Legal Practitioners (Amendment) Act 1935 (NSW)
LEGAL PRACTITIONERS
(AMENDMENT) ACT.
Act No. 12, 1935.
| An Act to amend the law relating to legal practitioners; to make provision with respect to the keeping and examination oi accounts of solicitors and conveyancers; to make better provision for the investigation of charges of professional misconduct; to provide for the establishment and adminis- tration of a solicitors' fidelity guarantee fund; to provide for the issue of annual practising certificates; to provide for admission of conveyancers as solicitors and to discontinue the grant of certificates to parsons to practise as conveyancers; and | for |
for these and other purposes to amend the Legal Pract i t ioners Act, 1898, and certain other Ac t s ; and for purposes connected therewith. [Assented to , 11th March, 1935.]
BE it enacted by the King ' s M o s t Excel lent b y and with t h e advice and consent of t he Legis
Ma je s ty ,
lat ive Council and Legis la t ive Assemb ly of N e w S o u t h
Wales in P a r l i a m e n t assembled, and by t h e au tho r i t y of t h e same, as follows :—
1. (1) This Act may be cited as the " Legal P r a c
t i t ioners (Amendment ) Act, 1935 ."
(2) The Legal P rac t i t ione r s Act, 1898, is re fe r red
to in this Act as the Pr inc ipa l Act.
(3) The Pr inc ipa l Act, as amended by th is Act,
may be cited as the Legal P rac t i t ione r s Act, 1898-1935.
(4) This Act shall commence upon a da te to be ap pointed by the Governor and notified by proclamat ion published in the Gazette.
2 . The Pr inc ipa l Act is amended—
(a) by inserting in section three next after the
definition of " B a r r i s t e r " the following defini t ions
" Chief Jus t i ce " means the Chief Jus t ice of
the Cour t and includes an Act ing Chief
Jus t ice , and in the absence from du ty of:— the Chief Jus t ice and Act ing Chief Jus t i ce means the senior puisne judge of the
Court ." Conveyancer " means a certificated convey ancer to whom a certificate has been gran ted under this Act.
Council " means the council of the Ins t i t u t e . by inserting in the same section after the defini tion of " Court " the following definition:—
"
(b)
" Ins t i tu te " means the Incorpora ted L a w Ins t i tu te of New South Wales .
(c)
(c)
by inserting in the same section after the defini t ion of " J u d g e " the following definitions:—
" Moneys " includes an ins t rument for the payment of money in any case where the ins t rument may be pa id into a bank.
" Moneys received for or on behalf of any person " includes moneys held for or on behalf of any person whether originally received for or on his behalf or not.
' ' P a r t ' ' means P a r t of this Act.
(d) by omitting from the same section the definition of ' ' P rescr ibed ' ' and by inser t ing the following- definitions :— " Prescr ibed " means prescr ibed by this Act and in P a r t s I to VI , both inclusive, and P a r t s X and X I by rules of Cour t and in P a r t s V I I , V I I I and I X by regula t ions
made p u r s u a n t to this A c t . "
" Sec re ta ry " means the secre tary for the t ime being of the Ins t i tu te and includes any deputy or person temporar i ly fulfil ling the duties of his office.
(e)
by inserting in the same section at the end of the definition of " Solicitor " the words " and in P a r t s V I I , V I I I , IX , X, and X I of this Act includes a conveyancer " ;
(f)
by inserting in the same section next after the definition of " Solicitor " the following new definition:—
" The F u n d " means the Sol ic i tors ' Fidel i ty
Guarantee F u n d established p u r s u a n t to
this Act.
3. The Pr inc ipa l Act is fur ther amended by insert
ing next af ter P a r t V I the following new P a r t : —
P A R T V I I . Trust accounts.
41. (1) All moneys received for or on behalf of a n y person by a n y solicitor shall be held by him exclusively for such person, to be paid to such person, or to be disbursed as he directs , and unt i l so pa id or disbursed the moneys shall be paid into a bank in New South Wales to a t r u s t account, whether general
or separa te . (2) (2) The moneys shall not be available for the payment of the debts of the solicitor to any other credi tor of the solicitor, or be liable to be a t tached or taken in execution under the o rder or process of any Cour t a t the instance of any such o ther creditor.
(3) Noth ing in th is section shall be const rued to take away or affect any jus t claim or lien which any solicitor may have agains t or upon any of the moneys, and noth ing in this section shall app ly to moneys receivable by a solicitor for or on account of legal costs, whether a l ready due or to accrue due.
42. E v e r y solicitor shall keep accounts of all moneys so received by him in such a manner as to disclose the t rue posit ion in r ega rd thereto , and to enable the account to be conveniently and proper ly audi ted.
43. Wilful fai lure by any solicitor to comply wi th any provis ion of section forty-one or section forty- two of this Act shall bo professional misconduct.
44. (1) Subject to the provisions of this section no bank shall, in connection with any t ransac t ion on any account of any solicitor kept with it or wi th any other bank, incur any liabili ty or be under any obligation to make any enquiry or be deemed to have any knowledge of any r igh t of any person to any money pa id or credi ted to any such account which it would not incur or be under or be deemed to have in the case of an account kept by a person enti t led absolutely to all the money pa id or credi ted to i t :
P rov ided tha t no th ing in this subsection shall
relieve a bank from any liabili ty or obligation unde r
which it would be a p a r t from this Act.(2) Notwi ths tand ing any th ing in subsection one of this section a bank a t which a solicitor keeps an account for c l ients ' money shall not, in respect of any liabili ty of the solicitor to the bank, not being a liabili ty in connection wi th t ha t account, have or obtain any recourse or r igh t whether by way of set off, counter-claim, charge or otherwise, agains t moneys s tand ing to the credit of tha t account :
P rov ided
Prov ided tha t noth ing in this subsection shall depr ive a bank of any r ight exist ing a t the t ime of the commencement of the Legal P rac t i t ioners (Amendment) Act, 1935.
4. The Pr inc ipa l Act is fur ther amended by inser t ing
| af ter P a r t V I I , as inser ted in the Pr inc ipa l Act by | this | |
| Act, the following new | P a r t : — | |
|
The Solicitors' Fidelity Guarantee Fund.
45. This P a r t shall apply with respect to every solicitor who is for the t ime being engaged in the pract ice of his profession, e i ther on his own account or in pa r tne r sh ip with any other person, but shall not apply to any solicitor who is not so engaged.
46. (1) There shall be a fund to be called the Sol ic i tors '
F idel i ty
Guaran tee
Fund .
(2) The fund shall be the p r o p e r t y of the
Ins t i tu te and shall be appl ied for the purposes set
out in this P a r t .
47. All moneys belonging to the fund shall, pend ing the investment or appl icat ion thereof in accord ance with this P a r t , be pa id into a bank in New South Wales to the credit of a separa te account, to be called the Sol ic i tors ' F ide l i ty Guaran tee F u n d Account, and such account shall be opera ted upon in such manner as the council shall from t ime to
t ime
determine.
48. The fund shall consist of—
(a)
all sums paid to or on account of the fund by solicitors, ei ther a s annual contr ibutions or as levies in accordance with the provis ions
of this P a r t ; (b)
the interest from time to time accruing from the investment of the fund;
(c)
any other moneys that may be lawfully paid into the fund.
49. The re shall f rom time to t ime be pa id out of the fund as required, and in such order as the Council deems p rope r—
(a) all legal expenses incurred in investigating or defending claims made aga ins t the fund or the Ins t i tu te in respect of the fund or otherwise incurred in re la t ion to the fund; (b) the amount of all claims, including costs, allowed or established aga ins t the Ins t i tu te in respect of the fund as provided in this P a r t ; (c) all refunds made to solicitors or to their
personal represen ta t ives p u r s u a n t to section sixty-four of this Ac t ;
(d)
the expenses involved in the administration of the fund, including allowances to mem bers of the council or the committee of management or the S t a t u t o r y Committee in respect of thei r services and their reason able t ravel l ing expenses incur red in connection with the management of the fund;
(e)
the expenses incurred or involved in the adminis t ra t ion by the council of or in the exercise by the council of the powers and author i t ies conferred on the council by th is
P a r t or P a r t X ;
(f) any other moneys payable out of the fund in accordance with this P a r t or with a n y rules or regula t ions made under the au thor i ty of this Act.
50. The accounts of the fund shall be audi ted annual ly by an accountant approved of by the P r o - thono ta ry and appointed for the purpose by the council.
51. The fund shall be adminis te red by the council on behalf
of the
Ins t i tu te .
The
The council may from time to t ime by resolut ion delegate i ts powers in relat ion to the fund or any of such powers to a committee of management con sist ing of not less than th ree nor more than live persons being members of the Ins t i tu te .
A major i ty of the members of such committee of
managemen t shall be members of the council for the
t ime being.
| Any such resolut ion may be a t any t ime in like m a n n e r | rescinded | or | var ied. |
52. (1) Except as provided in subsection three of th i s section, every solicitor with respect to whom th is P a r t applies shall dur ing the month of J u l y in each yea r p a y to such person as may f rom t ime to t ime be author ised by the council to receive the same such annual contr ibut ion as may from t ime to t ime be prescr ibed by regulat ions made under t he au thor i ty of this P a r t , being not less than three pounds nor more than ten pounds in any year .
(2) If any solicitor who is not du r ing the month of Ju ly in any year engaged in the prac tice of his profession ei ther on his own account or in pa r tne r sh ip with any other person commences af te r the said month of J u l y in any year to pract ise a s a solicitor on his own account or in pa r tne r sh ip with any other person, he shall thereupon become liable to pay, and shall p a y to the person author ised to receive the same under subsection one of this section, the amount of the annual contr ibut ion for
t ha t year prescr ibed by the r egu la t ions :
P rov ided tha t if the date of such commencement is af ter the thirty-first day of December in any yea r , the solicitor so commencing to prac t i se shall only be liable to pay one-half of the annual contribu t ion for tha t year prescr ibed by the regulat ions.
(3) If on the first day of Ju ly in any year t he amount of the fund, including investments there of, and after making such provision as the council m a y consider adequate for all unpaid claims and other liabilities outs tanding agains t the fund, shall
| E | be |
be not less t han one hundred thousand pounds, no contributions in accordance with this section shall be payable to the fund for tha t year .
(4) F o r the purpose of this and section fifty-
three of this Act, the yea r shall be deemed to commence upon the first day of Ju ly , and to expire upon
the th i r t ie th day of J u n e next following. 53. (1) If a t any t ime or t imes the fund is in the opinion of the council not sufficient to satisfy the liabilities of the Ins t i tu te in relat ion thereto , the council may, subject as here inaf ter provided, by resolut ion impose on every solicitor with respect to whom this P a r t applies, for payment into the fund, a levy of such amount as the council thinks fit not exceeding ten pounds .
(2) The amount of the levy shall become pay able on a da te and in a manner to be fixed by the council. The council may in any special case allow time for the paymen t of any levy or p a r t thereof.
(3) A solicitor shall not be requi red to pay by way of levy under this section more than ten pounds in any one yea r nor more than fifty pounds dur ing the whole per iod of his pract ice as a solicitor.
5-1. If any solicitor with respect to whom this P a r t applies does not af ter the prescr ibed notice pay any contr ibut ion or levy as requi red by this P a r t , the council shall r epo r t to the P r o t h o n o t a r y tha t the solicitor has not pa id the contr ibut ion or levy, as the case may be.
The P r o t h o n o t a r y shall make due record of the fact, and so long as the contr ibut ion or levy remains
unpaid the solicitor shall be deemed to be an
unqualified person within the meaning of P a r t V I .55. Any moneys in the fund tha t a r e not immedi ately required for the purposes thereof may be invested in any manner in which t rus tees a re for the t ime being author ised to invest t r u s t funds, or on deposit , for such per iod as the council deems proper , with the Colonial T r e a s u r e r or with any bank or corpora t ion prescr ibed by rules of court as a bank or corporat ion to which t ru s t moneys may be paid under section fifteen of the Trus t ee Act, 1925.
56. (1) Subject to the provisions of this P a r t , the fund shall be held and applied for the purpose of re imburs ing persons who may suffer pecuniary loss by reason of the theft, or f raudulent misappl icat ion by a solicitor with respect to whom this P a r t applies, of any moneys or other valuable p r o p e r t y en t rus ted to him, or to his se rvant or agent, in the course of his pract ice as a solicitor, including any moneys or other valuable p rope r ty as aforesaid en t rus ted to him as a solici tor-trustee.
(2) (a) No person shall have any claim agains t the fund in respect of any theft o r f raudulent misappl icat ion committed before the commencement of the Legal Prac t i t ioners (Amendment) Act, 1935.
(b) I n respect of any theft or f raudulent misappl icat ion tha t may be committed after such commencement, no person shall have a claim against the fund unless notice of such theft or f raudulent misappl icat ion is given in wr i t ing to the council as as soon as reasonably practicable after the claimant has become aware of the theft or f raudulent mis application, but in any event within three months af ter hav ing become so aware unless the Court or a
| judge thereof g r an t s fur ther | t ime. |
(3) No person shall be entit led to claim agains t the fund in respect of any loss th rough such theft or f raudulent misappl icat ion unless and unt i l there shall have been a conviction of such solicitor for such theft or f raudulent misapplicat ion, unless the Cour t
| or such J u d g e shall seem good and sufficient, shall | or a J u d g e thereof for reasons which to the Court | |
| have by an order certified tha t the person claiming to have suffered loss should be pe rmi t t ed to claim agains t the fund notwi ths tanding tha t such solicitor has not been convicted in respect of such theft or | ||
| ||
| 57. (1) The council may receive and settle any claim against the fund a t any t ime af ter the com mission of the theft or f raudulent misappl icat ion in respect of which such claim arose, but no person shall |
be
be entit led, wi thout leave of the council, to commence any action in relat ion to the fund unless the council shall have disallowed his claim, and unless and unt i l the claimant has exhausted all re levant r ights of action and other legal remedies available agains t t h e defaul t ing solicitor or any other person in respect of the loss suffered by him.
(2) No person shall be entit led to recover f rom the Ins t i tu te out of the fund by action as aforesaid an amount g rea t e r than the balance of the loss suffered by him af ter deduct ing from the to ta l amount of such loss the amount or value of all moneys or other benefits received or recovered or which in the opinion of the council might but for his neglect or default have been received or recovered by h im from any source other t han the fund in reduction of such loss.
(3) The to ta l amount which any person shall be entit led to recover from the fund shall not in any case or in any event exceed two thousand pounds .
(4) The aggrega te sum which may be applied in the re imbursement of all persons who suffer loss through theft or f raudulent misappl icat ion by the game solicitor or firm of solicitors shall not in any case or in any event exceed the sum of ten thousand pounds :
Provided tha t where the first judgment or claim
in respect of any such theft or f raudulent misappl icat ion is obtained or allowed on or before the th i r t i e th
day of J u n e , one thousand nine hundred and forty- five, such aggrega te sum shall not exceed the sum of five thousand pounds . (5) No amount shall be paid or payable out of the fund as in teres t on the amount of any judg ment obtained or of any claim allowed aga ins t the fund.
58. The council may cause to be published a notice in or to the effect of the prescr ibed form in a news pape r published and circulat ing in the dis t r ic t in which the defaul t ing solicitor is or was prac t i s ing or
ca r ry ing
car ry ing on business and also in a daily newspaper published and circulat ing in Sydney, and such notice shall fix a date not being earl ier than three months af ter the publication or the first publication, as the case may be, within which claims mus t be made.
A n y claim not made in wr i t ing on or before the
da te so fixed shall be ba r r ed unless the council
otherwise determines . 59. Af ter the date so fixed the council shall be a t l iberty to dis t r ibute the sum from time to t ime available to be applied in re imbursement under section fifty-seven of this Act, having r ega rd only to judgments obtained and claims allowed agains t the fund.
60. Any proceedings brought against the Ins t i tu te in relat ion to any claim upon the fund shall be by action at law as for a debt due by the Ins t i tu te , and in any such action all defences which would have been available to the solicitor in relat ion to whom the claim arose shall bo available to the Ins t i tu te , and in any such action all questions of costs shall be in the discretion of the Cour t or the pres id ing Judge .
61. On payment out of the fund of any moneys in set t lement in whole or in p a r t of any claim under this P a r t , the Ins t i tu te shall be subrogated, to the extent of such payment , to all the r igh ts and remedies of the claimant agains t the solicitor in relat ion to whom the claim arose, or any other person.
62. The council or the committee of management
m a y a t any t ime and from time to t ime require pro
necessary to suppor t any claim made, or available duction and delivery up of securit ies and documents for tha t purpose , or for the purpose of exercising i ts r igh ts agains t any default ing solicitor, and may in default of delivery up of any such securit ies or documents reject any claim.
63. (1) No moneys or other p rope r ty belonging to the Ins t i tu te , other than the fund, shall be available for the satisfaction of any judgment obtained aga ins t the Ins t i tu te in relat ion to the fund, or for the pay ment of any claim allowed by the council; and if at any t ime the fund is not sufficient to provide for the
sat isfact ion
satisfaction of all such judgments and claims, they shall (subject to the l imitat ions fixed by this Act) to the extent to which they a re no t so satisfied, be satisfied out of future accumulat ions of the fund.
(2) No proceedings based upon or for the en forcement of any such judgment shall be taken without leave of the Court .
(3) W h e r e the to ta l amount of the judgments obtained and claims allowed exceeds the aggrega te sum which may bo applied in re imbursement under section fifty-seven of this Act, the council may in i ts uncontrolled discret ion determine the division and allocation amongst the claimants respectively or any one or more of them exclusively of the other or o thers of them, of the moneys for the t ime being payable out of the fund.
64. In the event of the death or on the re t i rement from the pract ice of his profession of any solicitor in respect of whom no claim has been made under this Act, or if any such claim has been made , in respect of whom such claim has not been sustained, the council m a y in i ts discret ion p a y to h im or to his personal representa t ives , as the case m a y be, a sum not exceeding the aggrega te amount of his contr ibut ions to the fund.
65. (1) F o r the purpose of sa feguard ing the fund,
the council may at any t ime and from t ime to t imeappoint an accountant to examine the t r u s t accounts
of any solicitor or firm of solicitors specified in the appointment , whether a member or members of the Ins t i tu te or not, and to furnish to the council a con fidential r epor t as to any i r regu la r i ty or alleged or suspected i r r egu la r i ty in the accounts of such solicitor or solicitors tha t may be disclosed by such examination, or as to any other m a t t e r tha t in the opinion of such accountant should, in the in teres t of the fund, be fur ther invest igated.
A copy of the r epor t shall for thwith be sent by post by the accountant to the solicitor or firm con cerned.
( 2 )
(2) E v e r y appoin tment made under this sec tion shall be subject to the approva l of the P ro tho - n o t a r y and shall be in wr i t ing signed by the presi dent or two members of the council.
(3) Upon product ion by such accountant of the ins t rument of his appoin tment as aforesaid he may requi re the solicitor or solicitors in respect of whom the appoin tment has been made, or in the absence of such solicitor or solicitors any se rvant or agent of such solicitor or solicitors hav ing the a p p a r e n t charge or control for the t ime being of the office or business of such solicitor or solicitors, to produce to the accountant and any ass i s tan t of the accountant all books, pape r s , accounts, securit ies or other documents re la t ing to the business or accounts of such solicitor or solicitors, so far as the same re la te to the t rus t accounts and t ru s t funds of such solicitor or solicitors, and to give all infor mat ion in relat ion there to , and to furnish all author i t ies and orders to bankers and others tha t m a y be reasonably required of him or them, and if any such person without lawful justification or excuse, the proof whereof shall lie on him, refuses or fails so to do, or otherwise h inders , obstructs , or delays the accountant in the performance of his duties or the exercise of his powers under this section, he shall be guil ty of an offence and shall be liable to the penal ty provided under subsection six of this section.
Any such offence shall also be professional mis conduct. (4) No accountant appointed to make any examinat ion of accounts for the purposes of th is section shall communicate tha t fact or a n y m a t t e r which may come to his knowledge in the course of such examinat ion to any person except in the course of his r epor t to the council.
No ass is tan t of any such accountant shall commu
nicate the fact of the appoin tment of such accountantor any ma t t e r which may come to his knowledge
in
in the course of the examinat ion to any person except to the accountant appointed to make the examina tion, or, if so required, to the council.
(5) I t shall not be lawful for any member of the council or any of i ts officers to publish, except to the Court or to the council, or to the S t a tu to ry Committee, any informat ion disclosed in such repor t .
(6) E v e r y person who commits a breach of any of the provis ions of this section shall, in addi t ion to any other proceeding, pena l ty or punishment to which he m a y be liable, be liable on summary con viction to a penal ty not exceeding two hundred pounds.
5. The Pr inc ipa l Act is fur ther amended by inser t ing
after P a r t V I I I , as inser ted in the Pr inc ipa l Act by this
Act, the following new P a r t : —
P A R T I X .
Annual practising certificates.
66. I t shall be the du ty of the council to keep a roll of prac t i s ing solicitors and to issue certificates to persons who a re entit led to take out certificates au thor i s ing them to prac t i se , and for the purposes of this P a r t any reference to a solicitor or prac t i s ing solicitor shall include a solicitor employed as a clerk by another solicitor.
67. No solicitor shall on or af ter the first day of
Ju ly , one thousand nine hundred and thirty-five, act
a certificate in the prescr ibed form tha t he is enti t led or prac t i se as a solicitor unless he has then in force to prac t i se as a solicitor.
68. E v e r y person who af ter the th i r t i e th day of J u n e , one thousand nine hundred and thirty-five, directly or indirect ly acts or prac t i ses as a solicitor wi thout having a t the t ime a certificate then in force issued by the council shall be guil ty of an offence, and shall, in addi t ion to any other proceedings, penal ty or punishment to which he m a y be liable, be liable on summary conviction to a pena l ty not exceeding fifty pounds .
60. The annual prac t i s ing fee, which shall be paid to the Ins t i tu te , shall be—
(a) for every solicitor who for the time being is engaged in the practice of his profession either on his own account or in pa r tne r sh ip with any other solicitor, the sum of two
gu ineas ; and (b) for any solicitor who is not so engaged, the sum of one gu inea ; and every solicitor who holds a prac t i s ing certificate shall, while such prac t i s ing certificate remains in force, be entit led to be a member of the Ins t i tu te without payment of any fur ther fee or subscription.
70. Subject to this Act, on payment by the appli cant of the prescr ibed prac t i s ing fee and on being satisfied t ha t the prescr ibed contribution to the fund and any levy then payable under this Act by him has been paid, the council shall—
(a)
on applicat ion by a duly enrolled prac t i s ing solicitor issue to him a certificate in the prescr ibed form which shall be in force from the first. day of J u l y next af ter the date of such certificate unt i l the th i r t ie th day of
J u n e following; (b)
on application by a duly enrolled solicitor who shall not have prac t i sed as a solicitor p r io r to the date of such application, accom panied by a declarat ion by the appl icant in the prescr ibed form, issue to him a certifi cate in the prescr ibed form which shall be in force from the da te of such certificate
unt i l the th i r t ie th day of J u n e next follow
ing such d a t e ; (c)
on application by a duly enrolled solicitor who shall have been, but at the da te of such applicat ion is not, in pract ice as a solicitor, accompanied by a declarat ion by the appl i - cant in the prescr ibed form, issue to him a certificate in the prescr ibed form which shall be in force from the da te of such certificate until the th i r t ie th day of J u n e next following such date .
71. The council may refuse to issue a certificate and may cancel a certificate when issued under the foregoing provis ions of this P a r t if the appl icant for or holder of such certificate, as the case may be, shal l—
(a) be in p r i son ; (b) have failed to comply with any statute, regula t ion or order re la t ing to his t r u s t funds or the t rus t funds of any pa r tne r sh ip of which he was a member a t the time, and such fai lure still cont inues; (c) have when called upon by the council so to do failed to give a sat isfactory explana tion touching any m a t t e r re la t ing to his conduct as a solicitor, and such failure still cont inues; (d) be in any way in default under any of the provis ions contained in this Ac t ; (e) be sharing in contravention of section 40F of this Act with an unqualified person receipts from a business of a na tu re usual ly per formed by a prac t i s ing solicitor.
I f the council shall refuse to issue or shall cancel such certificate it shall, if so requi red by the appli cant or holder, as the case may be, within four teen days from the da te of such refusal or cancellation, s ta te in wr i t ing the grounds for such refusal or cancellation.
72. I n case the council shall refuse any appl icat ion for a certificate, or shall cancel any such certificate, the appl icant or the holder, as the case m a y be, m a y appeal to the Cour t or to a judge in chambers , who may make such order in the m a t t e r as to the Cour t or judge m a y seem fit. I n the case of an appeal aga ins t a refusal the appel lant shall, pending the disposal of the appeal , be deemed to hold a p rac t i s ing certificate. I n the case of an appea l against a cancellation the cancel lation shall be suspended pending the disposal of
the appeal .
73. No solicitor act ing for a client shall on or af ter the first day of Ju ly , one thousand nine hundred and thirty-five, commence, prosecute, defend, or ca r ry on any action or suit or any proceedings in any court without having previously obtained a prac t i s ing cer tificate which shall be then in force, or shall be capable of main ta in ing any action or suit for the recovery of any fee, r ewa rd or d isbursement for or in respect of any business, ma t t e r or th ing done by h im as a solicitor whilst he shall have been without
such prac t i s ing certificate. 74. No person act ing as a solicitor for a client on or af ter the first day of Ju ly , one thousand nine hundred and thirty-five, without having previously obtained a prac t i s ing certificate which shall be then in force, shall be capable of main ta in ing any action or suit for the recovery of any fee, r eward or dis bursement for or in respect of instruct ions for, or drawing, p repa r ing , engrossing, s tamping, reg is te r ing, or recording any deed, document, or ins t rument , whilst he shall have been without such prac t i s ing certificate.
6. The Pr inc ipa l Act is fur ther amended by inser t ing
af ter P a r t IX , as inser ted in the Pr inc ipa l Act by th is
| Act, the following new | P a r t : — | |
|
The Solicitors' Statutory Committee.
75. (1) There shall be a committee of the council to be called ' ' The S t a tu to ry Committee of the Incor pora ted Law Ins t i tu te of New South Wales " (here inaf ter re fer red to as the " S t a t u t o r y Committee " ) for the purpose of hea r ing charges of professional misconduct upon the p a r t of solicitors, whether such solicitors are members of the Ins t i tu te or not. (2) The S t a tu to ry Committee shall consist of not less than three and not more than five members who a t the t ime of their appoin tment shall be mem bers of the Ins t i tu te and shall be prac t i s ing solicitors of not less than seven y e a r s ' s tanding.
(3)
(3) The members shall be appointed by the Chief Jus t ice and shall hold office for a t e rm of three years .
Any member shall be eligible for reappointment .
(4) Any casual vacancy in the S t a tu to ry Com mittee shall be filled by the appoin tment there to by the Chief Jus t ice of some eligible person and such person shall hold office for the remainder of the t e rm of office of the member whose seat has become vacant .
(5) The S ta tu to ry Committee shall appoint one of i ts members to be the cha i rman thereof for such
period as it th inks fit.(6) A quorum of the S ta tu to ry Committee shal l consist of three members thereof.
(7) The continuing members of the S t a tu to ry Commit tee may (provided there is a quorum) act no twi ths tanding any vacancy in the i r body.
No act done by or by the au thor i ty of the S t a tu to ry Commit tee shall be invalid in consequence of any defect tha t is a f t e rwards discovered in the appoint ment or qualification of the members or any of them.
(8) A member of the S t a tu to ry Committee may re t i re from his office upon giving one mon th ' s notice in wr i t ing to the secre tary of his intent ion so to do, and such res ignat ion shall take effect upon the expira t ion of such notice or i ts ear l ier acceptance by
the council. (9) The office of a member of the S t a t u t o r y Committee shall ipso facto be vacated—
(a) if he d ies ; or
(b) if he becomes of unsound mind ; or
(c)
if he ceases to be a member of the I n s t i t u t e ; or
(d)
if he becomes bankrupt or makes any a r r angemen t or composition with his credi tors ; or
(e)
(e) if he is convicted of an offence under this
Ac t ; or (f) if by resolution of the council he is required
to r e s ign : P rov ided tha t if any such vacancy shall occur d u r i n g the hear ing of any charge, question or ma t t e r such hea r ing may be continued and an order made thereon by not less than three of the remain ing members of the S t a tu to ry Committee before whom such hear ing was commenced and continued pr io r to such vacancy.
(10) When any charge, question or ma t t e r is hea rd by and before th ree or more members of the S t a t u t o r y Committee, and such members a re divided in opinion as to the decision to be given on any point a r i s ing dur ing the hear ing or as to the order to be made on such charge, question or mat te r , such point or order shall be decided or made according to the opinion of the major i ty of such members , if the re be a major i ty , but if such members a re equally divided in opinion, then the opinion of the cha i rman of the S t a tu to ry Committee if he is one of such mem bers , or if he is not, the opinion of the member appointed by the members taking pa r t in such hear ing to act as chai rman on such hear ing , shall prevai l .
76. (1) The Court , or a judge , or the council of i ts own motion m a y refer to the S t a tu to ry Com mit tee for enquiry any question as to the professional misconduct of any solicitor which appea r s to the Court , judge or council to requi re invest igat ion.
(2) (a) Any person feeling aggr ieved by reason of the alleged professional misconduct of any solicitor may, whether the m a t t e r charged was com mi t ted or suffered before or af ter the commence ment of the Legal Prac t i t ioners (Amendment ) Act, 1935, by himself or his agent make a charge thereof in wr i t ing to the council.
(b) The council may requi re—
(i) fur ther pa r t i cu la r s of any cha rge ; (ii) any charge to be verified by statutory declarat ion.
The
The council may refer any such charge to the S t a tu to ry
Committee for
enquiry.
(3) The council may ei ther a t the request of
the S t a tu to ry Committee or of i ts own motion employcounsel and solicitors to ass is t the S t a tu to ry Com
mit tee in the invest igat ion of any m a t t e r re fer red to
the S t a tu to ry Committee.
(4) The S ta tu to ry Committee may by wr i t ing unde r the hand of the cha i rman summon before it any solicitor in respect of whose conduct any m a t t e r has been refer red to it or a charge has been made, and may enquire into such m a t t e r or charge.
(5) The S ta tu to ry Committee may in like man ner summon to appea r before it the complainant and any person who may in i ts opinion be able to give evidence or produce documents touching the m a t t e r in question, or whom the complainant or the solicitor may desire to call as a witness.
(6) The provis ions of sections seven, eight, nine, ten, eleven and twelve and of P a r t I I I of the Royal Commissions Act, 1923-1934, shall apply muta t i s mutandis to and with respect to the inquiry, and every member of the S t a tu to ry Committee shall as such have the same protect ion as a commissioner appointed under tha t Act.
(7) A solicitor summoned before the Sta tu to ry Committee or a complainant may be repre sented by counsel or solicitor.
(1) Subject to the following provisions of this P a r t , every charge or question as to the professional 77.
misconduct, of any solicitor re fer red to the S t a tu to ry Committee shall be hea rd by the S t a tu to ry Committee in accordance with the rules to be made under the au thor i ty of this P a r t , and the S t a tu to ry Committee shall, subject to such rules, upon every such hear ing have power after hea r ing the case to make any such, order as to s t r ik ing off the roll or suspending from pract ice either conditionally or otherwise the solicitor to whom such hea r ing re la tes , or the imposing on him of a fine not exceeding two hundred pounds, or as to the payment by any p a r t y of costs or otherwise
in
in relat ion to the case as before the commencement of the Legal P rac t i t ioners (Amendment) Act, 1935, the Court would have had power to make in accord ance with the au thor i ty and pract ice of the Court .
(2) E v e r y order made by the S t a tu to ry Com mit tee shall be signed by the cha i rman or by the member act ing as cha i rman and shall be prefaced by a s ta tement of the findings of the S t a tu to ry Com mit tee in re la t ion to the facts of the case and shall
be filed with the P ro thono ta ry .
(3) E v e r y order made by the S t a tu to ry Com mittee shall as soon as the same shall have been filed, be acted upon by the P r o t h o n o t a r y and be enforce able in the same manner as a judgment or order of the Court to the like effect.
(4) The file of orders made under this Act shall, dur ing office hours , be open for the inspection of any person on payment of such fee, if any, as may be prescr ibed by rules of court.
78. An appeal to the Cour t from any order of the S t a tu to ry Committee made under the powers of this Act shall lie a t the instance ei ther of the complainant or of the solicitor or of the council.
E v e r y such appeal shall be in the na tu r e of a re hear ing and shall be made within such t ime and in such form and shall be heard in such manner as shall be prescr ibed by rules of court in tha t behalf to be made under the au thor i ty of this Act.
The court or a judge may order tha t any ordermade by the S t a tu to ry Committee shall be s tayed
pending the disposal of an appeal theref rom upon such te rms as shall seem just . 79. Nothing in this Act contained shall prejudice, diminish, or affect the jurisdict ion, powers and authori t ies which a re exercisable by the Cour t over solicitors.
80. E v e r y court of law shall take judicial notice of the appoin tment of the S t a tu to ry Committee and of the cha i rman and of each member thereof and of the s ignature of the chai rman and of any member act ing as chairman thereof.
SI.
SI. The Judges of the Supreme Court , or any three of them, may from time to t ime on the recom mendat ion of the council make rules of court—
(a) for regulating the practice and proceedings of the S t a tu to ry Committee, including the award ing of costs by such Committee, the taxa t ion thereof by the tax ing officer of the Court , and the recovery of same by execu tion or o therwise ; (b) for conferring upon the Statutory Com mit tee any fur ther powers necessary or convenient for the due fulfilment of i t s funct ions; (c) for carrying into effect the provisions of
this Act re la t ing to the S t a tu to ry Committee and its funct ions;
and may in like manne r amend or rescind such rules .
All such rules shall be promulga ted in like manne r
and thereupon have the like force and effect and be
subject to the like disallowance upon being laid
before both Houses of P a r l i a m e n t as rules of cour tmade under and in pursuance of the Supreme Cour t
P rocedure Act, 1900.
7. The Pr inc ipa l Act is fu r ther amended by inser t ing
af ter P a r t X, as inser ted in the Pr inc ipa l Act by this
Act, the following new P a r t
P A R T X I .
Miscellaneous. 82. (1) The Ins t i tu te shall, in addi t ion to its exist ing powers and functions, have the following powers and functions, tha t is to s ay :—
(a)
to take such steps as in the opinion of the council may be necessary or p r o p e r for or with respect to the invest igat ion in accord ance wi th th is Act of any charge or question as to the professional misconduct of any sol ici tor;
(b)
(b)
to institute prosecutions and other proceed ings for the breach of any of the provisions of this Act or of any rule or regulat ion made the reunde r ;
(c)
to oppose any application for admission as a solicitor or for res tora t ion to the roll of solicitors or any applicat ion by a solicitor for leave to employ any pe r son ;
(d)
to employ any barrister or solicitor to a p p e a r before any court in any of the
ma t t e r s re fer red to in this section. (2) Any prosecut ion or proceeding re fe r red to in p a r a g r a p h (b) of subsection one of this section may be ins t i tu ted in the name of the Ins t i tu te by the P res iden t or any Vice-president or by any other person duly author ised by the council in t ha t behalf.
E v e r y such prosecut ion or proceeding shall, unless it is proved to the cont rary , be deemed to be insti tu ted by and on behalf of the Ins t i tu te .
83. The council may employ any ba r r i s t e r or solicitor to a p p e a r before any court in any m a t t e r affecting the Ins t i tu te or the members thereof, or in which the Ins t i tu te is directly or indirect ly con cerned or interested, and any ba r r i s t e r or solicitor so employed shall have audience in any court in any
such mat te r . 84. (1) Any sum of money whatever payable to
the Ins t i tu te under this Act may be recovered as a
debt due to the Ins t i tu te . (2) All moneys, including penal t ies recovered or received by the Ins t i tu te p u r s u a n t to the pro visions of this Act other t han contr ibut ions to and levies made in respect of the Sol ic i tors ' F ide l i ty
Guaran tee
F u n d , shall be pa id to the Ins t i tu t e and become p a r t of the general funds of the Ins t i tu te .
85. Any minutes of any proceedings a t any meet
ing of the Ins t i tu te or of the council or of any commit tee of the council or of the S t a t u t o r y Committee
signed by any person p u r p o r t i n g to be the cha i rman of the meet ing and p u r p o r t i n g to be so signed either
AT
at the meet ing at which such proceedings took place or a t the next ensuing meeting, and any document p u r p o r t i n g to he a copy thereof or an ext rac t there from and p u r p o r t i n g to be signed by the Pres iden t or a Vice-president of the Ins t i tu te in the case of minutes other than those of the proceedings of the S t a t u t o r y Committee or by the cha i rman of the S t a tu to ry Committee or by the member act ing as cha i rman of the S t a t u t o r y Committee in the case of minutes of the proceedings thereof shall, wi thout fu r ther proof, be admissible in evidence in all pro ceedings before any court or any person act ing judicially within the meaning of the Evidence Act, 1898; and unti l evidence is given to the cont ra ry every meet ing in respect of the proceedings of which the minutes have been so made shall be deemed to have been duly convened and held and all the mem bers thereof to have been duly qualified, and when such proceedings a re proceedings of any committee of the council or of the S t a t u t o r y Committee, unt i l the con t ra ry is proved any such committee of the council or the S t a tu to ry Committee (as the case may be) shall be deemed to have been duly and regu la r ly consti tuted and to have had power to deal with
the m a t t e r s re fer red to in such proceedings. 86. (1) F o r the purposes of this Act the council may make regula t ions for all or any of the following p u r p o s e s : —
(a) (i) as to the opening and keeping by solici
to r s of accounts at banks for c l ients '
moneys ; (ii) as to the keeping by solicitors of ac counts containing par t i cu la r s and in format ion as to moneys received, held or paid by them, for or on account of
the i r c l ients ; (iii) empowering the council to take such action as may be necessary to enable them to ascer ta in whether or not the regula t ions made under subpa rag raphs (i) and (ii) of this p a r a g r a p h a re being
complied w i t h ;
(iv)
(iv) regulating in respect of any other mat te r the professional pract ice, con duct and discipline of sol ic i tors :
Prov ided tha t regula t ions made
under subpa rag raphs (i) and (ii) of this p a r a g r a p h shall apply only to a prac t i s ing solicitor in the course of his practice as such;
(b) (i) prescr ibing the amount of the annual contr ibut ions to the fund to be paid by solicitors with respect to whom this Act appl ies ;
(ii) providing for the method of payment and recovery of any fee, contribution or levy;
(iii) prescribing forms of notice to be given by and to the council in respect of claims agains t the fund;
(iv) prescribing the duties and fees of accountants appointed to conduct an examinat ion of any accounts pu r suan t to section sixty-five of this Act, and prescr ib ing also the duties of the solicitor concerned in relat ion there to and the circumstances in which such solicitor may be required to pay the cost of such examinat ion;
(v) prescribing forms of certificates to be issued to persons prac t i s ing or enti t led
to prac t i se as solicitors and of declara t ions, appl icat ions, notices and docu ments to be used in relat ion to any applicat ion or refusal of any applica tion under this Ac t ;
(vi) prescribing the evidence to be furnished tha t a person has been admit ted to prac t i se or is still p rac t i s ing or has ceased prac t i s ing or has continued or discontinued prac t i s ing as a solicitor, or as to the reason of any person dis continuing pract ice, and general ly for
the
the obtaining of informat ion which may be considered necessary or reasonable for the purposes of de termining the mer i t s of appl icat ions for certificates or
m a t t e r s in re la t ion t he r e to ; (vii) all matters or things required or per
mi t ted by P a r t s V I I , V I I I and I X of this Act to be prescr ibed;
(viii) generally, for such other matters as may be considered necessary for the purpose of giving full effect to the intent of P a r t s V I I , V I I I and I X of
this Ac t ; (ix) imposing penalties not exceeding fifty pounds for any contravent ion of the regulat ions made under this section.
(2) The Council may amend or rescind any regulat ion made under this section.
(3) The regula t ions and any amendment or rescission thereof made under the author i ty of this section shall—
(a)
be submitted to the Governor for his a p p r o v a l ;
(b)
when approved by the Governor be pub lished in the Gaze t te ;
(c)
take effect from the date of publication or f rom a la te r da te to be specified in the
r egu la t ions ;
(d) be laid before both Houses of P a r l i a m e n t within four teen s i t t ing days after publica tion if Pa r l i amen t is then in session, and if not, then within fourteen s i t t ing days af ter the commencement of the next session.
(4) If ei ther House of P a r l i a m e n t passes a
resolut ion of which notice has been given a t any t ime within fifteen s i t t ing days af ter any regula t ion has been laid before such House disallowing any regula tion or p a r t thereof, the regula t ion or p a r t shall the reupon cease to have effect.
(5)
(5) Any penal ty imposed by the regula t ions may be recovered in a summary manne r before a s t ipendiary or police mag i s t r a t e or before two justices.
8. The Principal Act is further amended—
(a) by inserting next after section thirteen the following new section:— 13A. (1) A conveyancer who is desirous of being admit ted as a solicitor shall not be requi red to pass any examinat ion before enter ing into art icles of clerkship, or to serve under such art icles for more than four years .
(2) A conveyancer who has a t ta ined the age of th i r ty years and is desirous of being ad mit ted as a solicitor and who—
(a) has for at least five years since he became entit led to pract ise as a conveyancer been a manag ing clerk in the office of a solicitor
p rac t i s ing in New South W a l e s ; or (b) has for at least five years practised as a conveyancer in New South W a l e s ; or (c) has for at least ten years since he became entit led to pract ise as a conveyancer been employed in New South Wales , whether in the Publ ic Service or otherwise, in work
re la t ing to conveyancing or to documents of t i t le,
shall not be required to enter into or serve under
any art icles of clerkship.(3) Subject to the provisions of this sec tion a conveyancer who is desirous of being admit ted as a solicitor and who has passed the final law examinat ion prescr ibed for the admis sion of solicitors or some examinat ion prescr ibed as equivalent thereto, in all subjects prescr ibed for tha t examination except the subjects which
at
at the commencement of the Legal Prac t i t ioners (Amendment ) Act, 1935, a r e comprised within the section of such examinat ion deal ing with the Law of P r o p e r t y and the principles of Con veyancing and who has otherwise complied with such conditions as a re prescr ibed, and who sat is fies the Court tha t he is a fit and proper person to be admi t ted to prac t i se as a solicitor, shall, upon hav ing his name on his own applicat ion removed from the roll of conveyancers, be entit led to be admit ted as a solicitor.
(4) This section shall apply to convey
ancers to whom a certificate has been grantedei ther before or af ter the commencement of the
Legal P rac t i t ione r s (Amendment) Act, 1935.
(b) by inserting in section fifteen after the words " m a t t e r s and proceedings in which he " the
words " or his p a r t n e r " ; (c) by inserting next after section twenty the follow ing new sect ions:— 20A. (1) A certificate to prac t i se as a con veyancer shall not be g ran ted af ter the com mencement of the Legal P rac t i t ioners (Amend ment) Act, 1935, except in the case of an applicant who has made an applicat ion under section seventeen of this Act before such com mencement or within six months thereaf ter , and who has passed the examinat ion prescr ibed by such section within twelve months after such
commencement. (2) Subsection one of this section shall not extend to the case of a person whose name is res to red to the roll of conveyancers. 20B. (1) The court shall have and shall be deemed always to have had the like summary jur isdic t ion over a conveyancer as it has over a solicitor, including power to remove his name from the roll of conveyancers and to cancel his certificate to pract ise as a conveyancer, or to suspend him from pract ice for any period.
(2)
(2) The court may if it thinks fit res tore to the roll of conveyancers the name of any person whose name has been removed theref rom either before or af ter the commencement of this Act.
(d) by inserting next after section thirty-nine the following new section:— 39A. (1) Any court in which a solicitor has been employed to prosecute or defend any action, suit, m a t t e r or proceeding, may a t any t ime by o rder declare the solicitor entit led to a charge on the p rope r ty recovered or p reserved th rough his ins t rumenta l i ty for his taxed costs in refer ence to tha t action, suit, m a t t e r or proceeding, and may make such orders for the taxa t ion of the said costs and for ra i s ing money to pay, or for paying, the said costs out of the said pro pe r ty as to such Court seems fit.
(2) Subject to this section, all convey ances, assurances and acts done to defeat, or opera t ing to defeat, tha t charge shall, except in the case of a conveyance or assurance to a bona fide purchaser for value without notice, be void as aga ins t the solicitor.
(3) No order shall be made if the r ight to recover the cost is ba r r ed by any s ta tu te of l imitat ions.
(4) W h e r e land is affected by the order
the provis ions of subsection two of this section shall not apply unti l the o rde r is reg is te red in eases where the land affected is not under the provis ions of the Real P r o p e r t y Act, 1900, in the Regis ter of Causes, W r i t s and Orders affecting land kept in the office of the Reg i s t r a r - General pu r suan t to P a r t X X I I I of the Con veyancing Act, 1919-1932, and the provisions of Division 1 of tha t P a r t shall apply to and in relat ion to such order , and where the land is
under
under the provisions of the Real P r o p e r t y Act, 1900, the order may be regis tered under tha t Act in the manner prescr ibed by regulat ions under the Conveyancing Act, 1919-1932.
(5) This section shall extend to cases in which the employment of the solicitor was before the commencement of the Legal P rac t i t ioners (Amendment) Act, 1935, and the costs or any p a r t thereof were earned pr io r to such commencement, as well as to cases in which the employment of the solicitor was and the costs were earned af ter such commencement.
9. The Pr inc ipa l Act is fur ther amended by omitt ing
P a r t V I and by inser t ing in lieu thereof the following
new P a r t : —
P A R T VI .
Unqualified practitioners.
40. No person shall be qualified to act as a solicitor unless—
(a) his name is on the roll of solici tors; and
(b) af ter the th i r t ie th day of June , one thousand nine hundred and thirty-five, he has in force
a p rac t i s ing certificate. A person who is not so qualified is in this P a r t re fe r red to as an unqualified person.
40A. (1) No unqualified person shall act as a
solicitor, or as such issue out any wri t or process , or
commence, c a r ry on or defend any action, suit or other proceeding, in the name of any other person or in his own name, in any court of civil or cr iminal jurisdict ion, or act as a solicitor in any cause or ma t t e r , civil or cr iminal to be hea rd or determined before any such court in New South Wales.
(2) If any person contravenes the provis ions of this section, he shall be gui l ty of an offence and of contempt of the court in which the action, suit, cause, m a t t e r or proceeding in re la t ion to which he so acts is brought or taken and may be punished
accordingly,
accordingly, and shall be incapable of main ta in ing any action for any costs in respect of any th ing done by him in the course of so act ing, and shall, in addi tion to any other penal ty or forfei ture and any dis abil i ty to which he may be subject, be liable for each such offence to a penal ty of fifty pounds to be re covered, with full costs of action, by action brought in the Supreme Court or in any distr ict court , by the Ins t i tu te .
40B. (1) Any unqualified person who—
(a) pretends to be, or takes or uses any name, ti t le, addi t ion or descript ion implying tha t he is qualified or recognised by law as quali fied to act as a solici tor; or (b) holds himself out to be or advertises or represen ts himself as qualified to act as a solicitor, shall be guil ty of an offence and shall be liable on summary conviction to a penal ty not exceeding fifty pounds for each such offence.
(2) Any person, not being a bar r i s t e r , or a person qualified to act as a solicitor, who holds him self out or adver t i ses or in any way represen t s himself as competent or qualified to act in or in con nection with the ca r ry ing out of the functions of a legal adviser or pract i t ioner , or who permi ts or suffers his name to be in any such way used by any other person, shall be guil ty of an offence and shall be liable on summary conviction to a penal ty not
exceeding fifty pounds for each such offence. 40c. (1) Any person not being a bar r i s t e r , or a person qualified to act as a solicitor, who for or in expectat ion of any fee, gain or reward , ei ther directly or indirectly d raws , fills up, or p r epa re s any will or o ther t e s t amen ta ry ins t rument , or any ins t rument c rea t ing or regula t ing r ights between par t i es , or re la t ing to real or personal p roper ty , or any legal proceeding, shall be guil ty of an offence, and shall be liable on summary conviction to a pena l ty not exceeding fifty pounds for each such offence.
( 2 )
(2) This section shall not extend to—
(a) any public officer drawing or preparing ins t ruments in the course of his d u t y ; or (b) any person employed merely to engross any such ins t rument or proceeding; or (c) any land agent in respect of any instrument which he is entit led to d raw, fill up , or p re p a r e and charge for, under the Land Agents Act, 1927; or (d) any conveyancer in respect of any instru ment which he is author ised to draw, fill up , or p r epa re , by law or by vi r tue of the cert i ficate g r an t ed to him under section nineteen of this Act. 40D. Any person, not being a ba r r i s t e r , or a person qualified to act as a solicitor, who, for or in expectat ion of any fee, gain or reward , ei ther direct ly or as an agent of any other person, whether a person qualified as abovementioned or not, takes instruc t ions for, or d raws or p r e p a r e s any p a p e r s on which to found or oppose the g r a n t of p roba te or le t ters of admin is t ra t ion shall, wi thout prejudice to any l iabil i ty or disabil i ty to which he may be subject unde r any other section of this Act, or under any other Act, be guil ty of an offence and shall be liable on summary conviction to a penal ty not exceeding fifty pounds for each such offence.
40E. If any act is done by a body corpora te or by
any director , officer or se rvant thereof of such ana tu re or in such a m a n n e r as to be calculated to
imply tha t the body corpora te is qualified or recog
nized by law as qualified to act as a solicitor, thebody corpora te shall be liable on summary conviction to a fine not exceeding one hundred pounds for each such offence, and in the case of an act done by a director , officer or servant of the corpora t ion he also shall be liable on summary conviction to a pena l ty not exceeding fifty pounds for each such offence.
40F. Save in the cases and subject to the conditions prescr ibed no solicitor shall share receipts from a business of a n a t u r e usually per formed by a prac t i s ing solicitor with an unqualified person.
(2)
(2) W h e r e it appea r s to the Cour t or to the S t a t u t o r y Committee, as the case may be, tha t a solicitor has acted in contravent ion of this section his name may be struck off the roll of solicitors.
(3) This section shall not apply to or affect any lawful a r r angemen t exist ing on the twenty- four th day of J a n u a r y , one thousand nine hundred and thirty-five, between a solicitor and his managing clerk wi th r e g a r d to the emolument of such clerk where such a r r angemen t does not const i tute a pa r t nership , and where the fact of such a r r angemen t is notified to the Ins t i tu te within three months af ter the commencement of this Act.
A n y such a r r angemen t shall be notified to the Ins t i tu te in the prescr ibed manner . 40G. (1) No solicitor shall, in connection with his pract ice as a solicitor, without the wr i t t en per mission of the Ins t i tu te , which may be given for such per iod and subject to such conditions as the Ins t i tu te thinks fit, employ or r emunera te any person who to his knowledge has been struck off the roll of any Court within the Br i t i sh E m p i r e or who is disquali fied from prac t i s ing as a solicitor by reason of the fact tha t his name has been struck off the roll, other wise than a t his own request , or is suspended from
prac t i s ing as a solicitor. (2) A solicitor aggr ieved by the refusal of the Ins t i tu te to g ran t any such permiss ion as afore said, or by any conditions at tached by the Ins t i tu te to the g r a n t thereof, may appeal to the Court which
may confirm the refusal or the conditions, as the
case may be, or may g r a n t such permission for such period and subject to such conditions as the Cour t
thinks fit.(3) If any solicitor acts in contravent ion of the provis ions of this section or of the conditions subject to which any permiss ion has been given thereunder , his name may be struck off the roll of solicitors or he may be suspended from pract ice for such period as the S t a tu to ry Committee or the Court , as the case may be, think fit.
(4)
(4) Nothing in this section shall apply to the
case of a solicitor who p r io r to the commencement
of the Legal P rac t i t ione r s (Amendment ) Act, 1935, has obtained the permiss ion of the Court to his
employing a person disqualified as aforesaid.40H. Any person who has been s t ruck off the roll of any Cour t within the Br i t i sh E m p i r e or who whilst he is disqualified from prac t i s ing as a solicitor by reason of the fact t ha t he has been struck off the roll otherwise t han a t his own request , or is sus pended from prac t i s ing as a solicitor, seeks or accepts employment by a solicitor in connection with tha t sol ici tor 's pract ice, wi thout previously inform ing him tha t he has been so struck off or tha t he is so disqualified as aforesaid, shall be guilty of an offence and shall be liable on summary conviction to a penal ty not exceeding ten pounds for each such offence.
40i. F o r the removal of doubt it is hereby declared tha t in sections 40A, 40B, 40C, and 40D of this Act reference to an unqualified person or to a person includes a reference to a body corpora te .
10. The Pr inc ipa l Act is fur ther amended—
(a) by omitting from section one the words and figures " P a r t IV—Conveyancers—ss. 16-20 " and by inser t ing in lieu thereof the words and figures " P a r t IV—Conveyancers—ss. 16-20B " ; (b) by omitting from the same section the words and figures " P a r t VI—Unqualif ied P rac t i t i one r s—
s. 40 " and by inser t ing in lieu thereof the words and figures " P a r t VI—Unqualif ied P rac t i
t ioners—ss. 40-40I"; (c) by inserting at the end of the same section the following headings and subsect ion:—
P A R T V I I — T r u s t accounts—ss. 41-44. P A R T V I I I — T h e Solicitors' Fidelity
Guarantee Fund—ss. 45-65.
P A R T IX—Annua l practising certificates— ss. 66-74.
P A R T
P A S T X—The Solicitors' Statutory Com- mittee—ss. 75-81.
PART XL—Miscellaneous—ss. 82-86.
(2) This Act shall be read and construed so as not to exceed the legislative power of this State to the intent that where any provision of this Act or the application thereof to any person or circumstances is- held invalid the remainder of this Act and the application thereof to other persons or circumstances shall not be affected.
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