subsection (1), no liability, including liability 19 in defamation, is incurred by a protected person publishing in 20 good faith-- 21 (a) information about disciplinary action-- 22 (i) recorded in the discipline register; or 23 (ii) otherwise publicised by the commissioner under 24 this part; or 25 (b) matter containing that information, or matter purporting 26 to contain that information where the matter is incorrect; 27 or 28 (c) a fair report or summary of that information. 29 (3) In this section-- 30 protected person means-- 31 (a) the State; or 32 (b) the commissioner; or 33

 


 

s 476 341 s 477 Legal Profession Bill 2007 (c) a regulatory authority; or 1 (d) a person responsible for keeping a record about 2 disciplinary action, or information about disciplinary 3 action, under a corresponding law; or 4 (e) an internet service provider or internet content host; or 5 (f) a person acting at the direction of the State or any person 6 or body mentioned in paragraphs (b) to (d). 7 476 Disciplinary action taken because of infirmity, injury or 8 illness 9 (1) Disciplinary action taken against a person because of 10 infirmity, injury or mental or physical illness is not to be 11 recorded in the discipline register or otherwise publicised 12 under this part. 13 (2) Subsection (1) does not apply if the disciplinary action 14 involves-- 15 (a) the suspension or cancellation of the person's practising 16 certificate; or 17 (b) a refusal to grant or renew an Australian practising 18 certificate applied for by the person; or 19 (c) a regulation of the person's right to engage in legal 20 practice; 21 but in that case the reason for the disciplinary action, and 22 other information relating to the infirmity, injury or mental or 23 physical illness, must not be recorded in the register or 24 otherwise publicised under this part without the person's 25 consent. 26 477 General provisions about disclosure of information 27 (1) The provisions of this part are subject to any order made by 28 any of the following if the order regulates the disclosure of 29 information-- 30 (a) a disciplinary body in relation to disciplinary action 31 taken under this chapter; 32

 


 

s 478 342 s 478 Legal Profession Bill 2007 (b) a corresponding disciplinary body in relation to 1 disciplinary action taken under a corresponding law; 2 (c) a court or tribunal of this or another jurisdiction. 3 (2) However, despite the order mentioned in subsection (1), the 4 name and other identifying particulars of the person against 5 whom the disciplinary action was taken and the law practice 6 who employs or employed the person, and the kind of 7 disciplinary action taken-- 8 (a) must be recorded in the discipline register; and 9 (b) may be otherwise publicised under this part. 10 (3) Section 70579 is subject to this part. 11 Part 4.12 Inter-jurisdictional provisions 12 478 Protocols 13 (1) The commissioner may enter into arrangements (cross-border 14 protocols) with corresponding authorities about investigating 15 and dealing with conduct that appears to have happened in 16 more than 1 jurisdiction. 17 (2) In particular, a cross-border protocol may provide for-- 18 (a) principles to help in deciding where conduct happens, 19 either generally or in stated classes of cases; and 20 (b) giving and receiving consent for conduct happening in a 21 jurisdiction to be dealt with under a law of another 22 jurisdiction; and 23 (c) procedures to be adopted for requesting and conducting 24 the investigation of an aspect of complaints or 25 investigation matters under this part. 26 79 Section 705 (Confidentiality of personal information)

 


 

s 479 343 s 481 Legal Profession Bill 2007 479 Request to another jurisdiction to investigate complaint 1 or investigation matter 2 (1) The commissioner may request a corresponding authority to 3 arrange for the investigation of an aspect of a complaint or an 4 investigation matter that is being dealt with by the 5 commissioner and to give the commissioner a report on the 6 result of the investigation. 7 (2) A report on the result of the investigation received from-- 8 (a) the corresponding authority; or 9 (b) a person or body authorised by the corresponding 10 authority to conduct the investigation; 11 may be used and considered by the commissioner and a 12 disciplinary body in the course of dealing with a discipline 13 application under this chapter. 14 480 Request from another jurisdiction to investigate 15 complaint 16 (1) This section applies in relation to a request received by the 17 commissioner from a corresponding authority to arrange for 18 the investigation of an aspect of a complaint under a 19 corresponding law being dealt with under that law. 20 (2) The commissioner may conduct the investigation or authorise 21 another entity to conduct it. 22 (3) The provisions of this chapter relating to the investigation of a 23 complaint or investigation matter apply, with any necessary 24 changes, in relation to the investigation that is the subject of 25 the request. 26 (4) The commissioner must give a report on the result of the 27 investigation to the corresponding authority. 28 481 Sharing of information with corresponding authorities 29 (1) This section applies to each of the following entities-- 30 (a) the commissioner; 31 (b) the law society; 32 (c) the bar association. 33

 


 

s 482 344 s 483 Legal Profession Bill 2007 (2) Each entity may, either separately or jointly with another 1 entity or entities, enter into arrangements with a 2 corresponding authority for providing information to the 3 corresponding authority about-- 4 (a) complaints and investigations under this chapter; and 5 (b) any action taken in relation to complaints made or 6 investigations conducted under this chapter, including 7 decisions of a disciplinary body under this chapter. 8 (3) The arrangement must include the following-- 9 (a) the purposes for which the corresponding authority is 10 given the information; 11 (b) how the corresponding authority will protect the privacy 12 of the information. 13 482 Cooperation with other authorities 14 (1) This section applies when a prescribed entity is dealing with a 15 complaint or investigating an investigation matter. 16 (2) The prescribed entity may, either separately or jointly with 17 another prescribed entity or prescribed entities, consult and 18 cooperate with another person or body, whether in Australia 19 or a foreign county, who or that has or may have relevant 20 information or powers in relation to the person against whom 21 the complaint was made or the person under investigation. 22 (3) For subsection (2), the prescribed entity and the other person 23 or body may exchange information concerning the complaint 24 or investigation. 25 (4) In this section-- 26 prescribed entity means an entity to which section 481 27 applies. 28 483 Request for information relevant to a complaint or 29 investigation matter 30 (1) The commissioner may ask a person or body in Australia or 31 elsewhere that may have information relevant to a complaint 32 or investigation matter for information. 33

 


 

s 484 345 s 485 Legal Profession Bill 2007 (2) Before asking for the information, the commissioner must 1 decide the way in which the request is to be phrased having 2 regard to the respondent's right to privacy in relation to the 3 matter the subject of the complaint or investigation matter. 4 (3) For the purpose of asking for information, the commissioner 5 may give information to a foreign registration authority if the 6 commissioner considers it necessary to do so to establish the 7 matters relevant to the investigation of the complaint or 8 investigation matter. 9 484 Compliance with recommendations or orders made 10 under corresponding laws 11 (1) Entities having relevant functions or powers under this Act 12 must-- 13 (a) give effect to or enforce any recommendation or order of 14 a corresponding disciplinary body, or other 15 corresponding authority, made under a corresponding 16 law in relation to functions or powers exercisable under 17 this Act; and 18 (b) give effect to or enforce any recommendation or order of 19 a corresponding disciplinary body, or other 20 corresponding authority, made under a corresponding 21 law so far as the recommendation or order relates to the 22 practice of law by the Australian legal practitioner or 23 law practice concerned in this jurisdiction. 24 (2) If a corresponding disciplinary body makes a 25 recommendation or order that a person's name be removed 26 from the local roll of this jurisdiction, the Brisbane registrar 27 must remove, or arrange with another registrar for the removal 28 of, the name from the local roll. 29 (3) If a corresponding disciplinary body makes an order that a 30 local Australian legal practitioner pay a fine, a copy of the 31 order may be filed in the Supreme Court and the order may be 32 enforced as if it were an order of the court. 33 485 Other powers or functions not affected 34 Nothing in this part affects any functions or powers that a 35 person or body has apart from this part. 36

 


 

s 486 346 s 487 Legal Profession Bill 2007 Part 4.13 Miscellaneous 1 486 Information about complaints procedure 2 The commissioner must-- 3 (a) produce information about the making of complaints 4 and the procedure for dealing with complaints; and 5 (b) ensure that information is available to members of the 6 public on request; and 7 (c) give help to members of the public in making 8 complaints. 9 487 Protection from liability for notification of conduct or 10 making a complaint 11 (1) This section applies if a person makes a complaint or 12 otherwise gives information to the commissioner, the law 13 society or the bar association about conduct that is-- 14 (a) conduct of an Australian lawyer or a law practice 15 employee; or 16 (b) a possible contravention of section 24 or 25. 17 (2) The person is not liable, civilly (including in an action for 18 defamation), criminally or under an administrative process for 19 making the complaint, giving the notice or otherwise giving 20 information to the commissioner, the law society or the bar 21 association relating to the complaint or notice, including, for 22 example, giving further information under section 431. 23 (3) Also, merely because the person makes the complaint, gives 24 the notice or otherwise gives information as mentioned in 25 subsection (2), the person can not be held to have-- 26 (a) breached any code of professional etiquette or ethics; or 27 (b) departed from accepted standards of professional 28 conduct. 29

 


 

s 488 347 s 490 Legal Profession Bill 2007 488 Failure to comply with order of a disciplinary body 1 A failure by a person to comply with an order of a disciplinary 2 body under this Act, or an order of a corresponding 3 disciplinary body under a corresponding law, is capable of 4 being unsatisfactory professional conduct or professional 5 misconduct. 6 489 Performance criteria 7 (1) The commissioner must develop performance criteria relating 8 to the handling of complaints under this chapter. 9 (2) The commissioner must include the relevant criteria in the 10 commissioner's annual report under this Act, together with an 11 assessment of the commissioner's performance against the 12 criteria in the period to which the report relates. 13 490 Annual and other reports to the Minister 14 (1) By 31 October after the end of each financial year, the 15 commissioner must give to the Minister a report for the 16 immediately preceding financial year. 17 (2) The report must deal with the system established under this 18 Act or a previous Act for dealing with complaints. 19 (3) Also the Minister may, by written notice, ask the 20 commissioner to provide a report at any time for a period 21 stated in the Minister's request about the system or about an 22 aspect of the system stated in the notice. 23 (4) If the Minister makes a request under subsection (3), the 24 commissioner must comply with the request and give the 25 relevant report to the Minister by the date stated in the notice. 26 (5) The commissioner may include other matters the 27 commissioner considers appropriate in a report under this 28 section, including, for example, recommendations about the 29 system. 30 (6) The Minister must table in the Legislative Assembly a report 31 given to the Minister under subsection (1), within 14 days 32 after receiving the report. 33

 


 

s 491 348 s 492 Legal Profession Bill 2007 491 Confidentiality of client communications 1 (1) An Australian legal practitioner must comply with a 2 requirement under this chapter or a requirement under part 3 7.2,80 to answer a question or to produce information or a 4 document, despite any duty of confidentiality about a 5 communication between the legal practitioner and a client, but 6 only if the client is the complainant or consents to its 7 disclosure. 8 (2) A provision of an agreement with a client in settlement of a 9 matter that involves conduct that may be the subject of a 10 complaint under this chapter is not enforceable to prevent the 11 client disclosing, or consenting to the disclosure of, 12 information or a document for an investigation of the 13 complaint, whether or not the complaint has been withdrawn, 14 or an investigation matter. 15 (3) It is a reasonable excuse for the Australian legal practitioner 16 not to comply with a requirement mentioned in subsection (1) 17 if complying with the requirement might tend to incriminate 18 the practitioner. 19 (4) For this section, the commissioner may give an undertaking to 20 a person regarding non-disclosure of information or a 21 document given under subsection (3). 22 492 Waiver of legal professional privilege or benefit of duty of 23 confidentiality 24 (1) This section applies if a person signs a document waiving the 25 person's legal professional privilege, or the benefit of a duty 26 of confidentiality, about a matter (the waived matter) relating 27 to the subject of a complaint or an investigation matter. 28 (2) An Australian legal practitioner can not refuse to disclose to 29 the commissioner or relevant regulatory authority any 30 information about the waived matter on the grounds of legal 31 professional privilege or the duty of confidentiality. 32 80 Chapter 7 (Establishment of entities for this Act, and related matters), part 7.2 (Legal Practice Tribunal)

 


 

s 493 349 s 493 Legal Profession Bill 2007 (3) However, the Australian legal practitioner may refuse to 1 disclose the information on the grounds that it might tend to 2 incriminate the practitioner. 3 Chapter 5 External intervention 4 Part 5.1 Preliminary 5 493 Main purpose of ch 5 6 (1) The main purpose of this chapter is to ensure that an 7 appropriate range of options is available for intervention in the 8 business and professional affairs of law practices and 9 Australian-registered foreign lawyers for the purpose of 10 protecting the interests of-- 11 (a) the general public; and 12 (b) clients; and 13 (c) lawyers, including the owners and employees of law 14 practices, so far as their interests are not inconsistent 15 with the interests of the general public and clients. 16 (2) It is intended that interventions happen consistently with-- 17 (a) similar interventions in other jurisdictions, especially if 18 a law practice operates in this jurisdiction and 1 or more 19 other jurisdictions; and 20 (b) other provisions of this Act. 21 Note-- 22 This chapter-- 23 (a) applies to all law practices, regardless of whether they are 24 incorporated under the Corporations Act; and 25 (b) is intended to apply so that it, rather than the Corporations Act or 26 the Bankruptcy Act 1966 (Cwlth), applies in relation to the 27 winding-up of trust property and the carrying on of a law practice 28 by an external intervener. 29

 


 

s 494 350 s 495 Legal Profession Bill 2007 494 Definitions for ch 5 1 (1) In this chapter-- 2 external intervener means a supervisor, manager or receiver 3 under this chapter. 4 external intervention means the appointment of, and the 5 exercise of the functions and powers of, a supervisor, manager 6 or receiver under this chapter. 7 regulated property, of a law practice, means the following-- 8 (a) trust money or trust property received, receivable or held 9 by the law practice; 10 (b) interest, dividends or other income or anything else 11 derived from or acquired with money or property 12 mentioned in paragraph (a); 13 (c) documents or records of any description relating to 14 anything mentioned in paragraph (a) or (b); 15 (d) any computer hardware or software, or other devices, in 16 the custody or control of the law practice by which any 17 records mentioned in paragraph (c) may be produced or 18 reproduced in visible form. 19 (2) Other expressions used in this chapter have the same 20 meanings as in part 3.3.81 21 495 Application of ch 5 22 (1) This chapter does not apply to the holder of a current local 23 practising certificate granted or renewed by the bar 24 association. 25 (2) A regulation may provide whether or not, and if so to what 26 extent, this chapter applies to an interstate legal practitioner. 27 (3) Also this chapter applies, with any necessary changes, to an 28 Australian-registered foreign lawyer and a former 29 Australian-registered foreign lawyer in the same way as it 30 applies to a law practice. 31 81 Part 3.3 (Trust money and trust accounts)

 


 

s 496 351 s 497 Legal Profession Bill 2007 496 Application of chapter to other persons 1 (1) This chapter applies, with any necessary changes, to each of 2 the following in the same way as it applies to a law practice-- 3 (a) a former law practice or former Australian legal 4 practitioner; 5 (b) the executor (original or by representation) or 6 administrator for the time being of a deceased 7 Australian legal practitioner or of his or her estate; 8 (c) the administrator or receiver, or receiver and manager, 9 of the property of an incorporated legal practice; 10 (d) the liquidator of an incorporated legal practice that is 11 being or has been wound up. 12 (2) In this section-- 13 former Australian legal practitioner includes a person who 14 was a solicitor or barrister in this jurisdiction before 1 July 15 2004. 16 Part 5.2 Starting external interventions 17 497 Circumstances warranting external intervention 18 External intervention in relation to a law practice may take 19 place in any of the following circumstances-- 20 (a) if a legal practitioner associate involved in the practice 21 has died, ceases to be an Australian legal practitioner, 22 has become an insolvent under administration or is in 23 prison; 24 (b) if a firm--the partnership has been wound up or 25 dissolved; 26 (c) if an incorporated legal practice-- 27 (i) ceases to be an incorporated legal practice; or 28 (ii) is being or has been wound up; or 29 (iii) has been deregistered or dissolved; 30

 


 

s 497 352 s 497 Legal Profession Bill 2007 (d) if the law society believes that the law practice or an 1 associate of the law practice-- 2 (i) is not dealing adequately with trust money or trust 3 property or is not properly attending to the affairs 4 of the practice; or 5 (ii) has committed a serious irregularity, or a serious 6 irregularity has happened, in relation to trust 7 money or trust property or the affairs of the 8 practice; or 9 (iii) has failed properly to account in a timely way to 10 any person for trust money or trust property 11 received by the practice for that person; or 12 (iv) has failed properly to make a payment of trust 13 money, or a transfer of trust property, when 14 required to do so by a person entitled to that money 15 or property or entitled to give a direction for 16 payment or transfer; or 17 (v) is in breach of a regulation, or the legal profession 18 rules, with the result that the record-keeping for the 19 practice's trust account is inadequate; or 20 (vi) has been or is likely to be convicted of an offence 21 relating to trust money or trust property; or 22 (vii) is the subject of a complaint relating to trust money 23 or trust property received by the practice; or 24 (viii) has failed to comply with any requirement of an 25 investigator, an ILP investigator or an external 26 examiner, under this Act; or 27 (ix) has ceased to be engaged in legal practice without 28 making provision for properly dealing with trust 29 money or trust property received by the practice or 30 for properly winding up the affairs of the practice; 31 (e) if the law society believes proper cause exists in relation 32 to the practice. 33

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