Legal Profession legislation – further amendments

21/06/2007

The Legal Profession Act 2004� is amended by�the Legal Profession Further Amendment Act 2006.� _Schedules 2 and 3 of the amending Act will commence on 1 July 2007 (the amendments contained in schedule 1�commenced on 7 December 2006). _The Legal Profession Amendment Regulation 2007 (which amends the Legal Profession Regulation 2005) will also commence on 1 July 2007.�Barristers should familiarise themselves with the amendments, and in particular those relating to�costs�& barrister’s fees.

Some amendments to note:

Barrister’s Costs in Advance (as from 1 July)

Section 252 of the Legal Profession Act 2004 will be amended. It will be headed ‘Barristers not to receive trust money’ and the section will provide ‘A barrister is not, in the course of practising as a barrister, to receive trust money’.

There are amendments to the definition of ‘trust money’ and section 243 will provide ‘trust money means money entrusted to a 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 …..’

[note ‘law practice’ is defined in s4 of the LP Act to include ‘an Australian legal practitioner who is a sole practitioner’ and thus a barrister is a law practice within the meaning of the Act]

Clause 178 of the Legal Profession Regulation 2005 "Barristers may receive costs in advance"** **will be deleted.

Clause 106A will be added to the LP Regulation and will provide: ����������� **106A Receipt of trust money by barrister (section 252 of the Act)— exclusion under section 246 (3) of the Act ** Part 3.1 of the Act does not apply to trust money received and held by a barrister if the money is received by the barrister on account of legal costs for legal services in advance of the provision by the barrister of the legal services, in the following circumstances: (a) the barrister is practising as a sole practitioner and the money is received in connection with instructions accepted by the barrister directly from a person who is not a solicitor, (b) the money is deposited, within a reasonable time, after the barrister receives the money, in an account maintained with an ADI in connection with the barrister's law practice, (c) the money remains deposited in that or another account maintained with an ADI in connection with the barrister’s law practice until:

(i) a bill is given to the client, or (ii) the money is refunded to the client, or (iii) the money is paid to a solicitor who is later engaged by the client in the matter.

[note ‘ADI’ is defined in s4 of the LP Act as ‘ADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.’ Authorised deposit taking institutions are listed on the APRA web site at www.apra.gov.au/adi/

Bills

Section 309 of the LP Act requires disclosure of costs to clients and s333 requires a bill to include or be accompanied by a notification of client’s rights. The Legal Profession Further Amendment Act amends the sections and in each case makes provision for the use of prescribed forms. Amendments to the LP Regulation will add clause 109A and Schedule 5 Form 2 ‘Form of disclosure of costs to clients’ and clause 111A and Schedule 5 Form 3 ‘Form of notification of client’s rights’.

In addition clause 111B is added to the Legal Profession Regulation 2005. It will set out in sub-clause (2), the particulars to be included in an itemised bill given by a barrister. Sub-clause (3) will require the particulars to be set out in a generally chronological order.

The amendments have not been incorporated into the principal Act and Regulation on the�parliamentary counsel's�web site as yet. However a link can be found on the New South Wales Bar Association web site at �http://www.nswbar.asn.au/docs/professional/legislation/leg_index.php.

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