Part 7.5Part 7.5 Legal profession rules
The purpose of this Part is to promote the maintenance of high standards of professional conduct by Australian legal practitioners and Australian-registered foreign lawyers by providing for the making and enforcement of rules of professional conduct that apply to them when they practise in this jurisdiction.
(1) The Bar Council may make rules for or with respect to engaging in legal practice as a barrister.(2) The Bar Council may make rules for or with respect to engaging in legal practice as an Australian-registered foreign lawyer who engages in legal practice only as or in the manner of a barrister.
(1) The Law Society Council may make rules for or with respect to engaging in legal practice as a solicitor.(2) The Law Society Council may make rules for or with respect to engaging in legal practice as an Australian-registered foreign lawyer who engages in legal practice as or in the manner of a solicitor.
704 Joint rules for Australian legal practitioners
(1) The Bar Council and Law Society Council may jointly make rules for or with respect to:(a) any matters about which joint rules are authorised to be made, or(b) any matters about which they may separately make rules,in connection with legal practice as an Australian legal practitioner.(2) Joint rules may but need not apply in the same way to both barristers and solicitors.(3) Joint rules prevail, to the extent of any inconsistency, over legal profession rules made separately by a Council (whether made before or after the joint rules).
705 Rules for incorporated legal practices and multi-disciplinary partnerships
(1) The Law Society Council may make rules for or with respect to the following matters:(a) the provision of legal services by or in connection with incorporated legal practices or multi-disciplinary partnerships, and in particular the provision of legal services by:(i) officers or employees of incorporated legal practices, or(ii) partners or employees of multi-disciplinary partnerships,(b) the provision of services that are not legal services by or in connection with incorporated legal practices or multi-disciplinary partnerships, but only if the provision of those services by:(i) officers or employees of incorporated legal practices, or(ii) partners or employees of multi-disciplinary partnerships,may give rise to a conflict of interest relating to the provision of legal services.(2) Without limiting subsection (1), rules may be made for or with respect to professional obligations relating to legal services provided by or in connection with incorporated legal practices or multi-disciplinary partnerships.(3) However, the rules made under this section cannot:(a) regulate any services that an incorporated legal practice may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services), or(b) regulate or prohibit the conduct of officers or employees of an incorporated legal practice (other than in connection with the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services), or(c) regulate any services that a multi-disciplinary partnership or partners or employees of a multi-disciplinary partnership may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services), or(d) regulate or prohibit the conduct of partners or employees of a multi-disciplinary partnership (other than in connection with the provision of legal services or services that may give rise to a conflict of interest relating to the provision of legal services).(4) The regulations may make provision for or with respect to the making of rules under this section.
706 Subject-matter of legal profession rules
(1) Legal profession rules may make provision for or with respect to any aspect of legal practice, including standards of conduct expected of Australian legal practitioners or Australian-registered foreign lawyers to whom the rules apply.(2) The power to make rules is not limited to any matters for which this Act specifically authorises the making of legal profession rules.
Division 3 Procedure for making rules
707 Commissioner to be notified of proposed rules
(1) Each Council must notify the Commissioner of its intention to make a legal profession rule.(2) The notification must be in writing and must give details of the proposal.(3) The Council must wait at least 28 days after giving the notification before making the rule and must take into account any representations on the proposed rule made by the Commissioner.(4) However, the Council may make the rule before the end of the 28-day period if:(a) the Council considers that the urgency of the case warrants immediate action, and(b) the notification indicates that the Council is of that view and intends to act immediately.
708 Public notice of proposed rules
(1) The Council or Councils proposing to make a legal profession rule must ensure that a notice is published in the Gazette and in a daily newspaper circulating in this jurisdiction:(a) explaining the object of the proposed rule, and(b) advising where or how a copy of the proposed rule may be accessed, obtained or inspected, and(c) inviting comments and submissions within a specified period of not less than 21 days from the date of first publication of the notice.(2) The Council or Councils must ensure that a copy of the proposed rule is given to the Attorney General before the notice is published.(3) The Council or Councils must not make the rule before the end of the period specified in the notice for making comments and submissions and must ensure that any comments and submissions received within that period are appropriately considered.(4) However, the Council or Councils may make the rule before the end of the period specified in the notice for making comments and submissions if:(a) the Council or Councils consider that the urgency of the case warrants immediate action, and(b) the notice indicates that the Council or Councils are of that view and intend to act immediately.(5) Subsections (1)–(4) do not apply to a proposed rule that the Attorney General considers does not warrant publication because of its minor or technical nature.(6) Section 75 of the Interpretation Act 1987 does not apply to notices required to be published under this section.
Legal profession rules are to be published in the Gazette and in appropriate professional publications.
(1) A legal profession rule commences on the date specified in the rule for its commencement.(2) The date so specified is not to be earlier than the date of its publication in the Gazette and, unless the Attorney General approves, is not to be earlier than one month after the date of that publication.
711 Binding nature of legal profession rules
(1) Legal profession rules are binding on Australian legal practitioners and Australian-registered foreign lawyers to whom they apply.(2) (Repealed)
712 Legal profession rules inconsistent with Act or regulations
Legal profession rules do not have effect to the extent that they are inconsistent with this Act or the regulations.
The Councils must ensure that the legal profession rules are available for public inspection (including on their internet sites, if any, or on any other specified internet site) and that amendments are incorporated as soon as possible.
714 Review of rules requested by Commissioner
(1) The Commissioner may, at any time, request a Council to review any legal profession rule (including any joint rule) made by it.(2) If a Council is requested to review a rule under this section, the Council must furnish a report on the review to the Commissioner within 28 days after the request or within such further period as is agreed on by the Commissioner and the Council.(3) After receiving a report under this section, the Commissioner must give a report to the Attorney General about the request for the review and may include in the report submissions about the rule and a recommendation that the rule be declared inoperative.(4) Any such report by the Commissioner must include a copy of the report on the review of the rule concerned provided by the relevant Council.(5) The Attorney General may make public any report by the Commissioner under this section (including, if the Attorney General thinks fit, a copy of the relevant review).
716 Rules may be declared inoperative
(1) The Attorney General may, by order published in the Gazette, declare any legal profession rule, or part of any such rule, inoperative, if:(a) the Commissioner has reported to the Attorney General that the rule is not in the public interest, or(b) the Attorney General is of the opinion that the rule imposes restrictive or anti-competitive practices that are not in the public interest or the rule is not otherwise in the public interest.(2) A rule or part of a rule may be declared inoperative even though it deals with a matter for which this Act specifically authorises the making of rules.(3) A declaration is effective to render the rule or the part of the rule inoperative.(4) A declaration takes effect on the date of the publication of the order in the Gazette or on a later date specified in the order.
717 Other provisions as to rules
Sections 42, 43 and 45 of the Interpretation Act 1987 apply to legal profession rules in the same way as they apply to statutory rules within the meaning of that Act.Note. The above provisions of the Interpretation Act 1987 relate to standard provisions authorising the adoption of other publications by reference, the making of differential rules, the amendment or repeal of rules and presumptions as to validity for rules.