The Legal Profession Act 2004ï¿½ is amended byï¿½the Legal Profession Further Amendment Act 2006.ï¿½ _Schedules 2 and 3 of the amending Act will commence on 1 July 2007 (the amendments contained in schedule 1ï¿½commenced on 7 December 2006). _The Legal Profession Amendment Regulation 2007 (which amends the Legal Profession Regulation 2005) will also commence on 1 July 2007.ï¿½Barristers should familiarise themselves with the amendments, and in particular those relating toï¿½costsï¿½& barristerâs fees.
Some amendments to note:
Barristerâs Costs in Advance (as from 1 July)
Section 252 of the Legal Profession Act 2004 will be amended. It will be headed âBarristers not to receive trust moneyâ and the section will provide âA barrister is not, in the course of practising as a barrister, to receive trust moneyâ.
There are amendments to the definition of âtrust moneyâ and section 243 will provide âtrust money means money entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, and includes:
(a) money received by the practice on account of legal costs in advance of providing the services, and â¦..â
[note âlaw practiceâ is defined in s4 of the LP Act to include âan Australian legal practitioner who is a sole practitionerâ and thus a barrister is a law practice within the meaning of the Act]
Clause 178 of the Legal Profession Regulation 2005 "Barristers may receive costs in advance" will be deleted.
Clause 106A will be added to the LP Regulation and will provide:
106A Receipt of trust money by barrister (section 252 of the Act)â exclusion under section 246 (3) of the Act
Part 3.1 of the Act does not apply to trust money received and held by a barrister if the money is received by the barrister on account of legal costs for legal services in advance of the
provision by the barrister of the legal services, in the following circumstances:
(a) the barrister is practising as a sole practitioner and the money is received in connection with instructions accepted by the barrister directly from a person who is not a solicitor,
(b) the money is deposited, within a reasonable time, after the barrister receives the money, in an account maintained with an ADI in connection with the barrister's law practice,
(c) the money remains deposited in that or another account maintained with an ADI in connection with the barristerâs law practice until:
(i) a bill is given to the client, or
(ii) the money is refunded to the client, or
(iii) the money is paid to a solicitor who is later engaged by the client in the matter.
[note âADIâ is defined in s4 of the LP Act as âADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.â Authorised deposit taking institutions are listed on the APRA web site at www.apra.gov.au/adi/
Section 309 of the LP Act requires disclosure of costs to clients and s333 requires a bill to include or be accompanied by a notification of clientâs rights. The Legal Profession Further Amendment Act amends the sections and in each case makes provision for the use of prescribed forms. Amendments to the LP Regulation will add clause 109A and Schedule 5 Form 2 âForm of disclosure of costs to clientsâ and clause 111A and Schedule 5 Form 3 âForm of notification of clientâs rightsâ.
In addition clause 111B is added to the Legal Profession Regulation 2005. It will set out in sub-clause (2), the particulars to be included in an itemised bill given by a barrister. Sub-clause (3) will require the particulars to be set out in a generally chronological order.
The amendments have not been incorporated into the principal Act and Regulation on theï¿½parliamentary counsel'sï¿½web site as yet. However a link can be found on the New South Wales Bar Association web site at ï¿½http://www.nswbar.asn.au/docs/professional/legislation/leg\_index.php.