Legal Profession Amendment Act 2001 (TAS)

Legal Profession Amendment Act 2001

An Act to amend the Legal Profession Act 1993

[Royal Assent 12 April 2001]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Legal Profession Amendment Act 2001 . 2CommencementThis Act commences on a day or days to be proclaimed. 3Principal ActIn this Act, the Legal Profession Act 1993 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3 of the Principal Act is amended as follows: (a) by inserting the following definitions after the definition of company : conditions includes limitations, restrictions and prohibitions; corresponding law means a law declared under Part 7A to be a corresponding law; (b) by inserting "otherwise than solely as a barrister" after "account" in paragraph (a) of the definition of firm ; (c) by inserting the following definitions after the definition of Guarantee Fund : interstate legal practitioner means a natural person – (a) who is admitted to legal practice in a participating State; and (b) who holds an interstate practising certificate in respect of that State; and (c) whose principal place of legal practice is that State; interstate practising certificate means a certificate or other authorisation issued and in force in a participating State that corresponds to a practising certificate; (d) by inserting the following definition after the definition of Legal Ombudsman : legal practice means the practice of the law; (e) by inserting the following paragraph after paragraph (a) in the definition of legal practitioner : (ab) an interstate legal practitioner practising in this State; or (f) by inserting the following definition after the definition of "legal practitioner corporation": legal services means services relating to legal practice; (g) by inserting the following definitions after the definition of "local court": local legal practitioner means – (a) a legal practitioner – (i) who holds a practising certificate; and (ii) whose sole or principal place of legal practice is in this State; and (b) a person registered to carry on legal practice in this State under the Mutual Recognition Act 1992 of the Commonwealth; participating State means a State in which a corresponding law is in force; (h) by inserting the following definition after the definition of regulations : regulatory authority means – (a) the Supreme Court, Council or Tribunal; and (b) a person or body in a participating State having a function under legislation relating to the regulation of legal practice that corresponds to that function as exercised by a body referred to in paragraph (a) ; (i) by inserting the following definitions after the definition of solicitor : State includes – (a) the Australian Capital Territory; and (b) the Northern Territory; State office means an office maintained in this State by an interstate legal practitioner or an employer or partner of that practitioner to provide legal services; 5Section 12 amended (Power of Council to make by-laws) Section 12(1) of the Principal Act is amended by omitting paragraph (o) . 6Section 22 amended (Rules of Board) Section 22(2)(f) of the Principal Act is amended by inserting "and the fees payable in respect of that matter" after "barrister". 7Section 29A insertedAfter section 29 of the Principal Act , the following section is inserted in Division 1: 29ARules relating to admission The Supreme Court may make rules regulating the procedure and practice relating to the admission of legal practitioners. 8Section 51 amended (Practising certificates) Section 51 of the Principal Act is amended as follows: (a) by inserting in subsection (1) "to practise as a barrister and solicitor or as a barrister" after "certificate"; (b) by omitting from subsection (6) " subsection (7) " and substituting " subsection (7) or (7A) "; (c) by inserting the following subsection after subsection (7) : (7A)  The Society may suspend for a specified period or cancel a practising certificate if a legal practitioner – (a) fails to give a satisfactory explanation of conduct in relation to a complaint made against the legal practitioner; or (b) is sentenced to a term of imprisonment; or (c) is bankrupt while holding a practising certificate entitling the practitioner to practise as a sole member of a firm or in partnership with another person. (d) by inserting in subsection (8) "as a barrister and solicitor or a barrister" after "certificate". 9Sections 51A and 51B insertedAfter section 51 of the Principal Act , the following sections are inserted in Part 7: 51AAppeals against cancellation or suspension (1)  A legal practitioner may appeal to the Supreme Court against the cancellation or suspension of a practising certificate under section 51(7A) . (2)  An appeal is to be made in accordance with the Supreme Court Rules 2000 . 51BHearing of appeals In hearing an appeal under section 51A , the Supreme Court may – (a) confirm the cancellation or suspension; or (b) reinstate the practising certificate; or (c) reinstate the practising certificate subject to any conditions it considers appropriate; or (d) reinstate the practising certificate and suspend its operation for a specified period; or (e) vary the period of suspension. 10Section 54 amended (Offence to practise unless admitted) Section 54(2) of the Principal Act is amended by inserting after paragraph (d) the following paragraph: (da) preparing or assisting in the preparation of a will for fee or reward in the course of the person’s employment with – (i) The Public Trustee established under the Public Trustee Act 1930 ; or (ii) a trustee company as defined by the Trustee Companies Act 1953 ; or 11Section 54A insertedAfter section 54 of the Principal Act , the following section is inserted in Part 7: 54ACommunity legal centres (1)  A community legal centre does not contravene this Part only because it – (a) employs or otherwise uses the services of a legal practitioner to provide legal services to members of the public; or (b) has a contractual relationship with a member of the public to whom those legal services are provided or receives any fee, gain or reward for providing those legal services; or (c) shares with a legal practitioner employed or otherwise used by it to provide those legal services, receipts from the business of the centre being business of a kind usually conducted by a legal practitioner; or (d) adopts or uses the word "legal" or some related term in its name or any registered business name under which it provides legal services to members of the public. (2)  A community legal centre is an organisation, whether incorporated or not, that – (a) holds itself out as a community legal centre or a centre or establishment of a similar description; and (b) provides legal services that – (i) are directed generally to persons or organisations lacking the financial means to obtain privately funded legal services or whose cases are expected to raise issues of public interest or of general concern to disadvantaged groups in the community; and (ii) are made available to persons or organisations having a special need arising from their location or the nature of the legal matter to be addressed; and (iii) are not intended or likely to be provided at a profit to the community legal centre, and any income from which is not to be distributed to any member or employee of the centre otherwise than by way of reasonable remuneration under a contract of service or for services; and (iv) are funded or expected to be funded to a significant level by donations or grants from government, charitable or other organisations; and (c) employs or otherwise uses persons to provide those legal services, at least one of whom is a legal practitioner with a current practising certificate who is generally responsible for the provision of those legal services. 12Part 7A insertedAfter section 55 of the Principal Act , the following Part is inserted: PART 7AInterstate legal practitioners Division 1Interstate practising certificates 55AInterstate legal practitioners entitled to practise in State (1)  A person who holds an interstate practising certificate is entitled to carry on legal practice in this State as if – (a) the interstate practising certificate were a practising certificate; and (b) any conditions of the interstate practising certificate were conditions of the practising certificate. (2)  A person is entitled to carry on legal practice in this State only if the person – (a) complies with any applicable requirements of this and any other Act relating to legal practice that would apply to a local legal practitioner whose practising certificate is subject to conditions corresponding to the conditions of the interstate practising certificate; and (b) complies with any conditions imposed on the person by a regulatory authority. (3)  A condition imposed on a person by one regulatory authority has no effect for the purpose of this section if it is inconsistent with a more onerous condition imposed on the person by another regulatory authority. (4)  A failure to comply with this section constitutes professional misconduct or unprofessional conduct under Part 8 . 55BAdditional conditions (1)  A regulatory authority in this State, by notice in writing, may impose any condition on the legal practice by an interstate legal practitioner in this State that it may impose on a practising certificate under section 51(3) or section 76(1)(e) . (2)  A regulatory authority in this State must not impose a condition under this section that is more onerous than a condition it would impose under section 51(3) or section 76(1)(e) in the same or similar circumstances. (3)  A regulatory authority in this State may vary or revoke any condition imposed under this section. Division 2Indemnity insurance 55CIndemnity insurance An interstate legal practitioner who maintains a State office must not practise as a barrister or solicitor and barrister in this State unless he or she has indemnity insurance in respect of that practice – (a) that provides the same or higher minimum level of indemnity as that provided for under the Indemnity Rules made under Part 10 ; and (b) the terms of which are broadly equivalent to those provided under those rules.

Penalty:  Fine not exceeding 20 penalty units.

55DIndemnity insurance if no State office (1)  If the level of indemnity under a policy of indemnity insurance in force in respect of the legal practice of an interstate legal practitioner who does not have a State office is less than that required of an interstate legal practitioner under section 55C , the interstate legal practitioner is to disclose the difference to a client before being retained by the client. (2)  A failure to comply with this section constitutes professional misconduct or unprofessional conduct under Part 8 . 55ETrust accounts An interstate legal practitioner who maintains a State office must comply with Part 9 as if he or she were a local legal practitioner. Division 3Complaints and discipline 55FComplaints relating to local legal practitioners in participating States A complaint relating to the conduct of a local legal practitioner in respect of his or her legal practice in a participating State may be dealt with under Part 8 as if it were a complaint under that Part. 55GReferral to regulatory authority in participating State (1)  A regulatory authority in this State may refer a complaint made to it to a regulatory authority in a participating State to be dealt with according to the law of that State. (2)  A regulatory authority in this State may request a regulatory authority in a participating State to investigate the conduct of a legal practitioner in accordance with the law of that State. (3)  If a referral or request is made under this section, a regulatory authority in this State is not to take any further action in relation to the subject matter of the referral or request, other than any action required under section 55H . 55HDealing with referred matters (1)  A regulatory authority in this State may investigate a complaint against a legal practitioner referred to it by a regulatory authority in a participating State whether or not the subject matter of the complaint occurred in or outside this State. (2)  If a regulatory authority in a participating State requests a regulatory authority in this State to investigate the conduct of a legal practitioner, the regulatory authority in this State may investigate that conduct whether or not the conduct occurred in or outside this State. 55IInformation (1)  A regulatory authority in this State is to provide without delay any information about a legal practitioner reasonably required by a regulatory authority in a participating State in connection with actual or possible disciplinary action against the legal practitioner. (2)  A regulatory authority may provide the information despite any law relating to secrecy or confidentiality. (3)  A regulatory authority in this State is to notify the appropriate regulatory authority in each participating State of any condition imposed by it on a legal practitioner in relation to his or her legal practice as a result of any disciplinary action taken against the legal practitioner. 55JLocal legal practitioners subject to interstate regulatory authorities (1)  A local legal practitioner practising in this State must comply with any condition in respect of his or her legal practice imposed by a regulatory authority in a participating State as a result of any disciplinary action against the local legal practitioner. (2)  A failure to comply with subsection (1) constitutes professional misconduct or unprofessional conduct under Part 8 . (3)  A regulatory authority in a participating State – (a) that has power to suspend, cancel, vary the conditions of, impose further conditions on, or order the suspension, cancellation or variation of the conditions of, or imposition of further conditions on, an interstate practising certificate issued to an interstate legal practitioner in that State as a result of any disciplinary action against the interstate legal practitioner; and (b) to which a local legal practitioner is subject in that State – has those same powers in relation to the practising certificate of a local legal practitioner as a result of any disciplinary action taken against the local legal practitioner. (4)  A regulatory authority in this State is to comply with an order of a regulatory authority in a participating State referred to in subsection (3) . (5)  A regulatory authority in a participating State that has power to order the removal of the name of a person from the roll kept in that State that corresponds to the roll of practitioners in the Supreme Court in this State may order that the name of a local legal practitioner be so removed. (6)  If an order is made by a regulatory authority in a participating State under subsection (5) , the name of the local legal practitioner is to be removed from the roll of practitioners in this State. Division 4General provisions 55KLocal legal practitioner receiving trust money interstate (1)  A local legal practitioner must deal with trust money received in the course of practising outside this State in accordance with Part 9 as if the trust money had been received in the course of practising in this State. (2)  Subsection (1) does not apply in respect of trust money received in the course of practising in a participating State in which a local legal practitioner has established an office. 55LPowers under corresponding law A regulatory authority in this State may exercise in respect of a legal practitioner any power under a corresponding law conferred on it by the corresponding law. 55MCorresponding law The Minister, by order published in the Gazette, may declare a law of another State relating to the regulation of legal practice to be a corresponding law for the purpose of this Part. 55NAgreements and arrangements with other regulatory authorities A regulatory authority in this State may make any agreement or arrangement with a regulatory authority in a participating State relating to – (a) the investigation of complaints; and (b) professional indemnity insurance; and (c) trust account inspections; and (d) the appointment of managers and receivers; and (e) the provision of information under section 55I . 13Section 58 amended (Investigations) Section 58 of the Principal Act is amended as follows: (a) by inserting in subsection (4) "and is satisfied that the matter amounts to professional misconduct or unprofessional conduct" after "a bill of costs"; (b) by inserting the following subsection after subsection (5) : (5A)  If the Council considers that the subject matter of a complaint amounts to unprofessional conduct that is not sufficiently serious to warrant a hearing under section 60 , it may deal with the complaint under Division 1A . (c) by omitting subsection (8) and substituting the following subsections: (8)  If a practitioner fails without reasonable excuse to comply with a notice, the Council may – (a) impose a fine on that practitioner – (i) not exceeding $500 for a first failure to comply; or (ii) not exceeding $1 000 for a second failure to comply; or (b) make an application under section 72  – (i) in respect of a third or subsequent failure to comply; or (ii) if the practitioner disputes the failure to comply. (9)  In addition to the powers referred to in subsection (8) , the Council may require a practitioner to pay any costs of, or incidental to, the failure to comply with a notice. (10)  Any fine imposed under this section is to be paid into the Guarantee Fund. 14Section 60 amended (Hearing before Council) Section 60(5) of the Principal Act is amended by omitting "At least 4 members of the Council are" and substituting "The Council is to appoint one or more of its members". 15Part 8, Division 1A insertedAfter section 65 of the Principal Act , the following Division is inserted in Part 8: Division 1AInformal proceedings 65AAppearance to explain certain matters (1)  If the Council considers that a matter under section 58(5A) is to be dealt with under this Division, it may serve on the legal practitioner notice to appear before it to give an explanation of the matter. (2)  The notice is to specify the date, time and place at which the legal practitioner is to appear. (3)  The date specified for the appearance is to be at least 14 days after the date of service of the notice. 65BDetermination (1)  If, after hearing the explanation of a legal practitioner of a matter to which a complaint relates, the Council is satisfied that the legal practitioner is not guilty of the conduct to which the matter relates, it may dismiss the complaint. (2)  If, after hearing the explanation of a legal practitioner of a matter to which a complaint relates, the Council is satisfied that the legal practitioner is guilty of the conduct to which the matter relates and considers the matter is not sufficiently serious to warrant a hearing under section 60 , the Council may make any one or more of the following determinations: (a) that the legal practitioner be reprimanded; (b) that the legal practitioner be cautioned; (c) that the legal practitioner make an undertaking to take, or refrain from taking, any specified action; (d) that the legal practitioner attend a course of training; (e) that the legal practitioner make reparation; (f) that the legal practitioner make an apology. (3)  Failure to comply with an undertaking constitutes professional misconduct or unprofessional conduct under Part 8 . 65CReferral to Tribunal (1)  If, during the hearing of an explanation of a matter, the Council considers the matter is more serious than initially considered, it is to – (a) discontinue the hearing; and (b) make an application under section 72 for the Tribunal to hear and determine the matter. (2)  If a legal practitioner fails to comply with a notice served under section 65A , the Council is to make an application under section 72 for the Tribunal to hear and determine the matter relating to that failure. 16Section 66 amended (Disciplinary Tribunal) Section 66(2) of the Principal Act is amended as follows: (a) by inserting "or barristers" after "7 legal practitioners"; (b) by inserting "or barristers" after "15 legal practitioners". 17Section 101 amended (Trust accounts) Section 101(5)(b) of the Principal Act is amended by omitting "is" and substituting "that the money is". 18Section 102 amended (Deposit of trust money) Section 102(5)(b) of the Principal Act is amended by inserting "at its request" after "Trust". 19Section 112 amended (Application of Court fund) Section 112(1) of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph: (a) the compensation to a client for the loss of trust money or other property as a result of a fiduciary default if – (i) the loss occurred wholly in this State whether in the course of legal practice in this State or in a participating State by a legal practitioner; or (ii) the loss occurred both in this State and a participating State whether in the course of legal practice in this State or in a participating State by a local legal practitioner; or (iii) the loss occurred in this State or a participating State or both in the course of legal practice in this State or in a participating State by a local legal practitioner but it is not possible to determine where the loss occurred; and 20Section 128 amended (Rules in respect of costs and taxation of costs) Section 128 of the Principal Act is amended by inserting after paragraph (b) the following paragraphs: (ba) regulating the procedures relating to taxation of costs; and (bb) providing for the functions and powers of a taxing officer under this Act; and 21Section 129 amended (Remuneration by agreement) Section 129(1) of the Principal Act is amended by omitting "rules made under section 128 " and substituting "scale of costs that may otherwise be applicable". 22Section 130 amended (Accounts) Section 130(1) of the Principal Act is amended as follows: (a) by omitting from paragraph (b) "inform" and substituting "if an account is not itemised, inform"; (b) by inserting in paragraph (c) "a taxing officer under section 135 or" after "to". 23Section 132 amended (Itemized bill of costs) Section 132 of the Principal Act is amended by inserting after subsection (1) the following subsection: (1A)  A client is to make a written request referred to in subsection (1) within 30 days after receipt of the bill of costs. 24Section 135A insertedAfter section 135 of the Principal Act , the following section is inserted in Part 11: 135AAssistance to taxing officer (1)  The Council may appoint persons to constitute a panel to assist taxing officers in taxing bills of costs under sections 58 and 135 . (2)  A panel is to consist of 2 or more legal practitioners with expertise in relevant areas of legal practice. 25Section 136A insertedAfter section 136 of the Principal Act , the following section is inserted in Part 11: 136AReview of taxation of costs A person may request a review of a taxing officer’s decision relating to the taxation of bills of costs under section 58 or 135 in the same manner as provided for under the Supreme Court Rules 2000 . 26Section 137 amended (Interest) Section 137(5)(b) of the Principal Act is amended by omitting "Supreme Court Rules" and substituting " Supreme Court Civil Procedure Act 1932 ". 27Part 11A insertedAfter section 143 of the Principal Act , the following Part is inserted: PART 11AInformation 143AInformation for client (1)  Before being retained by a client to provide legal services, a legal practitioner must give the prospective client a written statement setting out – (a) details of the method of costing the legal services, billing intervals and arrangements; and (b) the client’s right to – (i) negotiate a costs agreement with the legal practitioner; and (ii) receive a bill of costs from the legal practitioner; and (iii) request an itemised bill within 30 days after receipt of the bill of costs. (2)  In urgent circumstances, the statement may be given orally before the legal practitioner is retained and is to be confirmed in writing as soon as practicable afterwards. (3)  As soon as practicable after being retained by a client to provide legal services, a legal practitioner must give the client a concise written statement setting out the following: (a) the name of the legal practitioner who is to primarily perform the work (except in the case of a sole practitioner who is to perform the work personally) and whether that person practises as a principal or an employee; (b) if the whole or part of the work is to be performed by someone other than a legal practitioner, information relating to that fact; (c) an estimate of the total legal costs, if reasonably practicable; (d) if it is not reasonably practicable to estimate the total legal costs, a range of estimates of the total legal costs and an explanation of the major variables that may affect the calculation of those costs; (e) if the legal services involve or are likely to involve litigation, an estimate of – (i) the range of costs that may be recovered if the client is successful in that litigation; and (ii) the range of costs the client may be ordered to pay if they are unsuccessful; (f) the client’s right to request a progress report in accordance with section 143G ; (g) the avenues that are open to the client in the event of a dispute or complaint in relation to legal costs or the provision of the legal services; (h) the address of the Law Society. 143BInformation if another legal practitioner retained (1)  If a legal practitioner intends to retain another legal practitioner on behalf of a client, the first legal practitioner must give the client a written statement before retaining the legal practitioner setting out the details specified in section 143A(1)(b) , (3)(c) and (d) in relation to the other legal practitioner, in addition to any information required to be given to the client under section 143A . (2)  A legal practitioner retained or to be retained on behalf of a client by another legal practitioner is not required to give a statement to the client under section 143A , but must disclose to the first legal practitioner on request the information necessary for the first legal practitioner to comply with this section. (3)  In urgent circumstances, the statement may be given orally before the legal practitioner is retained and is to be confirmed in writing as soon as practicable afterwards. 143CForm of statement (1)  A statement under this Part – (a) is to be expressed in clear plain language; and (b) may be in a language other than English if the client is more familiar with that language. (2)  If the legal practitioner is aware that the client is unable to read, the legal practitioner must arrange for the information required to be given to the client to be conveyed orally to the client in addition to providing the written statements. 143DChanges to be notified A legal practitioner must notify the client of any substantial change to anything included in a statement under section 143A , 143B or 143E(2) as soon as practicable after the legal practitioner becomes aware of that change. 143EExceptions (1)  A statement under section 143A , 143B or 143D is not required to be given in any of the following cases: (a) if the total legal costs, excluding disbursements, are not likely to exceed $750; (b) if the client has received statements under section 143A(1) and (2) at least twice in the previous 12 months and agrees in writing to waive the right to a statement; (c) if the client is a public company, a subsidiary of a public company, a foreign company or a registered Australian body (within the meaning of the Corporations Law); (d) if the client is a Minister acting in the capacity as such, a government department or statutory authority. (2)  If a legal practitioner becomes aware that the total legal costs are likely to exceed $750, the legal practitioner must give the client a statement including the matters in section 143A(1) and (2) as soon as practicable. (3)  This section does not affect or take away from any client’s right – (a) to receive progress reports in accordance with section 143G ; or (b) to obtain reasonable information from the legal practitioner in relation to any of the matters specified in section 143A or 143B ; or (c) to negotiate a costs agreement with a legal practitioner and to obtain a bill of costs from the legal practitioner. 143FEffect of failure to give information If a legal practitioner does not give to a client any information required to be given under this Part – (a) on a taxation of a bill of costs, the taxed amount of the bill may be reduced by an amount considered by the person conducting the assessment to be proportionate to the seriousness of the failure to give the information; or (b) in determining a dispute in relation to legal costs, the Council or Tribunal may reduce the amount of the legal costs by an amount considered by it to be proportionate to the seriousness of the failure to give the information. 143GProgress reports A legal practitioner must give a client a written report of the progress of the matter in relation to which the legal practitioner is retained within 7 days after receiving a request from the client to do so. 28Section 145A insertedAfter section 145 of the Principal Act , the following section is inserted in Part 12: 145AUsing unclaimed money (1)  The Trust, with the approval in writing of the Minister, may use any unclaimed money to find any person entitled to that money. (2)  The Trust, if of the view that the cost of finding a person is likely to exhaust the whole or a substantial part of the unclaimed money, may pay the money into the Consolidated Fund. 29Section 147 amended (Claims for unclaimed money) Section 147 of the Principal Act is amended by inserting after subsection (3) the following subsection: (4)  The Trust is to pay into the Consolidated Fund any money that remains unclaimed 12 months after the date of publication of a copy of a register under section 146(4) . 30Section 151 amended (Memorandum and articles of association) Section 151 of the Principal Act is amended by inserting after paragraph (b) the following paragraph: (ba) if there is only one director, the director is to hold a current practising certificate; and 31Schedule 8 amended (Savings and transitional provisions) Schedule 8 to the Principal Act is amended as follows: (a) by omitting from clause 14A(2)(b) "according to rules made under section 17 of that Act " and substituting "as if it were a disciplinary committee established under section 15 of that Act"; (b) by inserting the following clause after clause 16 : 17.   Taxation of bill of costs A bill of costs paid by a client or served on a client by a legal practitioner before 31 December 1994 is to be taxed under section 135 as if it were an itemised bill of costs referred to in that section.

[Second reading presentation speech made in:

House of Assembly on 27 JUNE 2000

Legislative Council on 5 SEPTEMBER 2000]