LEGAL PROFESSION ACT 2004 - As at 1 July 2015 - Act 112 of 2004
- As at 1 July 2015
- Act 112 of 2004
Table of Provisions
CHAPTER 1 - INTRODUCTION
PART 1.1 - PRELIMINARY
- 1 Name of Act
- 2 Commencement
- 3 Purposes
PART 1.2 - INTERPRETATION
CHAPTER 2 - GENERAL REQUIREMENTS FOR ENGAGING IN LEGAL PRACTICE
PART 2.1 - PRELIMINARY
- 12 Simplified outline of Chapter
PART 2.2 - RESERVATION OF LEGAL WORK AND LEGAL TITLES
Division 1 - Preliminary
Division 2 - General prohibitions on unqualified practice
- 14 Prohibition on engaging in legal practice when not entitled
- 15 Prohibition on representing or advertising entitlement to engage in legal practice when not entitled
- 16 Presumptions about taking or using certain names, titles or descriptions specified in regulations
Division 3 - Prohibitions regarding associates, clerks and non-legal partners
- 17 Associates who are disqualified or convicted persons
- 18 Prohibition on employment of certain lay associates
- 19 Prohibition on partnerships with certain non-legal partners
- 20 Council to maintain register of prohibition orders and approvals
Division 4 - General
- 21 Professional discipline
Division 1 - Preliminary
- 22 Purpose
- 23 Definitions
Division 2 - Eligibility and suitability for admission
- 24 Eligibility for admission
- 25 Suitability for admission
- 26 Early consideration of suitability
27. (Repealed)
- 28 Appeals
- 29 Binding effect of declaration or order
- 30 Entitlement to be represented, heard and make representations
Note
- 35 Consideration of applications for admission
- 36 Compliance certificates
- 37 Consideration of applicant's eligibility and suitability
- 37A Communication with other authorities
Division 6 - Miscellaneous
- 38A Non-compellability of certain witnesses
Division 1 - Preliminary
Division 7 - Special powers in relation to local practising certificates--show cause events
65. (Repealed)
- 81 Practice as a barrister
- 82 Practice as a solicitor
- 83 Client access
- 84 Advertising
- 85 Regulation of advertising and other marketing of services
- 86 Specialisation
- 87 Advocates
- 88 Joint advocates
- 89 Attendance
- 90 Prohibition of official schemes for recognition of seniority or status
Division 10 - Fees for practising certificates
- 91 Fee for practising certificate
- 92 Late fee
- 92A Late fee for certain applications for new practising certificates
93. (Repealed)
- 94 Submission of budget to Attorney General
- 95 Audit of Council activities
96, 97. (Repealed)
Division 12 - Miscellaneous
PART 2.5 - INTER-JURISDICTIONAL PROVISIONS REGARDING ADMISSION AND PRACTISING CERTIFICATES
Division 1 - Preliminary
- 116 Purpose
- 117 Definition
- 118 Other requirements not affected
Division 2 - Notifications to be given by local authorities to interstate authorities
Division 3 - Notifications to be given by lawyers to local authorities
- 122 Lawyer to give notice of removal of name from interstate roll
- 123 Lawyer to give notice of interstate orders
- 124 Lawyer to give notice of foreign regulatory action
- 125 Provisions relating to requirement to notify
Division 4 - Taking of action by local authorities in response to notifications received
Division 1 - Preliminary
Division 4 - Miscellaneous
- 181 Obligations of individual practitioners not affected
- 182 Regulations
Division 1 - Preliminary
Division 2 - Practice of foreign law
Division 3 - Local registration of foreign lawyers generally
Division 4 - Applications for grant or renewal of local registration
- 201 Application for grant or renewal of registration
- 202 Manner of application
- 203 Requirements regarding applications for grant or renewal of registration
Division 5 - Grant or renewal of registration
- 204 Grant or renewal of registration
- 205 Requirement to grant or renew registration if criteria satisfied
- 206 Refusal to grant or renew registration
Division 6 - Amendment, suspension or cancellation of local registration
- 207 Application of this Division
- 208 Grounds for amending, suspending or cancelling local registration
- 209 Amending, suspending or cancelling registration
- 210 Operation of amendment, suspension or cancellation of registration
- 211 Other ways of amending or cancelling registration
- 212 Relationship of this Division with Chapter 4
Division 7 - Special powers in relation to local registration--show cause events
- 213 Applicant for local registration--show cause event
- 214 Locally registered foreign lawyer--show cause event
- 215 Refusal, amendment, suspension or cancellation of local registration--failure to show cause
- 216 Restriction on making further applications
- 217 Relationship of this Division with Chapters 4 and 6
Division 8 - Further provisions relating to local registration
- 218 Immediate suspension of registration
- 219 Surrender of local registration certificate and cancellation of registration
- 220 Automatic suspension or cancellation of registration on grant of practising certificate or other disciplinary action
- 221 Suspension or cancellation of registration not to affect disciplinary processes
- 222 Return of local registration certificate on amendment, suspension or cancellation of registration
Division 9 - Conditions on registration
Division 11 - Miscellaneous
CHAPTER 3 - CONDUCT OF LEGAL PRACTICE
PART 3.1 - TRUST MONEY AND TRUST ACCOUNTS
Division 1 - Preliminary
Division 2 - Trust accounts and trust money
Division 3 - Investigations
Division 4 - External examinations
- 272 Designation of external examiners
- 273 Designation and appointment of associates as external examiners
- 274 Trust records to be externally examined
- 275 Final examination of trust records
- 276 Examination of affairs in connection with examination of trust records
- 277 Carrying out examination
- 278 External examiner's report
- 279 Law practice liable for costs of examination
Division 5 - Provisions relating to ADIs
- 280 Approval of ADIs
- 281 ADI not subject to certain obligations and liabilities
- 282 Reports, records and information
Division 6 - Statutory deposits
- 283 Statutory deposits
- 284 Status and repayment of deposited money
Division 8 - Miscellaneous provisions
PART 3.2 - COSTS DISCLOSURE AND ASSESSMENT
Division 1 - Preliminary
- 301 Purposes
- 302 Definitions
- 302A Terms relating to third party payers
- 302B Costs assessment is to take into account GST
Division 2 - Application of this Part
- 303 Application of Part--first instructions rule
- 304 Part also applies by agreement or at client's election
- 305 Displacement of Part
- 306 How and when does a client first instruct a law practice?
- 307 When does a matter have a substantial connection with this jurisdiction?
- 308 What happens when different laws apply to a matter?
Division 3 - Costs disclosure
- 309 Disclosure of costs to clients
- 310 Disclosure if another law practice is to be retained
- 311 How and when must disclosure be made to a client?
- 312 Exceptions to requirement for disclosure
- 313 Additional disclosure--settlement of litigious matters
- 314 Additional disclosure--uplift fees
- 315 Form of disclosure
- 316 Ongoing obligation to disclose
- 317 Effect of failure to disclose
- 318 Progress reports
- 318A Disclosure to associated third party payers
Division 4 - Legal costs generally
Division 5 - Costs agreements
- 322 Making costs agreements
- 323 Conditional costs agreements
- 324 Conditional costs agreements involving uplift fees
- 325 Contingency fees are prohibited
- 326 Effect of costs agreement
- 327 Certain costs agreements are void
- 328 Setting aside costs agreements or provisions of costs agreements
- 329 Regulations to provide for fixed costs
- 330 Provisions relating to regulations generally
Division 7 - Billing
Division 8 - Mediation of costs disputes
- 335 Meaning of "client" and "costs dispute"
- 336 Referral for mediation
Division 9 - Maximum costs in personal injury damages matters
- 337 Interpretation and application
- 338 Maximum costs fixed for claims up to $100,000
- 338A Maximum costs increased by additional amount for certain claims heard by the District Court
- 339 Maximum costs do not affect solicitor-client costs under costs agreements
- 340 Costs can be awarded on indemnity basis for costs incurred after failure to accept offer of compromise
- 341 Court may order certain legal services to be excluded from maximum costs limitation
- 342 Apportionment of maximum costs between law practices
- 343 Meaning of "amount recovered" on a claim
Division 10 - Costs in civil claims where no reasonable prospects of success
- 344 Application of Division
- 345 Law practice not to act unless there are reasonable prospects of success
- 346 Preliminary legal work not affected
- 347 Restrictions on commencing proceedings without reasonable prospects of success
- 348 Costs order against law practice acting without reasonable prospects of success
- 349 Onus of showing facts provided reasonable prospects of success
Division 11 - Costs assessment
Subdivision 1 - Applications
- 349A Definition
- 350 Application by client or third party payers for costs assessment
- 351 Application for costs assessment by law practice retaining another law practice
- 352 Application for costs assessment by law practice giving bill
- 353 Application for assessment of party/party costs
- 354 How to make an application for costs assessment
- 355 Consequences of application
- 356 Persons to be notified of application
- 356A Regulations
Subdivision 2 - Assessment
- 357 Referral of matters to costs assessors
- 358 Costs assessor may require documents or further particulars
- 359 Consideration of applications by costs assessors
360. (Repealed)
- 361 Assessment of costs by reference to costs agreement
- 362 Costs fixed by regulations or other legislation
- 363 Criteria for costs assessment
- 363A Interest on amount outstanding
Subdivision 3 - Party/party costs
- 364 Assessment of costs--costs ordered by court or tribunal
- 365 Effect of costs agreements in assessments of party/party costs
- 366 Court or tribunal may determine matters
Subdivision 4 - Determinations
- 367 Determinations of costs assessments
- 367A Determinations of costs assessments for party/party costs
- 368 Certificate as to determination
- 369 Costs of costs assessment
- 370 Reasons for determination
- 371 Correction of error in determination
- 372 Determination to be final
Subdivision 5 - Review of determination by panel
- 373 Application by party for review of determination
- 373A Application by Manager for review of determination of costs of costs assessment
- 374 Referral of application to panel
- 375 General functions of panel in relation to review application
- 376 Relevant documents to be produced to panel
- 377 Effect of review on costs assessor's determination
- 378 Certificate as to determination of panel
- 379 Recovery of costs of review
- 380 Reasons for determination
- 381 Correction of error in determination
- 382 Appeal against determination of panel
- 383 Regulations
Subdivision 6 - Appeals
- 384 Appeal against decision of costs assessor as to matter of law
- 385 Appeal against decision of costs assessor by leave
- 386 Effect of appeal on application
- 387 Assessor can be party to appeal
- 388 Notices of appeal
- 389 Court may refer unreviewed determination to review panel
Subdivision 7 - General
- 390 Costs assessors
- 391 Protection from liability
- 392 Confidentiality
- 393 Referral for disciplinary action
- 394 Rules of procedure for applications
- 395 Division not to apply to interest on judgment debt
- 395A Contracting out of Division by sophisticated clients
Division 12 - Miscellaneous
PART 3.3 - PROFESSIONAL INDEMNITY INSURANCE
Division 1 - Preliminary
PART 3.4 - FIDELITY COVER
Division 1 - Preliminary
- 418 Purpose
- 419 Definitions
- 420 Time of default
- 421 Application of this Part
Division 3 - Contributions and levies
- 430 Contributions
- 431 Levies
- 432 Failure to pay contribution or levy
Division 4 - Defaults to which this Part applies
- 433 Meaning of "relevant jurisdiction"
- 434 Defaults to which this Part applies
- 435 Defaults relating to financial services or investments
Division 5 - Claims about defaults
- 436 Claims about defaults
- 437 Time limit for making claims
- 438 Advertisements
- 439 Time limit for making claims following advertisement
- 440 Claims not affected by certain matters
- 441 Advance payments
Division 6 - Determination of claims
- 442 Determination of claims
- 443 Claimant required to pursue claims etc
- 444 Maximum amount allowable
- 445 Costs
- 446 Interest
- 447 Reduction of claim because of other benefits
- 448 Subrogation
- 449 Repayment of certain amounts
- 450 Notification of delay in making decision
- 451 Notification of decision
- 452 Appeal against decision on claim
- 453 Appeal against failure to determine claim
- 454 Court proceedings
Division 7 - Payments from Fidelity Fund for defaults
Division 9 - Defaults involving interstate elements
- 460 Concerted interstate defaults
- 461 Defaults involving interstate elements where committed by one associate only
Division 10 - Inter-jurisdictional provisions
- 462 Protocols
- 463 Forwarding of claims
- 464 Investigation of defaults to which this Part applies
- 465 Investigation of defaults to which a corresponding law applies
- 466 Investigation of concerted interstate defaults and other defaults involving interstate elements
- 467 Recommendations by Law Society Council to corresponding authorities
- 468 Recommendations to and decisions by Law Society Council after receiving recommendations from corresponding authorities
- 469 Request to another jurisdiction to investigate aspects of claim
- 470 Request from another jurisdiction to investigate aspects of claim
- 471 Co-operation with other authorities
Division 11 - Miscellaneous
Division 1 - Preliminary
Division 2 - Mortgage practices
Division 4 - Transitional arrangements--pre-existing mortgages
Division 5 - Miscellaneous
CHAPTER 4 - COMPLAINTS AND DISCIPLINE
PART 4.1 - PRELIMINARY AND APPLICATION
Division 1 - Preliminary
Division 2 - Application
- 499 Practitioners to whom this Chapter applies
- 500 Application of Chapter to lawyers, former lawyers and former practitioners
- 501 Conduct to which this Chapter applies--generally
- 502 Conduct to which this Chapter applies--insolvency, serious offences and tax offences
- 503 Complaints
- 504 Making of complaints
- 505 To whom complaint made
- 506 Complaints made over 3 years after conduct concerned
- 507 Further information and verification
- 508 Practitioner to be notified of complaint
- 509 Submissions by practitioner
- 510 Preliminary assessment
- 511 Summary dismissal of complaints
- 512 Withdrawal of complaints
- 513 Referral of complaints to Council
PART 4.3 - MEDIATION
- 514 Definition
- 515 Mediation of complaint involving consumer dispute solely
- 516 Mediation of hybrid complaint
- 517 Compulsory mediation of consumer dispute
- 518 Facilitation of mediation
- 519 Nature of mediation
- 520 Mediators
- 521 Certificate of failure of mediation
- 522 Confidentiality of mediation process
- 523 Recommendation for investigation
- 524 Protection from liability
PART 4.4 - INVESTIGATION OF COMPLAINTS
- 537 Decision of Commissioner or Council after investigation
- 538 Decision of Commissioner or Council without investigation
- 539 Dismissal of complaint
- 540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions
- 541 Record of decision
- 542 Reasons to be provided to complainant and practitioner
PART 4.6 - REVIEW OF COUNCILS' DECISIONS
PART 4.8 - PROCEEDINGS IN TRIBUNAL
- 551 Commencement of proceedings
- 552 Time for commencing proceedings
- 553 Hearings
- 554 Joinder
- 555 Variation of disciplinary application
- 556 Nature of allegations
- 557 Substitution of applicant
558-560. (Repealed)
- 561 Procedural lapses and defects in appointments
- 562 Determinations of Tribunal
- 563 Interlocutory and interim orders
- 564 Consent orders
- 565 Compliance with determinations and orders
566. (Repealed)
- 567 Notification of progress and result of proceedings before Tribunal
- 568 Early termination of proceedings before Tribunal
- 569 Other remedies not affected
PART 4.9 - COMPENSATION
- 570 Request by complainant for compensation order
- 571 Compensation orders
- 572 Prerequisites to making of compensation orders
- 573 Making of compensation orders
- 574 Enforcement of compensation orders
- 575 Other remedies not affected
PART 4.10 - PUBLICISING DISCIPLINARY ACTION
- 576 Definitions
- 577 Register of Disciplinary Action
- 578 Other means of publicising disciplinary action
- 579 Quashing of disciplinary action
- 580 Liability for publicising disciplinary action
- 581 Disciplinary action taken where infirmity, injury or illness is involved
- 582 Effect of secrecy provisions and non-disclosure orders
PART 4.11 - INTER-JURISDICTIONAL PROVISIONS
PART 4.12 - MISCELLANEOUS
- 590 Jurisdiction of Supreme Court
- 591 Rules of procedural fairness
- 592 Duty to deal with complaints efficiently and expeditiously
- 593 Information about complaints procedure
- 594 Co-operation and information sharing between Commissioner and Councils
- 595 Pre-complaint powers where client is denied access to documents
- 596 Failure to comply with orders
- 597 Performance criteria
- 598 Reports to Attorney General
- 599 Conditions imposed under this Chapter
- 600 Effect of other proceedings
- 601 Protection from liability
- 602 Non-compellability of certain witnesses
- 603 Confidentiality of client communications
- 604 Waiver of privilege or duty of confidentiality
- 605 Undertakings by Commissioner or Council regarding privileged or confidential information
606, 607. (Repealed)
- 608 Undertakings by practitioner
- 609 Investigations not related to complaints under this Chapter
CHAPTER 5 - EXTERNAL INTERVENTION
PART 5.1 - PRELIMINARY
PART 5.2 - INITIATION OF EXTERNAL INTERVENTION
- 615 Circumstances warranting external intervention
- 616 Determination regarding external intervention
PART 5.3 - SUPERVISORS
- 617 Appointment of supervisor
- 618 Notice of appointment
- 619 Effect of service of notice of appointment
- 620 Role of supervisor of trust money
- 621 Records of and dealing with trust money of law practice under supervision
- 622 Termination of supervisor's appointment
PART 5.4 - MANAGERS
- 623 Appointment of manager
- 624 Notice of appointment
- 625 Effect of service of notice
- 626 Role of manager
- 627 Records and accounts of law practice under management and dealings with trust money
- 628 Deceased estates
- 629 Termination of manager's appointment
PART 5.5 - RECEIVERS
- 630 Appointment of receiver
- 631 Notice of appointment
- 632 Effect of service of notice
- 633 Role of receiver
- 634 Records and accounts of law practice under receivership and dealings with trust money
- 635 Power of receiver to take possession of regulated property
- 636 Power of receiver to take delivery of regulated property
- 637 Power of receiver to deal with regulated property
- 638 Power of receiver to require documents or information
- 639 Examinations
- 640 Lien for costs on regulated property
- 641 Regulated property not to be attached
- 642 Recovery of regulated property where there has been a breach of trust etc
- 643 Improperly destroying property etc
- 644 Deceased estates
- 645 Termination of receiver's appointment
PART 5.6 - GENERAL
- 646 Conditions on appointment of external intervener
- 647 Status of acts of external intervener
- 648 Eligibility for reappointment or authorisation
- 649 Appeal against appointment
- 650 Directions of Supreme Court
- 650A Manager and receiver appointed for law practice
- 651 ADI disclosure requirements
- 652 Fees, legal costs and expenses
- 653 Reports by external intervener
- 654 Report to Commissioner of disciplinary matters
- 655 Confidentiality
- 656 Protection from liability
CHAPTER 6 - PROVISIONS RELATING TO INVESTIGATIONS
PART 6.1 - PRELIMINARY
- 657 Primary purpose of Chapter
- 658 Definitions
PART 6.2 - REQUIREMENTS RELATING TO DOCUMENTS, INFORMATION AND OTHER ASSISTANCE
PART 6.3 - ENTRY AND SEARCH OF PREMISES
- 665 Application of Part
- 666 Powers relating to investigations and audits to which this Part applies
- 667 Examination of persons
- 668 Inspection of books
- 669 Power to hold hearings
PART 6.5 - MISCELLANEOUS
CHAPTER 7 - REGULATORY AUTHORITIES
PART 7.2 - (Repealed)
None
PART 7.4 - PROFESSIONAL BODIES
Division 3 - Annual reports
Division 1 - Preliminary
Division 2 - Rules
Division 3 - Procedure for making rules
Division 4 - General provisions
CHAPTER 8 - GENERAL PROVISIONS
- 718 Delegation
- 719 Liability of principals
- 720 Injunctions
- 721 Disclosure of information by local regulatory authorities
- 722 Confidentiality of personal information
- 722A Protection of applications for referral for pro bono legal services
- 723 Unlawful disclosure of information
- 724 Professional privilege or duty of confidence does not affect validity of or compliance with certain requirements
- 725 Secrecy provisions do not apply after 30 years
- 726 Privilege of lawyers as officers of Supreme Court
- 727 Service of notices on practitioners
- 728 Supreme Court may order delivery up of documents etc
- 729 Contempt of the Supreme Court
729A. (Repealed)
- 730 Protection from liability
- 730A Duty to report suspected offences
- 731 Offences
- 732 Proof of certain matters not required
- 733 Evidentiary certificates
- 734 Approved forms
735, 736. (Repealed)
- 737 Savings, transitional and other provisions
- 738 Regulations
- 739 Review of Act
Schedule 1 (Repealed)