Legal Profession Amendment Act 2007

Legal Profession Amendment Act 2007

No. 12 of 2007

table of provisions

SectionPage

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 Act2007

12.1Practising certificates

80Consequential amendment of Conveyancers Act2006

81Repeal of Act

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Endnotes

SectionPage

Victoria

SectionPage

Legal Profession Amendment Act 2007[†]

No. 12 of 2007

[Assented to 8 May 2007]

Legal Profession Amendment Act 2007
No. 12 of 2007

The Parliament of Victoriaenacts:

Legal Profession Amendment Act 2007
No. 12 of 2007

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 1July 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

s. 3

See:
Act No.
99/2004.
Reprint No. 1
as at
12 December 2005
and amending
Act Nos
97/2005, 14/2006, 29/2006, 75/2006, 79/2006 and 80/2006.
LawToday:
www.
legislation.
vic.gov.au

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 readmitted 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

s. 4

(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—

s. 4

(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—

"affairsof 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;

s. 4

(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;";

(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

s. 4

(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

s. 4

(c) a person whose creditors have accepted a composition under PartX 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 "topay" insert "to";

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

s. 4

"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 section54A 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

s. 4

(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

s. 5

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 "anAWA 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

s. 7

(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;

(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

s. 9

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)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";

s. 10

(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

s. 10

(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.".

s. 10

(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.

s. 10

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.".