Rules of Practice 1994 (TAS)

Rules of Practice 1994

In pursuance and exercise of the powers conferred on it by the Legal Profession Act 1993, the Council of The Law Society of Tasmania makes the following Rules of Practice under and for the purposes of that Act.

PART 1Preliminary1Short titleThese rules may be cited as the Rules of Practice 1994. 2CommencementThese rules take effect on 31 December 1994. 3InterpretationIn these rules – act includes omission; Act means the Legal Profession Act 1993; [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] approved means approved by the Council; client includes a person by whom, or on whose behalf, money for investment is advanced to, or held by, a firm; [Rule 3 Amended by No. 42 of 2001, Sched. 2, Applied:15 Jul 2001] corporation means a corporation within the meaning of the Corporations Act; disbursements means any fees, costs or charges other than those incurred by a practitioner for advice given, or work done, by another practitioner who is a partner of, or employed by, the same practice as the practitioner; [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] Executive Director means the Executive Director of the Law Society; [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] firm means – (a) an Australian legal practitioner who is a sole practitioner; or (b) a law firm; or (c) a multi-disciplinary partnership; or (d) an incorporated legal practice – where at least one person holds a practising certificate issued by the Law Society; lease includes an agreement for lease; litigation loan agreement means an agreement between a client, a lending institution and a practitioner to provide the client with money to pay the legal costs of the practitioner in relation to the conduct of litigation for or on behalf of the client; [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] money includes – (a) a cheque, bank draft, bill of exchange or any other negotiable instrument; and (b) any instrument or asset that is capable of being converted into money; money for investment means money received or held by a firm or fund operator on behalf of an investor as – (a) money borrowed by the firm or fund operator; or (b) money received or held for application in the acquisition of any securities that are to be held – (i) beneficially by or for the firm or fund operator; or (ii) by any person for an investor; partnership includes a limited partnership; [Rule 3 Amended by S.R. 1995, No. 176, Applied:27 Dec 1995] party includes any person who is jointly a party to any proceedings or transaction; practise means to practise as a barrister or legal practitioner; [Rule 3 Amended by S.R. 1995, No. 176, Applied:27 Dec 1995] [Rule 3 Amended by S.R. 1995, No. 176, Applied:27 Dec 1995] practitioner  – (a) means a person who is practising as a barrister or legal practitioner; and (b) for the purposes of rule 12, includes a firm or a partner, an employer or an employee of a practitioner; [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] [Rule 3 Amended by S.R. 1995, No. 176, Applied:27 Dec 1995] [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] proceedings, for the purposes of rule 12, means any action or claim at law or in equity; [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] solicitor includes an Australian-registered foreign lawyer who practises as or in the manner of a solicitor; [Rule 3 Amended by S.R. 1995, No. 176, Applied:27 Dec 1995] statutory tribunal means any tribunal or other quasi-judicial body established under an Act; [Rule 3 Amended by S.R. 1995, No. 176, Applied:27 Dec 1995] [Rule 3 Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] transaction means any dealing between parties which may affect, create or be related to any legal or equitable right or entitlement or interest in property of any kind. PART 2Professional practice and conductDivision 1Place and conduct of business4Attendance at practice (1)  [Rule 4 Subrule (1) substituted by S.R. 2003, No. 33, Applied:14 May 2003] [Rule 4 Subrule (1) substituted by S.R. 2020, No. 56, Applied:01 Oct 2020] A firm must not carry on a practice in any place unless a practitioner – (a) is in charge of that practice at that place; and (b) gives substantial attendance at that practice at that place during the normal hours of business of that practice at that place. (1A)  [Rule 4 Subrule (1A) inserted by S.R. 2003, No. 33, Applied:14 May 2003] [Rule 4 Subrule (1A) substituted by S.R. 2020, No. 56, Applied:01 Oct 2020] A firm that carries on a practice in any place in accordance with subrule (1) must not carry on another practice in any other place that is a branch of that firm unless – (a) a practitioner is in charge of the branch; and (b) a notice, in an approved form, that contains the following information is publically displayed in a prominent area of the branch: (i) the days, and times, when the practitioner who is in charge of the branch will be in attendance at that branch; (ii) the contact details, at the other practice of the firm to which the branch relates, for the practitioner who is in charge of that branch. (1B)  [Rule 4 Subrule (1B) inserted by S.R. 2003, No. 33, Applied:14 May 2003] A notice under subrule (1A)(b) is to be in a form approved by the Council. (2)  [Rule 4 Subrule (2) amended by S.R. 2020, No. 56, Applied:01 Oct 2020] [Rule 4 Subrule (2) amended by S.R. 2003, No. 33, Applied:14 May 2003] A firm may apply to the Council for approval not to comply with subrule (1) or (1A). (3)  The Council may – (a) grant the approval with or without conditions; or (b) refuse to grant the approval. (4)  An application for approval is to be – (a) in writing; and (b) lodged with the Executive Director. (5)  The Council may withdraw an approval at any time. (6)  [Rule 4 Subrule (6) inserted by S.R. 2020, No. 56, Applied:01 Oct 2020] In this rule – branch includes a place that is the Tasmanian office of a firm whose practice is mainly carried on in another State or a Territory. 56Firm names and professional description (1)  A practitioner may carry on a practice under a firm name that includes – (a) that practitioner’s name; or (b) the names of any partner or former partner of the firm. (2)  A practitioner must not carry on a practice under a firm name, other than a firm name specified under subrule (1), without the approval of the Society. (3)  An application for approval is to – (a) be in writing; and (b) specify the proposed firm name; and (c) be lodged with the Executive Director. (4)  The Society may – (a) grant the approval; or (b) refuse to grant the approval. (5)  The Society must not grant an approval if a firm name is misleading or deceptive or is likely to mislead or deceive. Division 2Advertising and attracting business7Advertising (1)  A practitioner may advertise in connection with his or her practice if the advertisement – (a) does not contain a statement that the practitioner knows to be false; and (b) is not misleading or deceptive or likely to mislead or deceive; and (c) does not make or imply a comparison with another practitioner; and (d) is not vulgar, sensational or of a nature that, in the opinion of the Society, is likely to bring the practitioner, the legal profession or the legal system into disrepute. (2) In respect of any investigation of a complaint or any disciplinary proceedings under Part 8 of the Act, a practitioner claiming expertise or specialty in a particular field of the law, if required by the Society, must prove that the claim is – (a) not false; and (b) not misleading or deceptive or likely to mislead or deceive. (3)  Subrule (2) does not apply to the practice of mediation or arbitration. 8Attracting business in offensive mannerA practitioner, directly or indirectly, must not – (a) apply for, or seek instructions for, professional business from a person whom the practitioner knows is a client of another practitioner in a current matter; or (b) do any act or thing, or permit or cause any act or thing to be done, that may reasonably be regarded as – (i) attracting business in an offensive manner; or (ii) using harassment or coercion; or (iii) calculated to attract business unfairly. Division 3.. .. .. .9Division 4.. .. .. .10111212A1314Division 5.. .. .. .1516PART 3Solicitors17Transfer of a solicitor’s practice [Rule 17 Substituted by S.R. 2020, No. 56, Applied:01 Oct 2020] (1)  When a solicitor intends to transfer to another solicitor the whole or part of the solicitor’s practice, including clients’ work in progress, and to put the other solicitor in possession of documents held by the solicitor on behalf of clients, before the solicitor delivers possession of the practice to the solicitor who is acquiring it the solicitor must give to each client at least 14 days’ (or such other period as may be reasonable in the circumstances) notice in writing of – (a) the intended transfer of documents to the solicitor who is acquiring the practice, unless a contrary direction is received from the client; and (b) the client’s right to give to the solicitor a contrary direction in relation to the conduct of the client’s affairs and the delivery of the client’s documents. (2)  Any notice sent to a client on whose behalf the solicitor holds money in trust or under the solicitor’s control must advise the client of – (a) the balance of money held on the client’s behalf; and (b) the solicitor’s intention to transfer the relevant account to the solicitor who is acquiring the practice, unless advised by the client to the contrary; and (c) the client’s right to give to the solicitor a contrary direction as to the manner in which the solicitor should deal with the account on the client’s behalf. (3)  Subrules (1) and (2) do not apply where a new partner is admitted to a partnership which continues to conduct the practice. 18Debt collection or mercantile agencies [Rule 18 Substituted by S.R. 2020, No. 56, Applied:01 Oct 2020] (1)  A solicitor must not allow the solicitor’s business name or stationery to be used by a debt collection agent or mercantile agent in a manner that is likely to mislead the public. (2)  A solicitor who receives, from a debt collection agent or mercantile agent, instructions to act for a client must ensure that – (a) the solicitor’s relationship with the agent is fully disclosed in writing to the client; and (b) the information required to be disclosed to the client by any relevant legislation and these rules is communicated to the client; and (c) the solicitor maintains direct control and supervision of any proceedings or correspondence on behalf of the client; and (d) any money recovered on behalf of the client is accounted for by the solicitor. 19Conducting another business [Rule 19 Substituted by S.R. 2020, No. 56, Applied:01 Oct 2020] (1)  A solicitor who engages in the conduct of another business concurrently, but not directly in association, with the conduct of the solicitor’s legal practice must – (a) ensure that the other business is not of such a nature that the solicitor’s involvement in it would be likely to impair, or conflict with, the solicitor’s duties to clients in the conduct of the legal practice; and (b) maintain separate and independent files, records and accounts in respect of the legal practice and the other business; and (c) disclose the solicitor’s financial or other interest in that business to any client of the solicitor who, in the course of dealing with the solicitor, deals with the other business; and (d) cease to act for the client if the solicitor’s independent service of the client’s interest is reasonably likely to be affected by the solicitor’s interest in the other business. (2)  For the purposes of this rule, a solicitor is taken to engage in the conduct of another business where the solicitor, or an associate – (a) is entitled, at law or in equity, to an interest in the assets of the business which is significant or of relatively substantial value; or (b) exercises any material control over the conduct and operation of the business; or (c) has an entitlement to a share of the income of the business which is substantial, having regard to the total income which is derived from it. 20Litigation lending [Rule 20 Substituted by S.R. 2020, No. 56, Applied:01 Oct 2020] (1)  A solicitor who has assisted a client to obtain a litigation lending account with a bank, or other financial institution, for the purpose of funding litigation, must not withdraw, or cause or permit the withdrawal of, money from the client’s account for any purpose other than – (a) to reimburse the solicitor for disbursements (including Counsel’s fees) already paid; or (b) to pay on behalf of the client any accounts due for payment to a third party, including the payment of costs due to a solicitor who has previously acted for the client where such a payment is required to obtain delivery of documents retained under a lien for unpaid costs claimed by that solicitor. (2)  All withdrawals of money from the client’s account under subrule (1) must be made in accordance with the client’s instructions. 212223242526272829303132333435363738394041424344454647484950515253545556575859PART 4.. .. .. .6061PART 5.. .. .. .62636465666768697071727374PART 6Indemnity cover75Indemnity cover schemes (1)  [Rule 75 Subrule (1) amended by S.R. 2020, No. 56, Applied:01 Oct 2020] The Law Society may negotiate or enter into an agreement or arrangement with an insurer or any other person for the operation of a scheme providing for an approved indemnity cover for professional indemnity insurance for a firm. (2)  [Rule 75 Subrule (2) amended by S.R. 2020, No. 56, Applied:01 Oct 2020] The Law Society may determine how the cost of providing an approved indemnity cover is to be paid by a firm. (3)  An approved indemnity cover is to be for the period specified in any negotiation, agreement or arrangement. (4)  [Rule 75 Subrule (4) inserted by S.R. 2020, No. 56, Applied:01 Oct 2020] The Law Society may grant, in writing, an exemption to a firm from taking out and maintaining an approved indemnity cover in accordance with this Part. 76Period of indemnity cover [Rule 76 Substituted by S.R. 2020, No. 56, Applied:01 Oct 2020] If the Law Society has negotiated, or entered into, an agreement or arrangement relating to a scheme providing for an approved indemnity cover for professional indemnity insurance for a firm under rule 75, the firm is to take out and maintain the approved indemnity cover provided in that scheme for the period specified in the agreement or arrangement. 77Payment of indemnity cover (1)  [Rule 77 Subrule (1) amended by S.R. 2020, No. 56, Applied:01 Oct 2020] A firm must pay any premium or other amount payable in respect of an approved indemnity cover within 30 days of receiving a demand from the Law Society for payment of that premium or amount. (2)  A demand for payment – (a) is to be in writing; and (b) may be made up to and including 90 days in advance of any period in respect of which an indemnity cover is maintained. (3)  [Rule 77 Subrule (3) amended by S.R. 2020, No. 56, Applied:01 Oct 2020] A demand for payment is evidence of the amount payable if it – (a) states the amount payable by a firm; and (b) is signed by the Executive Director. 78PART 7RemunerationDivision 1General provisions relating to remuneration7980Charging of commission (1)  A practitioner must not charge both profit costs and commission in relation to the same work carried out for or on behalf of a client if that practitioner is also – (a) a trustee and an executor; or (b) a trustee; or (c) an executor. (2)  A practitioner must not accept or charge any commission for the execution of a trust unless – (a) the instrument creating the trust provides otherwise; or (b) every beneficiary under the trust who may be affected by the charging of commission has given – (i) written consent, if the beneficiary is of full legal capacity; or (ii) the written consent of a parent or guardian, if the beneficiary is not of full legal capacity; or (c) an order of the Supreme Court has been made authorizing the charging of commission. (3)  A practitioner must not cause or permit a person to execute a will or settlement unless that person, before executing the will or settlement, has signed a statement showing the rate or identifying the scale of commission to be charged in addition to legal professional charges if – (a) the practitioner or a principal or an employee of that practitioner’s firm is appointed under the will or settlement as – (i) an executor; or (ii) a trustee; or (iii) an executor and a trustee; and (b) the practitioner, principal or employee is entitled to a trustee’s commission. 81Division 2.. .. .. .828384858687PART 8Barristers8888AProfessional indemnity insurance [Rule 88A Amended by S.R. 2020, No. 56, Applied:01 Oct 2020] [Rule 88A Inserted by S.R. 2000, No. 182, Applied:04 Oct 2000] A barrister must maintain professional indemnity insurance providing cover of at least 1.5 million dollars for each claim. 8989A9091929394959697PART 9.. .. .. .9899Schedule 1Schedule 2

These foregoing Rules of Practice were made by the Council of the Law Society of Tasmania at a meeting of the Council on 3 December 1994.

C. P. Webster

President

P. A. Griffits

Member

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 28 December 1994

These rules are administered in the Department of Justice.