Legal Profession Act 1987 No 109
Repealed version for 15 August 2005 to 30 September 2005 (accessed 19 December 2014 at 18:14)
Part 4

Part 4 Bar Association and Law Society

Division 1 Bar Association

49   Report on committees

(1)  The Bar Council shall, at least once in each year, and at such times as the Attorney General directs, report to the Attorney General on the committees of the Bar Association and the Bar Council.
(2)  The report shall:
(a)  list the committees that existed at any time during the last preceding 12 months or the period since the last report (whichever is the shorter period),
(b)  specify the functions and membership of each committee, and
(c)  include such other information relating to the committees as the Attorney General directs.
(3)  The report need not refer to any committee of a kind that the Attorney General for the time being exempts from the operation of this section.

50   Lay representation on committees

(1)  The Attorney General may, after consultation with the Bar Council, direct, by written order, that any specified committees or kinds of committees of the Bar Association or Bar Council must include in their membership a specified or determinable number of lay members.
(2)  A direction has no effect to the extent that it would require the membership of a committee to have more than one-quarter of its membership composed of lay members.
(3)  A lay member has such voting and other rights and such obligations as are provided in the constitution of the committee or as are provided by the regulations, and the regulations prevail to the extent of any inconsistency.
(4)  For the purposes of this section, a lay member is a person who is not a barrister or solicitor.

51   Functions of Bar Council

(1)  In addition to its other functions, the Bar Council may:
(a)  take such steps as in the opinion of the Bar Council may be necessary or proper for or with respect to the conduct of a barrister or conduct that is, or may be, a contravention of a provision of Part 3A, and
(b)  appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to barristers.
(2)  The Bar Council may delegate to any of its committees or to an officer of the Bar Council the exercise of any of the Bar Council’s functions under this Act, other than this power of delegation.

Division 2 Law Society

52   Report on committees

(1)  The Law Society Council shall, at least once in each year, and at such times as the Attorney General directs, report to the Attorney General on the committees of the Law Society and the Law Society Council.
(2)  The report shall:
(a)  list the committees that existed at any time during the last preceding 12 months or the period since the last report (whichever is the shorter period),
(b)  specify the functions and membership of each committee, and
(c)  include such other information relating to the committees as the Attorney General directs.
(3)  The report need not refer to any committee of a kind that the Attorney General for the time being exempts from the operation of this section.

53   Lay representation on committees

(1)  The Attorney General may, after consultation with the Law Society Council, direct, by written order, that any specified committees or kinds of committees of the Law Society or Law Society Council must include in their membership a specified or determinable number of lay members.
(2)  A direction has no effect to the extent that it would require the membership of a committee to have more than one-quarter of its membership composed of lay members.
(3)  A lay member has such voting and other rights and such obligations as are provided in the constitution of the committee or as are provided by the regulations, and the regulations prevail to the extent of any inconsistency.
(4)  For the purposes of this section, a lay member is a person who is not a barrister or solicitor.

54   Functions of Law Society

(1)  In addition to its other functions, the Law Society Council may:
(a)  take such steps as in the opinion of the Law Society Council may be necessary or proper for or with respect to the investigation in accordance with this Act of any question:
(i)  as to the conduct of a solicitor,
(ii)  as to the conduct of a person who is or was a clerk to a solicitor or who is or was employed or paid by a solicitor in connection with the solicitor’s practice as a solicitor, or
(iii)  as to conduct that is, or may be, a contravention of a provision of Part 3A, or
(iv)  as to conduct that is, or may be, a contravention of a provision of Part 3C,
(b)  appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to solicitors or locally registered foreign lawyers registered by the Law Society Council,
(c)  institute prosecutions and other proceedings for the breach of any of the provisions of this Act or the regulations or rules made under this Act,
(d)  appear by solicitor or counsel before, and be heard by, any court in any matter affecting the Law Society or its members or in which the Law Society is concerned or interested, and
(e)  recover as a debt due to the Law Society any money payable to the Law Society under this Act or the regulations.
(1AA)  The Law Society Council also has the function of disseminating information to increase public awareness of the requirements of this Act and the Corporations Act 2001 of the Commonwealth relating to solicitors who negotiate the making of or act in respect of regulated mortgages (within the meaning of Part 9) or are involved in managed investment schemes (within the meaning of the Corporations Act 2001 of the Commonwealth).
(1A)  The Law Society Council may delegate to any of its committees or to an officer of the Law Society Council the exercise of any of the Law Society Council’s functions under this Act, other than this power of delegation.
(2)  In this section:

solicitor includes:

(a)  a firm of solicitors,
(b)  a former solicitor, and
(c)  a deceased solicitor and a deceased former solicitor, and
(d)  in relation to the provision of legal services, an incorporated legal practice or a former or dissolved incorporated legal practice.

(3)  (Repealed)

55   Investigation of affairs of solicitor or locally registered foreign lawyer

(1)  The Law Society may, by instrument signed by the President or 2 members of the Law Society Council, appoint:
(a)  one or more trust account inspectors to inspect, either generally or in a particular case, accounts kept under Part 6 by or on behalf of solicitors or to investigate (subject to Part 3B) the affairs, or specified affairs, of a solicitor or solicitors, and
(b)  an investigator to investigate the affairs, or specified affairs, of a solicitor or solicitors,
and any such trust account inspector or investigator shall provide the Law Society Council with a report on each inspection or investigation carried out.
(1A)  The Law Society may, by instrument signed by the President or 2 members of the Law Society Council, appoint:
(a)  one or more trust account inspectors to inspect, either generally or in a particular case, accounts (if any) required to be kept by regulations made for the purposes of section 48ZAB by a locally registered foreign lawyer registered by the Law Society Council, and
(b)  an investigator to investigate the affairs, or specified affairs, of a locally registered foreign lawyer or registered foreign lawyer.
(2)  A trust account inspector or an investigator may, with the approval of the Law Society Council, appoint an assistant.
(3)  A solicitor or locally registered foreign lawyer under inspection or investigation and any other person who has possession or control of any records of the solicitor or foreign lawyer or relating to the affairs of the solicitor or foreign lawyer shall, if required to do so by a trust account inspector or an investigator who produces evidence of his or her appointment, provide the trust account inspector or investigator, or his or her assistant, with:
(a)  access to such of the records as relate to the accounts being inspected or the affairs being investigated,
(b)  information that the solicitor or foreign lawyer or other person is able to give in relation to those records, accounts and affairs, and
(c)  authorities or orders on bankers and others that relate to those records, accounts or affairs and that the solicitor or foreign lawyer or other person is able to provide.

Maximum penalty: 10 penalty units.

(4)  If a record:
(a)  is not in writing,
(b)  is not written in the English language, or
(c)  is not decipherable on sight,
a requirement to provide access to the record is not complied with unless access is provided to a statement, written in the English language and decipherable on sight, that contains all the information in the record.
(5)  A person shall not hinder, obstruct or delay a trust account inspector or an investigator in the exercise of his or her functions.

Maximum penalty: 10 penalty units.

(6)  A solicitor or locally registered foreign lawyer who contravenes subsection (3) or (5) is, whether or not convicted for the contravention, guilty of professional misconduct.
(7)  A trust account inspector or an investigator shall:
(a)  send a copy of his or her report to the solicitor or locally registered foreign lawyer by post to the address of the solicitor or foreign lawyer last known to the Law Society, and
(b)  provide the Attorney General and the Commissioner with a copy of the report if it indicates that there are reasonable grounds for suspecting professional misconduct, improper conduct or irregularity in relation to affairs of the solicitor or foreign lawyer.
(8)  The amount of the costs of an inspection or investigation, as certified by the Law Society Council, is a debt due to the Law Society by the solicitor or locally registered foreign lawyer under inspection or investigation if:
(a)  in the case of an inspection of accounts kept under Part 6 by or on behalf of the solicitor or foreign lawyer—a trust account inspector states in his or her report that there is evidence that a breach of this Act or the regulations has been committed and the Law Society Council is of the opinion that the breach was wilful or of a substantial nature, or
(b)  in the case of an investigation of the affairs of the solicitor or foreign lawyer—a trust account inspector or an investigator states in his or her report that there are reasonable grounds for suspecting unsatisfactory professional conduct or professional misconduct in relation to the affairs investigated or a breach of this Act or the regulations and the Law Society Council is of the opinion that the conduct or breach was wilful or of a substantial nature,
unless payment is waived by the Law Society Council.
(8A)  If the inspection or investigation concerned relates to the accounts or affairs of a firm of solicitors, the Law Society Council may determine the proportion or amount (if any) of the debt due to the Law Society payable by each solicitor involved.
(8B)  If the inspection or investigation concerned relates to the accounts or affairs of a firm in which a locally registered foreign lawyer is practising in partnership as referred to in section 48ZT, the Law Society Council may determine the proportion or amount (if any) of the debt due to the Law Society payable by each partner involved.
(9)  A person who complies with a requirement made by a trust account inspector or an investigator under subsection (3) shall not be subject, merely because of that compliance, to any liability, claim or demand.
(10)  A person is not eligible to be appointed as a trust account inspector or an investigator under this section unless the person is:
(a)  a solicitor,
(b)  an accountant, or
(c)  an officer or employee of the Law Society.
(11)  In this section:

affairs, in relation to a solicitor or locally registered foreign lawyer, includes:

(a)  accounts kept under Part 3C or 6 or otherwise by or on behalf of the solicitor or foreign lawyer or an associate of the solicitor or foreign lawyer,
(b)  any other records kept by or on behalf of the solicitor or foreign lawyer or an associate of the solicitor or foreign lawyer,
(c)  any transactions to which the solicitor or foreign lawyer was a party or in which the solicitor or foreign lawyer acted for a party, and
(d)  any related matter that an investigator considers should be further investigated.

associate, in relation to a solicitor or locally registered foreign lawyer, has the same meaning as it has in Part 6.

locally registered foreign lawyer, includes:

(a)  a firm of locally registered foreign lawyers,
(b)  a former locally registered foreign lawyer,
(c)  in relation to anything done or omitted by a locally registered foreign lawyer—a deceased locally registered foreign lawyer,
(d)  except in relation to anything done or omitted by a locally registered foreign lawyer—the personal representative of a deceased locally registered foreign lawyer.

record includes any book, account, document, paper or other source of information compiled, recorded or stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means.

solicitor, except as a trust account inspector or an investigator, includes:

(a)  a firm of solicitors,
(b)  a former solicitor,
(c)  in relation to anything done or omitted to be done by a solicitor—a deceased solicitor or deceased former solicitor, and
(d)  except in relation to anything done or omitted to be done by a solicitor—the personal representative of a deceased solicitor or deceased former solicitor.

56   Secrecy

(1)  A trust account inspector or an investigator shall not, unless making a requirement under section 55 (3), and his or her assistant shall not, make an unauthorised disclosure of:
(a)  the appointment of the trust account inspector, investigator or assistant,
(b)  any matter that comes to his or her notice in the course of the inspection or investigation, or
(c)  anything in the trust account inspector’s or investigator’s report.

Maximum penalty: 10 penalty units.

(2)  Subsection (1) is not contravened if:
(a)  a trust account inspector or an investigator discloses anything to his or her assistant, or
(b)  a trust account inspector’s or an investigator’s assistant discloses anything to the trust account inspector or the investigator.
(3)  A member of the Law Society Council or a solicitor, officer or agent of the Law Society shall not make an unauthorised disclosure of:
(a)  the appointment of a trust account inspector or an investigator or a trust account inspector’s or an investigator’s assistant, or
(b)  anything in a trust account inspector’s or an investigator’s report.

Maximum penalty: 10 penalty units.

(4)  Subsection (3) is not contravened if:
(a)  a trust account inspector or an investigator states in his or her report that there are reasonable grounds for suspecting unsatisfactory professional conduct or professional misconduct, improper conduct or irregularity in relation to the affairs inspected or investigated, and
(b)  a member of the Law Society Council, or a solicitor, officer or agent of the Law Society, discloses information in the report to a person to whom the Law Society Council decides that the information should be disclosed.
(5)  For the purposes of subsections (1) and (3) but without affecting subsections (2) and (4), a disclosure is an unauthorised disclosure if it is made to a person other than:
(a)  the Attorney General,
(b)  a member of the Law Society Council,
(c)  a solicitor, agent or officer of the Law Society,
(d)  the Supreme Court,
(e)  the Commissioner or the Tribunal,
(f)  a member of the police force, or
(g)  a person to whom a copy of the report is required by this Act to be sent.
(6)  Subsections (1) and (3) do not prevent a person referred to in those subsections from disclosing to the Australian Securities and Investment Commission particulars of the conduct of a solicitor in respect of any regulated mortgage (within the meaning of Part 9).

Division 3 Annual reports

57   Council to submit annual report

(1)  As soon as practicable after 30 June, but on or before 31 December, in each year, the Bar Council and the Law Society Council shall each prepare and forward to the Attorney General a report of its work and activities under this Act for the 12 months ending on 30 June in that year.
(2)  The Attorney General shall lay the report, or cause it to be laid, before both Houses of Parliament as soon as practicable after receiving the report.
(3)  If the regulations so provide, a report shall include prescribed information.
(4)  This section does not affect any other provision of this Act requiring a report to be made to the Attorney General.

Division 4 Rules

57A   Rules of Bar Council

(1)  The Bar Council may make rules for or with respect to practice as a barrister.
(2)  The power to make rules is not limited to the matters for which this Act specifically authorises the making of barristers rules.
(3)  The Bar Council may make rules for or with respect to practice as a locally registered foreign lawyer.
(4)  The power to make rules is not limited to the matters for which this Act specifically authorises the making of foreign lawyers rules.

57B   Rules of Law Society Council

(1)  The Law Society Council may make rules for or with respect to practice as a solicitor.
(2)  The power to make rules is not limited to the matters for which this Act specifically authorises the making of solicitors rules.
(3)  The Law Society Council may make rules for or with respect to practice as a locally registered foreign lawyer.
(4)  The power to make rules is not limited to the matters for which this Act specifically authorises the making of foreign lawyers rules.

57C   Joint rules other than joint rules on foreign lawyers

(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.
(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 barristers rules or solicitors rules (whether made before or after the joint rules).
(4)  If joint rules are made, references in this Act to barristers rules or solicitors rules extend to any such joint rules.
(5)  This section does not apply to joint rules made under section 57CA.

57CA   Joint rules on foreign legal practitioners

The Bar Council and Law Society Council may jointly make rules for or with respect to practice as a locally registered foreign lawyer.

57CB   Commissioner and Advisory Council to be notified of proposed rules

(1)  Each Council must notify the Commissioner and the Advisory Council of its intention to make a barristers rule, solicitors rule or joint rule.
(2)  The notification must be in writing and must give details of the proposal.
(3)  A Council that gives a notification under this section 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 or the Advisory Council.
(4)  A Council may make a rule without waiting for the 28-day period referred to in subsection (3) to expire if the Council considers that the urgency of the case warrants immediate action. However, in those circumstances the Council must indicate in its notification to the Commissioner and the Advisory Council that the case is urgent and that it intends to act immediately.

57CC   Councils to give public notice of proposed rules

(1)  Before a barristers rule, solicitors rule or joint rule is made, the Council or Councils proposing to make the rule are required to ensure that a notice is published in the Gazette and in a daily newspaper circulating throughout New South Wales:
(a)  explaining the object of the proposed rule, and
(b)  advising where a copy of the proposed rule may be obtained or inspected, and
(c)  inviting comments and submissions within a specified period, being a period of not less than 21 days from the date of 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 the making of comments and submissions and must ensure that any comments and submissions received within that period are appropriately considered.
(4)  The Council or Councils may make the rule without waiting for the end of the period specified in the notice for the making of comments and submissions if the Council or Councils consider that the urgency of the case warrants immediate action. However, in those circumstances the Council or Councils must indicate in the notice that the case is urgent and that the Council or Councils intend to act immediately.
(5)  Section 75 of the Interpretation Act 1987 does not apply to notices required to be published under this section.

57D   Rules binding

(1)  Barristers rules are binding on barristers, solicitors rules are binding on solicitors and joint rules are binding on both barristers and solicitors.
(2)  Any such rules are binding on legal practitioners acting as barristers or solicitors without a practising certificate as if those legal practitioners were barristers or solicitors.
(3)  Any such rules are binding on barristers or solicitors even though they are not members of the Bar Association or the Law Society.
(4)  Failure to comply with any such rules does not of itself amount to a breach of this Act. However, failure to comply is capable of being professional misconduct or unsatisfactory professional conduct.

57E   Inconsistent rules

Barristers rules, solicitors rules and joint rules do not have effect to the extent that they are inconsistent with this Act or the regulations.

57F   Existing rules

(1)  The Bar Council may, by a notice published in the Gazette, designate rules of the Bar Association (as in force at the commencement of this section) as barristers rules. Those rules are, to the extent that they could be made under this Act, taken to be barristers rules made under this Act and this Act (including section 57E) applies to those rules accordingly.
(2)  The Law Society Council may, by a notice published in the Gazette, designate rules, practice guidelines or rulings of the Council (as in force at the commencement of this section) as solicitors rules. Those rules are, to the extent that they could be made under this Act, taken to be solicitors rules made under this Act and this Act (including section 57E) applies to those rules accordingly.
(3)  Any such barristers or solicitors rules may be amended or revoked in the same way as any other barristers or solicitors rules made under this Act.
(4)  Unless they are sooner revoked, any such barristers or solicitors rules expire on the second anniversary of the commencement of this section.

57G   Initial review of rules

(1)  Within 12 months after the commencement of this section, each Council is required to review its barristers or solicitors rules for the purpose of determining whether it considers any rule imposes restrictive or anti-competitive practices which are not in the public interest or is not otherwise in the public interest.
(2)  Each Council must report to the Attorney General on completion of the review.
(3)  The Attorney General must make each report public within 28 days after it is received by the Attorney General.

57GA   Review of rules requested by Commissioner

(1)  The Commissioner may, at any time, request a Council to review any barristers rule, solicitors rule or 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).

57H   Review of rules by Advisory Council

(1)  The Advisory Council may, from time to time, review the barristers rules, solicitors rules and joint rules. The Advisory Council is required to furnish reports to the Attorney General on any such review of those rules.
(2)  The Advisory Council is required to conduct such a review and furnish a report if requested to do so by the Attorney General.
(3)  The Attorney General must make each report public within 28 days after it is received by the Attorney General.
(4)  Without limiting the matters about which the Advisory Council may report, the Advisory Council must report on whether it considers any rule imposes restrictive or anti-competitive practices which are not in the public interest or is not otherwise in the public interest.

57I   Rules may be declared inoperative

(1)  The Attorney General may, by order published in the Gazette, declare any barristers or solicitors rule or joint rule, or part of any such rule, inoperative, but only if:
(a)  the Commissioner has reported to the Attorney General that the rule is not in the public interest, or
(b)  the Advisory Council has reported to the Attorney General 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.

57J   Publication of rules

Barristers or solicitors rules or joint rules are to be published in the Gazette and in appropriate professional publications.

57K   Commencement of rules

(1)  A barristers or solicitors rule or joint 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 1 month after the date of that publication.

57L   Other provisions as to rules

Sections 42–45 of the Interpretation Act 1987 apply to barristers or solicitors rules or joint 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 judicial notice and presumptions as to validity for rules.

Division 5 General

57M   Membership of Bar Association

(1)  The Bar Council may charge a fee for membership of the Bar Association.
(2)  Membership of the Bar Association is not compulsory for barristers.

57MA   Membership of Law Society

(1)  The Law Society Council may charge a fee for membership of the Law Society.
(2)  Membership of the Law Society is not compulsory for solicitors.

57N   Continuing legal education

Each Council may arrange for the establishment and administration of courses of continuing legal education.
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