Legal Profession Amendment Act 2007 (Vic)

Legal Profession Amendment Act 2007

No. 12 of 2007

table of provisions

Section  Page

1Purpose

2Commencement

3Principal Act

4Definitions

5Outline of Chapter 2

6Workplace agreements and conveyancing work

7Presumptions about taking or using certain names, titles or descriptions

8Prohibitions regarding associates

9Admission to the legal profession

10Local practising certificates

11New section 2.4.14 substituted

2.4.14Conditions imposed by the Board on grant or renewal

12Conditions of local practising certificates

13Amending, suspending or cancelling practising certificate

14New section 2.4.24 substituted

2.4.24Other ways of amending or cancelling local practising certificates

15Complaints about Australian legal practitioners

16Show cause events

17New section 2.4.34 substituted

2.4.34Notification by interstate legal practitioner becoming authorised to withdraw from local trust account

18Review of local practising certificate decisions

19New section 2.4.41 inserted

2.4.41Government lawyers of other jurisdictions

20New section 2.6.1A inserted

2.6.1ADefinition

21Removal from roll

22New section 2.6.6A inserted

2.6.6ALawyer to give notice of interstate orders

23New sections 2.6.7 and 2.6.8 substituted

2.6.7Lawyer to give notice of foreign regulatory action

2.6.8Provisions relating to requirement to notify

24Peremptory cancellation of local practising certificate
following removal from interstate roll

25New sections 2.6.10A and 2.6.10B inserted

2.6.10AShow cause procedure for removal of lawyer's name from local roll following foreign regulatory action

2.6.10BShow cause procedure for cancellation of local practising certificate following foreign regulatory
action

26Further amendments regarding foreign regulatory action

27Incorporated legal practices and multi-disciplinary partnerships

28Foreign lawyers

29New section 2.8.25 substituted

2.8.25Grounds for amending, suspending of cancelling registration

30Further foreign lawyer amendments

31New section 2.8.46 substituted

2.8.46Consideration and investigation of applicants and
locally registered foreign lawyers

32Legal profession rules

33Trust money and trust accounts

34New section 3.3.9 substituted

3.3.9Liability of principals of law practice

35Receiving and dealing with trust money

36New section 3.3.14A inserted

3.3.14AManner of withdrawal of trust money from general
trust account

37New section 3.3.15A inserted

3.3.15AManner of withdrawal of controlled money from controlled money account

38Transit money and trust money subject to specific powers

39New section 3.3.17A inserted

3.3.17ATrust money received in the form of cash

40Further trust money and trust account amendments

41New section 3.3.71 substituted

3.3.71Restrictions on receipt of trust money

42New section 3.3.73 substituted

3.3.73Application of Part to incorporated legal practices
and multi-disciplinary partnerships

43Costs disclosure and review definitions

44New section 3.4.2A inserted

3.4.2ATerms relating to third party payers

45Costs disclosure

46New section 3.4.16 substituted

3.4.16Ongoing obligation to disclose

47Further costs amendments

48New section 3.4.18A inserted

3.4.18ADisclosure to associated third party payers

49New section 3.4.21 substituted

3.4.21Interest on unpaid legal costs

50Costs agreements

51New section 3.4.28 substituted

3.4.28Conditional costs agreements involving uplift fees

52Contingency fees

53Setting aside costs agreements

54Billing

55New section 3.4.36 substituted

3.4.36Request for itemised bill

56New section 3.4.38 substituted

3.4.38Application by clients or third party payers for costs review

57Costs reviews

58New section 3.4.42 substituted

3.4.42Persons to be notified of application

59Procedure on costs review

60Criteria for costs review

61New sections 3.4.44A and 3.4.44B inserted

3.4.44AReview of costs by reference to costs agreement

3.4.44BReview of costs by reference to practitioner remuneration order or scale of costs

62Costs of review

63Contracting out of Division by sophisticated clients

64Fidelity cover

65Complaints and discipline

66External intervention

67New section 5.5.17 substituted

5.5.17Termination of receiver's appointment by Supreme
Court

68Appeal against appointment

69New section 5.6.5A inserted

5.6.5AManager and receiver appointed for law practice

70New section 5.6.6 substituted

5.6.6ADI disclosure requirements

71Immunity for Board members

72Keeping the register

73Immunity for Commissioner and others

74Fidelity Fund

75Injunctions

76Confidentiality of personal information

77Legal Services Board elections

2Enrolment

3Eligibility to stand and vote

78Transitional provisions

79New Part 12 inserted in Schedule 2

Part 12—Legal Profession Amendment Act 2007

12.1Practising certificates

80Consequential amendment of Conveyancers Act 2006

81Repeal of Act

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Endnotes

Legal Profession Amendment Act 2007

No. 12 of 2007

[Assented to 8 May 2007]

The Parliament of Victoria enacts:

1Purpose

The purpose of this Act is to amend the Legal Profession Act 2004 as a result of amendments to the national model provisions for the regulation of the legal profession and generally to improve the regulation of the profession.

2Commencement

(1)This Act (except sections 6, 48 and 49) comes into operation on the day after the day on which it receives the Royal Assent.

(2)Section 6(1) is deemed to have come into operation on 27 March 2006.

(3)Subject to subsection (4), section 6(2) comes into operation on a day to be proclaimed.

(4)If section 6(2) does not come into operation before 1 July 2008, it comes into operation on that day.

(5)Sections 48 and 49 come into operation on the day that is 6 months after the day on which this Act receives the Royal Assent.

3Principal Act

In this Act, the Legal Profession Act 2004 is called the Principal Act.

4Definitions

(1)In section 1.2.1 of the Principal Act—

(a)insert the following definitions—

"client includes a person to whom or for whom legal services are provided;

disqualified person means any of the following persons, whether the thing that has happened to the person happened before or after the commencement of this definition—

(a)a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re‑admitted to the legal profession under this Act or a corresponding law; or

(b)a person whose Australian practising certificate has been suspended or cancelled under this Act or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner or in relation to whom that suspension has not finished; or

(c)a person who has been refused a renewal of an Australian practising certificate under this Act or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time; or

(d)a person who is the subject of an order under section 2.2.6 or an order under a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice; or

(e)a person who is the subject of an order under this Act or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the practitioner's practice; or

(f)a person who is the subject of an order under section 2.7.25 or 2.7.50 or under provisions of a corresponding law that correspond to section 2.7.25 or 2.7.50;

domestic partner of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(a)for fee or reward; or

(b)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

family member of a person means—

(a)a spouse or domestic partner of the person; or

(b)a parent or grandparent of the person; or

(c)a child or grandchild of the person; or

(d)a sibling of the person; or

(e)a child of a sibling of the person;

spouse of a person means a person to whom the person is married;";

(b)for the definition of "affairs" substitute—

"affairs of a law practice includes the following—

(a)all accounts and records required under this Act or the regulations to be maintained by the practice or an associate or former associate of the practice;

(b)other records of the practice or an associate or former associate of the practice;

(c)any transaction—

(i)to which the practice or an associate or former associate of the practice was or is a party; or

(ii)in which the practice or an associate or former associate of the practice has acted for a party;";

(c)in the definition of "amend", in paragraphs (a)(ii) and (b)(iii), for "amend or revoke" substitute "vary or revoke";

(d)for the definition of "community legal centre" substitute—

"community legal centre means an organisation, whether incorporated or not—

(a)that is held out or holds itself out as being a community legal centre (or a centre or establishment of a similar description); and

(b)that provides legal services—

(i)that are directed generally to persons or organisations that lack the financial means to obtain privately funded legal services or whose cases are expected to raise issues of public interest or are of general concern to disadvantaged groups in the community; and

(ii)that are made available to persons or organisations that have a special need arising from their location or the nature of the legal matter to be addressed or have a significant physical or social disability; and

(iii)that are not intended, or likely, to be provided at a profit to the community legal centre and the income (if any) from which cannot or will not 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;";

(e)for the definition of "insolvent under administration" substitute—

"insolvent under administration means—

(a)a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory); or

(b)a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the terms of the deed have not been fully complied with; or

(c)a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if a final payment has not been made under that composition; or

(d)a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the debt agreement has not ended or has not been terminated; or

(e)a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) but not if the agreement has been set aside or terminated or all of the obligations that the agreement created have been discharged;";

(f)in the definition of "legal costs", after "to pay" insert "to";

(g)for the definition of "show cause event" substitute—

"show cause event, in relation to a person, means—

(a)his or her becoming bankrupt or being served with notice of a creditor's petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth; or

(b)his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor's petition or his or her presentation (as a debtor) of such a petition under section 55 of that Act; or

(c)his or her applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit; or

(d)his or her being found guilty of a serious offence or a tax offence, whether or not—

(i)the offence was committed in or outside this jurisdiction; or

(ii)the offence was committed while the person was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires; or

(iii)other persons are prohibited from disclosing the identity of the offender;";

(h)in the definition of "trust property", after "trust money" insert "or money referred to in section 3.3.3".

(2)At the end of section 1.2.1 of the Principal Act insert—

"(2)For the purposes of the definition of domestic partner in subsection (1)—

(a)in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case;

(b)a person is not a domestic partner of another person only because they are co-tenants.".

(3)In section 1.2.4(1) of the Principal Act—

(a)in paragraph (a)(vi), after "of" insert

", or consultant to,";

(b)after paragraph (d) insert—

"(da)a person (not being an Australian legal practitioner) who is a partner in a multi-disciplinary partnership; or".

5Outline of Chapter 2

In section 2.1.1(2) of the Principal Act—

(a)for "admission to legal practice" substitute "admission to the legal profession";

(b)for "this and other jurisdictions" substitute "this jurisdiction and elsewhere".

6Workplace agreements and conveyancing work

(1)In section 2.2.2(2)(e) of the Principal Act, for "an AWA or certified agreement" substitute

"a workplace agreement".

(2)After section 2.2.2(2)(e) of the Principal Act insert—

"(ea)a licensee within the meaning of the Conveyancers Act 2006 who performs conveyancing work in accordance with that Act;".

7Presumptions about taking or using certain names, titles or descriptions

(1)For section 2.2.4(1) of the Principal Act substitute—

"(1)This section applies to the following names, titles and descriptions—

(a)legal practitioner;

(b)barrister;

(c)solicitor;

(d)attorney;

(e)counsel;

(f)Queen's Counsel;

(g)King's Counsel;

(h)Her Majesty's Counsel;

(i)His Majesty's Counsel;

(j)Senior Counsel.

(1A)The regulations may specify the kind of persons who are entitled, and the circumstances in which they are entitled, to take or use a name, title or description to which this section applies.".

(2)In section 2.2.4(2) and (3) of the Principal Act, for "specified in the regulations" substitute "to which this section applies".

8Prohibitions regarding associates

In section 2.2.5 of the Principal Act—

(a)the definition of "disqualified person" is repealed;

(b)in the definition of "lay associate", after paragraph (b)(iii) insert—

"(iv)a consultant to the law practice (however described) who—

(A)is not an Australian legal practitioner; and

(B)provides services to the law practice, other than services of a kind prescribed by the regulations;".

9Admission to the legal profession

After section 2.3.9(2) of the Principal Act insert—

"(3)A person ceases to be an officer of the Supreme Court under subsection (1) if the person's name is removed from the local roll.".

10Local practising certificates

(1)In the Principal Act—

(a)in section 2.4.1(b), for "grant" substitute "granting and renewing";

(b)in section 2.4.3(4)(b), for "Court." substitute "Court; and";

(c)after section 2.4.3(4)(b) insert—

"(c)the condition referred to in subsection (8).".

(2)After section 2.4.3(7) of the Principal Act insert—

"(8)It is a statutory condition of a local practising certificate that the holder must not hold another local practising certificate, or an interstate practising certificate, that is in force during the currency of the first-mentioned local practising certificate.".

(3)Before section 2.4.4(1) of the Principal Act insert—

"(1AA)This section has effect for the purposes of Division 4 of this Part or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.".

(4)In section 2.4.4 of the Principal Act—

(a)in subsection (1)—

(i)for "a person" substitute "the person";

(ii)in paragraph (c), after "law" insert

"or the regulations or legal profession rules under this Act or a corresponding law";

(iii)for paragraph (e)(ii) substitute—

"(ii)whether the person has contravened a requirement imposed by the Board or the Liability Committee about professional indemnity insurance; or";

(b)in subsection (3)(b), for "Court;" substitute "Court,".

(5)For section 2.4.8(2) of the Principal Act substitute—

"(2)An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal profession rules relating to eligibility for the practising certificate and if—

(a)in the case of a lawyer who is not an Australian legal practitioner at the time of making the application—

(i)the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or

(ii)if subparagraph (i) does not apply to the lawyer or it is not reasonably practicable to determine whether it applies to the lawyer—the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia; or

(b)in the case of a lawyer who is an Australian legal practitioner at the time of making the application—

(i)the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction; or

(ii)the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature; or

(iii)the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or

(iv)if subparagraph (i), (ii) or (iii) does not apply to the lawyer or it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer—the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.".

(6)After section 2.4.8(3) of the Principal Act insert—

"(3A)An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in respect of a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors determining ineligibility to apply for the grant or renewal of a local practising certificate.".

(7)For section 2.4.8(5), (6), (7) and (8) of the Principal Act substitute—

"(5)An Australian legal practitioner who—

(a)engages in legal practice solely or principally in this jurisdiction during a financial year; and

(b)reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year—

must apply for the grant or renewal of a local practising certificate in respect of the following financial year.

(6)Subsection (5) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice solely or principally in this jurisdiction under an arrangement that is of a temporary nature.

(7)A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia.  Accordingly, an Australian lawyer who is engaged or expects to be engaged in legal practice principally in a foreign country is nevertheless eligible to apply for the grant or renewal of a local practising certificate if the lawyer otherwise meets the requirements of this section.

Note

The purpose of this subsection is to deal with a case where a person practises both in Australia and overseas.  In that case, overseas practice is to be disregarded (even if it forms the principal portion of the person's overall practice), so that eligibility is determined by reference only to the person's practice in Australia.".

(8)After section 2.4.13(1)(d) of the Principal Act insert—

"(da)any conditions imposed or varied by the Board under section 2.4.21, 2.4.24 or 2.4.28; and".

(9)After section 2.4.13(3) of the Principal Act insert—

"(4)A condition imposed by the Board or Tribunal must be reasonable and relevant.

(5)A condition imposed by the Board or the Tribunal may include any of the following—

(a)requiring the holder of the practising certificate to undertake and complete an academic or training course;

(b)controlling or restricting the operation of a trust account;

(c)restricting the holder to particular conditions concerning employment or supervision;

(d)a matter agreed by the holder.

(6)Subsection (5) does not limit the matters about which a condition may be imposed on a practising certificate by the Board or the Tribunal.

(7)If the Board or the Tribunal imposes, varies or revokes a condition during the currency of a local practising certificate, the condition, variation or revocation takes effect when the holder has been notified of it or at a later time specified by the Board or Tribunal (as the case requires).".

11New section 2.4.14 substituted

For section 2.4.14 of the Principal Act substitute—

"2.4.14Conditions imposed by the Board on grant or renewal

(1)The Board may impose conditions on a local practising certificate when it is granted or renewed.

Note

The Board may also impose conditions on a local practising certificate, or vary or revoke conditions, during the currency of the certificate—see sections 2.4.21, 2.4.24 and 2.4.28.

(2)If the Board decides to impose a condition on a local practising certificate under this section, it must give the applicant or holder an information notice about the decision.

Note

Section 2.4.37 provides a right to apply for review of the decision.".

12Conditions of local practising certificates

Section 2.4.15 of the Principal Act is repealed.

13Amending, suspending or cancelling practising certificate

(1)In section 2.4.20(c) of the Principal Act, for "is engaging" substitute "is or has been engaging".

(2)In section 2.4.21 of the Principal Act—

(a)in subsection (1)—

(i)omit '(the "show cause notice")';

(ii)in paragraph (d), after "not less than" insert "7 days and not more than";

(b)in subsection (3)—

(i)in paragraph (a), for "show cause notice" substitute "notice under subsection (1)";

(ii)in paragraph (b), omit "show cause";

(c)for subsection (3)(c) substitute—

"(c)if the notice stated that the proposed action was to cancel the practising certificate—

(i)cancel the certificate; or

(ii)suspend the certificate for a period; or

(iii)amend the certificate in a less onerous way the Board considers appropriate because of the representations.";

(d)at the foot of subsection (3) insert—

"Note

Amending a local practising certificate includes imposing a condition on it, or varying or revoking a condition—see the definition of amend in section 1.2.1.";

(e)at the foot of subsection (4) insert—

"Note

Section 2.4.37 provides a right to apply for review of the decision.".

14New section 2.4.24 substituted

For section 2.4.24 of the Principal Act substitute—

"2.4.24Other ways of amending or cancelling local practising certificates

(1)The Board may amend or cancel a local practising certificate if the holder requests the Board to do so.

Note

Amending a local practising certificate includes imposing a condition on it, or varying or revoking a condition—see the definition of amend in section 1.2.1.

(2)The Board may amend a local practising certificate—

(a)for a formal or clerical reason; or

(b)in another way that does not adversely affect the holder's interests.

(3)The Board must cancel a local practising certificate if the holder's name has been removed from the local roll or the holder ceases to be an Australian lawyer.

(4)The amendment or cancellation of a local practising certificate under this section is effected by written notice given to the holder.

(5)Section 2.4.21 does not apply in a case to which this section applies.

(6)If the Board decides to refuse a request referred to in subsection (1), the Board must give the holder an information notice about the decision.

Note

Section 2.4.37 provides a right to apply for review of the decision.".

15Complaints about Australian legal practitioners

In section 2.4.25 of the Principal Act, for "the Board from making a complaint" substitute

"a complaint from being made".

16Show cause events

(1)In section 2.4.26(2) of the Principal Act omit ", in accordance with the regulations".

(2)For section 2.4.26(3) of the Principal Act substitute—

"(3)However, the person need not provide a statement under subsection (2) if the person (as a previous applicant for a local practising certificate or as the holder of a local practising certificate previously in force) has previously provided to the Board—

(a)a statement under this section; or

(b)a notice and statement under section 2.4.27—

explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.".

(3)In section 2.4.27(2)(a) of the Principal Act, for "approved form" substitute "form approved by the Board".

(4)After section 2.4.33(4) of the Principal Act insert—

"(5)An interstate legal practitioner must not contravene a condition imposed under this section.".

17New section 2.4.34 substituted

For section 2.4.34 of the Principal Act substitute—

"2.4.34Notification by interstate legal practitioner becoming authorised to withdraw from local trust account

(1)An interstate legal practitioner must notify the Board if the practitioner (whether alone or with a co‑signatory) becomes authorised to withdraw money from a local trust account.

(2)The Board may determine the manner in which the notification is to be made and the information or material that is to be included in or to accompany the notification.

Note

The practitioner may also need to pay a contribution to the Fidelity Fund—see section 6.7.27.".

18Review of local practising certificate decisions

After section 2.4.37(1)(a) of the Principal Act insert—

"(ab)imposing a condition on a local practising certificate under section 2.4.14; or".

19New section 2.4.41 inserted

After section 2.4.40 of the Principal Act insert—

"2.4.41Government lawyers of other jurisdictions

(1)A government lawyer of another jurisdiction is not subject to—

(a)any prohibition under this Act about—

(i)engaging in legal practice in this jurisdiction; or

(ii)making representations about engaging in legal practice in this jurisdiction; or

(b)conditions imposed on a local practising certificate; or

(c)requirements of legal profession rules; or

(d)professional discipline—

in respect of the performance of his or her official duties or functions as a government lawyer of the other jurisdiction to the extent that he or she is exempt from matters of the same kind under a law of the other jurisdiction.

(2)Contributions and levies are not payable to the Fidelity Fund by or in respect of a government lawyer of another jurisdiction in his or her capacity as a government lawyer.

(3)Without affecting subsections (1) and (2), nothing in this section prevents a government lawyer of another jurisdiction from being granted or holding a local practising certificate.

(4)In this section—

another jurisdiction means—

(a)another State or a Territory of the Commonwealth; or

(b)the Commonwealth;

government agency of another jurisdiction means—

(a)a government department of that jurisdiction; or

(b)a body or organisation that is established by or under the law of that jurisdiction for a public purpose or to exercise governmental functions—

and includes a body or organisation (or bodies or organisations of a class) prescribed by the regulations as being within this definition;

government lawyer means an Australian lawyer, or a person eligible for admission to the legal profession, employed by or in a government agency of another jurisdiction.".

20New section 2.6.1A inserted

After section 2.6.1 of the Principal Act insert—

"2.6.1ADefinition

In this Part—

foreign regulatory action taken in relation to a person means—

(a)removal of the person's name from a foreign roll for disciplinary reasons; or

(b)suspension or cancellation of, or refusal to renew, the person's right to engage in legal practice in a foreign country.".

21Removal from roll

(1)In section 2.6.4 of the Principal Act—

(a)in subsection (1), for "local lawyer's" substitute "person's";

(b)in subsection (3), for "lawyer's" (wherever occurring) substitute "person's".

(2)In section 2.6.6(1) and (2) of the Principal Act, after "practicable" insert "after becoming aware of the removal".

22New section 2.6.6A inserted

After section 2.6.6 of the Principal Act insert—

"2.6.6ALawyer to give notice of interstate orders

(1)If an order is made under a corresponding law recommending that the name of a local lawyer be removed from the local roll, the lawyer must, as soon as practicable after becoming aware of the order, give the prothonotary written notice of the order.

Penalty:10 penalty units.

(2)If an order is made under a corresponding law in relation to a local legal practitioner that—

(a)the practitioner's local practising certificate be suspended or cancelled; or

(b)a local practising certificate not be granted to the practitioner for a period; or

(c)conditions be imposed on the practitioner's local practising certificate—

the practitioner must, as soon as practicable after becoming aware of the order, give the Board written notice of the order.

Penalty:60 penalty units.".

23New sections 2.6.7 and 2.6.8 substituted

For sections 2.6.7 and 2.6.8 of the Principal Act substitute—

"2.6.7Lawyer to give notice of foreign regulatory action

(1)If foreign regulatory action has been taken in relation to a local lawyer, the lawyer must, as soon as practicable after becoming aware of the action, give the prothonotary a written notice of the action taken.

Penalty:10 penalty units.

(2)If foreign regulatory action has been taken in relation to a local legal practitioner, the practitioner must, as soon as practicable after becoming aware of the action, give the Board a written notice of the action taken.

Penalty:60 penalty units.

2.6.8Provisions relating to requirement to notify

A notice to be given under this Division by a person must—

(a)state his or her name and address; and

(b)disclose full details of the action to which the notice relates, including the date on which that action was taken; and

(c)be accompanied by a copy of any official notification provided to him or her in connection with that action.".

24Peremptory cancellation of local practising certificate following removal from interstate roll

For section 2.6.10(1)(a) of the Principal Act substitute—

"(a)a person's name is removed from an interstate roll but he or she remains an Australian lawyer; and".

25New sections 2.6.10A and 2.6.10B inserted

After section 2.6.10 of the Principal Act insert—

"2.6.10AShow cause procedure for removal of lawyer's name from local roll following foreign regulatory action

(1)This section applies if the Board is satisfied that—

(a)foreign regulatory action has been taken in relation to a local lawyer, whether before or after the commencement of this section; and

(b)no order referred to in section 2.6.11(1)(a) is in force in relation to the action taken.

(2)The Board may serve on the lawyer a notice stating that the Board will apply to the Supreme Court for an order that the lawyer's name be removed from the local roll unless the lawyer shows cause to the Board why his or her name should not be removed.

(3)If the lawyer does not satisfy the Board that his or her name should not be removed from the local roll, the Board may apply to the Supreme Court for an order that his or her name be removed from the local roll.

(4)Before applying for an order that the lawyer's name be removed, the Board must afford the lawyer a reasonable opportunity to show cause why his or her name should not be removed.

(5)The Supreme Court may, on application made under this section, order that the lawyer's name be removed from the local roll, or may refuse to do so.

(6)The lawyer is entitled to appear before and be heard by the Supreme Court at a hearing in respect of an application under this section.

2.6.10BShow cause procedure for cancellation of local practising certificate following foreign regulatory action

(1)This section applies if the Board is satisfied that—

(a)foreign regulatory action has been taken in relation to a local legal practitioner, whether before or after the commencement of this section; and

(b)no order referred to in section 2.6.11(1)(b) is in force in relation to the action taken.

(2)The Board may serve on the practitioner a notice stating that the Board proposes to cancel his or her local practising certificate unless the practitioner shows cause to the Board why his or her practising certificate should not be cancelled.

(3)The Board must afford the practitioner a reasonable opportunity to show cause why his or her practising certificate should not be cancelled.

(4)If the practitioner does not satisfy the Board that the practising certificate should not be cancelled, the Board may cancel the certificate.

(5)The Board must, as soon as practicable, give the practitioner an information notice about its decision to cancel the practising certificate.

(6)The practitioner may apply to the Tribunal for review of a decision of the Board to cancel the practising certificate.

(7)An application for review must be made within 28 days after the day on which the information notice about the decision was given to the practitioner.".

26Further amendments regarding foreign regulatory action

(1)For section 2.6.11(1) and (2) of the Principal Act substitute—

"(1)If an Australian lawyer reasonably expects that his or her name will be removed from an interstate roll or that foreign regulatory action will be taken against the lawyer, the lawyer may apply to the Supreme Court for either or both of the following—

(a)an order that his or her name not be removed from the local roll under section 2.6.9 or 2.6.10A;

(b)an order that his or her local practising certificate not be cancelled under section 2.6.10 or 2.6.10B.

(2)The Supreme Court may make the order or orders applied for if satisfied that—

(a)the lawyer's name is likely to be removed from the interstate roll or the foreign regulatory action is likely to be taken; and

(b)the reason for the removal of the name or the taking of the foreign regulatory action will not involve disciplinary action or the possibility of disciplinary action—

or may refuse to make an order.".

(2)For section 2.6.11(4) of the Principal Act substitute—

"(4)The Supreme Court may revoke an order made under this section, and sections 2.6.9, 2.6.10, 2.6.10A and 2.6.10B (as relevant) then apply as if the lawyer's name were removed from the interstate roll or the foreign regulatory action were taken when the revocation takes effect.".

(3)Section 2.6.12 of the Principal Act is repealed.

27Incorporated legal practices and multi-disciplinary partnerships

(1)In section 2.7.2 of the Principal Act, the definition of "disqualified person" is repealed.

(2)After section 2.7.7(4) of the Principal Act insert—

"(5)This section does not apply to a corporation referred to in section 2.7.4(2)(a).".

(3)In section 2.7.10(6) of the Principal Act, for "liability" substitute "liabilities".

(4)After section 2.7.11(1) of the Principal Act insert—

"(1A)A legal practitioner director is not guilty of unsatisfactory professional conduct or professional misconduct under subsection (1) if the director establishes that he or she took all reasonable steps to ensure that—

(a)Australian legal practitioners employed by the incorporated legal practice did not engage in conduct or misconduct referred to in subsection (1)(a); or

(b)directors (not being Australian legal practitioners) of the incorporated legal practice did not engage in conduct referred to in subsection (1)(b); or

(c)unsuitable directors (not being Australian legal practitioners) of the incorporated legal practice were not appointed or holding office as referred to in subsection (1)(c)—

as the case requires.".

(5)In the Principal Act—

(a)in section 2.7.18(2), for "of the relevant class of Australian legal practitioners" substitute "in that branch of the legal profession or in that style of legal practice";

(b)in section 2.7.20, after "receipts" (wherever occurring including in the heading) insert

", revenue or other income";

(c)in section 2.7.21(1)(c), for "receipts of" substitute "receipts, revenue or other income arising from".

(6)After section 2.7.22(1) of the Principal Act insert—

"(1A)The Board may, in writing, appoint a suitably qualified person to conduct an audit under this section.

(1B)The appointment may be made generally, or in relation to a particular incorporated legal practice, or in relation to a particular audit.".

(7)In the Principal Act—

(a)in section 2.7.35, after "induce" insert

"or attempt to cause or induce";

(b)in section 2.7.38, for "approved form" substitute "form approved by the Board";

(c)in section 2.7.48, after "receipts" (wherever occurring including in the heading) insert

", revenue or other income";

(d)in section 2.7.49(1)(b), for "receipts of" substitute "receipts, revenue or other income arising from";

(e)in section 2.7.51, after "induce" insert

"or attempt to cause or induce".

28Foreign lawyers

(1)In section 2.8.2 of the Principal Act, the definition of "commercial legal presence" is repealed.

(2)For section 2.8.4(2) of the Principal Act substitute—

"(2)However, a person does not contravene subsection (1) if the person is an overseas-registered foreign lawyer—

(a)who—

(i)practises foreign law in this jurisdiction for one or more periods that do not in aggregate exceed 90 days in any period of 12 months; or

(ii)is subject to a restriction imposed under the Migration Act 1958 of the Commonwealth that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person; and

(b)who—

(i)does not maintain an office for the purpose of practising foreign law in this jurisdiction; or

(ii)does not become a partner or director of a law practice.".

(3)In the Principal Act—

(a)in section 2.8.8(1), for "constitute" substitute "be capable of constituting";

(b)in section 2.8.11(1), for "the practice of law" (where first occurring) substitute "legal practice engaged in";

(c)in section 2.8.13—

(i)in subsection (1), after "apply to" insert "law practices and";

(ii)in subsection (3), after "this Act" insert ", the regulations or any legal profession rule".

(4)In section 2.8.20(2) of the Principal Act—

(a)for paragraph (d) substitute—

"(d)state whether the applicant has been found guilty of an offence in Australia or a foreign country, and if so—

(i)the nature of the offence; and

(ii)how long ago the offence was committed; and

(iii)the applicant's age when the offence was committed; and";

(b)for paragraph (f) substitute—

"(f)state—

(i)that the applicant is not otherwise personally prohibited from engaging in legal practice in any place or bound by any undertaking not to engage in legal practice in any place; and

(ii)whether or not the applicant is subject to any special conditions in engaging in legal practice in any place—

as a result of criminal, civil or disciplinary proceedings in Australia or a foreign country; and";

(c)in paragraph (g), for "the practice of law" substitute "legal practice engaged in".

(5)For section 2.8.21(2) of the Principal Act substitute—

"(2)The Board may, when granting or renewing registration, impose conditions as referred to in section 2.8.40.

(2A)If the Board grants or renews registration, the Board must, as soon as practicable, give the applicant a registration certificate or a notice of renewal.

(2B)If the Board—

(a)refuses to grant or renew registration; or

(b)imposes a condition on the registration and the applicant does not agree to the condition—

the Board must, as soon as practicable, give the applicant an information notice.".

(6)In section 2.8.22(1) of the Principal Act—

(a)in paragraph (b), for "the practice of law" substitute "engaging in legal practice";

(b)in paragraph (c)—

(i)in subparagraph (i), for "carrying on the practice of law" substitute "engaging in legal practice";

(ii)in subparagraph (ii), for "the practice of law" substitute "engaging in legal practice";

(c)for paragraph (d) substitute—

"(d)is satisfied that the applicant demonstrates an intention to commence practising foreign law in this jurisdiction within a reasonable period if registration were to be granted—".

(7)In section 2.8.23(2) of the Principal Act—

(a)in paragraph (g), for "Act." substitute

"Act; or";

(b)after paragraph (g) insert—

"(h)the applicant's foreign legal practice is in receivership (however described).".

29New section 2.8.25 substituted

For section 2.8.25 of the Principal Act substitute—

"2.8.25Grounds for amending, suspending of cancelling registration

(1)Each of the following is a ground for amending, suspending or cancelling a person's registration as a foreign lawyer—

(a)the registration was obtained because of incorrect or misleading information;

(b)the person fails to comply with a requirement of this Part;

(c)the person fails to comply with a condition imposed on the person's registration;

(d)the person becomes the subject of disciplinary proceedings in Australia or a foreign country (including any preliminary investigations or action that might lead to disciplinary proceedings) in his or her capacity as—

(i)an overseas-registered foreign lawyer; or

(ii)an Australian-registered foreign lawyer; or

(iii)an Australian lawyer;

(e)the person has been found guilty of an offence in Australia or a foreign country;

(f)the person's registration is cancelled or currently suspended in any place as a result of any disciplinary action in Australia or a foreign country;

(g)the person does not meet the requirements of section 3.5.3;

(h)another ground the Board considers sufficient.

(2)Subsection (1) does not limit the grounds on which conditions may be imposed on registration as a foreign lawyer under section 2.8.40.".

30Further foreign lawyer amendments

(1)In section 2.8.26 of the Principal Act—

(a)in subsection (1)—

(i)omit '(the "show cause notice")';

(ii)in paragraph (d), after "not less than" insert "7 days and not more than";

(b)in subsection (2)—

(i)in paragraph (a), for "show cause notice" substitute "notice under subsection (1)";

(ii)in paragraph (b), omit "show cause";

(c)for subsection (2)(c) substitute—

"(c)if the notice stated the action proposed was to cancel the registration—

(i)cancel the registration; or

(ii)suspend the registration for a period; or

(iii)amend the registration in a less onerous way the Board considers appropriate because of the representations.".

(2)After section 2.8.26(5) of the Principal Act insert—

"(6)In this section, amend registration means amend the registration under section 2.8.40 during its currency, otherwise than at the request of the foreign lawyer concerned.".

(3)In the Principal Act—

(a)in section 2.8.29, for "the Board from making a complaint" substitute "a complaint from being made";

(b)in section 2.8.31(2)(a) of the Principal Act, for "approved form" substitute "form approved by the Board".

31New section 2.8.46 substituted

For section 2.8.46 of the Principal Act substitute—

"2.8.46Consideration and investigation of applicants and locally registered foreign lawyers

(1)To help it consider whether or not to grant, renew, amend, suspend or cancel registration under this Part, the Board may, by notice to the applicant or locally registered foreign lawyer, require the applicant or locally registered foreign lawyer—

(a)to give it specified documents or information; or

(b)to co-operate with any inquiries that it considers appropriate.

(2)A failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the Board.".

32Legal profession rules

(1)In the Principal Act—

(a)in section 3.2.10, for "a locally registered foreign lawyer" substitute "an Australian-registered foreign lawyer";

(b)for section 3.2.14(1)(b) substitute—

"(b)the provision of services that are not legal services by or in connection with incorporated legal practices or multi-disciplinary partnerships, but only if the provision of those services by—

(i)officers or employees of incorporated legal practices; or

(ii)partners or employees of multi-disciplinary partnerships—

may give rise to a conflict of interest relating to the provision of legal services.".

(2)For section 3.2.14(3) of the Principal Act substitute—

"(3)However, the legal profession rules cannot—

(a)regulate any services that an incorporated legal practice may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

(b)regulate or prohibit the conduct of officers or employees of an incorporated legal practice (other than in connection with the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

(c)regulate any services that a multi-disciplinary partnership may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

(d)regulate or prohibit the conduct of partners or employees of a multi-disciplinary partnership (other than in connection with the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services).".

(3)In section 3.2.19(1) of the Principal Act, for

"on its Internet site or another Internet site" substitute "(including on its Internet site, if any, or on any other Internet site specified by the Board)".

33Trust money and trust accounts

(1)In section 3.3.2(1) of the Principal Act—

(a)the definition of "affairs" is repealed;

(b)in the definition of "controlled money", for "trust money received by a law practice with" substitute "money received or held by a law practice in respect of which the practice has";

(c)in the definition of "controlled money account" omit "approved";

(d)after the definition of "controlled money account" insert—

"deposit record includes a deposit slip or duplicate deposit slip;";

(e)for the definition of "trust money", in relation to a law practice, substitute—

"trust money, in relation to a law practice, means money entrusted to the law practice in the course of or in connection with the provision of legal services by the practice, and includes—

(a)money received by the practice on account of legal costs in advance of providing the services; and

(b)controlled money received by the practice; and

(c)transit money received by the practice; and

(d)money received by the practice, that is the subject of a power, exercisable by the practice or an associate of the practice, to deal with the money for or on behalf of another person;";

(f)in the definition of "trust records", for paragraph (d) substitute—

"(d)deposit records;".

(2)After section 3.3.2(2) of the Principal Act insert—

"(3)A reference in this Part to a power given to a law practice or an associate of the practice to deal with money for or on behalf of another person is a reference to a power given to the practice or associate that is exercisable by—

(a)the practice alone; or

(b)an associate of the practice alone (otherwise than in a private and personal capacity); or

(c)the practice or an associate of the practice jointly or severally, or jointly and severally, with either or both of the following—

(i)one or more associates of the practice;

(ii)the person, or one or more nominees of the person, for whom or on whose behalf the money may or is to be dealt with under the power.".

(3)For section 3.3.3(2) of the Principal Act substitute—

"(2)Without limiting subsection (1), money that is entrusted to or held by a law practice for or in connection with—

(a)a managed investment scheme; or

(b)mortgage financing—

undertaken by the practice is not trust money for the purposes of this Act.".

(4)For section 3.3.7(1)(c) and (d) of the Principal Act substitute—

"(c)the practice, or an associate of the practice (otherwise than in a private and personal capacity), is given a power to deal with the money for or on behalf of another person.".

34New section 3.3.9 substituted

For section 3.3.9 of the Principal Act substitute—

"3.3.9Liability of principals of law practice

(1)A provision of this Part or the regulations made for the purposes of this Part expressed as imposing an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally, but discharge of the practice's obligation also discharges the corresponding obligation imposed on the principals.

(2)References in this Part and the regulations made for the purposes of this Part to a law practice include references to the principals of the law practice.".

35Receiving and dealing with trust money

(1)For section 3.3.11(3) of the Principal Act substitute—

"(3)Subsection (1) does not apply to a law practice in respect of any period during which the practice receives or holds only either or both of the following—

(a)controlled money; or

(b)transit money received in a form other than cash.".

(2)In section 3.3.13(1) of the Principal Act—

(a)for "As soon" substitute "Subject to section 3.3.17A, as soon";

(b)for paragraph (d) substitute—

"(d)the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person.".

(3)In section 3.3.13 of the Principal Act—

(a)in subsection (2), for "A law practice" substitute "Subject to section 3.3.17A, a law practice";

(b)subsection (4) is repealed.

36New section 3.3.14A inserted

After section 3.3.14 of the Principal Act insert—

"3.3.14AManner of withdrawal of trust money from general trust account

(1)A law practice or an approved clerk must not withdraw trust money from a general trust account otherwise than by cheque or electronic funds transfer.

Penalty:120 penalty units.

(2)Without limiting subsection (1), the following are specifically prohibited—

(a)cash withdrawals;

(b)ATM withdrawals or transfers;

(c)telephone banking withdrawals or transfers.

(3)The regulations may make provision for or with respect to withdrawals by cheque or electronic funds transfer.

(4)This section has effect despite anything to the contrary in any directions given to the law practice or approved clerk concerned, even if the directions are given by a person who is otherwise legally entitled to give the law practice or approved clerk directions in respect of dealings with trust money.".

37New section 3.3.15A inserted

After section 3.3.15 of the Principal Act insert—

"3.3.15AManner of withdrawal of controlled money from controlled money account

(1)A law practice must not withdraw controlled money from a controlled money account otherwise than by cheque or electronic funds transfer.

Penalty:120 penalty units.

(2)Without limiting subsection (1), the following are specifically prohibited—

(a)cash withdrawals;

(b)ATM withdrawals or transfers;

(c)telephone banking withdrawals or transfers.

(3)The regulations may make provision for or with respect to withdrawals by cheque or electronic funds transfer.

(4)This section has effect despite anything to the contrary in any directions given to the law practice concerned, even if the directions are given by a person who is otherwise legally entitled to give the law practice directions in respect of dealings with trust money.".

38Transit money and trust money subject to specific powers

(1)In section 3.3.16(1) of the Principal Act, for "A law practice" substitute "Subject to section 3.3.17A, a law practice".

(2)For section 3.3.17(1) of the Principal Act substitute—

"(1)Subject to section 3.3.17A—

(a)a law practice must ensure that trust money that is the subject of a power given to the practice or an associate of the practice is dealt with by the practice or associate only in accordance with the power relating to the money;

(b)an approved clerk must ensure that trust money that is the subject of a power given to the clerk is dealt with by the clerk only in accordance with the power relating to the money.

Penalty:120 penalty units.".

(3)In section 3.3.17(2) of the Principal Act, for "as required" substitute "in the way prescribed".

39New section 3.3.17A inserted

After section 3.3.17 of the Principal Act insert—

"3.3.17ATrust money received in the form of cash

(1)A law practice or an approved clerk must deposit general trust money received in the form of cash in a general trust account of the practice or approved clerk.

Penalty:120 penalty units.

(2)If the law practice or approved clerk has a written direction by an appropriate person to deal with general trust money received in the form of cash otherwise than by first depositing it in a general trust account of the practice or clerk—

(a)the money must nevertheless be deposited in a general trust account of the practice or clerk in accordance with subsection (1); and

(b)the money is thereafter to be dealt with in accordance with any applicable terms of the direction so far as those terms are not inconsistent with paragraph (a).

(3)Controlled money received in the form of cash must be deposited in a controlled money account in accordance with section 3.3.15.

(4)A law practice must deposit transit money received in the form of cash in a general trust account of the practice before the money is otherwise dealt with in accordance with the instructions relating to the money.

Penalty:120 penalty units.

(5)A law practice or an approved clerk must deposit trust money that is received in the form of cash and is the subject of a power in a general trust account (or a controlled money account in the case of controlled money) of the practice or clerk before the money is otherwise dealt with in accordance with the power.

Penalty:120 penalty units.

(6)This section has effect despite anything to the contrary in any relevant direction, instruction or power.

(7)In this section—

appropriate person, in relation to trust money, means a person who is legally entitled to give the law practice or approved clerk concerned directions in respect of dealings with the money;

general trust money means trust money, other than—

(a)controlled money; and

(b)transit money; and

(c)money that is the subject of a power.".

40Further trust money and trust account amendments

(1)In section 3.3.19 of the Principal Act, for "allowed by the regulations" substitute "permitted by subsection (2)".

(2)At the end of section 3.3.19 of the Principal Act insert—

"(2)A law practice or an approved clerk is permitted to mix trust money with other money to the extent only that is authorised by the Board and in accordance with any conditions imposed by the Board in relation to the authorisation.".

(3)In the Principal Act—

(a)in section 3.3.20(1)(b) and (2)(a), for "procedure prescribed in the regulations is" substitute "relevant procedures or requirements prescribed by this Act and the regulations are";

(b)in sections 3.3.49(2)(g) and 3.3.51(1)(a)—

(i)for "the Australian Society of Certified Practising Accountants" substitute "CPA Australia";

(ii)for "Accountants Australia" substitute "Accountants in Australia".

(4)After section 3.3.56(b) of the Principal Act insert—

"(ba)to the Board; or".

(5)At the end of section 3.3.56 of the Principal Act insert—

"(2)If an approved external examiner becomes aware of—

(a)a deficiency in any trust account or trust ledger account of a law practice or an approved clerk; or

(b)a failure by a law practice or an approved clerk to pay or deliver any trust money; or

(c)any other failure by a law practice or an approved clerk to comply with this Act or the regulations—

the examiner must report the deficiency or failure to the Board as soon as practicable after becoming aware of it.

(3)The regulations may provide for the manner in which a report under subsection (2) is to be made and the information or material that is to be included in or to accompany the report.

(4)If an approved external examiner forms the opinion that the trust records of a law practice or an approved clerk are not being kept in a way that enables them to be conveniently and properly externally examined, the examiner must report that opinion to the Board as soon as practicable after forming the opinion.

(5)In this section—

deficiency has the same meaning as in section 3.3.21.".

(6)In section 3.3.58(2) of the Principal Act—

(a)for "the Australian Society of Certified Practising Accountants" substitute

"CPA Australia";

(b)for "Accountants Australia" substitute "Accountants in Australia".

41New section 3.3.71 substituted

For section 3.3.71 of the Principal Act substitute—

"3.3.71Restrictions on receipt of trust money

(1)A law practice (other than an incorporated legal practice) must not receive trust money unless a principal holds an Australian practising certificate authorising the receipt of trust money.

Penalty:240 penalty units.

(2)Subsection (1) does not apply in the case of the receipt of money by a barrister if the barrister, as soon as practicable after the receipt, gives the money to an approved clerk and the clerk accepts the money.

(3)An incorporated legal practice must not receive trust money unless—

(a)at least one legal practitioner director of the practice holds an Australian practising certificate authorising the receipt of trust money; or

(b)a person is holding an appointment under section 2.7.12 in relation to the practice and the person holds an Australian practising certificate authorising the receipt of trust money; or

(c)the money is received during any period during which the practice—

(i)does not have any legal practitioner directors; and

(ii)is not in default of director requirements under section 2.7.12—

so long as there was, immediately before the start of that period, at least one legal practitioner director of the practice who held an Australian practising certificate authorising the receipt of trust money.".

42New section 3.3.73 substituted

For section 3.3.73 of the Principal Act substitute—

"3.3.73Application of Part to incorporated legal practices and multi-disciplinary partnerships

(1)The obligations imposed on law practices by this Part, and any other provisions of this Act, the regulations or any legal profession rule relating to trust money and trust accounts, apply to an incorporated legal practice or multi-disciplinary partnership only in connection with legal services provided by the practice or partnership.

(2)The regulations may provide that specified provisions of this Part, and any other provisions of this Act, the regulations or any legal profession rule relating to trust money and trust accounts, do not apply to incorporated legal practices or multi-disciplinary partnerships or both or apply to them with specified modifications.".

43Costs disclosure and review definitions

In section 3.4.2 of the Principal Act—

(a)insert the following definitions—

"third party payer—see section 3.4.2A;

uplift fee means additional legal costs (excluding disbursements) payable under a costs agreement on the successful outcome of the matter to which the agreement relates.";

(b)the definition of "client" is repealed;

(c)the definition of "uplift fee" appearing before the definition of "Taxing Master" is repealed;

(d)in the definition of "Taxing Master", for "Court." substitute "Court;".

44New section 3.4.2A inserted

After section 3.4.2 of the Principal Act insert—

"3.4.2ATerms relating to third party payers

(1)For the purposes of this Part—

(a)a person is a third party payer, in relation to a client of a law practice, if the person is not the client and—

(i)is under a legal obligation to pay all or any part of the legal costs for legal services provided to the client; or

(ii)being under that obligation, has already paid all or a part of those legal costs; and

(b)a third party payer is an associated third party payer if the legal obligation referred to in paragraph (a) is owed to the law practice, whether or not it is also owed to the client or another person; and

(c)a third party payer is a non-associated third party payer if the legal obligation referred to in paragraph (a) is owed to the client or another person but not the law practice.

(2)The legal obligation referred to in subsection (1) can arise by or under contract or legislation or otherwise.

(3)A law practice that retains another law practice on behalf of a client is not on that account a third party payer in relation to that client.".

45Costs disclosure

(1)In section 3.4.4 of the Principal Act—

(a)for subsection (1)(c)(i) substitute—

"(i)the client accepts, in writing or by other conduct, a written offer to enter into an agreement under subsection (2)(a) in respect of the matter; or";

(b)for subsection (2)(a) substitute—

"(a)accept, in writing or by other conduct, a written offer that complies with subsection (2A) to enter into an agreement with the law practice that this Part is to apply to the matter; or".

(2)After section 3.4.4(2) of the Principal Act insert—

"(2A)An offer referred to in subsection (2)(a) must clearly state—

(a)that it is an offer to enter into an agreement that this Part is to apply to the matter; and

(b)that the client may accept it in writing or by other conduct; and

(c)the type of conduct that will constitute acceptance.".

(3)In the Principal Act—

(a)in section 3.4.5(2)(b)(i) , for "signs, under the corresponding law of the other jurisdiction, a written agreement" substitute "enters under the corresponding law into an agreement";

(b)in section 3.4.6, for "client first provides instructions to the law practice in relation to the matter at an office of the law practice" substitute "law practice first receives instructions from or on behalf of the client in relation to the matter";

(c)in section 3.4.8(4)—

(i)in paragraph (a), for "sign" substitute "enter into";

(ii)in paragraph (b), for "signs" substitute "enters into".

(4)After section 3.4.8(4) of the Principal Act insert—

"(4A)A written agreement referred to in subsection (4) need not be signed by the client but in that case the client's acceptance must be communicated to the law practice by fax, email or some other written form.

(4B)If a corresponding law applied to a matter for a period and this Part applies to the matter afterwards, this Part does not require disclosure of any matters to the extent that they have already been disclosed under a corresponding law.".

(5)In section 3.4.9 of the Principal Act—

(a)after subsection (1)(b)(i) insert—

"(ia)receive a bill from the law practice; and";

(b)for subsection (1)(f) substitute—

"(f)the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (1A)); and";

(c)in subsection (1)(m)(i) , for "sign under a corresponding law a written agreement" substitute "accept under a corresponding law a written offer to enter into an agreement";

(d)in the note at the foot of subsection (1), for "sign" substitute "enter into".

(6)After section 3.4.9(1) of the Principal Act insert—

"(1A)For the purposes of subsection (1)(f), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.

(1B)The regulations may make provision for or with respect to the use of benchmark rates of interest and, in particular, for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.".

(7)In section 3.4.9(2)(b) of the Principal Act, after "enters" insert "into".

(8)After section 3.4.9(2) of the Principal Act insert—

"(3)A law practice may disclose all or any of the details referred to in subsection (1)(b)(iii), (h), (j), (k) and (m) in a form prescribed by the regulations for the purposes of this subsection and, if it does so, the practice is taken to have complied with this section in relation to the details so disclosed.".

(9)In section 3.4.10(1) of the Principal Act, for "the client" (where first occurring) substitute "a client".

(10)In the heading to section 3.4.11 of the Principal Act, for "made?" substitute "made to a client?".

(11)For section 3.4.11(2) of the Principal Act substitute—

"(2)Disclosure under section 3.4.10(1) must be made in writing before, or as soon as practicable after, the other law practice is retained.

(3)Disclosure made to a person before the law practice is retained in a matter is taken to be disclosure to the person as a client for the purposes of sections 3.4.9 and 3.4.10.".

(12)In section 3.4.14 of the Principal Act, for "(expressed as a percentage of those fees)" substitute "(or the basis of calculation of the uplift fee)".

(13)In section 3.4.15(1) of the Principal Act, after "disclosures" insert "to a client".

46New section 3.4.16 substituted

For section 3.4.16 of the Principal Act substitute—

"3.4.16Ongoing obligation to disclose

A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.".

47Further costs amendments

(1)In section 3.4.17 of the Principal Act—

(a)in subsections (1) and (2)—

(i)after "a client" insert "or an associated third party payer";

(ii)after "the client" insert "or associated third party payer (as the case may be)";

(b)in subsection (3)—

(i)after "a client" insert "or an associated third party payer";

(ii)after "the client" (where twice occurring) insert "or associated third party payer";

(c)in subsection (4), after "a client" insert "or an associated third party payer".

(2)After section 3.4.17(5) of the Principal Act insert—

"(5A)In a matter involving both a client and an associated third party payer where disclosure has been made to one of them but not the other—

(a)subsection (1) does not affect the liability of the one to whom disclosure was made to pay the legal costs; and

(b)subsection (2) does not prevent proceedings being maintained against the one to whom the disclosure was made for the recovery of those legal costs.".

48New section 3.4.18A inserted

After section 3.4.18 of the Principal Act insert—

"3.4.18ADisclosure to associated third party payers

(1)If a law practice is required to make a disclosure to a client of the practice under this Division, the practice must, in accordance with subsections (2) and (3), also make the same disclosure to any associated third party payer for the client, but only to the extent that the details or matters disclosed are relevant to the associated third party payer and relate to costs that are payable by the associated third party payer in respect of legal services provided to the client.

(2)A disclosure under subsection (1) must be made in writing—

(a)at the time the disclosure to the client is required under this Division; or

(b)if the law practice only afterwards becomes aware of the legal obligation of the associated third party payer to pay legal costs of the client—as soon as practicable after the practice became aware of the obligation.

(3)Section 3.4.15 applies to a disclosure to an associated third party payer under subsection (1) in the same way as it applies to a client.

(4)An associated third party payer for a client of a law practice has the same right as the client to obtain reports under section 3.4.18(1)(b) of legal costs incurred by the client, but only to the extent that the costs are payable by the associated third party payer in respect of legal services provided to the client, and the law practice must comply with that section accordingly.".

49New section 3.4.21 substituted

For section 3.4.21 of the Principal Act substitute—

"3.4.21Interest on unpaid legal costs

(1)A law practice may charge interest on unpaid legal costs if the costs are unpaid 30 days or more after the practice has given a bill for the costs in accordance with this Part.

(2)A law practice may also charge interest on unpaid legal costs in accordance with a costs agreement.

(3)A law practice must not charge interest under subsection (1) or (2) on unpaid legal costs unless the bill for those costs contains a statement that interest is payable if the costs are not paid and of the rate of interest.

(4)A law practice may not charge interest under this section or under a costs agreement at a rate that exceeds the rate prescribed by the regulations.".

50Costs agreements

(1)In section 3.4.26(1) of the Principal Act—

(a)in paragraph (c), for "client." substitute "client; or";

(b)after paragraph (c) insert—

"(d)between a law practice and an associated third party payer.".

(2)In section 3.4.26(5) of the Principal Act, for "A costs agreement" substitute "Except as provided by section 3.4.48A, a costs agreement".

(3)After section 3.4.26(5) of the Principal Act insert—

"(6)A reference in section 3.4.32 and in any prescribed provisions of this Part to a client is, in relation to a costs agreement that is entered into between a law practice and an associated third party payer as referred to in subsection (1)(d) and to which a client of the law practice is not a party, a reference to the associated third party payer.".

(4)In section 3.4.27(1) of the Principal Act omit ', and a costs agreement containing a provision of that kind is referred to in this Act as a "conditional costs agreement" '.

(5)For section 3.4.27(5) of the Principal Act substitute—

"(5)If a client terminates an agreement within the period referred to in subsection (3)(e), the law practice—

(a)may recover only those legal costs in respect of legal services performed for the client before that termination that were performed on the instructions of the client and with the client's knowledge that the legal services would be performed during that period; and

(b)without affecting the generality of paragraph (a), may not recover the uplift fee (if any).".

51New section 3.4.28 substituted

For section 3.4.28 of the Principal Act substitute—

"3.4.28Conditional costs agreements involving uplift fees

(1)A conditional costs agreement may provide for the payment of an uplift fee.

(2)The basis of calculation of the uplift fee must be separately identified in the agreement.

(3)The agreement must contain an estimate of the uplift fee or, if that is not reasonably practicable—

(a)a range of estimates of the uplift fee; and

(b)an explanation of the major variables that will affect the calculation of the uplift fee.

(4)If a conditional costs agreement relates to a litigious matter—

(a)the agreement must not provide for the payment of an uplift fee unless the law practice has a reasonable belief that a successful outcome of the matter is reasonably likely; and

(b)the uplift fee must not exceed 25% of the legal costs (excluding disbursements) otherwise payable.

(5)A law practice must not enter into a costs agreement in contravention of this section.

Penalty:60 penalty units.".

52Contingency fees

In section 3.4.29 of the Principal Act—

(a)subsection (1)(a) is repealed;

(b)in subsection (2) omit "practitioner remuneration order or".

53Setting aside costs agreements

(1)In section 3.4.32 of the Principal Act—

(a)in subsections (1) and (2), omit ", just";

(b)for subsection (2)(d) substitute—

"(d)the circumstances and conduct of the parties before and when the agreement was made;

(e)the circumstances and the conduct of the parties in the matters after the agreement was made;

(f)whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement;

(g)whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.".

(2)After section 3.4.32(9) of the Principal Act insert—

"(10)In this section—

client means a person to whom or for whom legal services are or have been provided.

Note

See also section 3.4.26(6) which extends the application of this section to associated third party payers.".

54Billing

(1)After section 3.4.34(2) of the Principal Act insert—

"(2A)It is sufficient compliance with subsection (2) if—

(a)in any case, a letter signed on behalf of a law practice by an Australian legal practitioner or an employee of the law practice is attached to, or enclosed with, the bill;

(b)in the case of a barrister, a letter signed on behalf of the barrister by an approved clerk or an employee of an approved clerk authorised by the approved clerk is attached to, or enclosed with, the bill.".

(2)After section 3.4.35(2) of the Principal Act insert—

(3)A law practice may provide the written statement referred to in subsection (1) in a form prescribed by the regulations for the purposes of this subsection, and if it does so the practice is taken to have complied with this section in relation to the statement.".

55New section 3.4.36 substituted

For section 3.4.36 of the Principal Act substitute—

"3.4.36Request for itemised bill

(1)If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for a review of the legal costs to which the bill relates may, within 30 days after the day the bill is given, request the law practice to give the person an itemised bill.

(2)The law practice must comply with the request within 21 days after the date on which the request was made.

(3)If the person making the request is liable to pay only a part of the legal costs to which the bill relates, the request for an itemised bill may only be made in relation to those costs that the person is liable to pay.

(4)If a person makes a request for an itemised bill in accordance with this section, the law practice must not commence legal proceedings to recover the legal costs from the person until at least 35 days after complying with the request.

Note

Section 4.3.2 prohibits a law practice from commencing proceedings if it has received notice of a civil complaint regarding the legal costs.

(5)A law practice is not entitled to charge a person other than a non-associated third party payer for the preparation of an itemised bill requested under this section.

(6)Section 3.4.34(2), (3) and (4) apply to the giving of an itemised bill under this section.".

56New section 3.4.38 substituted

For section 3.4.38 of the Principal Act substitute—

"3.4.38Application by clients or third party payers for costs review

(1)A client may apply to the Taxing Master for a review of the whole or any part of legal costs.

(2)A third party payer may apply to the Taxing Master for a review of the whole or any part of legal costs payable by the third party payer.

(3)An application for a costs review may be made even if the legal costs have been wholly or partly paid.

(4)If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for a costs review.

(5)An application by a client or third party payer for a costs review under this section must be made within 12 months after—

(a)the bill was given or the request for payment was made to the client or third party payer; or

(b)the costs were paid if neither a bill was given nor a request was made.

(6)However, an application that is made out of time, otherwise than by—

(a)a sophisticated client; or

(b)a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned—

may be dealt with by the Taxing Master if the Supreme Court, on application by the Taxing Master or the client or third party payer who made the application for review, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for review to be dealt with after the 12 month period.

(7)If the third party payer is a non-associated third party payer, the law practice must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs review under this section.

(8)If there is an associated third party payer for a client of a law practice—

(a)nothing in this section prevents—

(i)the client from making one or more applications for review under this section in relation to costs for which the client is solely liable; and

(ii)the associated third party payer from making one or more applications for review under this section in relation to costs for which the associated third party payer is solely liable—

and those applications may be made by them at the same time or at different times and may be dealt with jointly or separately; and

(b)the client or the associated third party payer—

(i)may participate in the costs review process where the other of them makes an application for review under this section in relation to costs for which they are both liable; and

(ii)is taken to be a party to the review and is bound by the review; and

(c)the law practice—

(i)must participate in the costs review process where an application is made under this section by the associated third party payer in the same way as the practice must participate in the process where an application is made under this section by a client; and

(ii)is taken to be a party to the review and is bound by the review.

(9)If there is a non-associated third party payer for a client of a law practice—

(a)nothing in this section prevents—

(i)the client from making one or more applications for review under this section in relation to costs for which the client is liable; and

(ii)the non-associated third party payer from making one or more applications for review under this section in relation to costs for which the non-associated third party payer is liable—

and those applications may be made by them at the same time or at different times but must be dealt with separately; and

(b)the client—

(i)may participate in the costs review process where the non-associated third party payer makes an application under this section in relation to costs for which the non-associated third party payer is liable; and

(ii)is taken to be a party to the review and is bound by the review; and

(c)the law practice—

(i)must participate in the costs review process; and

(ii)is taken to be a party to the review; and

(d)despite any other provision of this Division, the review of the costs payable by the non-associated third party payer does not affect the amount of legal costs payable by the client to the law practice.

(10)In this section—

client includes the following—

(a)an executor or administrator of a client;

(b)a trustee of the estate of a client;

third party payer includes—

(a)an executor or administrator of a third party payer;

(b)a trustee of the estate of a third party payer.".

57Costs reviews

(1)In section 3.4.39 of the Principal Act—

(a)in subsection (1), omit "to which a bill given by the other law practice in accordance with Division 6 relates";

(b)in subsection (2), omit "and, for that purpose, the request for payment is taken to be a bill".

(2)For section 3.4.39(3) of the Principal Act substitute—

"(2A)An application for a costs review may be made even if the legal costs have been wholly or partly paid.

(3)An application under this section must be made within 60 days after—

(a)the bill was given or the request for payment was made; or

(b)the costs were paid if neither a bill was given nor a request was made.".

(3)In section 3.4.40(2) of the Principal Act, omit "and, for that purpose, the request for payment is taken to be a bill".

(4)For section 3.4.40(3) of the Principal Act substitute—

"(2A)An application for a costs review may be made even if the legal costs have been wholly or partly paid.

(3)An application may not be made under this section unless at least 30 days have passed since—

(a)the bill was given or the request for payment was made; or

(b)the costs were paid if neither a bill was given nor a request was made; or

(c)an application has been made under this Division by another person in respect of the legal costs.".

58New section 3.4.42 substituted

For section 3.4.42 of the Principal Act substitute—

"3.4.42Persons to be notified of application

(1)An applicant for costs review must cause a copy of the application to be given to any law practice or client concerned or any other person whom the Taxing Master thinks it appropriate to notify.

(2)A person who is notified by the applicant under subsection (1)—

(a)is entitled to participate in the costs review process; and

(b)is taken to be a party to the review; and

(c)if the Taxing Master so determines, is bound by the review.".

59Procedure on costs review

Section 3.4.43(3) of the Principal Act is repealed.

60Criteria for costs review

(1)In section 3.4.44 of the Principal Act—

(a)in subsection (1)(c), after "work" insert

", except to the extent that section 3.4.44A or 3.4.44B applies to any disputed costs";

(b)in subsection (2)—

(i)in paragraph (b), omit ", or the failure to make any disclosures required under that Division";

(ii)paragraph (d) is repealed.

(2)After section 3.4.44(2) of the Principal Act insert—

"(3)In conducting a review of legal costs payable by a non-associated third party payer, the Taxing Master must also consider whether it is fair and reasonable in the circumstances for the non-associated third party payer to be charged the amount claimed.".

61New sections 3.4.44A and 3.4.44B inserted

After section 3.4.44 of the Principal Act insert—

"3.4.44AReview of costs by reference to costs agreement

(1)The Taxing Master must review the amount of any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if—

(a)a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs; and

(b)the agreement has not been set aside under section 3.4.32—

unless the Taxing Master is satisfied—

(c)that the agreement does not comply in a material respect with any applicable disclosure requirements of Division 3; or

(d)that Division 5 precludes the law practice concerned from recovering the amount of the costs; or

(e)that the parties otherwise agree.

(2)The Taxing Master is not required to initiate an examination of the matters referred to in sub-section (1)(c) and (d).

3.4.44BReview of costs by reference to practitioner remuneration order or scale of costs

The Taxing Master must review the amount of any disputed costs that are subject to a practitioner remuneration order or scale of costs by reference to the order or scale.".

62Costs of review

For section 3.4.45(2) of the Principal Act substitute—

"(2)Unless the Taxing Master otherwise orders and subject to subsection (3), the law practice to which the legal costs are payable or were paid must pay the costs of the review if—

(a)on the review the legal costs are reduced by 15% or more; or

(b)the Taxing Master is satisfied that the law practice failed to comply with Division 3.

(2A)Unless the Taxing Master otherwise orders and subject to subsection (3), if the law practice is not, under subsection (2), liable to pay the costs of the review, the costs of the review must be paid by the party ordered by the Taxing Master to pay those costs.".

63Contracting out of Division by sophisticated clients

In section 3.4.48A of the Principal Act, after "practice" insert ", or an associated third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned,".

64Fidelity cover

(1)In the Principal Act—

(a)in section 3.6.2, in the definition of "concerted interstate default", for "that arises from" substitute "arising from or constituted by";

(b)for the definition of "default" substitute—

"default means—

(a)in the case of a law practice—

(i)a failure of the practice to pay or deliver trust money or trust property that was received by the practice in the course of legal practice by the practice, where the failure arises from or is constituted by an act or omission of an associate that involves dishonesty; or

(ii)a fraudulent dealing with trust property that was received by the practice in the course of legal practice by the practice, where the fraudulent dealing arises from or is constituted by an act or omission of an associate that involves dishonesty; or

(b)in the case of an approved clerk—

(i)a failure of the clerk to pay or deliver trust money or trust property that was received by the clerk in his or her capacity as an approved clerk, where the failure arises from or is constituted by an act or omission of the clerk or an employee of the clerk that involves dishonesty; or

(ii)a fraudulent dealing with trust money that was received by the clerk in his or her capacity as an approved clerk, where the fraudulent dealing arises from or is constituted by an act or omission of the clerk or an employee of the clerk that involves dishonesty;";

(c)in section 3.6.31(1), for "that arises from" substitute "arising from or constituted by";

(d)for the heading to section 3.6.44 substitute—

"Application of Part to sole practitioners whose practising certificates lapse";

(e)in section 3.6.44(1), after "has lapsed" insert "and the lawyer was a sole practitioner immediately before the certificate lapsed".

(2)For section 3.6.44(3) of the Principal Act substitute—

"(3)Subsection (2) ceases to apply when the first of the following occurs—

(a)a manager or receiver is appointed under this Act for the law practice; or

(b)the period of 6 months after the practising certificate actually lapsed expires; or

(c)the lawyer's application for the grant or renewal of an Australian practising certificate is refused under this Act or a corresponding law.".

65Complaints and discipline

(1)In the Principal Act—

(a)in section 4.4.4(e), for "Act." substitute "Act;";

(b)after section 4.4.4(e) insert—

"(f)conduct of an Australian legal practitioner in failing to comply with an order of the Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law);

(g)conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.";

(c)in section 4.4.16, after "may make" insert "any orders it thinks fit, including";

(d)in section 4.4.18(b) and (c), after "an order" insert "recommending";

(e)for section 4.4.18(d) substitute—

"(d)an order recommending—

(i)that specified conditions be imposed on the practitioner's interstate practising certificate, or existing conditions be amended; and

(ii)that the conditions be imposed or amended for a specified period; and

(iii)a specified time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed.";

(f)in section 4.4.25, in the definition of "disciplinary action", in paragraph (b)(iii), after "grant" insert "or renew".

(2)For section 4.4.36(1) of the Principal Act substitute—

"(1)When dealing with a complaint or conducting an investigation, the Commissioner may consult and co-operate with another person or body (whether in or of Australia or a foreign country) who or which has or may have relevant information or powers in relation to the person against whom the complaint was made or the person under investigation.".

(3)In the heading to section 4.4.37 of the Principal Act, after "with" insert "recommendations or".

(4)In section 4.4.37 of the Principal Act—

(a)in subsection (1)(a), for "any order" substitute "or enforce any recommendation or order";

(b)in subsection (1)(b)—

(i)for "enforce any order" substitute "give effect to or enforce any recommendation or order";

(ii)for "the order" substitute

"the recommendation or order";

(c)in subsection (2), for "an order recommending" substitute

"a recommendation or order".

66External intervention

(1)In the Principal Act—

(a)in section 5.1.1(a), for "lawyers (including foreign lawyers)" substitute "law practices and Australian-registered foreign lawyers";

(b)in section 5.1.2, for the definition of "regulated property" substitute—

"regulated property, in relation to a law practice, means the following—

(a)trust money or trust property received, receivable or held by the practice;

(b)interest, dividends or other income or anything else derived from or acquired with money or property referred to in paragraph (a);

(c)documents or records of any description relating to anything referred to in paragraph (a) or (b);

(d)any computer hardware or software, or other device, in the custody or control of the practice or an associate of the practice by which any records referred to in paragraph (c) may be produced or reproduced in visible form.".

(2)At the end of section 5.1.2 of the Principal Act insert—

"(2)Other expressions used in this Chapter have the same meanings as in Part 3.3.".

(3)In the Principal Act—

(a)in section 5.1.3, after "lawyers" insert

"and former Australian-registered foreign lawyers";

(b)in section 5.2.2(1) omit ", owners and employees";

(c)in section 5.2.2(2)(a), for "received by" substitute "of";

(d)for section 5.2.2(2)(b) substitute—

"(b)to appoint a manager for the law practice, if the Board is of the opinion—

(i)that external intervention is required because of issues relating to the practice's trust records; or

(ii)that the appointment is necessary to protect the interests of clients in relation to trust money or trust property; or

(iii)that there is a need for an independent person to be appointed to take over professional and operational responsibility for the practice; or";

(e)in the heading to Part 5.3, after "SUPERVISORS" insert "OF TRUST MONEY";

(f)in the heading to section 5.3.1, after "supervisor" insert "of trust money";

(g)in section 5.3.1—

(i)in subsection (1), for "received by" substitute "of";

(ii)in subsections (2) and (4)(b), after "supervisor" insert "of trust money";

(h)in section 5.3.2—

(i)in subsection (1), for "for a law practice" substitute "of trust money of a law practice";

(ii)in subsection (2)(b), after "supervisor" insert "of trust money";

(i)in section 5.3.3(1)—

(i)for "received by" substitute "of";

(ii)in paragraph (b), after "supervisor" insert "or the supervisor's nominee";

(j)in section 5.3.3—

(i)in subsection (2), for "received by" substitute "of";

(ii)in subsection (3), after "supervisor" insert "of trust money";

(k)in the heading to section 5.3.4, after "supervisor" insert "of trust money";

(l)in section 5.3.4(1)(a), for "on behalf of" substitute "entrusted to";

(m)in section 5.3.7(1), for "for a law practice" substitute "of trust money of a law practice";

(n)for section 5.4.3(2)(a), (b) and (c) substitute—

"(a)the withdrawal or transfer is made by cheque or other instrument drawn on that account signed by—

(i)the manager; or

(ii)a receiver appointed for the practice; or

(iii)a nominee of the manager or receiver; or

(b)the withdrawal or transfer is made by means of electronic or Internet banking facilities, by—

(i)the manager; or

(ii)a receiver appointed for the practice; or

(iii)a nominee of the manager or receiver; or

(c)the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by—

(i)the manager; or

(ii)a receiver appointed for the practice; or

(iii)a nominee of the manager or receiver.";

(o)in section 5.4.3(5), for "as directed by the manager" substitute "of the practice or another trust account nominated by the manager or receiver";

(p)in section 5.5.1(4)(b), after "officer" insert "or employee";

(q)after section 5.5.2(2)(c) insert—

"(ca)indicate the extent to which the receiver has the powers of a manager for the practice; and";

(r)for section 5.5.3(2)(a), (b) and (c) substitute—

"(a)the withdrawal or transfer is made by cheque or other instrument drawn on that account signed by—

(i)the receiver; or

(ii)a manager appointed for the practice; or

(iii)a nominee of the receiver or manager; or

(b)the withdrawal or transfer is made by means of electronic or Internet banking facilities, by—

(i)the receiver; or

(ii)a manager appointed for the practice; or

(iii)a nominee of the receiver or manager; or

(c)the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by—

(i)the receiver; or

(ii)a manager appointed for the practice; or

(iii)a nominee of the receiver or manager.";

(s)in section 5.5.3(5), for "as directed by the receiver" substitute "of the practice or another trust account nominated by the receiver or manager".

(4)For section 5.5.9(1) of the Principal Act substitute—

"(1)A receiver for a law practice may require—

(a)a person who is an associate or former associate of the practice; or

(b)a person who has or has had control of documents relating to the affairs of the practice; or

(c)a person who has information relating to regulated property of the practice or property that the receiver believes on reasonable grounds to be regulated property of the practice—

to give the receiver either or both of the following—

(d)access to the documents relating to the affairs of the practice the receiver reasonably requires;

(e)information relating to the affairs of the practice the receiver reasonably requires (verified by statutory declaration if the requirement so states).".

(5)In the Principal Act—

(a)in section 5.5.9(4)(c), for "answer." substitute "answer; or";

(b)after section 5.5.9(4)(c) insert—

"(d)proceedings taken by the receiver for the recovery of regulated property.".

(c)in section 5.5.11—

(i)in subsection (1)(b), before "a legal practitioner" insert "the practice or";

(ii)in subsection (2), for "legal practitioner associate a written notice requiring the associate" substitute "law practice or legal practitioner associate a written notice requiring the practice or associate";

(d)in section 5.5.11(3)—

(i)before "legal practitioner" insert

"law practice or";

(ii)after "to enable the" insert

"practice or".

67New section 5.5.17 substituted

For section 5.5.17 of the Principal Act substitute—

"5.5.17Termination of receiver's appointment by Supreme Court

(1)The appointment by the Supreme Court of a receiver for a law practice terminates in the following circumstances—

(a)the term (if any) of the appointment comes to an end;

(b)the appointment is set aside under section 5.6.4;

(c)a determination of the Supreme Court that the appointment be terminated has taken effect.

(2)The Supreme Court may, on application by the Board or receiver made at any time, determine in writing that the appointment be terminated immediately or with effect from a specified date.

(3)A receiver for a law practice must apply to the Supreme Court for termination of the appointment when the affairs of the practice have been wound up and terminated, unless the term (if any) of the appointment has already come to an end.

(4)The Supreme Court may make any order it considers appropriate in relation to an application under this section.

(5)The appointment of a receiver is not stayed by the making of an application for termination of the receiver's appointment, and the receiver may accordingly continue to perform his or her functions as receiver pending the Supreme Court's decision on the application except to the extent (if any) that the Court otherwise directs.

(6)The former receiver must, as soon as practicable, transfer and deliver the regulated property of the law practice to—

(a)another external intervener appointed for the practice within the period of 14 days beginning on the day after the date of the termination; or

(b)the practice, if another external intervener is not appointed for the practice within that period and paragraph (c) does not apply; or

(c)another person in accordance with arrangements approved by the Supreme Court, if it is not practicable to transfer and deliver the regulated property to the practice.

(7)The former receiver need not transfer and deliver regulated property to the law practice in compliance with subsection (6) unless the expenses of receivership have been paid.

(8)The Board must serve a written notice of the termination on all persons originally served with notice of the appointment.".

68Appeal against appointment

After section 5.6.4(4) of the Principal Act insert—

"(5)The appointment of an external intervener is not stayed by the making of an appeal, and the external intervener may accordingly continue to perform his or her functions as external intervener during the currency of the appeal except to the extent (if any) that the Supreme Court or Court of Appeal (as the case requires) otherwise directs.".

69New section 5.6.5A inserted

After section 5.6.5 of the Principal Act insert—

"5.6.5AManager and receiver appointed for law practice

If a manager and a receiver are appointed for a law practice, any decision of the receiver prevails over any decision of the manager in the performance of their respective functions, to the extent of any inconsistency.".

70New section 5.6.6 substituted

For section 5.6.6 of the Principal Act substitute—

"5.6.6ADI disclosure requirements

(1)An ADI must, at the request of an external intervener for a law practice, disclose to the intervener without charge—

(a)whether or not the practice, or an associate of the practice specified by the intervener, maintains or has maintained an account at the ADI during a period specified by the intervener; and

(b)details identifying every account so maintained.

Penalty:60 penalty units.

(2)An ADI at which an account of a law practice or associate of a law practice is or has been maintained must, at the request of an external intervener for the law practice, and without charge—

(a)produce for inspection or copying by the intervener, or a nominee of the intervener, any records relating to any such accounts or money deposited in any such account; and

(b)provide the intervener with full details of any transactions relating to any such account or money.

Penalty:60 penalty units.

(3)If an external intervener believes, on reasonable grounds, that trust money has, without the authorisation of the person who entrusted the trust money to the law practice, been deposited into the account of a third party who is not an associate of the law practice, the ADI at which the account is maintained must disclose to the intervener without charge—

(a)whether or not a person specified by the intervener maintains or has maintained an account at the ADI during a period specified by the intervener; and

(b)the details of any such account.

(4)An obligation imposed by this section on an ADI does not apply unless the external intervener produces to the ADI evidence of the appointment of the intervener in relation to the law practice concerned.

(5)A request under this section may be general or limited to a particular kind of account.

(6)This section applies despite any legislation or duty of confidence to the contrary.

(7)An ADI or an officer or employee of an ADI is not liable to any action for any loss or damage suffered by another person as a result of producing records or providing details in accordance with this section.".

71Immunity for Board members

In section 6.2.18(1) and (2) of the Principal Act, omit "necessarily or reasonably".

72Keeping the register

In section 6.2.23(2) of the Principal Act—

(a)in paragraph (a)(ii), after "practice;" insert "and";

(b)after paragraph (a)(ii) insert—

"(iii)an indication of whether or not the practitioner is a barrister; and

(iv)if the practitioner is an employee of a law practice—the name of the law practice; and

(v)if the practitioner is a sole practitioner—any business name under which the practitioner carries on business;";

(c)after paragraph (e)(ii) insert—

"(iii)the name of the entity of which the lawyer is a director, officer, partner or employee or with which the lawyer is otherwise engaged in legal practice; and

(iv)any business name under which the lawyer carries on business;";

(d)in paragraph (f)(ii), for "centre." substitute "centre;".

73Immunity for Commissioner and others

In section 6.3.11(1), (3) and (4) of the Principal Act, omit "necessarily or reasonably".

74Fidelity Fund

In section 6.7.27 of the Principal Act—

(a)in subsection (1)(a), for "gives notice to" substitute "notifies";

(b)in subsection (2), for "gave the notice" substitute "notified the Board as";

(c)in subsection (3)(a)(i), for "making the application" substitute "notifying the Board".

75Injunctions

(1)In section 7.2.13(1) of the Principal Act, for "or the regulations" (wherever occurring) substitute ", the regulations or the legal profession rules".

(2)After section 7.2.13(3) of the Principal Act insert—

"(4)If in the opinion of the Supreme Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

(5)The Supreme Court may discharge or vary an injunction granted under subsection (1) or (4).

(6)The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised—

(a)whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b)whether or not the person has previously refused or failed to do that act or thing; and

(c)whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

(7)The Supreme Court must not require the Board or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.".

76Confidentiality of personal information

For section 7.2.15(1) and (2) of the Principal Act substitute—

"(1)A relevant person must not disclose to any other person, whether directly or indirectly, any personal information obtained by reason of being a relevant person.

Penalty:60 penalty units.

(2)Subsection (1) does not apply to the disclosure of information—

(a)to the extent that the disclosure is reasonably required to perform functions under this Act, the regulations or the legal profession rules, or under any other Act or regulations; or

(b)to the extent that the relevant person is expressly authorised, permitted or required to disclose the information under this Act, the regulations or the legal profession rules, or under any other Act or regulations; or

(c)with the prior consent in writing of the person to whom the information relates; or

(d)to a court or tribunal in the course of legal proceedings; or

(e)pursuant to an order of a court or tribunal under any Act or law; or

(f)to the extent the disclosure is reasonably required to enable the enforcement or investigation of the criminal law or a disciplinary matter.".

77Legal Services Board elections

(1)For clauses 2 and 3 of Schedule 1 to the Principal Act substitute—

"2Enrolment

(1)A local legal practitioner is taken to be enrolled on the roll of advocates if—

(a)his or her name is on the register under section 6.2.23; and

(b)the register indicates that he or she is a barrister.

(2)A local legal practitioner is taken to be enrolled on the roll of non-advocates if—

(a)his or her name is on the register under section 6.2.23; and

(b)the register indicates that he or she is not a barrister.

3Eligibility to stand and vote

(1)Each local legal practitioner of not less than 5 years' standing who is on the roll of advocates is eligible to stand for election for the advocate member of the Board.

(2)Each local legal practitioner of not less than 5 years' standing who is on the roll of non-advocates is eligible to stand for election for the non-advocate members of the Board.

(3)Each local legal practitioner who is on the roll of advocates is eligible to vote in an election for the advocate member of the Board.

(4)Each local legal practitioner who is on the roll of non-advocates is eligible to vote in an election for the non-advocate members of the Board.".

78Transitional provisions

In Schedule 2 to the Principal Act—

(a)in clause 4.3(3), for "Chartered Accounts" substitute "Chartered Accountants";

(b)in clause 8.3(3)(e), for "proceeding." substitute "proceeding; and";

(c)after clause 8.3(3)(e) insert—

"(f)if the Society (within the meaning of clause 1 of Schedule 2 to the old Act) was a party to the proceeding immediately before the commencement day, the Law Institute is a party to the proceeding on and after that day, and has all the functions in relation to the proceeding that the Society had under the old Act; and

(g)if the Bar (within the meaning of clause 1 of Schedule 2 to the old Act) was a party to the proceeding immediately before the commencement day, the Victorian Bar is a party to the proceeding on and after that day, and has all the functions in relation to the proceeding that the Bar had under the old Act.";

(d)in clause 8.4(3)(f), for "proceeding." substitute "proceeding; and";

(e)after clause 8.4(3)(f) insert—

"(g)if the Society (within the meaning of clause 1 of Schedule 2 to the old Act) was a party to the proceeding immediately before the commencement day, the Law Institute is a party to the proceeding on and after that day, and has all the functions in relation to the proceeding that the Society had under the old Act; and

(h)if the Bar (within the meaning of clause 1 of Schedule 2 to the old Act) was a party to the proceeding immediately before the commencement day, the Victorian Bar is a party to the proceeding on and after that day, and has all the functions in relation to the proceeding that the Bar had under the old Act.".

79New Part 12 inserted in Schedule 2

After Part 11 of Schedule 2 to the Principal Act insert—

"Part 12—Legal Profession Amendment Act 2007

12.1Practising certificates

(1)Section 2.4.3(8) does not apply in relation to an interstate practising certificate granted or renewed before the commencement day.

(2)Subclause (1) has effect only in relation to the period commencing on the commencement day and ending on 30 June 2007.

(3)In this clause—

commencement day means the day after the day on which the Legal Profession Amendment Act 2007 received the Royal Assent.".

80Consequential amendment of Conveyancers Act 2006

In section 5(a) of the Conveyancers Act 2006, omit "section 2.2.5 of".

81Repeal of Act

This Act is repealed on 1 July 2009.

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Endnotes

Minister's second reading speech—

Legislative Assembly: 28 February 2007

Legislative Council: 19 April 2007

The long title for the Bill for this Act was "A Bill for an Act to amend the Legal Profession Act 2004 as a result of amendments to the national model provisions for the regulation of the legal profession and generally to improve the regulation of the profession and for other purposes."