Legal Profession Uniform Law (NSW)

Legal Profession Uniform Law (NSW) No 16a of 2014 Editorial note— The Legal Profession Uniform Law is applied as a law of NSW by the NSW Legal Profession Uniform Law Application Act 2014. This version is the Law as it applies in NSW Chapter 1 Preliminary Part 1.1 Introduction 1 Citation This Law may be cited as the Legal Profession Uniform Law (NSW). 2 Commencement This Law commences in a jurisdiction as provided by the Act of that jurisdiction that applies this Law as a law of that jurisdiction. 3 Objectives The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by— (a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the protection of the public generally; and (d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and (f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained. 4 Extraterritorial operation of this Law The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to the following— (a) things situated within or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring within or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction. 5 Jurisdictional arrangements (1) The arrangements set out in this section have effect, and are to be observed, in relation to this Law. (2) The host jurisdiction for this Law is Victoria. (3) The host Attorney-General for this Law is the Attorney-General of Victoria. (4) The host jurisdiction for the Council and the Commissioner is New South Wales. (5) The host Attorney-General for the Council and the Commissioner is the Attorney-General of New South Wales. (6) The primary office of the Council and the primary office of the Commissioner are to be located in New South Wales. Part 1.2 Interpretation 6 Definitions (1) In this Law— ADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; admission or admission to the Australian legal profession means— (a) admission by the Supreme Court of a participating jurisdiction as a lawyer (however expressed), whether before, on or after the commencement of this Law in that jurisdiction; or (b) admission by the Supreme Court of a non-participating jurisdiction as a lawyer, a legal practitioner, a barrister, a solicitor, a barrister and solicitor, or a solicitor and barrister, whether before, on or after the commencement of this Law in any jurisdiction, otherwise than by the grant or issue of a practising certificate. Without limiting the meaning of the terms admission or admission to the Australian legal profession, those terms include readmission; Admission Rules means the provisions of the Uniform Rules that are designated as Admission Rules (see section 420); Admissions Committee means the Admissions Committee established under section 402; affairs of a law practice includes the following— (a) all accounts and records required by or under this Law or the Uniform Rules to be maintained by the law practice or an associate or former associate of the law practice; (b) other records of the law practice or an associate or former associate of the law practice; (c) any transaction— (i) to which the law practice or an associate or former associate of the law practice was or is a party; or (ii) in which the law practice or an associate or former associate of the law practice has acted for a party; another jurisdiction means a jurisdiction other than this jurisdiction; another Supreme Court means the Supreme Court of another jurisdiction; APRA means the Australian Prudential Regulation Authority; ASIC means the Australian Securities and Investments Commission; ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth; associate of a law practice means a person who is one or more of the following— (a) a principal of the law practice; (b) a partner, director, officer, employee or agent of the law practice; (c) an Australian legal practitioner who is a consultant to the law practice; associated third party payer—see section 171; Australian Accounting Standards means the standards issued by the Australian Accounting Standards Board; Australian Bar Association means the association named The Australian Bar Association; Australian financial services licence has the same meaning as it has in Chapter 7 of the Corporations Act; Australian lawyer means a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction; Australian legal practitioner means an Australian lawyer who holds a current Australian practising certificate; Australian Legal Profession Register means the register referred to in section 432; Australian practising certificate means— (a) a practising certificate granted to an Australian lawyer under Part 3.3 of this Law as applied in a participating jurisdiction; or (b) a practising certificate granted to an Australian lawyer under a law of a non-participating jurisdiction entitling the lawyer to engage in legal practice; Australian-registered foreign lawyer means a person who holds a current Australian registration certificate; Australian registration certificate means— (a) a registration certificate granted to a foreign lawyer under Part 3.4 of this Law as applied in a participating jurisdiction; or (b) a registration certificate granted to a foreign lawyer, or a document acknowledging the registration of a foreign lawyer, under a law of a non-participating jurisdiction entitling the lawyer to practise foreign law; authorised ADI—see section 128; authorised principal means a principal who is authorised by his or her Australian practising certificate to supervise others; Note Section 47(6) provides that an Australian practising certificate authorises the holder to supervise legal practice by others, unless the certificate is subject to a condition requiring the holder to engage in supervised legal practice or a condition to the effect that the holder may not supervise legal practice by others. authorised representative has the same meaning as it has in Chapter 7 of the Corporations Act; automatic show cause event—see section 86; Bankruptcy Act means the Bankruptcy Act 1966 of the Commonwealth; bankruptcy-related event, in relation to a person, means— (a) his or her becoming bankrupt under the Bankruptcy Act (or the corresponding provisions of the law of a foreign country or external territory); or (b) his or her being served with notice of a creditor's petition presented to a court under section 43 of the Bankruptcy Act; or (c) his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act of his or her intention to present a debtor's petition or his or her presentation (as a debtor) of such a petition under section 55 of that Act; or (d) his or her applying to take the benefit of any law (whether Australian or otherwise) for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit; barrister means an Australian legal practitioner whose Australian practising certificate is subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only; business day means a day that is not a Saturday, Sunday, public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done; certificate (in Part 3.5)—see section 73; Chair of the Council—see clause 1 of Schedule 1; Chapter 5 functions means— (a) functions under Chapter 5; or (b) functions under another provision of this Law relating to Chapter 5; or (c) functions under the Uniform Rules relating to Chapter 5; civil penalty and civil penalty provision—see section 452; claim (in Part 4.5)—see section 219; client includes a person to whom or for whom legal services are provided; commercial or government client—see section 170; Commissioner means the person appointed to or acting in the office of the Commissioner for Uniform Legal Services Regulation established by Part 8.3; Commissioner of Police includes a person of equivalent status specified in jurisdictional legislation; community legal service means an organisation (whether incorporated or not) that— (a) holds itself out as— (i) a community legal service; or (ii) a community legal centre; or (iii) an Aboriginal and Torres Strait Islander Legal Service; whether or not it is a member of a State or Territory association of community legal centres, and whether or not it is accredited or certified by the National Association of Community Legal Centres; and (b) is established and operated on a not-for-profit basis; and (c) provides legal or legal-related services that— (i) are directed generally to people who are disadvantaged (including but not limited to being financially disadvantaged) in accessing the legal system or in protecting their legal rights; or (ii) are conducted in the public interest; complaint—see section 265; complaint investigation means an investigation of a complaint under section 282; compliance audit means an audit under section 256; compliance certificate means a certificate issued under section 19; Note Section 26(5) provides that, on a successful appeal against a refusal to issue a compliance certificate, the order of the Supreme Court may include a direction that the order has the same effect as a compliance certificate provided to the Court by the designated local regulatory authority. concerted interjurisdictional default—see section 219; conditional costs agreement—see section 181; conditions includes terms, limitations and restrictions; consumer matter—see section 269; Continuing Professional Development Rules means the provisions of the Uniform Rules that are designated as Continuing Professional Development Rules (see section 420); controlled money—see section 128; conviction includes a finding of guilt, or the acceptance of a guilty plea by the court, whether or not a conviction is recorded; corporate legal practitioner means an Australian legal practitioner who engages in legal practice only in the capacity of an in-house lawyer for his or her employer or a related entity, but does not include a government legal practitioner; Corporations Act means the Corporations Act 2001 of the Commonwealth; corresponding authority means— (a) a person or body having functions under a corresponding law; or (b) when used in the context of a person or body having functions under this Law in this jurisdiction—a person or body having corresponding functions under a corresponding law; corresponding law means— (a) a law of another jurisdiction that— (i) corresponds to the relevant provisions of this Law as applied in this jurisdiction; or (ii) is the principal legislation in the other jurisdiction for the regulation of the legal profession; or (iii) is declared by the Uniform Regulations to be a law within this definition; but (b) if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the other jurisdiction—a previous law applying to legal practice in the other jurisdiction; costs assessment means an assessment of legal costs under Part 4.3; costs assessor means— (a) a person appointed by a court, judicial officer or other official to have the responsibility of conducting costs assessments; or (b) a person or body designated by jurisdictional legislation to have that responsibility; costs dispute—see section 269; Council or Legal Services Council means the Legal Services Council established by Part 8.2; default (in Part 4.5)—see section 219; designated local regulatory authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; designated local roll authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; designated show cause event—see section 90; designated tribunal means— (a) a court or tribunal specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; or (b) a member or officer so specified or described of such a court or tribunal; disqualified entity means an entity that is disqualified under section 120; disqualified person means— (a) a person whose name has been removed from a Supreme Court roll and who has not subsequently been admitted or readmitted by the Supreme Court of any jurisdiction; or (b) a person who has been refused the grant or renewal of an Australian practising certificate and who has not been granted an Australian practising certificate at a later time; or (c) a person whose Australian practising certificate is suspended (for the period of the suspension); or (d) a person whose Australian practising certificate has been cancelled and who has not been granted an Australian practising certificate at a later time; or (e) a person who is the subject of a decision under section 94 that the person is not entitled to apply for a certificate for a specified period; or (f) a person who is disqualified under section 119; engage in legal practice includes practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy); entity includes— (a) an individual, an incorporated body and an unincorporated body or other organisation; and (b) in the case of a partnership— (i) the partnership as currently constituted from time to time; or (ii) the assignee or receiver of the partnership; exercise of a function includes, where the function is a duty, the performance of the duty; external examiner means a person appointed as such under Part 4.2; external intervener means a supervisor, manager or receiver under Chapter 6; external intervention means the appointment of, and the exercise of the functions of, a supervisor, manager or receiver under Chapter 6; external investigator means a person appointed as such under Part 4.2; fee, gain or reward includes any form of, and any expectation of, a fee, gain or reward; fidelity authority means an entity specified in jurisdictional legislation for the purposes of this definition; Note See clause 15 of Schedule 3 regarding the fidelity authority for a non-participating jurisdiction. fidelity fund—see sections 222 and 223; Note See clause 15 of Schedule 3 regarding the fidelity fund of a non-participating jurisdiction. financial service has the same meaning as it has in Chapter 7 of the Corporations Act; financial services business has the same meaning as it has in Chapter 7 of the Corporations Act; financial year means a year ending on 30 June; fixed costs legislative provision means a determination, scale, arrangement or other provision fixing the costs or maximum costs of any legal services that is made by or under the Uniform Rules or any other legislation; foreign country means— (a) a country other than Australia; or (b) a state, province or other part of a country other than Australia; foreign law means law of a foreign country; foreign lawyer means an individual who is properly registered or authorised to engage in legal practice in a foreign country by the foreign registration authority for the country; foreign lawyer associate of a law practice means an associate of the law practice who is an Australian-registered foreign lawyer; foreign registration authority means an entity in a foreign country having the function, conferred by the law of the foreign country, of registering or authorising persons to engage in legal practice in the foreign country; function includes a power, authority or duty, and without limitation includes jurisdiction in relation to a court; general trust account—see section 128; government authority includes a Minister, government department or public authority of the Commonwealth or of a jurisdiction, and includes a body or organisation (or a class of bodies or organisations) declared in the Uniform Rules to be within this definition; government lawyer means a person who engages in legal practice only— (a) as an officer or employee of a government authority; or (b) as the holder of a statutory office of the Commonwealth or of a jurisdiction; or (c) in another category specified in the Uniform Rules; government legal practitioner means a government lawyer who is an Australian legal practitioner; GST has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth; home jurisdiction means— (a) in the case of an applicant for or the holder of an Australian practising certificate granted in a participating jurisdiction—the jurisdiction last notified under section 46 as applying in that or another participating jurisdiction; or (b) in the case of an applicant for or the holder of an Australian registration certificate granted in a participating jurisdiction—the jurisdiction last notified under section 63 as applying in that or another participating jurisdiction; or (c) in the case of the holder of an Australian practising certificate or Australian registration certificate granted in a non-participating jurisdiction—see Schedule 3; or (d) in the case of an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer— (i) where only one jurisdiction is the home jurisdiction for the only legal practitioner associate of the law practice or for all the legal practitioner associates of the law practice—that jurisdiction; or (ii) where no single jurisdiction is the home jurisdiction for all the legal practitioner associates of the law practice— (A) the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the law practice; or (B) if a jurisdiction cannot be determined under sub-subparagraph (A)—the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at Australian government elections for the jurisdiction; or (C) if a jurisdiction cannot be determined under sub-subparagraph (A) or (B)—the jurisdiction of the associate's place of residence in Australia or (if he or she does not have a place of residence in Australia) the jurisdiction of his or her last place of residence in Australia; or (e) in any other case—the jurisdiction determined in accordance with the Uniform Rules; host—see section 5; incorporated legal practice means a corporation that satisfies the following criteria— (a) it is— (i) a company within the meaning of the Corporations Act; or (ii) a corporation, or a corporation of a kind, approved by the Council under section 114 or specified in the Uniform Rules for the purposes of this definition; (b) it has given notice under section 104 that it intends to engage in legal practice in Australia and that notice is still operative; (c) the legal services it provides or proposes to provide are not limited to either or both of the following services— (i) in-house legal services for the corporation or a related entity; (ii) services that are not legally required to be provided by an Australian legal practitioner and that are provided by an officer or employee who is not an Australian legal practitioner; Note The Uniform Rules under section 10(3) may provide that certain entities are exempt from the operation of section 10(1), which provides that an entity must not engage in legal practice in this jurisdiction unless it is a qualified entity. (d) it is not excluded by the Uniform Rules from being an incorporated legal practice— but does not include a community legal service; independent entity means an independent statutory body (not being a professional association) or an independent statutory office holder; indexed means indexed in accordance with section 471; insolvent under administration has the same meaning as it has in the Corporations Act; Intergovernmental Agreement means the Bilateral Agreement on the Legal Profession Uniform Framework between New South Wales and Victoria dated 5 December 2013, and any successor agreement, as respectively in force from time to time; investigator (in Chapter 7)—see section 368; jurisdiction means a State of the Commonwealth, the Australian Capital Territory or the Northern Territory of Australia; jurisdictional legislation means legislation of a jurisdiction; Law Council of Australia means Law Council of Australia Limited; law firm means a partnership consisting only of— (a) Australian legal practitioners; or (b) one or more Australian legal practitioners and one or more Australian-registered foreign lawyers; law practice means— (a) a sole practitioner; or (b) a law firm; or (c) a community legal service; or (d) an incorporated legal practice; or (e) an unincorporated legal practice; lawyer— (a) in Part 4.5—see section 219; and (b) when used alone in Chapter 5, Chapter 7, section 461 or Schedule 3—see section 261, section 369, section 461(3) or clause 1 of Schedule 3, respectively; lay associate of a law practice means a person who is not an Australian legal practitioner and who is— (a) an associate of the law practice; or (b) a consultant to the law practice (however described) who provides services related to legal services to the law practice, other than services of a kind specified in the Uniform Rules for the purposes of this definition; or (c) a person who shares the receipts, revenue or other income arising from the law practice; legal costs means— (a) amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services; or (b) without limitation, amounts that a person has been or may be charged, or is or may become liable to pay, as a third party payer in respect of the provision of legal services by a law practice to another person— including disbursements but not including interest; Legal Practice Rules means the provisions of the Uniform Rules that are designated as Legal Practice Rules (see section 420); legal practitioner associate of a law practice means an associate of the law practice who is an Australian legal practitioner; Legal Profession Conduct Rules means the provisions of the Uniform Rules designated as Legal Profession Conduct Rules (see section 420); Legal Profession Uniform Law Act of a jurisdiction means the Act of that jurisdiction that applies this Law (whether with or without modification) as a law of that jurisdiction; Note It is intended that the Intergovernmental Agreement will provide for permissible modifications of the Uniform Law. legal services means work done, or business transacted, in the ordinary course of legal practice; litigious matter means a matter that involves, or is likely to involve, the issue of proceedings in a court or tribunal; Note A matter is a litigious matter when proceedings are initiated or at any stage when proceedings are reasonably likely. local legal profession register means the register (if any) maintained under jurisdictional legislation of this jurisdiction (see section 434); local regulations means regulations made under the Legal Profession Uniform Law Act of this jurisdiction; local regulatory authority, in the context of a reference to "a local regulatory authority" or "local regulatory authorities" in a provision of this Law, means any designated local regulatory authority; managed investment scheme has the same meaning as it has in the Corporations Act; management system direction means a direction under section 257; member includes an acting member; member of the staff of the Council, the Commissioner or a local regulatory authority means a person employed, engaged or assigned to provide assistance in the exercise of the respective functions of the Council, Commissioner or authority; modifications includes modifications by way of alteration, omission, addition or substitution; mortgage means an instrument or proposed instrument under which an interest in real property is charged, encumbered or transferred as security for the payment or repayment of money; mortgage financing means facilitating a loan secured or intended to be secured by mortgage by— (a) acting as an intermediary to match a prospective lender and borrower; or (b) arranging the loan; or (c) receiving or dealing with payments for the purposes of, or under, the loan— but does not include providing legal advice or preparing an instrument for the loan; non-associated third party payer—see section 171; non-participating jurisdiction means a jurisdiction that is not a participating jurisdiction; obstruct includes hinder, delay, resist and attempt to obstruct; officer of a law practice includes a principal of the law practice; operational term of the Council—see section 395; Parliament of a jurisdiction includes, in the case of the Australian Capital Territory or the Northern Territory of Australia, the Legislative Assembly of the Territory; participating jurisdiction means— (a) a jurisdiction in which this Law applies as a law of the jurisdiction and on behalf of which the Intergovernmental Agreement has been signed; or (b) a jurisdiction in respect of which the Standing Committee decides that a law of the jurisdiction substantially corresponds to the provisions of this Law; partnership includes a limited partnership; pecuniary loss (in Part 4.5)—see section 219; penalty unit means an amount equal to the value of a penalty unit under an Act of Victoria for an offence, and has that meaning in a provision of this Law regardless of whether the provision gives rise to a criminal offence or is a civil penalty provision; Note The meaning of penalty units for offences in Victorian Acts is contained in section 110 of the Sentencing Act 1991 of Victoria. The value of a penalty unit for a financial year is fixed by the Victorian Treasurer under the Monetary Units Act 2004 of Victoria. permanent form, in relation to a trust record—see section 128; power, in relation to trust money, includes an authority; practical legal training means either or both of the following— (a) legal training by participation in course work; (b) supervised legal training, whether involving articles of clerkship or otherwise; principal of a law practice is an Australian legal practitioner who— (a) in the case of a sole practitioner—is the sole practitioner; or (b) in the case of a law firm—is a partner in the firm; or (c) in the case of a community legal service—is a supervising legal practitioner of the service referred to in section 117; or (d) in the case of an incorporated legal practice or an unincorporated legal practice— (i) holds an Australian practising certificate authorising the holder to engage in legal practice as a principal of a law practice; and (ii) is— (A) if the law practice is a company within the meaning of the Corporations Act—a validly appointed director of the company; or (B) if the law practice is a partnership—a partner in the partnership; or (C) if the law practice is neither—in a relationship with the law practice that is of a kind approved by the Council under section 40 or specified in the Uniform Rules for the purposes of this definition; pro bono basis—see section 8; professional association means an entity whose membership consists principally of Australian legal practitioners and whose principal functions include representing or assisting Australian legal practitioners; professional misconduct—see section 297; professional obligations includes— (a) duties to the Supreme Courts; and (b) obligations in connection with conflicts of interest; and (c) duties to clients, including disclosure; and (d) ethical standards required to be observed— that do not otherwise arise under this Law or the Uniform Rules; qualified entity means— (a) an Australian legal practitioner; or (b) a law practice; or (c) either— (i) an Australian-registered foreign lawyer; or (ii) a foreign lawyer who is not an Australian-registered foreign lawyer but only to the extent that the foreign lawyer's legal practice is limited to the practice of foreign law and is carried out in accordance with the applicable requirements of Part 3.4; or (d) an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction, other than this Law or the Uniform Rules; or (e) an entity engaged in legal practice of a kind specified in the Uniform Rules for the purposes of this definition, but only while the entity engages in the legal practice in accordance with any applicable requirements of the Uniform Rules; quashing of a conviction for an offence includes the quashing of— (a) a finding of guilt in