Legal Practitioners Act 1981 (SA)

South Australia Legal Practitioners Act 1981 An Act to regulate the practice of law; and for other purposes.

Contents Part 1—Preliminary 1 Short title 5 Interpretation 5A Terms relating to associates and principals of law practices 5B Home jurisdiction 6 Fusion of legal profession Part 2—The Law Society of South Australia Division 1—Establishment and administration of the Society 7 Incorporation and powers of Society 8 Officers and employees of Society 9 Council of Society 10 Validation of acts of Council 11 Management of Society's affairs 12 Minutes of proceedings 13 Society's right of audience 14 Rules of Society Division 2—The Litigation Assistance Fund 14A The Litigation Assistance Fund Division 3—Reporting obligations 14AB Certain matters to be reported by Society Part 2A—The Legal Practitioners Education and Admission Council and the Board of Examiners Division 1—The Legal Practitioners Education and Admission Council 14B Establishment of LPEAC 14C Functions of LPEAC 14D Conditions of membership 14E Procedures of LPEAC 14F Validity of acts and immunity of members 14G Advisory Committees 14H Annual report Division 2—The Board of Examiners 14I Establishment of Board of Examiners 14J Functions of Board of Examiners 14K Procedures of Board of Examiners 14L Validity of acts and immunity of members Part 3—The practice of the law Division 1—Admission and enrolment of legal practitioners 15 Entitlement to admission Division 2—Practising certificates 16 Issue of practising certificate 17 Restriction on issue of practising certificates in certain cases 17A Conditions as to training etc 18 Term and renewal of practising certificates 19 Insurance requirements 20 Register of practising certificates 20AA Endorsement of conditions on practising certificates Division 2A—Amendment, suspension or cancellation of practising certificates 20AB Application of Division 20AC Grounds for amending, suspending or cancelling practising certificate 20AD Amending, suspending or cancelling practising certificates 20AE Operation of amendment, suspension or cancellation of practising certificate 20AF Revocation of amendment, suspension or cancellation of practising certificate Division 2B—Special powers in relation to practising certificates—show cause events 20AG Applicant for practising certificate—show cause event 20AH Holder of practising certificate—show cause event 20AI Refusal, amendment, suspension or cancellation of practising certificate—failure to show cause Division 2C—Further provisions relating to practising certificates 20AJ Immediate suspension of practising certificate 20AK Surrender and cancellation of practising certificate Division 3—Entitlement to practise etc 21 Entitlement to practise 22 Practising while under suspension etc 23 Unlawful representation 23AA Employment of disqualified person Division 3A—Provisions relating to interstate legal practice 23A Interstate legal practitioners to be officers of Court 23B Limitations or conditions on practice under laws of participating States 23C Additional conditions on practice of interstate legal practitioners 23D Notification of establishment of office required Division 3B—Provisions relating to community legal centres 23E Community legal centres 23F Obligations and privileges of practitioners who are officers or employees 23G Undue influence 23H Application of legal profession rules 23I Costs Division 4—Provisions regulating legal practice by corporations 24 Application of Schedule 1 Division 4A—Provisions regulating the practise of foreign law 24A Application of Schedule 1A Division 5—Provisions regulating trust money and trust accounts 25 Application of Schedule 2 Division 6—Delivery up of legal papers 39 Delivery up of legal papers Division 7—Authority of a legal practitioner to act on behalf of a person of unsound mind 40 Authority of legal practitioner or foreign lawyer to act on behalf of person of unsound mind Division 8—Costs disclosure and adjudication 41 Application of Schedule 3 Division 9—Appointment of supervisors and managers 43A Interpretation 44 Control over trust accounts of legal practitioners 45 Appointment of manager 46 Appeal against appointment of supervisor or manager 47 Application for directions 48 Remuneration etc of persons appointed to exercise powers conferred by this Division Division 10—Restriction on practice if corporation wound up 49 Supreme Court may grant authority permitting director to practise Division 11—Right of personal representative etc to carry on legal practice 50 Supreme Court may authorise personal representative etc to carry on legal practice Division 12—Right of audience 51 Right of audience Division 13—Professional indemnity insurance scheme 52 Professional indemnity insurance scheme 52AA Professional indemnity insurance required by interstate practitioners etc 52AAB Professional indemnity insurance where no office established in this State Division 14—Miscellaneous 52A Rules of Supreme Court may assign functions or powers Part 4—The combined trust account and other related accounts Division 1—The combined trust account 52B Application to incorporated legal practices 53 Duty to deposit trust money in combined trust account 55 Immunity from liability Division 2—The statutory interest account 56 Statutory interest account Division 3—Legal Practitioners Fidelity Fund 57 Fidelity Fund Division 4—Miscellaneous 57A Payment of interest accruing on trust accounts 58 Accounts and audit 59 Power to borrow for purposes of this Part Part 5—Claims against Fidelity Fund 60 Claims 60A Personal representative may make claim 61 Limitation of claims 62 Power to require evidence 63 Establishment of validity of claims 64 Satisfaction of claims 64A Advance payments 65 Rights of the Society 66 Claims by legal practitioners and incorporated legal practices 67 Insurance in respect of claims against Fidelity Fund 67A Annual report Part 6—Investigations, inquiries and disciplinary proceedings Division 1—Preliminary 67B Application of Part 68 Unsatisfactory professional conduct 69 Professional misconduct 70 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Division 2—Legal Profession Conduct Commissioner Subdivision 1—Legal Profession Conduct Commissioner 71 Legal Profession Conduct Commissioner 72 Functions 73 Terms and conditions of appointment 74 Acting Commissioner 75 Honesty and accountability 76 Staff of Commissioner 77 Delegation 77A Exchange of information between Commissioner and Council Subdivision 2—Investigation of unsatisfactory professional conduct and professional misconduct 77B Investigations by Commissioner 77C Closure of whole or part of complaint 77D Notification of complaint to practitioner 77E Submissions by legal practitioner 77F Exceptions to requirement for notification of complaint Subdivision 3—Action following investigation 77G Interpretation 77H Report on investigation 77I Commissioner to notify persons of suspected loss 77J Powers of Commissioner to deal with certain unsatisfactory professional conduct or professional misconduct 77K Appeal against determination of Commissioner 77L Commissioner must lay charge in certain circumstances 77M Commissioner to provide reasons Subdivision 4—Complaints of overcharging 77N Investigation of allegation of overcharging Subdivision 5—Conciliation 77O Commissioner may conciliate complaints Division 3—The Legal Practitioners Disciplinary Tribunal 78 Establishment of Tribunal 79 Conditions of membership 80 Constitution and proceedings of Tribunal 81 Validity of acts of the Tribunal and immunity of its members Division 4—Proceedings before the Tribunal 82 Inquiries 83 Notice of inquiry 84 Powers of Tribunal 84A Proceedings to be generally in public 84B Tribunal's proceedings to be privileged 84C Stay of proceedings 85 Costs 86 Appeal 87 Operation of order may be suspended 88 Rules of the Tribunal Division 5—Disciplinary proceedings before the Supreme Court 88A Supreme Court's inherent jurisdiction 89 Proceedings before Supreme Court 89A Court may order interim suspension of legal practitioner or impose interim conditions Division 6—Publicising disciplinary action 89B Definitions 89C Register of Disciplinary Action 89D Other means of publicising disciplinary action 89E Quashing of disciplinary action 89F Liability for publicising disciplinary action 90 General Division 6A—Provisions relating to interstate legal practice 90AA Conduct of local legal practitioners outside State 90AB Conduct not to be the subject of separate proceedings 90AC Referral or request for investigation of matter to regulatory authority in participating State 90AD Dealing with matter following referral or request by regulatory authority in participating State 90AE Furnishing information 90AF Local legal practitioners are subject to interstate regulatory authorities Division 7—Annual reports 90A Annual reports Division 8—Professional mentoring agreements 90B Professional mentoring agreements Part 7—Appointment of Senior Counsel etc 91 Appointment of Senior Counsel 92 No further appointment of King's Counsel etc 93 Revocation and resignation of appointments Part 8—Miscellaneous 95 Application of certain revenues 95AA Agreements and arrangements with other regulatory authorities 95A Inspection of documents 95B False or misleading information 95BA Mortgage financing 95C Self-incrimination and legal professional privilege 95D Service of notices and documents 95E Wills register 96 Summary offences 97 Regulations 98 Review of operation of Act in relation to barristers Schedule 1—Incorporated legal practices A1 Interpretation 1 Nature of incorporated legal practice 2 Prohibition of non‑legal services and businesses 3 Corporations eligible to be incorporated legal practice 3A Incorporated legal practices may practise in partnership 4 Notice of intention to start providing legal services 4A Notice to be given by incorporated legal practice of intention to practise in partnership 5 Notice to be given by companies that were formerly legal practitioners 5A Notice to be given by incorporated legal practice providing legal services in partnership 6 Prohibition on representations that corporation is incorporated legal practice 7 Notice of termination of provision of legal services 8 Incorporated legal practice must have legal practitioner director 9 Obligations of legal practitioner director relating to misconduct 10 Incorporated legal practice without legal practitioner director 11 Obligations and privileges of practitioners who are officers or employees 12 Professional indemnity insurance 13 Conflicts of interest 14 Application of legal profession rules 15 Requirements relating to advertising 16 Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices 17 Sharing of receipts, revenue or other income 18 Disqualified persons 19 Audit of incorporated legal practice 20 Application of Schedule 4 (Investigatory powers) 21 Banning of incorporated legal practices 22 Disqualification from managing incorporated legal practice 23 Disclosure of information to Australian Securities and Investments Commission 24 External administration proceedings under Corporations Act 2001 25 External administration proceedings under other legislation 26 Cooperation between courts 27 Relationship of Act to constitution of incorporated legal practice 28 Relationship of Act to legislation establishing incorporated legal practice 29 Relationship of Act to Corporations legislation 30 Undue influence 31 Obligations of individual practitioners not affected 32 Regulations Schedule 1A—Foreign lawyers Part 1—Preliminary 1 Definitions 2 This Schedule does not apply to Australian legal practitioners 3 Professional conduct rules Part 2—Practice of foreign law 4 Requirement for registration 5 Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction 6 Scope of practice 7 Form of practice 8 Application of Australian professional ethical and practice standards 9 Designation 10 Letterhead and other identifying documents 11 Advertising 12 Foreign lawyer employing Australian legal practitioner 13 Trust money and trust accounts 14 Professional indemnity insurance 15 Fidelity Fund Part 3—Local registration of foreign lawyers generally 16 Local registration of foreign lawyers 17 Duration of registration 18 Locally registered foreign lawyer is not officer of Supreme Court Part 4—Applications for grant or renewal of local registration 19 Application for grant or renewal of registration 20 Manner of application 21 Requirements regarding applications for grant or renewal of registration Part 5—Grant or renewal of registration 22 Grant or renewal of registration 23 Requirement to grant or renew registration if criteria satisfied 24 Refusal to grant or renew registration Part 6—Amendment, suspension or cancellation of local registration 25 Application of Part 26 Grounds for amending, suspending or cancelling registration 27 Amending, suspending or cancelling registration 28 Operation of amendment, suspension or cancellation of registration 29 Other ways of amending or cancelling registration 30 Relationship of this Part with Part 6 of Act Part 7—Special powers in relation to local registration—show cause events 31 Applicant for local registration—show cause event 32 Locally registered foreign lawyer—show cause event 33 Refusal, amendment, suspension or cancellation of local registration—failure to show cause 34 Restriction on making further applications 35 Relationship of this Part with Part 6 and Schedule 4 Part 8—Further provisions relating to local registration 36 Immediate suspension of registration 37 Surrender of local registration certificate and cancellation of registration 38 Automatic cancellation of registration on grant of practising certificate 39 Suspension or cancellation of registration not to affect disciplinary processes 40 Return of local registration certificate on amendment, suspension or cancellation of registration Part 9—Conditions on registration 41 Conditions generally 42 Conditions imposed by Society 43 Statutory condition regarding notification of offence 44 Conditions imposed by legal profession rules 45 Compliance with conditions Part 10—Interstate-registered foreign lawyers 46 Extent of entitlement of interstate-registered foreign lawyers to practise in this jurisdiction 47 Additional conditions on practice of interstate-registered foreign lawyers Part 11—Miscellaneous 48 Consideration and investigation of applicants and locally registered foreign lawyers 49 Register of locally registered foreign lawyers 50 Publication of information about locally registered foreign lawyers 51 Exemption by Society 52 Membership of professional association Schedule 2—Trust money and trust accounts Part 1—Preliminary 1 Definitions 2 Money granted or provided under contract to community legal centre 3 Determinations about status of money 4 Application of Schedule to law practices and trust money 5 Protocols for determining where trust money is received 6 When money is received 7 Discharge by legal practitioner associate of obligations of law practice 8 Liability of principals of law practice 9 Former practices, principals and associates 10 Barristers not to receive trust money Part 2—Trust accounts and trust money 11 Maintenance of general trust account 12 Certain trust money to be deposited in general trust account 13 Holding, disbursing and accounting for trust money 14 Manner of withdrawal of trust money from general trust account 15 Controlled money 16 Manner of withdrawal of controlled money from controlled money account 17 Transit money 18 Trust money subject to specific powers 19 Trust money received in form of cash 20 Protection of trust money 21 Intermixing money 22 Dealing with trust money—legal costs and unclaimed money 23 Deficiency in trust account 24 Reporting certain irregularities and suspected irregularities 25 Keeping trust records 26 False names 27 Interest payable if law practice fails to deposit trust money Part 3—Investigations and external examinations Division 1—Investigations 28 Appointment of investigators 29 Investigations 30 Application of Schedule 4 31 Investigator's report 32 When costs of investigation are debt Division 2—External examinations 33 Designation of external examiners 34 Trust records to be externally examined 35 Examination of affairs in connection with examination of trust records 36 Designation and appointment of associates as external examiners 37 Final examination of trust records 38 Carrying out examination 39 External examiner's report 40 Law practice liable for costs of examination Part 4—Provisions relating to ADIs 41 Approval of ADIs 42 ADI not subject to certain obligations and liabilities 43 Reports, records and information Part 5—Miscellaneous 44 Restrictions on receipt of trust money 45 Protection from liability 46 Application of Schedule to incorporated legal practices 47 Disclosure to clients—money not received as trust money 48 Disclosure of accounts used to hold money entrusted to law practice or legal practitioner associate 49 Regulations Schedule 3—Costs disclosure and adjudication Part 1—Preliminary 1 Interpretation 2 Terms relating to third party payers Part 2—Application of Schedule 3 Application of Schedule—first instructions rule 4 Schedule also applies by agreement or at client's election 5 Displacement of Schedule 6 First instructions to law practice 7 Substantial connection of matter with State 8 Application of different laws Part 3—Costs disclosure 9 Disclosure not required by barrister 10 Disclosure of costs to clients 11 Disclosure if another law practice is to be retained 12 Timing of disclosure to client 13 Exceptions to requirement for disclosure 14 Additional disclosure—settlement of litigious matters 15 Additional disclosure—uplift fees 16 Form of disclosure 17 Ongoing obligation to disclose 18 Effect of failure to disclose 19 Progress reports 20 Disclosures to associated third party payers Part 4—Legal costs generally 21 Recovery of legal costs 22 Security for legal costs 23 Interest on unpaid legal costs Part 5—Costs agreements 24 Making costs agreements 25 Conditional costs agreements 26 Conditional costs agreements involving uplift fees 27 Contingency fees are prohibited 28 Effect of costs agreement 29 Certain costs agreements are void 30 Setting aside costs agreements Part 6—Billing 31 Legal costs cannot be recovered unless bill has been served 32 Bills 33 Notification of client's rights 34 Request for itemised bill 35 Interim bills Part 7—Adjudication of costs 36 Definition 37 Application by clients or third party payers for adjudication of costs 38 Application for adjudication by law practice retaining another law practice 39 Application for adjudication of costs by law practice giving bill 40 Application may be dismissed 41 Power of Supreme Court on application for adjudication 42 Commissioner may institute proceedings 43 Court may order plaintiff to apply for adjudication 44 Consequences of application 45 Persons to be notified of application 46 Criteria for adjudication 47 Adjudication of costs by reference to costs agreement 48 Adjudication of costs by reference to scale of costs 49 Costs of adjudication 50 Referral for disciplinary action 51 Contracting out of Part by sophisticated clients Part 8—Miscellaneous 52 Application of Schedule to incorporated legal practices 53 Imputed acts, omissions or knowledge Schedule 4—Investigatory powers Part 1—Preliminary 1 Definitions Part 2—Requirements relating to documents, information and other assistance 2 Application of Part 3 Requirements that may be imposed for investigations, examinations and audits under Schedule 2 4 Requirements that may be imposed for investigations under Part 6 5 Provisions relating to requirements under this Part Part 3—Entry and search of premises 6 Application of Part 7 Investigator's power to enter premises 8 Search warrants 9 Powers of investigator while on premises Part 4—Additional powers in relation to incorporated legal practices 10 Application of Part 11 Investigative powers relating to investigations and audits 12 Examination of persons 13 Inspection of books 14 Power to hold hearings 15 Failure to comply with investigation Part 5—Miscellaneous 16 Obstruction of investigator 17 Obligation of legal practitioners 18 Protection from liability 19 Permitted disclosure of confidential information Schedule 5—Transitional provisions 1 Closure of certain complaints Legislative history