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How the proposed Uniform Law may affect your practice
The Legal Services Council has put out new recommendations for Uniform Law in 2020 which may see new changes to the legal profession.
Tony Zhang
The Legal Profession Uniform Law is now in its fifth year of operation. The Legal Service Council (LSC) said in a statement that, in general, the provisions operate effectively. However, there were areas where opportunities for legislative improvement have arisen.
The consultation paper mainly set out the revised proposals that were approved by the council after considering the likely effect on consumers and the profession, natural justice considerations and safeguards for lawyers where a regulator’s powers were to be broadened, and the extent to which the proposal furthered one or more objectives of the Uniform Law.
Recommendations for legal practice
In terms of legal practice, the LSC has proposed that their amendments are sought to simplify and clarify part 3.3 (Australian legal practitioners), part 3.4 (foreign lawyers) and part 3.5 (variation, suspension and cancellation of, and refusal to renew, certificates).
“The legislation can be applied confidently and consistently to enhance the protection of consumers of legal services and to clearly state the obligations of lawyers and legal practitioners under the various provisions,” the LSC stated in the report.
Section 94 provides that if the DLRA refuses to grant or renew, or cancels a practising certificate under part 3.5, it may also decide that the person is not entitled to apply for a practising certificate for a specified period of time (not exceeding five years).
The council has proposed that a provision similar to s 94 should be added to undefined part 3.3 to permit the DLRA to decide that a person who has been refused the grant or renewal of a practising certificate may not apply for a practising certificate for up to five years.
“This would reduce repeat applications where there has been no change in circumstances or where a condition previously imposed has not been satisfied,” the LSC said.
The LSC also found that section 70 does not provide for Australian-registered foreign lawyers practising foreign law in-house for corporations or governments. This would mean that foreign lawyers may be working in-house without being registered and therefore not subject to the requirements including disclosing certain events that may affect a DLRA’s consideration of their suitability to practise foreign law in this jurisdiction or declaring on an annual basis their fitness to practise.
“The council is of the view that, in our globalised legal services market, the number of foreign lawyers in Australia will continue to grow and the Uniform Law needs to be inclusive of corporate and government lawyers,” the LSC said.
“Foreign lawyers may also practice foreign law without being registered pursuant to one of the exemptions set out in s 60.”
Amendments will now extend to Australian-registered foreign lawyers who wish to practice foreign law in-house as a corporate lawyer or as a government lawyer.
New changes have also been recommended for the suspension of a practicing certificate from the DRLA by the LSC.
Section 77 provides for a DLRA to immediately vary or suspend a practising certificate for up to 56 days after notice is given.
The LSC has noted that the 56-day timeframe is too restrictive because an immediate suspension under s 77 is often followed by action under s 82 (to vary, suspend or cancel a practising certificate).
Furthermore, the LSC considers the 56-day timeframe is also problematic where it is necessary for the practitioner to undertake a medical examination or to obtain other relevant documents to assist the DLRA in its consideration, as provided for in s 95. Other scenarios might involve a serious trust account misappropriation which requires detailed forensic accounting.
As a result a more streamlined process has been recommended.
“The aim of s 278 is to empower an investigating DLRA to alert a suspending DLRA to the need for an immediate suspension of a practising certificate,” the LSC said. “However, this intention is frustrated as the legislation does not enable the suspending DLRA to act immediately on the investigating DLRA's recommendation.”
The proposed way of amendment provides an immediate suspension of a certificate on the recommendation of the DLRA. The suspension date to increase to the maximum period of an immediate suspension, from 56 days to 90 days, is proposed. The 90-day timeframe would be an upper limit of the period of suspension.
Changes in business practice and professional conduct
The LSC has recommended that amendments to part 4.3 (legal costs) are proposed to improve clarity of the operation of the provisions and consumer protection, as well as to resolve inconsistencies and remove the potential for perverse outcomes to arise.
“It is proposed that there would be benefit to consumers if the disclosure obligations for law practices in relation to costs are clearly and comprehensively listed under one section of the Uniform Law,” the LSC said.
In the applications for the cost assessment, it has been stated that there will be changes for the beneficiaries section in terms of assessment in legal costs.
“Beneficiaries are not third-party payers within the meaning of s 171 and there is no disclosure required to a beneficiary under s 176,” the LSC said.
“However, the beneficiaries will ultimately pay the legal costs which are borne by the estate. Beyond this, their only recourse is to apply to the Supreme Court under probate legislation for filing and passing of executors’ accounts (including legal costs incurred by the executors).”
The LSC has stated that the “subsection 198(3) will apply that applications for cost assessment must be made within 12 months after the bill was given, the request for payment was made, or the costs were paid without a bill or request for payment.”
“It is proposed that amendments to both preserve a costs assessment application lodged by a law practice and to ensure that a law practice that has not yet applied for a costs assessment is not prevented from applying for such an assessment, by reason of existing time limits, while a complaint about those cost is being dealt with by a DLRA.“
The LSC also proposed that law practices should have the same ability as other parties to seek a costs assessment out of time.
Dispute resolutions and professional discipline
The LSC stated amendments to part 5.2 (complaints), part 5.4 (disciplinary matters), part 5.6 (appeal or review) and part 5.7 (general duties of local regulatory authority) are proposed to clarify the effect of certain provisions and provide certainty as to how they operate, resolve inconsistencies, improve administrative efficiencies and extend consumer benefits.
“It will allow a specification that failure to comply with an order made by a DLRA under s 299 is capable of constituting unsatisfactory professional conduct or professional misconduct,” the LSC said.
This will effectively enable a DLRA to make a finding and determination of professional misconduct, and make any of the orders referred to in subs 299(1), in cases where the lawyer:
- admits the conduct and demonstrates contrition
- consents to the DLRA determining the matter
- if required, undertakes to assist the regulator, e.g. by way of giving evidence before a tribunal or court in a related prosecution.
Threshold requirements for legal practice
Section 29 empowers the DLRA to accredit or re-accredit law courses or providers of practical legal training (PLT) in accordance with the Legal Profession Uniform Law Admission Rules 2015 (admission rules).
A review of previous legislation in NSW shows that distinctions were drawn between law courses and law course providers and PLT courses and PLT course providers.
The LSC reviewed both cases in NSW legislation drawn between law courses and law course providers and PLT courses and PLT course providers along with analysing similar cases in Victoria and adhering to the Legal Profession Act 2004 and Legal Profession (Admission) Rules 200 to draw a recommendation.
In summary, no empirical basis has been found for the current wording of section 29 to exclude from accreditation both the providers of law courses, and PLT course, the commissioner said.
“The council considers that the DLRAs should accredit or re-accredit law courses, whether academic or practical, and not the providers of either.”
The DLRA may now accredit or re-accredit law courses whether academic or practical in accordance with the Admission Rules.
Changes in definitions
The commissioner has identified new definitions that may require more clarity, in the case of “disqualified person” and “corporate legal practitioner”.
Therefore, new changes have been made with “disqualified person” now amended to:
- include a person whose name has been removed from a foreign roll and who has not subsequently been admitted to a foreign roll or an Australian roll
- exclude a refusal of a practising certificate for a barrister where the applicant has failed to successfully complete bar examinations
- provide that a person whose practising certificate is suspended at the time the practising certificate expires remains a disqualified person until he/she is granted a new practising certificate
- exclude practitioners who have their practising certificate cancelled for reasons associated with health, retirement or change of career during the course of the year.
- any entity which is controlled by the employer
- any entity which controls the employer
- any entity controlled by another entity which also controls the employer entity.
The LSC invites public comment on the proposed amendments to the Legal Profession Uniform Law. Submissions can be sent to the council by email to:
