Legal Profession Amendment (Advertising) Regulation 2005 (NSW)
2005 No 222
New South Wales
Legal Profession Amendment (Advertising) Regulation 2005
under the
Legal Profession Act 1987
Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Legal Profession Act 1987.
BOB DEBUS, M.P.,
Attorney General
Explanatory note
The object of this Regulation is to amend the Legal Profession Regulation 2002:
| (a) | to change existing provisions that restrict advertising of personal injury services by lawyers to impose restrictions on advertising by persons other than lawyers, and |
(b) to make the changes outlined below to the existing restrictions applicable to lawyers. The new restrictions on non-lawyers have the following features:
| (a) | advertising that depicts personal injury or circumstances of personal injury will be prohibited if it: | |||||||||
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| (b) | exceptions to the advertising restrictions include the following: | |||||||||
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| Published in Gazette No 72 of 15 June 2005, page 2279 | Page 1 | |||||||||
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| Legal Profession Amendment (Advertising) Regulation 2005 Explanatory note | ||||||||||
| The existing restrictions applicable to lawyers will be modified as follows: | ||||||||||
(a) | the penalty for contravening the restrictions will be increased from 10 to 200 penalty units, | |||||||||
(b) | there will be an exemption for advertising of services provided by community legal centres in connection with domestic violence or discrimination, | |||||||||
(c) | an advertisement placed by a person will be deemed to have been placed by or on behalf of a lawyer if: | |||||||||
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(d) the definition of solicitor will be extended to include multi-disciplinary partnerships. The new provisions are not intended to prevent legitimate public comment in good faith about personal injury and are not intended to interfere with the delivery in good faith of legal education to the legal profession.
This Regulation is made under the Legal Profession Act 1987, including section 38JA and section 216 (the general regulation-making power).
2005 No 222
| Legal Profession Amendment (Advertising) Regulation 2005 | Clause 1 |
Legal Profession Amendment (Advertising) Regulation
2005
under the
Legal Profession Act 1987
1 Name of Regulation
This Regulation is the Legal Profession Amendment (Advertising)
Regulation 2005.
2 Commencement
This Regulation commences on 1 July 2005.
3 Amendment of Legal Profession Regulation 2002
The Legal Profession Regulation 2002 is amended as set out in
Schedule 1.
2005 No 222
Legal Profession Amendment (Advertising) Regulation 2005
| Schedule 1 | Amendments |
| Schedule 1 | Amendments |
(Clause 3)
[1] Part 14, heading
Omit the heading. Insert instead:
Part 14 Promotion of personal injury legal services
Division 1 Preliminary [2] Clause 138 Definitions
Omit the definition of advertisement. Insert instead:
advertisement means any communication of information (whether by means of writing, or any still or moving visual image or message or audible message, or any combination of them) that advertises or otherwise promotes a product or service, whether or not that is its purpose or only purpose and whether or not that is its only effect.
[3] Clause 138, definition of “solicitor”
Omit the definition. Insert instead:
solicitor includes the following:
(a) a partnership of which a solicitor is a member (but only if the business of the partnership includes business of a kind ordinarily conducted by a solicitor), (b) a solicitor corporation, (c) an incorporated legal practice.
[4] Part 14, Division 2, heading
Insert before clause 139:
Division 2 Advertising by barristers and solicitors [5] Clause 139 Restriction on advertising personal injury services
Insert “promotes the availability or use of a barrister or solicitor to provide legal services if the advertisement” after “advertisement that” in clause 139 (1).
2005 No 222
Legal Profession Amendment (Advertising) Regulation 2005
| Amendments | Schedule 1 |
[6] Clause 139 (1), penalty
Omit the penalty. Insert instead:
Maximum penalty: 200 penalty units.
[7] Clause 139A
Insert after clause 139:
| 139A | Exception for advertisements about domestic violence and discrimination—community legal centres |
This Division does not apply to the publication by or on behalf of a community legal centre (within the meaning of section 48H of the Act) of an advertisement that would constitute a contravention of clause 139 by reason only that it advertises or promotes services provided by the community legal centre in connection with domestic violence or discrimination.
[8] Clause 140 Exception for advertising specialty
Omit “This Part” from clause 140 (1). Insert instead “This Division”.
[9] Clause 140 (1) (c)
Omit “this Part”. Insert instead “this Division”.
[10] Clause 140A Other exceptions
Omit “This Part”. Insert instead “This Division”.
[11] Clause 140B Responsibility for employees and others
Omit “this Part”. Insert instead “this Division”.
[12] Clause 140BA
Insert after clause 140B:
| 140BA | Responsibility for advertisements published by others | |
|
(a)
the advertisement advertises or otherwise promotes the availability or use of the barrister or solicitor (either by name or by reference to a business name under which the barrister or solicitor practises) for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury, or
2005 No 222
Legal Profession Amendment (Advertising) Regulation 2005
| Schedule 1 | Amendments |
(b)
the barrister or solicitor is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the referral of persons to the barrister or solicitor for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury, or
(c)
the barrister or solicitor is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the person to advertise on behalf of the barrister or solicitor.
(2) This clause does not apply to an advertisement if the barrister or solicitor proves that the barrister or solicitor took all reasonable steps to prevent the advertisement being published.
[13] Clause 140C Double jeopardy
Omit “this Part” wherever occurring. Insert instead “this Division”.
[14] Clause 140D Transitional—finalised publications
Omit “This Part”. Insert instead “This Division”.
[15] Part 14, Division 3
Insert after clause 140D:
Division 3 Advertising by persons other than barristers
and solicitors
140E Application of Division This Division does not apply to conduct of a barrister or solicitor.
140F Definition of “personal injury advertisement” In this Division:
personal injury advertisement means an advertisement thatincludes any reference to or depiction of:
(a) personal injury, or (b)
any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury.
2005 No 222
Legal Profession Amendment (Advertising) Regulation 2005
| Amendments | Schedule 1 | |
| 140G | Restrictions on personal injury advertisements | |
|
(a)
advertises or otherwise promotes the availability or use of a barrister or solicitor (whether or not a particular barrister or solicitor) to provide legal services, whether or not that is its purpose or only purpose and whether or not that is its only effect, or
(b)
includes any reference to or depiction of the recovery of money or a claim for money, or any entitlement to recover money or claim money, in respect of personal injury.
Maximum penalty: 200 penalty units.
(2)
A person must not publish or cause or permit to be published a personal injury advertisement if the person is engaged in a practice involving, or is a party to an agreement, understanding or other arrangement that provides for, the referral of persons to one or more barristers or solicitors for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury.
Maximum penalty: 200 penalty units. (3)
A person who is a member of a partnership or a director or officer of a body corporate must not expressly, tacitly or impliedly authorise or permit a contravention of subclause (1) or (2) by the partnership or body corporate or by an employee or agent of the partnership or body corporate on behalf of the partnership or body corporate.
Maximum penalty: 200 penalty units.
| 140H | Exception for advertisements about domestic violence and discrimination—community legal centres |
This Division does not apply to the publication by or on behalf of a community legal centre (within the meaning of section 48H of the Act) of an advertisement that is a personal injury advertisement by reason only that it advertises or promotes services provided by the community legal centre in connection with domestic violence or discrimination.
140I Exception for advertising specialty (1) This Division does not prevent the publication of an advertisement that advertises a barrister or solicitor as being a specialist or offering specialist services, but only if the advertisement is published by means of:
2005 No 222
Legal Profession Amendment (Advertising) Regulation 2005
| Schedule 1 | Amendments |
(a)
an entry in a practitioner directory that states only the name and contact details of the barrister or solicitor and any area of practice or accredited specialty of the barrister or solicitor, or
(b)
a sign displayed at a place of business of the barrister or solicitor that states only the name and contact details of the barrister or solicitor and any accredited specialty of the barrister or solicitor, or
(c)
an advertisement on an Internet website operated on behalf of the barrister or solicitor the publication of which would be prevented under this Division solely because it refers to personal injury or legal services in a statement of accredited specialty of the barrister or solicitor.
(2) In this clause:
accredited specialty of a barrister or solicitor means a specialty
in which the barrister or solicitor is accredited under an
accreditation scheme conducted or approved by the Bar Council
or Law Society.
practitioner directory means a printed publication, directory or
database that is published by a person in the ordinary course of
the person’s business (and not by the barrister or solicitor
concerned or a partner, employee or member of the practice of
the barrister or solicitor).
140J Other exceptions This Division does not apply to the publication of an advertisement:
(a) in accordance with any order by a court, or (b)
to the extent that it relates only to the provision of legal aid or other assistance by an agency of the Crown and is published by or on behalf of that agency, or
(c)
to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or
(d)
by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 140G) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or
2005 No 222
Legal Profession Amendment (Advertising) Regulation 2005
| Amendments | Schedule 1 |
(e)
by a person in the ordinary course of the person’s business as an insurer or insurance agent or broker, to the extent only that it includes a reference to or depiction of the recovery of money under a policy of insurance, or
(f)
that is required to be published by or under a written law of the State.
| 140K | Protection of publishers |
A contravention of clause 140G by a person who publishes an advertisement in the ordinary course of the person’s business as a publisher does not constitute an offence under this Division (but is still a contravention of that clause for the purposes of section 38JA of the Act).
Note. Section 38JA provides for the giving of directions to persons to prevent contraventions of this Division. A publisher who contravenes a direction not to publish a particular advertisement will commit an offence.
140L Double jeopardy A person who has been convicted of an offence under Part 18 of the Workers Compensation Regulation 2003 is not, if that offence would constitute an offence under this Division in respect of the publication of an advertisement, liable to be convicted of an offence under this Division in respect of that publication.
| 140M | Transitional—finalised publications |
This Division does not prevent the publication of an advertisement in a printed publication if the contents of the publication were finalised (by the publisher of that publication) before the date of publication in the Gazette of the Legal Profession Amendment (Advertising) Regulation 2005.
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