Division 1 Practising certificates
25 Requirement for practising certificate
(1) A legal practitioner whose sole or principal place of legal practice is this State must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate.(2) A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister.(3) A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a solicitor without being the holder of a current practising certificate as a solicitor and barrister.(3A) An interstate legal practitioner must not practise as a barrister or solicitor in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.(3B) An interstate legal practitioner must not hold himself or herself out to be a barrister in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.(3C) An interstate legal practitioner must not hold himself or herself out to be a solicitor in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.(4) A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct.
26 Election to practise as barrister or solicitor and barrister
(1) A legal practitioner may, subject to this Act, elect to practise as a barrister or as a solicitor and barrister.(2) A legal practitioner is, subject to this Act, entitled to be issued with a practising certificate as a barrister or solicitor and barrister.(3) An interstate legal practitioner may, subject to this Act, elect to practise in this State as a barrister or as a solicitor and barrister.Note. A person may not hold current practising certificates at the same time as a barrister and as a solicitor and barrister, see section 38D.
(1) The Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a barrister.(2) A legal practitioner who does not hold a current practising certificate as a barrister may at any time apply to the Bar Council for a practising certificate unless there is in force an order of the Tribunal preventing the issue of the certificate.(3) A legal practitioner who holds a current practising certificate as a barrister may, during the prescribed period before the certificate expires, apply to the Bar Council for a new practising certificate.(4) Subsection (3) does not prevent the Bar Council from accepting an application made after the prescribed period and before the next 1 July.
(1) The Law Society Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a solicitor and barrister.(2) A legal practitioner who does not hold a current practising certificate as a solicitor and barrister may at any time apply to the Law Society Council for a practising certificate unless there is in force an order of the Tribunal preventing the issue of the certificate.(3) A legal practitioner who holds a current practising certificate as a solicitor and barrister may, during the prescribed period before the certificate expires, apply to the Law Society Council for a new practising certificate.(4) Subsection (3) does not prevent the Law Society Council from accepting an application made after the prescribed period and before the next 1 July.(5) (Repealed)
29A Fee for practising certificate—barristers
(1) A fee is payable for the issue of a practising certificate authorising a legal practitioner to practise as a barrister of such amount as is determined by the Bar Council and approved by the Attorney General.(2) The Bar Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.(3) The Bar Council may waive payment of the practising certificate fee or any part of the fee.(4) Subject to the regulations (if any), the Bar Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Bar Council or Bar Association.(5) The regulatory functions of the Bar Council or Bar Association are the functions of the Bar Council or Bar Association under this Act, and any other functions the Bar Council or Bar Association exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice.(6) The practising certificate fee is not to include any charge for membership of the Bar Association and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which barristers become entitled as members of the Bar Association.Note. Section 57M provides for membership of the Bar Association. It is not compulsory for barristers to be members of the Bar Association.(7) In addition, in determining the practising certificate fee, the Bar Council must exclude costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under Division 2 of Part 6).(8) The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.(9) In this section, costs includes expenses.
29B Fee for practising certificate—solicitors
(1) A fee is payable for the issue of a practising certificate authorising a legal practitioner to practise as a solicitor of such amount as is determined by the Law Society Council and approved by the Attorney General.(2) The Law Society Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.(3) The Law Society Council may waive payment of the practising certificate fee or any part of the fee.(4) Subject to the regulations (if any), the Law Society Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Law Society Council or Law Society.(5) The regulatory functions of the Law Society Council or Law Society are the functions of the Law Society Council or Law Society under this Act, and any other functions the Law Society Council or Law Society exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice.(6) The practising certificate fee is not to include any charge for membership of the Law Society and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which solicitors become entitled as members of the Law Society.Note. Section 57MA provides for membership of the Law Society. It is not compulsory for solicitors to be members of the Law Society.(7) In addition, in determining the practising certificate fee, the Law Society Council must exclude any costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under Division 2 of Part 6).(8) The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.(9) In this section, costs includes expenses.
If an application for a practising certificate is accepted by a Council after the end of the period prescribed by the regulations during which the application is authorised to be made, payment of a late fee prescribed by the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application.
29D Submission of budget to Attorney General
(1) The Attorney General may from time to time require a Council to prepare and submit a budget to the Attorney General, in respect of such period as the Attorney General directs, relating to any costs (or projected costs) that are recoverable (or are proposed to be recovered) by the charging of a practising certificate fee.(2) The budget is to include such information as the Attorney General directs. In particular, the Attorney General may require the provision of information about the administration of the Council (including the Bar Association and the Law Society).(3) The Attorney General may refuse to approve the amount of a practising certificate fee under section 29A or 29B if the relevant Council has failed to submit a budget as required under this section.(4) In this section:costs includes expenses.
29E Audit of Council activities
(1) The Attorney General may appoint an appropriately qualified person to conduct an audit of all or any particular activities of a Council for the purpose of determining the following:(a) whether any activities the costs of which are recoverable, or are proposed to be recovered, by the charging of a practising certificate fee are being carried out economically and efficiently and in accordance with the relevant laws,(b) whether practising certificate fees are being expended for the purpose of defraying the costs in respect of which the fees are charged.(2) A Council is to provide all reasonable assistance to the person appointed to conduct the audit.(3) The person appointed to conduct the audit is to report to the Attorney General on the result of the audit.(4) An audit may be conducted under this section whenever the Attorney General considers it appropriate.(5) In this section:audit includes an examination and inspection.
costs includes expenses.
Council includes the Bar Association and the Law Society.
30 Refusal of application for practising certificate as barrister or solicitor
(1) A Council must refuse to issue a practising certificate if the application for it:(a) is not accompanied by the appropriate fee (unless payment of the fee has been waived by the Council), or(b) is not accompanied by, or does not contain, such information as may be prescribed by the regulations.(2) A Council may refuse to issue a practising certificate applied for by the holder of a suspended practising certificate.(3) A Council may refuse to issue a practising certificate if a finding of unsatisfactory professional conduct or professional misconduct has been made in respect of the applicant and:(a) a fine imposed because of the finding has not been paid, or(b) costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement, or(c) any costs of an inspection or investigation payable under section 55 by the applicant have not been paid, or(d) any expenses of receivership payable under section 110 by the applicant have not been paid.(4) Other sections of this Act also provide for the refusal of applications for the issue of practising certificates.(5) Without limiting subsection (1) (b), information prescribed by the regulations may include details of, or details of the nature of, pre-admission events, whether occurring before or after the commencement of this subsection.
31 Non-payment of contributions and levies by solicitors in respect of Indemnity Fund or Fidelity Fund
The Law Society Council may refuse to issue a practising certificate if:(a) the applicant is required by section 45 to contribute to the Indemnity Fund and the application is not accompanied by the contribution payable under that section, or(b) the applicant is required by section 76 to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable under that section, or(c) any levy payable by the applicant under section 46, 46A or 77 is unpaid.Note. Part 9 sets out further grounds on which the Law Society Council must refuse to issue a practising certificate to a solicitor or suspend a solicitor’s practising certificate. These grounds relate to a failure by the solicitor to obtain fidelity insurance in respect of a regulated mortgage.
32 Conditions may be imposed on practising certificates
(1) A practising certificate may be issued unconditionally or subject to conditions.(2) A Council may attach a condition to a practising certificate when it is issued or at any time after it is issued, and may at any time vary or revoke any such condition.(3) A condition cannot be attached to a practising certificate unless it is of a kind authorised by this Act to be attached.(4) (Repealed)(5) A legal practitioner who is the holder of a current practising certificate must not fail to comply with a condition to which the certificate is subject.
33 Conditions on practising certificates generally
(1) Conditions of the following kinds can be attached to the practising certificate of a barrister or solicitor:(a) a condition requiring the holder to undertake and complete one or more courses of continuing legal education,(b) a condition requiring the holder to undertake additional academic or training courses,(c) a condition, of a kind authorised by the regulations, limiting the practising rights of the holder as determined by the Bar Council or the Law Society Council,(d) any other condition agreed to by the holder.(2) Other sections of this Act also provide for conditions that may be attached to practising certificates.
34 Additional conditions on practising certificates of barristers
(1) Conditions of the following kinds can be attached to the practising certificate of a barrister:(a) a condition requiring the holder to undertake and complete to the satisfaction of the Bar Council a full-time component or other component of a reading program applicable to the holder and determined or approved by the Bar Council,(b) a condition requiring the holder to sit for and pass any examination set by the Bar Council as part of a reading program,(c) a condition requiring the holder to read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Bar Council for the purpose) for a specified period and to comply with such requirements as will enable the barrister, at the end of the specified period, to certify to the Bar Council that the holder is fit to practise as a barrister without restriction.(2) A condition of a kind referred to in subsection (1) which is attached to the practising certificate of a barrister may limit the practising rights of the barrister until the condition is complied with.(3) The following conditions may also be attached to the practising certificate of a barrister:(a) a condition limiting the holder to practising as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right),(b) a condition limiting the holder to practising as a barrister in any other office under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right),(c) a condition limiting the holder to practising as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).
35 Additional conditions on practising certificates of solicitors and barristers
Conditions of the following kinds can be attached to the practising certificate of a solicitor:(a) a condition requiring the holder to complete a period of supervised practice,(b) a condition restricting the solicitor to acting as a solicitor and barrister under particular conditions as to employment.
36 Duration of practising certificates
(1) A practising certificate issued on application by the holder of a current practising certificate takes effect on the relevant date next following the making of the application, and remains in force for 12 months or for such other period as may be specified by the regulations.(2) Any other practising certificate takes effect on the date it bears, and remains in force until immediately before the next relevant date.(3) If an application referred to in subsection (1) is not determined before the relevant date next following the making of the application, the practising certificate already held continues in force until a new practising certificate is issued or the application is refused.(4) In this section, relevant date means:(a) subject to paragraph (b)—1 July, or(b) another date specified by the regulations as the common date for the duration of practising certificates.(5) The regulations may contain savings and transitional provisions consequent on a change in the relevant date. In particular, the regulations may:(a) specify the period for which practising certificates in force when the change is made are to remain in force, and(b) specify the period for which practising certificates that take effect on the new relevant date are to remain in force, and(c) modify the application of section 45 in respect of contributions payable in respect of any such certificates.(6) (Repealed)
37 Refusal, suspension or cancellation of practising certificate generally
(1) A Council may refuse to issue, may cancel or may suspend a practising certificate if the applicant or holder:(a) is required by the Council to explain specified conduct (whether or not related to practice as a barrister or solicitor) that the Council considers may indicate that the applicant or holder is not a fit and proper person to hold a practising certificate and fails, within the period specified by the Council, to give an explanation satisfactory to the Council, or(b) has, in the opinion of the Council, failed to comply with a condition attached to the certificate, or(c) has contravened an order made in respect of the applicant or holder by the Tribunal, or(d) is a disqualified person within the meaning of section 48K, or(e) has had the applicant’s or holder’s right to practise as a solicitor and barrister, barrister or legal practitioner in another State or a Territory suspended or cancelled, or(f) has contravened a provision of this Act, or(g) is in prison.(1A) Subsection (1) (a) extends to pre-admission events occurring in relation to an applicant for or holder of a practising certificate, whether the events occurred before or after the commencement of this subsection.(1B) Without limiting subsection (1), a Council may decide to take no action or no further action in connection with a pre-admission event occurring in relation to an applicant for or holder of a practising certificate, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.(2) If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.
38 Refusal, suspension or cancellation of practising certificate as solicitor and barrister—trust accounts etc
The Law Society Council may refuse to issue, may cancel or may suspend a practising certificate as a solicitor and barrister if the applicant or holder fails, and continues to fail, to comply with section 61 or any other law relating to money received on behalf of another by the solicitor or by a partnership of which, at the time of the failure, the solicitor is or was a member.
38A Refusal, suspension or cancellation of practising certificate—infirmity
(1) A Council may refuse to issue, may cancel or may suspend a practising certificate if the Council is satisfied, on such evidence as to it seems proper:(a) that the applicant or holder is, because of infirmity, injury or mental or physical illness, unfit to practise as a barrister or solicitor and barrister, and(b) that it is in the public interest or the interest of the barrister’s or solicitor’s clients that the practising certificate should not be issued or should be cancelled or suspended.(1A) For the purposes of this section, an applicant or holder is unfit to practise as a barrister or solicitor and barrister only if the applicant or holder, because of his or her infirmity, injury or mental or physical illness, would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister.(1B) The following are to be taken into account in determining whether an applicant or holder would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister:(a) the applicant’s or holder’s past training, qualifications and experience relevant to such practice,(b) if the applicant or holder is already practising as a barrister or solicitor and barrister, the applicant’s or holder’s performance in such practice,(c) all other relevant factors that it is reasonable to take into account.(2) Before acting under subsection (1), a Council:(a) may require the applicant or holder to be medically examined by a medical practitioner nominated by the Council, and(b) may hold an inquiry.(3) A refusal or failure by a person to comply with a requirement for medical examination may be accepted by a Council as evidence of the unfitness of the person to practise as a barrister or solicitor and barrister.
38B Appeals relating to practising certificates
(1) If a Council:(a) refuses to issue a practising certificate, or(b) refuses to issue a practising certificate of the kind applied for, or(c) attaches a condition to a practising certificate or varies a condition attached to a practising certificate, or(d) cancels or suspends a practising certificate,the applicant for, or holder of, the practising certificate may appeal to the Supreme Court.(1A) If the Commissioner:(a) directs a Council to refuse to issue a practising certificate, or(b) cancels or suspends a practising certificate,the applicant for, or holder of, the practising certificate may appeal to the Supreme Court against the decision of the Commissioner to make the direction or to cancel or suspend the practising certificate.(1B) An appeal may not be made under subsection (1) against the refusal of a Council to issue a practising certificate if the refusal was at the direction of the Commissioner.(2) The Supreme Court may make such order in the matter as it thinks fit.(3) Except to the extent (if any) that may be ordered by the Supreme Court, the lodging of an appeal does not stay the effect of the refusal, cancellation or suspension, or the attaching or variation of a condition, appealed against.(4) This section does not apply if a Council acts in conformity with a decision of the Tribunal that is in force.
38C Registers of barristers and solicitors
(1) A Council is required to keep, in such form as it thinks fit, a register of the legal practitioners to whom it has issued current practising certificates.(2) A Council is required to keep, in such form as it thinks fit, a register of the interstate legal practitioners who have given notice under section 48T that they have established an office in this State.
(1) A legal practitioner may not at the same time hold current practising certificates as barrister and solicitor and barrister.(2) A practising certificate may be issued to a person on the condition that it does not have effect while another practising certificate is in force in relation to the person.
(1) The Supreme Court may, on the application of a Council, grant an injunction, in such terms as the Supreme Court considers to be appropriate, restraining a legal practitioner from contravening section 25 or 32.(2) No undertaking as to damages or costs is required.
38F Application of provisions of Division
(1) The Attorney General, while admitted as a legal practitioner, is entitled to an unconditional practising certificate. The Attorney General may elect to hold a practising certificate as a barrister or as a solicitor and barrister.(2) Section 33 (1) (b) and (c) and section 34 (1) do not apply to:(a) a legal practitioner who is the holder of a statutory position under the Crown (whether in right of New South Wales or in another right), or(b) a legal practitioner who acts as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right), or(c) a legal practitioner who is, or is a member of a class or description of legal practitioners, specified by the Bar Council or the Law Society Council for the purposes of this subsection, or(d) a legal practitioner who is, or is a member of a class or description of legal practitioners, prescribed by the regulations for the purposes of this subsection.(3) Subsection (2) applies only while the person is a legal practitioner to whom at least one of the paragraphs of that subsection applies.
Division 1AA Special powers in relation to practising certificates
(1) In this Division, relevant period means, in relation to a matter to be determined under section 38FC:(a) the period of 3 months commencing on the date on which notification is given to the relevant Council of the commission of the act of bankruptcy or the finding of guilt of the indictable offence or tax offence concerned by the legal practitioner who committed the act of bankruptcy or the offence, or(b) if the relevant Council has not received notification as referred to in paragraph (a) when it sends a notice under section 38FC (2) to that legal practitioner, the period of 3 months commencing on the date specified in the notice as the date of issue of the notice,and includes any extension under subsection (2).(2) The Commissioner may extend the 3-month period referred to in subsection (1) to 4 months in relation to a particular matter at the request of the Council dealing with the matter or, if the Commissioner is dealing with the matter, on the Commissioner’s own motion.(3) If the Commissioner extends a period under subsection (2), the Commissioner must give notice in writing to the legal practitioner concerned of the extension of the period.
38FB Requirements to show cause—bankruptcy, indictable offences, tax offences and failures to notify
(1) An applicant for a practising certificate who, since being admitted as a legal practitioner:(a) has committed an act of bankruptcy, or(b) has been found guilty of an indictable offence or a tax offence,must provide a written statement, in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the applicant considers that he or she is a fit and proper person to hold a practising certificate.(2) An applicant for a practising certificate who has failed to notify a matter as required by the regulations (being a failure declared by the regulations to be professional misconduct) must provide a written statement, in accordance with the regulations, showing why, despite the failure to notify, the applicant considers that he or she is a fit and proper person to hold a practising certificate.(3) A barrister or solicitor who, since being admitted as a legal practitioner:(a) has committed an act of bankruptcy, or(b) has been found guilty of an indictable offence or a tax offence,must provide a written statement, in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the barrister or solicitor considers that he or she is a fit and proper person to hold a practising certificate.(4) A barrister or solicitor who fails to notify a matter as required by the regulations (being a failure declared by the regulations to be professional misconduct) must provide a written statement, in accordance with the regulations, showing why, despite the failure to notify, the barrister or solicitor considers that he or she is a fit and proper person to hold a practising certificate.(5) A person is not required to comply with subsection (1), (2), (3) or (4) if the person has previously provided a written statement in accordance with this section to the appropriate Council showing why, despite the act of bankruptcy, finding of guilt or failure to notify concerned, the person considers that he or she is a fit and proper person to hold a practising certificate.(6) Subsections (1) and (3) extend to acts of bankruptcy occurring before the commencement of this section.(7) This section:(a) applies to an indictable offence or a tax offence whether or not committed in the course of practice as a barrister or solicitor, and(b) applies to a finding of guilt of an indictable offence or a tax offence whether or not the court proceeded to a conviction for the offence, and(c) applies to an indictable offence committed in New South Wales or to an offence committed outside New South Wales (so long as it would have been an indictable offence if committed in New South Wales), and(d) applies to a tax offence committed in or outside New South Wales, and(e) applies to a finding of guilt of an indictable offence or a tax offence even if other persons are prohibited from disclosing the identity of the offender, and(f) extends to an indictable offence or a tax offence committed before the commencement of this section (and so extends whether the finding of guilt was made before or after that commencement).
38FC Refusal, cancellation or suspension of practising certificates—bankruptcy, indictable offences and tax offences
(1) A Council must refuse to issue, or must cancel or suspend, a practising certificate if:(a) the Council is aware that the applicant for or holder of the practising certificate has, since being admitted as a legal practitioner, committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence, and(b) the Council considers that the act of bankruptcy, indictable offence or tax offence was committed in circumstances that show that the applicant or holder is not a fit and proper person to hold a practising certificate.(2) A Council must, within 14 days after becoming aware that the applicant for or holder of a practising certificate has, since being admitted as a legal practitioner, committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence, give notice in writing to the applicant or holder:(a) if the Council has not received a statement under section 38FB in relation to the act of bankruptcy or the finding of guilt concerned, requiring the applicant or holder to make a statement in accordance with that section, and(b) informing the applicant or holder that a determination in relation to the matter is required to be made under this section, and(c) informing the applicant or holder of the relevant period in relation to the determination of the matter and that the applicant or holder will be notified of any extension of the relevant period, and(d) informing the applicant or holder of the effect of the automatic suspension provisions in section 38FH in the event of the matter not being determined by the Council or the Commissioner within the relevant period.(3) Despite subsection (1), a Council may issue a practising certificate to an applicant referred to in that subsection who is a barrister or solicitor if the next relevant date (within the meaning of section 36) in relation to the barrister’s or solicitor’s current practising certificate is imminent and the Council has not made a determination under that section in relation to the applicant.(4) The issue of a practising certificate in the circumstances referred to in subsection (3) does not prevent a determination from subsequently being made under this Division to refuse to issue a practising certificate to the barrister or solicitor or to cancel or suspend the barrister’s or solicitor’s practising certificate.(5) Despite any other provision of this Act, a Council required to take action under subsection (1) in relation to a barrister or solicitor may, for the purpose of enabling the proper arrangement of the affairs of the barrister or solicitor:(a) issue a practising certificate to the barrister or solicitor that remains in force for such period, specified in the practising certificate, as the Council considers necessary to achieve that purpose, or(b) defer cancelling or suspending the practising certificate held by the barrister or solicitor for such period as the Council considers necessary to achieve that purpose.(6) If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.(7) A Council is not required to take action under this section in relation to a person who has been bankrupt if the person was bankrupt because of an act of bankruptcy that has already been the subject of a determination under this section.
38FD Refusal, cancellation or suspension of practising certificates—failure to notify
(1) A Council may refuse to issue, or may cancel or suspend, a practising certificate if the applicant or holder has failed to notify a matter (being a failure declared by the regulations to be professional misconduct) and the Council considers that the failure to notify occurred without reasonable cause.(2) If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.
38FE Refusal, cancellation or suspension of practising certificates—failure to show cause or furnish information
(1) A Council may refuse to issue, or may cancel or suspend, a practising certificate if the applicant or holder:(a) is required by section 38FB to provide a written statement in relation to a matter and has failed to provide a written statement in accordance with that section, or(b) has provided a written statement in accordance with section 38FB but, in the opinion of the Council to which the statement was provided, has failed to show in that statement that he or she is a fit and proper person to hold a practising certificate, or(c) has failed to comply with a requirement under section 38FI or has wilfully contravened section 38FI (4).(2) If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.
38FF Restriction on making further applications
(1) A Council that determines under section 38FC, 38FD or 38FE to refuse to issue a practising certificate to a person or to cancel a person’s practising certificate may also determine that the person is not entitled to apply for a practising certificate for a specified period (being a period not exceeding 5 years).(2) A person in respect of whom a determination has been made under this section is not entitled to apply for a practising certificate during the period specified in the determination.
38FG Commissioner may take action
(1) The Commissioner may, at any time, take over the determination of a matter under section 38FC from a Council.(2) The Commissioner must take over the determination of a matter under section 38FC from a Council if the Council has not made the determination within the relevant period.(3) If the Commissioner takes over the determination of a matter from a Council:(a) the Council is not required to make a determination in relation to the matter and is to cease to deal with the matter unless otherwise directed by the Supreme Court in an order under section 38FH (4), and(b) the Commissioner may exercise any of the powers of the Council under this Division in relation to the matter (other than a refusal to issue a practising certificate), including powers under sections 38FD and 38FE if those powers are exercised in relation to a failure or contravention that is relevant to the matter, and(c) the Commissioner may give a direction to the Council to refuse to issue a practising certificate to the legal practitioner concerned.(4) If the Commissioner gives a direction that the Council is to refuse to issue a practising certificate to a particular legal practitioner, the Council must refuse to issue the practising certificate.(5) The Commissioner may, in such a direction, specify a period during which the Council is not to issue the practising certificate.(6) If the Commissioner takes over the determination of a matter under section 38FC from a Council, the Council is to provide any assistance required by the Commissioner to investigate the matter (including copies of or access to all documents held by the Council that relate to the matter or are required for the purpose of investigating the matter).
38FH Automatic suspension of practising certificate
(1) This section applies to a matter to be determined under section 38FC in respect of the holder of a practising certificate.(2) If the relevant period in relation to a matter to be determined under section 38FC by a Council expires but no determination has been made under that section by the Council or the Commissioner, the practising certificate of the holder concerned is suspended until:(a) the matter is determined by the Council or the Commissioner, or(b) the suspension is removed by the Supreme Court under subsection (4),whichever occurs first.(3) A barrister or solicitor whose practising certificate is suspended by the operation of subsection (2) may make an application to the Supreme Court to remove the suspension.(4) When dealing with an application under subsection (3), the Supreme Court may make any one or more of the following orders:(a) an order removing the suspension on the grounds that the applicant is a fit and proper person to hold a practising certificate,(b) an order continuing the suspension for a specified period,(c) an order cancelling the practising certificate concerned on the ground that the applicant is not a fit and proper person to hold a practising certificate,(d) an order remitting the matter to the Council originally dealing with it or the Commissioner,(e) an order that the matter cease to be the subject of investigation by a Council or the Commissioner.(5) A Council or the Commissioner may investigate a matter under this Division and exercise powers under this Division in relation to the matter despite a suspension under subsection (2) of the practising certificate concerned unless the Supreme Court otherwise orders under subsection (4).
38FI Powers when investigating matter under this Division
(1) For the purpose of investigating a matter under this Division, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following:(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,(b) to produce, at a time and place specified in the notice, any document (or copy of any document) specified in the notice,(c) to otherwise assist in, or cooperate with, the investigation in a specified manner.(2) A Council or the Commissioner may inspect any document produced before the Council or the Commissioner under this section and may retain it for such period as the Council or Commissioner thinks necessary for the purposes of an investigation in relation to which it was produced. A Council or the Commissioner may make copies of the document or any part of the document.(3) A requirement under this section is to specify a reasonable time for compliance.(4) A legal practitioner must not mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division.
Nothing in this Division prevents a complaint from being made under Part 10 involving a matter that requires a determination to be made under this Division or in respect of which a determination has been made under this Division.
Division 1A Practice as a barrister or solicitor
(1) Practice as a barrister is subject to the barristers rules.(2) Practice as a barrister is not subject to any other rules, practice guidelines or rulings of the Bar Association or Bar Council.
(1) Practice as a solicitor is subject to the solicitors rules.(2) Practice as a solicitor is not subject to any other rules, practice guidelines or rulings of the Law Society or Law Society Council.Note. Barristers rules are made by the Bar Council and solicitors rules are made by the Law Society Council. The Bar Council and the Law Society Council may also make joint rules. See sections 57A–57C.
(1) Barristers
Barristers may accept any clients, subject to the barristers rules and the conditions of any relevant practising certificate.(2) Solicitors
Solicitors may accept any clients, subject to the solicitors rules and the conditions of any relevant practising certificate.(3) Contracts
A barrister or solicitor may enter into a contract for the provision of services with a client or with another legal practitioner. The barrister or solicitor may accordingly sue and be sued in relation to the contract.(4) Barristers contracts
A barrister may enter into a contract with a client even though the barrister has accepted a brief from a solicitor in the matter.(5) Immunity
Nothing in this section affects any law relating to immunity to suit in relation to advocacy.
(1) A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit, subject to any regulations under section 38JA.(2) However, an advertisement must not be of a kind that is or that might reasonably be regarded as:(a) false, misleading or deceptive, or(b) in contravention of the Trade Practices Act 1974 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation.(c) (Repealed)(3) A contravention by a barrister or solicitor of subsection (2) is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention.
38JA Regulation of advertising and other marketing of services
(1) The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services, including (without limitation) regulating or prohibiting any of the following:(a) advertising by a barrister or solicitor,(b) advertising by any person for or on behalf of a barrister or solicitor,(c) advertising by any person in connection with the provision of legal services,(d) advertising by any person of services connected with personal injury.(2) The regulations under this section may create an offence punishable by a penalty not exceeding 200 penalty units.(3) The Minister may direct a person in writing not to engage in conduct described in the direction if the Minister is satisfied that:(a) the conduct contravenes the regulations under this section, and(b) the person has been engaging in conduct of that or a similar kind.(4) The Administrative Decisions Tribunal may, on application made under subsection (5), direct a barrister or solicitor not to engage in conduct described in the direction if the Tribunal is satisfied that:(a) the conduct contravenes the regulations under this section or the regulations under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, and(b) the barrister or solicitor has been engaging in conduct of that or a similar kind.(5) An application to the Administrative Decisions Tribunal may be made under this section by:(a) in the case of a barrister—the Bar Council, or(b) in the case of a solicitor—the Law Society Council, or(c) the Commissioner.(6) The Administrative Decisions Tribunal cannot deal with an application for a direction with respect to conduct that is the subject of a direction by the Minister under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998. Any such Ministerial direction may be given with respect to any conduct even if proceedings are pending in, or have been dealt with by, the Tribunal with respect to the conduct.(7) The following applies in connection with proceedings before the Administrative Decisions Tribunal under this section:(a) the parties to the proceedings are the applicant and the person to whom the direction is proposed to be given,(b) the matter is to be allocated to the Legal Services Division of the Tribunal,(c) the Tribunal is to conduct an initial ex-parte hearing for the purposes of determining whether to issue a direction pending the final determination of the matter.(8) A person who contravenes a direction under this section is guilty of an offence.Maximum penalty: 200 penalty units.
(9) A barrister or solicitor is guilty of professional misconduct if the barrister or solicitor:(a) contravenes a direction under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, or(b) contravenes a regulation under this section (or under section 142 of that Act), but only if the regulation declares the contravention to be professional misconduct.(10) The Minister is not required, before giving a direction under this section, to notify the person to whom the direction is given or any other person who may be affected by the direction.(11) A direction under this section may be amended or revoked.(12) Payments are to be made from the Public Purpose Fund for the purposes of meeting the costs and expenses of a Council or the Commissioner in exercising functions under this section (including the prosecution of offences under this section).(13) In this section:personal injury includes pre-natal injury, impairment of a person’s physical or mental condition or a disease.
(1) A barrister or solicitor must not advertise or hold himself or herself out as being a specialist or as offering specialist services, unless the barrister or solicitor:(a) has appropriate expertise and experience, or(b) is appropriately accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society Council.(2) The Bar Council or Law Society Council is required to approve an accreditation scheme if directed to do so by the Attorney General.
(1) Barristers and solicitors may act as advocates.(2) Barristers and solicitors may appear, and have a right of audience, in any court as advocates.(3) Joint rules may be made about ethical rules to be observed by barristers and solicitors in the practice of advocacy.(4) (Repealed)
(1) In any proceedings, more than one barrister or solicitor or a solicitor and barrister may appear together as advocates.(2) The appearance together as advocates of a barrister and solicitor may be regulated by joint rules, but not by barristers rules or solicitors rules.
(1) There is no rule or practice that prevents a barrister from attending on another barrister or solicitor or a solicitor from attending on another barrister or solicitor.(2) Nothing in this section prevents arrangements being made between individual legal practitioners with regard to attendance on each other.
38O Prohibition of official schemes for recognition of seniority or status
(1) Any prerogative right or power of the Crown to appoint persons as Queen’s Counsel or to grant letters patent of precedence to counsel is abrogated.(2) Nothing in this section affects the appointment of a person who was appointed as Queen’s Counsel before the commencement of this section.(3) Nothing in this section abrogates any prerogative right or power of the Crown to revoke such an appointment.(4) No law or practice prevents a person who was Queen’s Counsel immediately before the commencement of this section from continuing to be Queen’s Counsel while a barrister or solicitor.(5) Executive or judicial officers of the State have no authority to conduct a scheme for the recognition or assignment of seniority or status among legal practitioners.(6) Nothing in subsection (5) prevents the publication of a list of legal practitioners in the order of the dates of their admission, or a list of barristers or solicitors in the order of the dates of their becoming barristers or solicitors, or a list of Queen’s Counsel in their order of seniority.(7) In this section:executive or judicial officers includes the Governor, Ministers of the Crown, Parliamentary Secretaries, statutory office holders, persons employed in the Public Service or by the State, an authority of the State or another public employer, and also includes judicial office holders or persons acting under the direction of the Chief Justice of New South Wales or other judicial office holder.
Queen’s Counsel means one of Her Majesty’s Counsel learned in the law for the State of New South Wales and extends to King’s Counsel where appropriate.
38P Barristers receiving money on behalf of other
(1) A barrister is not, in the course of practising as a barrister, to receive money on behalf of another person unless authorised under this section.(2) The regulations may authorise a barrister to do so. For that purpose, the regulations may apply to barristers any of the provisions of Part 6 (Trust Accounts) or make other provision relating to the matter.
Nothing in this Division affects:(a) practice as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right), or(b) practice as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).
Division 1B Barristers’ indemnity insurance
(1) The Bar Council may not issue a practising certificate to an insurable barrister unless it is satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy.(2) A policy of indemnity insurance is approved if:(a) the policy is not to expire before the expiration of the practising certificate of the barrister to whom the policy relates, and(b) the level of insurance and type of policy have been approved by the Attorney General by order in writing given to the Bar Council, and(c) any conditions imposed by the order are complied with.(3) The Bar Council may not issue a practising certificate to an insurable barrister whose application for the practising certificate is not accompanied by evidence that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy.(4) In this section, insurable barrister means a barrister required by the regulations to be an insured barrister.
Division 2 Solicitors’ Mutual Indemnity Fund
In this Division:approved insurance policy means a policy of indemnity insurance that is an approved insurance policy as provided by section 41.
company means the company that, immediately before the commencement of this Act, was managing the Solicitors’ Mutual Indemnity Fund established by the Legal Practitioners Act 1898.
HIH group member means:
(a) HIH Casualty and General Insurance Limited, FAI General Insurance Company Limited or CIC Insurance Limited, or(b) any corporation that is, with respect to one of the corporations referred to in paragraph (a), a related body corporate (within the meaning of the Corporations Law).Indemnity Fund means the Solicitors’ Mutual Indemnity Fund managed by the company.
insurable solicitor means a solicitor required by the regulations to be an insured solicitor.
insured person means a person who is insured under an approved insurance policy.
40 Solicitors’ Mutual Indemnity Fund
(1) The Solicitors’ Mutual Indemnity Fund managed by the company consists of:(a) the Solicitors’ Mutual Indemnity Fund established by the Legal Practitioners Act 1898,(b) the money paid on account of the Indemnity Fund by insurable solicitors either as annual contributions or as levies under this Division,(c) the interest or other income accruing from investment of the money in the Indemnity Fund,(d) any other money lawfully paid into the Indemnity Fund,(e) investments made under section 43, and(f) such other assets as are acquired as part of the Indemnity Fund.(2) The company may arrange with an insurer for insurance of the Indemnity Fund or any part of it.(3) The Indemnity Fund is the property of the Law Society and may be used only for the purposes of this Division.
41 Solicitor to be insured and to make contributions
(1) The Law Society Council must not issue a practising certificate to an insurable solicitor unless it is satisfied:(a) that there is, or will be, in force with respect to the solicitor an approved insurance policy, and(b) that any contribution or levy, or instalment of a contribution, that is payable by the solicitor under section 45, 46 or 46A has been paid to the company.(2) A policy of indemnity insurance is an approved insurance policy if:(a) the policy is not to expire before the expiration of the practising certificate of the solicitor to whom the policy relates,(b) the insurer and the terms of the policy have been approved by the Attorney General by order in writing given to the Law Society, and(c) any conditions imposed by the order are complied with.(3) (Repealed)(4) The Law Society may negotiate with insurers and other persons in relation to the provision of indemnity insurance to any solicitor or former solicitor with respect to civil liability that may arise in connection with:(a) the solicitor’s or former solicitor’s practice or former practice, or(b) the solicitor’s or former solicitor’s administration of any trust or deceased estate of which the solicitor or former solicitor is or was a trustee or executor,and may do any other thing necessary for or in connection with the Law Society Council’s functions under this section.
The company shall maintain with a bank, building society or credit union in New South Wales a separate account with the name “Solicitors’ Mutual Indemnity Fund”.
43 Investment of Indemnity Fund
Money in the Indemnity Fund that is not immediately required for the purposes of the Fund may be invested:(a) in any manner in which trustees are authorised by the Trustee Act 1925 to invest trust funds,(b) on deposit with the Treasurer,(c) in the purchase of securities or shares listed for quotation on a prescribed financial market (within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth),(d) in the acquisition of an interest in real estate in Australia, or(e) in bills of exchange drawn, accepted or endorsed by a bank, building society or credit union.
44 Payments from the Indemnity Fund
(1) There shall be paid from the Indemnity Fund in such order as the company decides:(a) the expenses incurred by the company in carrying on its business, and(a1) premiums in respect of any approved insurance policy required by section 41, and(b) such amount as the company determines towards meeting any difference between the indemnity provided by the approved insurance policy required by section 41 and the liability of a person insured under the policy, and(c) such other amounts as the company determines.(1A) The company is required to pay from the Indemnity Fund the costs of an investigation of the Indemnity Fund, as referred to in section 47AA, in accordance with a direction given by the Attorney General under that section.(2) The company may make determinations under subsection (1):(a) that differ according to different circumstances, or(b) that are subject to compliance with conditions imposed by the company,or that do both.(3) The company may:(a) divide solicitors into classes approved by the Law Society Council, and(b) under subsection (1) (b), make a different determination for each of the classes.
44A Payments relating to HIH group insurance policies
(1) Payments must be made by the company from the Indemnity Fund for the purpose of indemnifying any person who is insured under an approved insurance policy that was issued or renewed by an HIH group member, to the extent of the indemnity provided by the approved insurance policy.Note. HIH Casualty and General Insurance Limited (HIH) was the insurer under the approved insurance policy for the period from 1 July 1998 to 1 July 2001. HIH, together with other HIH group members, were also insurers under approved policies that pre-date that period. A provisional liquidator was appointed in respect of the HIH and other HIH group members on 15 March 2001.(2) On the making of such a payment from the Indemnity Fund, the company is subrogated to the rights and remedies of the insured person under the approved insurance policy, in connection with the subject matter of the payment, subject to the terms of any agreement entered into under this section.(3) Subsection (2) extends, but is not limited to, a right or remedy against any of the following:(a) an HIH group member,(b) any insurer or re-insurer of an HIH group member,(c) any person who, under any Act or other law, is liable for a failure of an HIH group member to satisfy its obligations under or in connection with an approved insurance policy.(4) The company may exercise its rights and remedies under this section in its own name or in the name of an insured person.(5) If the company exercises its rights and remedies under this section in the name of an insured person, the company is to indemnify the insured person against any liability incurred by the insured person as a result of the exercise of those rights and remedies.(6) The Law Society and the company may enter into an agreement with an HIH group member (including a provisional liquidator or liquidator of an HIH group member), or with any insured person, in connection with the payment of amounts from the Indemnity Fund under this section.(7) In particular, any such agreement may provide for the following:(a) the assignment or subrogation to the company of the rights and remedies of an HIH group member or the insured person (or both) under or in connection with the approved insurance policy,(b) the recovery by the company from an HIH group member of any amount paid from the Indemnity Fund under this section.(8) Any payment made from the Indemnity Fund under this section, and any agreement entered into with an insured person under this section, does not prevent the recovery by the company from an HIH group member of any amount that would have been recoverable by the insured person under or in connection with the approved insurance policy had the payment not been made or the agreement not been entered into.(9) Any amount recovered by the company as a result of the exercise of its functions under this section (including its functions under a subrogation or agreement referred to in this section) is to be paid into the Indemnity Fund. This does not apply to any amount that is payable to another person:(a) under any other Act or law, or(b) under any agreement referred to in this section, or(c) under the regulations.(10) Payments may be made from the Indemnity Fund for the purpose of meeting any reasonable costs and expenses incurred by the company in exercising its functions under this section, including its functions under a subrogation or agreement referred to in this section.
44B Payments relating to other defaulting insurers
(1) Payments may be made by the company from the Indemnity Fund for the purpose of indemnifying any person who is insured under an approved insurance policy that was issued or renewed by a defaulting insurer, in accordance with arrangements approved from time to time by the Attorney General.(2) The Law Society and the company may enter into an agreement with a defaulting insurer (including a provisional liquidator or liquidator of a defaulting insurer), or with any insured person, in connection with the payment of amounts from the Indemnity Fund under this section.(3) In particular, any such agreement may provide for the following:(a) the assignment or subrogation to the company of the rights and remedies of a defaulting insurer or the insured person (or both) under or in connection with the approved insurance policy,(b) the recovery by the company from a defaulting insurer of any amount paid from the Indemnity Fund under this section.(4) Any payment made from the Indemnity Fund under this section, and any agreement entered into with an insured person under this section, does not prevent the recovery by the company from a defaulting insurer of any amount that would have been recoverable by the insured person under or in connection with the approved insurance policy had the payment not been made or the agreement not been entered into.(5) Any amount recovered by the company as a result of the exercise of its functions under this section (including its functions under an agreement referred to in this section) is to be paid into the Indemnity Fund. This does not apply to any amount that is payable to another person:(a) under any other Act or law, or(b) under any agreement referred to in this section, or(c) under the regulations.(6) Payments may be made from the Indemnity Fund for the purpose of meeting any reasonable costs and expenses incurred by the company in exercising its functions under this section, including its functions under an agreement referred to in this section.(7) For the purposes of this section, an insurer under an approved insurance policy is a defaulting insurer if the company is satisfied that:(a) the insurer is unwilling or unable to meet any claims or other liabilities under the approved insurance policy, or(b) a liquidator or provisional liquidator has been appointed in respect of the insurer, or(c) the insurer has been dissolved.
(1) An insurable solicitor is liable to pay to the Indemnity Fund an annual contribution of an amount determined by the company and approved by the Law Society Council. An insurable solicitor is also liable to pay to the Indemnity Fund such further amounts in respect of the annual contribution as may be determined by the company and approved by the Law Society Council.(2) The company may make a different determination under subsection (1) for a particular solicitor or class of solicitors.(3) If a solicitor applies for a practising certificate that will be in force for part only of a year commencing on the relevant date, the contribution is such proportion of the total amount determined for the solicitor under subsection (1) as is borne to 1 year by the number of days for which the practising certificate will be in force.(4) A contribution required to be paid under this section must be paid to the company on account of the Indemnity Fund.(5) The company may permit a contribution to be paid by instalments under an arrangement approved by the Law Society Council.(6) In this section, the relevant date means 1 July or another relevant date specified by the regulations under section 36.
(1) If the company is at any time of the opinion that the assets of the Indemnity Fund may be insufficient to meet its liabilities, the company may impose on each insurable solicitor a levy payable to the company on account of the Indemnity Fund.(2) A levy shall be of such amount as the company determines and may differ according to the different factors in relation to which contributions under this Division have been determined.(3) A levy is payable at the time, and in the manner, fixed by the company which may, in a special case, allow time for payment.
46A Special contributions and levies: HIH liabilities
(1) The company may, for the purposes of ensuring that the Indemnity Fund, or any part of the Indemnity Fund, is sufficient to meet the purposes for which it may be used under section 44A:(a) require any insurable solicitor who is or was insured under an approved insurance policy issued or renewed by an HIH group member to pay a special annual contribution to the Indemnity Fund, or(b) require any solicitor or former solicitor who is or was insured under an approved insurance policy issued or renewed by an HIH group member to pay a special levy to the Indemnity Fund.(2) Any such special annual contribution or levy is to be of an amount determined by the company and approved by the Law Society Council.(3) The company may make a different determination under subsection (2) in relation to particular classes of solicitors or former solicitors.(4) The special annual contribution or levy is to be paid within the time and in the manner specified by the company by notice in writing to the solicitor or former solicitor concerned.(5) A special annual contribution or levy that is payable under this section:(a) is to be paid to the company on account of the Indemnity Fund, and(b) is recoverable by the company as a debt in a court of competent jurisdiction, and(c) if payable by an insurable solicitor, is payable in addition to any contribution or levy that is payable under section 45 or 46.
47 Failure to pay contribution or levy
If, after being given written notice, an insurable solicitor fails to pay a contribution, instalment of a contribution, or levy in accordance with section 45, 46 or 46A:(a) the company shall report the failure to the Law Society Council, and(b) while the failure continues, the solicitor’s practising certificate is suspended.
47AA Investigation of Indemnity Fund
(1) The Attorney General may at any time appoint an appropriately qualified person to conduct an investigation in relation to the Indemnity Fund, including in relation to any of the following:(a) the state and sufficiency of the Indemnity Fund,(b) the adequacy of the amount or rate of any contributions or levies paid or payable under this Division,(c) the management of the Indemnity Fund by the company, and the adequacy of the investment strategies being adopted by the company,(d) such other matters relating to the Indemnity Fund as the Attorney General determines.(2) The company is to provide all reasonable assistance to the person appointed to conduct the investigation.(3) The person appointed to conduct the investigation is to report to the Attorney General on the result of the investigation.(4) The Attorney General may, by notice in writing served on the company, require the company to pay from the Indemnity Fund the costs of the investigation.(5) For the purposes of subsection (4), the costs of the investigation means:(a) the reasonable costs and expenses incurred in connection with the investigation by the person appointed to conduct the investigation, and(b) the reasonable cost of any remuneration paid to that person in connection with the investigation.
(1) For the purpose of conducting an investigation under section 47AA, an investigator may, by notice in writing served on any person, require the person to provide to the investigator such information or records relating to the Indemnity Fund or the company’s management of the Indemnity Fund as the investigator specifies in the notice.(2) The notice must specify the manner in which information or records are required to be provided and a reasonable time by which the information or records are required to be provided.(3) A person who, without reasonable excuse, neglects or fails to comply with a requirement made of the person under this section is guilty of an offence.Maximum penalty: 100 penalty units.
(4) A person who provides any information in purported compliance with a requirement made under this section, knowing that it is false or misleading in a material particular, is guilty of an offence.Maximum penalty: 100 penalty units.
(5) In this section:investigator means a person appointed by the Attorney General under section 47AA to conduct an investigation in relation to the Indemnity Fund.
47A Application of Division to other persons
The company may apply this Division (sections 41, 46A and 47 excepted) to persons who:(a) are not insurable solicitors,(b) are within a class of persons approved by the Law Society Council for the purposes of this section,(c) are insured under a policy of insurance that, if the persons were insurable solicitors, would be an approved policy of indemnity insurance for the purposes of section 41, and(d) pay to the Indemnity Fund such contributions and levies as the company determines and the Law Society Council approves.
Division 2A Incorporated legal practices
In this Division:corporation means:
(a) a company within the meaning of the Corporations Act 2001 of the Commonwealth, or(b) a State owned corporation, or(c) an industrial organisation incorporated under a law of the Commonwealth, a State or a Territory, or(d) any other body corporate, or body corporate of a kind, prescribed by the regulations.director means a director within the meaning of the Corporations Act 2001 of the Commonwealth.
legal services means work done, or business transacted, in the capacity of a solicitor.
solicitor director means a director of an incorporated legal practice who holds an unrestricted practising certificate as a solicitor and barrister (including an interstate practising certificate that confers a similar authority to practise in this State).
47C Nature of incorporated legal practice
(1) An incorporated legal practice is a corporation that provides legal services.(2) Any incorporated legal practice may provide any other service and conduct any other business that the corporation may lawfully provide or conduct (other than a managed investment scheme within the meaning of Chapter 5C of the Corporations Act 2001 of the Commonwealth).(3) However, a corporation is not an incorporated legal practice if:(a) the corporation does not receive any form of, or any expectation of, a fee, gain or reward for the legal services it provides, or(b) the only legal services that the corporation provides are in-house legal services, namely, legal services concerning a proceeding or transaction to which the corporation (or a related body corporate within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth) is a party, or(c) the regulations exempt the corporation from this Part.
47D Corporations eligible to be incorporated legal practices
(1) Any corporation is eligible to be an incorporated legal practice.(2) This section does not authorise a corporation to provide legal services if the corporation is prohibited from doing so by the Act or law under which it is incorporated or its affairs are regulated.Note. See sections 48D and 48E for offences relating to the provision of legal services by unauthorised corporations.
47E Solicitor directors of incorporated legal practices
(1) An incorporated legal practice is required to have at least one solicitor director.Note. Section 48D provides that an incorporated legal practice is guilty of an offence under that section if it does not have a solicitor director (except for any reasonable period required to appoint a replacement solicitor director).(2) The solicitor director or directors of an incorporated legal practice are, for the purposes only of this Act, generally responsible for the management of the legal services provided in New South Wales by the incorporated legal practice.(3) It is professional misconduct if any such solicitor director does not ensure that:(a) appropriate management systems are implemented and maintained to enable the provision of those legal services in accordance with the professional obligations of solicitors and the other obligations imposed by or under this Act, and(b) any conduct of another director of the practice that has resulted or is likely to result in a contravention of those obligations is reported to the Law Society Council promptly after the solicitor director becomes aware of it, and(c) any professional misconduct of a solicitor employed by the practice to provide legal services is reported to the Law Society Council promptly after the solicitor director becomes aware of it, and(d) all reasonable action available to the solicitor director is taken to deal with any professional misconduct or unsatisfactory professional conduct of a solicitor so employed by the practice.(4) It is also professional misconduct for any such solicitor director to remain as a director of the corporation, and thereby authorise its continued provision of legal services, if it becomes apparent that the provision of those legal services will result in breaches of the professional obligations of solicitors or other obligations imposed by or under this Act (whether because of the unsuitability of any other director or directors or otherwise).(5) The provisions of this section relating to a solicitor director of an incorporated legal practice that is an externally-administered body corporate under the Corporations Act 2001 of the Commonwealth do not apply to the extent that they are inconsistent with the provisions of Chapter 5 of the Corporations Act 2001 of the Commonwealth or of Parts 8 and 8A of this Act.(6) This section does not apply to a community legal centre that complies with section 48H.
47F Prohibition of repeat offender from managing a corporation that is an incorporated legal practice
(1) The Supreme Court may, on the application of the Law Society Council, disqualify a person from managing a corporation that is an incorporated legal practice for the period the Court considers appropriate if the Court is satisfied that:(a) the person is a person who could be disqualified under section 206E of the Corporations Act 2001 of the Commonwealth from managing corporations, and(b) the disqualification is justified.(2) The Supreme Court may, on the application of the disqualified person, revoke a disqualification imposed under this section.(3) A corporation is not an incorporated legal practice (within the meaning of this Division) that is authorised to provide legal services if a disqualified person is a director or other officer (within the meaning of the Corporations Act 2001 of the Commonwealth) of the corporation.Note. See sections 48D and 48E for offences relating to the provision of legal services by unauthorised corporations.(4) A disqualification imposed under this section has effect for the purposes only of this Act and does not affect the Corporations Act 2001 of the Commonwealth.
47G Solicitors rules—application to incorporated legal practices
(1) The solicitors rules apply to solicitors who are officers or employees of an incorporated legal practice.(2) However, the solicitors rules cannot prohibit or regulate any of the following matters:(a) the corporations eligible to be incorporated legal practices,(b) the other services or other business that an incorporated legal practice may provide or conduct,(c) the conduct of officers or employees of an incorporated legal practice (other than solicitors in connection with the provision of its legal services).(3) In this section:solicitors rules includes joint rules.
47H Solicitors’ professional obligations and privileges
(1) A solicitor who provides legal services in the capacity of an officer or employee of an incorporated legal practice is not excused from compliance with the professional obligations of a solicitor and does not lose the professional privileges of a solicitor.(2) For the purpose only of the application of those obligations and privileges, the persons provided with legal services by an incorporated legal practice are taken to be the clients of the solicitors engaged in providing those services.(3) To avoid doubt, the law relating to client legal privilege (or other legal professional privilege) is not excluded or otherwise affected because the solicitor is acting in the capacity of an officer or employee of an incorporated legal practice.(4) The directors of an incorporated legal practice do not breach their duties as directors merely because legal services are provided pro bono by the solicitors engaged by the practice.(5) In this section:professional obligations includes:
(a) duties to the court, and(b) obligations in connection with conflicts of interest, and(c) duties of disclosure to clients (including with respect to matters relating to costs under Part 11), and(d) ethical rules required to be observed by a solicitor.
47I Advertising and disclosures with respect to legal services
(1) Any restriction imposed by or under this Act in connection with advertising by solicitors applies to advertising by an incorporated legal practice with respect to the provision of its legal services.Note. See sections 38J and 38K with respect to advertising by solicitors.(2) Any such advertisement is, for the purposes of disciplinary proceedings under this Act, taken to have been authorised by the solicitor directors of the practice.(3) The regulations may make provision for or with respect to disclosures by an incorporated legal practice in connection with the provision of legal services, including the kind of services provided by the practice and whether those services are or are not covered by the insurance or other provisions of this Act.
47J Application of Part 11 (Legal fees and other costs)
(1) Part 11 applies to legal services provided by an incorporated legal practice as if a reference in that Part to a solicitor included a reference to the incorporated legal practice and to any external administrator.(2) The regulations may make other modifications to the application of Part 11 for the purposes of this section.
47K Provisions relating to indemnity insurance
(1) An incorporated legal practice is required to comply with the obligations of an insurable solicitor under Division 2 with respect to insurance policies and payments to or on account of the Solicitors’ Mutual Indemnity Fund. The Law Society Council may suspend the practising certificate of a solicitor director of the practice if any such obligation is not complied with.(2) The insurance premiums or other amounts payable under Division 2 by an incorporated legal practice may be determined by reference to the total number of solicitors employed by the practice and other relevant matters.(3) The amounts payable from the Solicitors’ Mutual Indemnity Fund include amounts for such liability of an incorporated legal practice, and of the solicitors who are officers and employees of the practice, in connection with the provision of legal services as the Law Society Council determines with the approval of the Attorney General.(4) The Law Society Council may exempt an incorporated legal practice from this section on such grounds as the Council considers sufficient.
47L Application of Part 6 (Trust accounts)
(1) Part 6 applies (subject to this section) to incorporated legal practices in the same way as it applies to solicitors.(2) Accordingly:(a) the obligations and rights of a solicitor under Part 6 extend to an incorporated legal practice, but only in connection with legal services provided by the practice, and(b) money received by a solicitor on behalf of another person in the course of practising as a solicitor (within the meaning of Part 6) includes money received by any officer or employee of the incorporated legal practice on behalf of another person in the course of providing legal services.(3) The Law Society Council may exercise its powers under section 38 (Refusal, suspension or cancellation of practising certificate as solicitor and barrister—trust accounts etc) with respect to a solicitor director of an incorporated legal practice for any relevant failure of the practice or any officer or employee of the practice.(4) The regulations may make any other modifications to the application of Part 6 for the purposes of this section.
47M Application of Part 7 (Solicitors’ Fidelity Fund)
(1) Part 7 applies (subject to this section) to incorporated legal practices in the same way it applies to solicitors.(2) Accordingly, an incorporated legal practice is required to make payments to or on account of the Solicitors’ Fidelity Fund under Part 7 as if it were a solicitor applying for or holding a practising certificate. The Law Society Council may suspend the practising certificate of a solicitor director of the practice if any such payment is not made by the due date.(3) The amounts payable to that Fund by an incorporated legal practice may be determined by reference to the total number of solicitors employed by the practice and other relevant matters.(4) For the purposes of the application of Part 7 to incorporated legal practices:(a) a failure to account by a solicitor extends to a failure to account by an incorporated legal practice, but only if it occurs in connection with the provision of legal services, and(b) a dishonest default by a solicitor extends to a dishonest default by an incorporated legal practice, but only if it occurs in connection with the provision of legal services, and(c) a reference to a firm of solicitors includes a reference to an incorporated legal practice.Note. See for example section 89 with respect to the ceiling on payments from the Fund for failures to account by the same firm.(5) The regulations may make any other modifications to the application of Part 7 for the purposes of this section.
47N Extension of vicarious liability of incorporated practice relating to failures to account and dishonesty
(1) This section applies to any of the following proceedings (being proceedings based on the vicarious liability of an incorporated legal practice):(a) civil proceedings relating to a failure to account for, pay or deliver money or other valuable property received by, or entrusted to, the practice (or to any solicitor or other employee of the practice) in the course of the provision of legal services by the practice, being money or other valuable property under the direct or indirect control of the practice,(b) civil proceedings for any other debt owed, or damages payable, to a client as a result of a dishonest act or omission by a solicitor who is an employee of the practice in connection with the provision of legal services to the client.(2) If the incorporated legal practice would not (but for this section) be vicariously liable for any acts or omissions of its officers and employees in any such proceedings, but would be liable for those acts or omissions if the practice and those officers and employees were carrying on business in partnership, the practice is taken to be vicariously liable for those acts or omissions.
47O Investigation of incorporated legal practices
(1) Section 55 and section 152 apply (subject to this section) to corporations that are or were incorporated legal practices in the same way that they apply to persons who are or were solicitors or legal practitioners.(2) An investigation under either of those sections extends to all of the affairs of an incorporated legal practice and to all of its documents, so long as the investigation relates to the provision of legal services.(3) The regulations may:(a) extend the powers of investigation under section 55 or section 152 in relation to incorporated legal practices by reference to any powers of investigation conferred on the Australian Securities and Investment Commission under the Corporations Act 2001 of the Commonwealth or under any Commonwealth Act with respect to the affairs of a corporation, and(b) require a copy of any document that is to be furnished by an incorporated legal practice to the Australian Securities and Investment Commission under the Corporations Act 2001 of the Commonwealth to be furnished also to the Law Society Council or the Commissioner, or both, and(c) make other modifications to the application of section 55 or section 152 for the purposes of this section.
47P Review of incorporated legal practices
(1) The Law Society Council or the Commissioner may conduct a review of the compliance of an incorporated legal practice (and of its officers and employees) with the requirements of or made under this Act in connection with the provision of legal services by the practice.(2) The investigative powers referred to in section 47O may be exercised for the purposes of any such review.(3) Any such review may be conducted whether or not a complaint has been made with respect to the provision of legal services by the incorporated legal practice.(4) A report of any such review:(a) is to be provided to the incorporated legal practice concerned, and(b) may be provided to the Commissioner by the Law Society Council or to that Council by the Commissioner (as the case may be), and(c) may be taken into account in connection with any disciplinary proceedings under Part 10 or in connection with the issue, suspension or cancellation of practising certificates by the Law Society Council.
47Q Disclosure of information to ASIC
(1) The Law Society Council (or a person referred to in section 56 (1) or (3)) or the Commissioner may disclose to the Australian Securities and Investment Commission information concerning an incorporated legal practice or former incorporated legal practice that has been acquired in connection with the exercise of functions under this Act.(2) Any such information may be provided despite any law relating to secrecy or confidentiality (including any provisions of section 56).
47R External administration proceedings under Corporations Law
(1) This section applies to proceedings in any court under Chapter 5 (External administration) of the Corporations Law:(a) relating to a corporation that is an externally-administered body corporate under that Law, or(b) relating to a corporation becoming such a body corporate,being a corporation that is or was an incorporated legal practice.(2) The Law Society Council and the Commissioner are entitled to be a party to any such proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.(3) The court may, when exercising its jurisdiction in any such proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice (even if those interests conflict with the interests of the creditors or shareholders of the practice). This subsection does not authorise the court to make any decision that is contrary to a specific provision of Chapter 5 of the Corporations Law.(4) Parts 8 (Receivers) and 8A (Managers) do not apply to corporations that are or were incorporated legal practices.
47S This Act prevails over Corporations Law and certain other instruments
(1) The provisions of this Act or the regulations that apply to or in respect of an incorporated legal practice prevail, to the extent of any inconsistency, over the applicable corporate law.(2) For the purposes of this section, the applicable corporate law for an incorporated legal practice comprises the following:(a) the provisions of or made under the Corporations Law,(b) if the practice is not incorporated under the Corporations Law—the provisions of or made under the Act or law under which the practice is incorporated,(c) the constitution or other constituent documents of the practice.(3) The regulations may declare any matter relating to an incorporated legal practice that is prohibited, required, authorised or permitted by or under this Act or the regulations to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to:(a) the whole of the Corporations legislation, or(b) a specified provision of the Corporations legislation, or(c) the Corporations legislation other than a specified provision, or(d) the Corporations legislation other than to a specified extent.(4) In this section:matter includes act, omission, body, person or thing.
47T Regulations relating to incorporated legal practices
(1) The regulations may make provision for or with respect to legal services provided by incorporated legal practices.(2) A regulation prevails over any inconsistent provision of the solicitors rules or joint rules.(3) A regulation may provide that a breach of the regulations constitutes or may constitute professional misconduct or unsatisfactory professional conduct by a solicitor director or by the solicitor responsible for the breach, or both.
(1) The Crown Solicitor may, in his or her official capacity, act as solicitor and barrister for:(a) the State of New South Wales, or(b) a person suing or being sued on behalf of the State of New South Wales, or(c) a Minister of the Crown in his or her official capacity as such a Minister, or(d) a body established by an Act or other law of New South Wales, or(e) an officer or employee of the Public Service or any other service of the State of New South Wales or of a body established by an Act or other law of New South Wales, or(f) a person holding office under an Act or other law of New South Wales or because of the person’s appointment to that office by the Governor or a Minister of the Crown, or(g) any other person or body, or any other class of persons or bodies, approved by the Attorney General.(2) The Crown Solicitor may act under subsection (1):(a) with or without charge, or(b) for a party in a matter that is not the subject of litigation, even if also acting under that subsection for another party in the matter.(3) The Crown Solicitor may, in his or her official capacity, act as agent for:(a) another State or a Territory, or(b) at the request of another State or a Territory—an instrumentality of, or a person in the service of, that State or Territory.(4) If, under subsection (1) (g), the Crown Solicitor is given approval to act as solicitor and barrister for a Minister of the Crown (otherwise than in his or her official capacity as such a Minister), the following must be included in the annual report under the Annual Reports (Departments) Act 1985 of the Crown Solicitor’s activities:(a) the name of the Minister,(b) the matter in which the Crown Solicitor acted (but without disclosure of any confidential client information),(c) the costs incurred by the Crown Solicitor in acting for the Minister and the amount charged to the Minister for so acting.(5) In this section, a reference to a State or a Territory includes a reference to the Crown in right of the State or Territory and to the Government of the State or Territory.