South Australian Current Acts South Australian Current ActsSchedule 1—Incorporated legal practices
In this Schedule—
approved form means a form approved by the Supreme Court.
1—Nature of incorporated legal practice
(1) An
incorporated legal practice is a corporation that engages in legal practice in
this jurisdiction.
(2) However, a
corporation is not an incorporated legal practice if—
(a) the
corporation does not receive any form of, or have any expectation of, a fee,
gain or reward for the legal services it provides; or
(b) the
only legal services that the corporation provides are any or all of the
following services:
(i)
in-house legal services, namely, legal services provided
to the corporation concerning a proceeding or transaction to which the
corporation (or a related body corporate) is a party;
(ii)
services that are not legally required to be provided by
a legal practitioner and that are provided by an officer or employee who is
not a legal practitioner; or
(c) this
Schedule or the regulations so provide.
(3) The regulations
may make provision for or with respect to the application (with or without
specified modifications) of provisions of this Act to corporations that are
not incorporated legal practices because of the operation of
subclause (2).
(4) Nothing in this
Schedule affects or applies to the provision by an incorporated legal practice
of legal services in 1 or more other jurisdictions.
2—Prohibition of non-legal services and businesses
An incorporated legal practice may not provide any service, or conduct any
business, that does not involve engaging in legal practice.
Note—
Contravention of this clause is a ground for banning an incorporated legal
practice—see clause 21.
3—Corporations eligible to be incorporated legal practice
(1) Any corporation
is, subject to this Schedule, eligible to be an incorporated legal practice.
(2) This clause does
not authorise a corporation to provide legal services if the corporation is
prohibited from doing so by any Act or law (whether of this jurisdiction, the
Commonwealth or any other jurisdiction) under which it is incorporated or its
affairs are regulated.
(3) An
incorporated legal practice is not itself required to hold a
practising certificate.
3A—Incorporated legal practices may practise in partnership
Subject to this Act, an incorporated legal practice may practise in
partnership with another incorporated legal practice or a legal practitioner
(or both).
4—Notice of intention to start providing legal services
(1) Before a
corporation starts to engage in legal practice in this jurisdiction, the
corporation must give the Supreme Court written notice, in the approved form
and accompanied by the prescribed fee, of its intention to do so.
(2) A corporation must
not engage in legal practice in this jurisdiction if it is in default of this
clause.
Maximum penalty: $50 000.
(3) A corporation that
starts to engage in legal practice in this jurisdiction without giving a
notice under subclause (1) is in default of this clause until it gives
the Supreme Court written notice, in the approved form, of the failure to
comply with that subclause and the fact that it has started to engage in legal
practice.
(4) The giving of a
notice under subclause (3) does not affect a corporation's liability
under subclause (1) or (2).
(5) A corporation is
not entitled to recover any amount for anything the corporation did in
contravention of subclause (2).
(6) A person may
recover from a corporation, as a debt due to the person, any amount the person
paid to or at the direction of the corporation for anything the corporation
did in contravention of subclause (2).
(7) This clause does
not apply to—
(a) a
corporation referred to in clause 1(2)(a) or (b); or
(b) a
corporation that was a legal practitioner within the meaning of this Act
immediately before the commencement of this clause.
4A—Notice to be given by incorporated legal practice of intention to
practise in partnership
(1) Before an
incorporated legal practice starts to engage in legal practice in this
jurisdiction in partnership with another incorporated legal practice or a
legal practitioner (or both), the practice must give the Supreme Court written
notice, in the approved form, and accompanied by the prescribed fee, of its
intention to do so.
(2) An incorporated
legal practice must not engage in legal practice in this jurisdiction in
partnership with an incorporated legal practice or a legal practitioner (or
both) if it is in default of this clause.
Maximum penalty: $50 000.
(3) An incorporated
legal practice that starts to engage in legal practice in this jurisdiction in
partnership with an incorporated legal practice or a legal practitioner (or
both) without giving a notice under subclause (1) is in default of this
clause until it gives the Supreme Court written notice, in the approved form,
of the failure to comply with that subclause and the fact that it has started
to engage in legal practice in partnership with an incorporated legal practice
or a legal practitioner.
(4) The giving of a
notice under subclause (3) does not affect an
incorporated legal practice's liability under subclause (1) or (2).
(5) A firm of
incorporated legal practices, or of incorporated legal practices and
legal practitioners, is not entitled to recover any amount for anything the
firm did while a member of the firm was in contravention of
subclause (2).
(6) A person may
recover from a firm of incorporated legal practices, or of
incorporated legal practices and legal practitioners, as a debt due to the
person, any amount the person paid to or at the direction of the firm for
anything the firm did while a partner of the firm was in contravention of
subclause (2).
(7) This clause does
not apply in relation to—
(a) a
firm of incorporated legal practices, or of incorporated legal practices and
legal practitioners, if the firm—
(i)
was established before the commencement of this clause;
and
(ii)
engaged in legal practice in this jurisdiction
immediately before the commencement of this clause; or
(b) an
incorporated legal practice that was a member of a firm referred to in
paragraph (a) immediately before the commencement of this clause insofar
as the practice engages in legal practice as a member of the firm.
5—Notice to be given by companies that were formerly legal practitioners
(1) This clause
applies to a corporation that was a legal practitioner within the meaning of
this Act immediately before the commencement of clause 4.
(2) A corporation to
which this clause applies must, if it intends to continue to engage in legal
practice in this jurisdiction, within 28 days following the commencement
of clause 4, give the Supreme Court written notice, in the approved form
and accompanied by the prescribed fee, of that intention.
(3) A corporation to
which this clause applies that engages in legal practice in this jurisdiction
after the end of the 28 day period referred to in subclause (2)
without giving a notice under that subclause is in default of this clause
until it gives the Supreme Court written notice, in the approved form, of the
failure to comply with that subclause and the fact that it has continued to
engage in legal practice.
(4) A corporation is
not entitled to recover any amount for anything the corporation did while in
default of this clause.
(5) A person may
recover from a corporation, as a debt due to the person, any amount the person
paid to or at the direction of the corporation for anything the corporation
did while in default of this clause.
5A—Notice to be given by incorporated legal practice providing
legal services in partnership
(a) an
incorporated legal practice that—
(i)
immediately before the relevant day—
(A) was a legal practitioner within the
meaning of this Act (as in force immediately before the relevant day); and
(B) was practising in partnership with
another legal practitioner; and
(ii)
immediately before the commencement of this clause,
continued to practise in the partnership; and
(b) an
incorporated legal practice that, after the relevant day but before the
commencement of this clause—
(i)
commenced practising in partnership with another
incorporated legal practice or a legal practitioner (or both); and
(ii)
immediately before the commencement of this clause,
continued to practise in the partnership.
(2) An incorporated
legal practice to which this clause applies must, if it intends to continue to
engage in legal practice in this jurisdiction in partnership with another
incorporated legal practice or a legal practitioner (or both), within 28 days
following the commencement of this clause, give the Supreme Court written
notice, in the approved form and accompanied by the prescribed fee, of that
intention.
(3) An incorporated
legal practice to which this clause applies must not engage in legal practice
in this jurisdiction in partnership with an incorporated legal practice or a
legal practitioner (or both) if it is in default of this clause.
Maximum penalty: $50 000.
(4) An incorporated
legal practice to which this clause applies that engages in legal practice in
this jurisdiction in partnership with another incorporated legal practice or a
legal practitioner (or both) after the end of the 28 day period referred
to in subclause (2) without giving a notice under that subclause is in
default of this clause until it gives the Supreme Court written notice, in the
approved form, of the failure to comply with that subclause and the fact that
it has continued to engage in legal practice in partnership with another
incorporated legal practice or a legal practitioner (or both).
(5) The giving of a
notice under subclause (4) does not affect an
incorporated legal practice's liability under subclause (2) or (3).
(6) A firm of
incorporated legal practices, or of incorporated legal practices and
legal practitioners, is not entitled to recover any amount for anything the
firm did while a member of the firm was in contravention of this clause.
(7) A person may
recover from a firm of incorporated legal practices, or of
incorporated legal practices and legal practitioners, as a debt due to the
person, any amount the person paid to or at the direction of the firm for
anything the firm did while a member of the firm was in contravention of this
clause.
(8) In this
clause—
relevant day means the day on which this Schedule came into operation.
6—Prohibition on representations that corporation is incorporated legal
practice
(1) A corporation must
not, without reasonable excuse, represent or advertise that the corporation is
an incorporated legal practice unless a notice in relation to the corporation
has been given under clause 4.
Maximum penalty: $50 000.
(2) A director,
officer, employee or agent of a corporation must not, without reasonable
excuse, represent or advertise that the corporation is an
incorporated legal practice unless a notice in relation to the corporation has
been given under clause 4.
Maximum penalty: $50 000.
(3) A reference in
this clause to a person, being—
(a) a
corporation—representing or advertising that the corporation is an
incorporated legal practice; or
(b) a
director, officer, employee or agent of a corporation—representing or
advertising that the corporation is an incorporated legal practice,
includes a reference to the person doing anything that states or implies that
the corporation is entitled to engage in legal practice.
7—Notice of termination of provision of legal services
(1) A corporation
must, within the prescribed period after it ceases to engage in legal practice
in this jurisdiction as an incorporated legal practice, give the Supreme Court
a written notice, in the approved form, of that fact.
Maximum penalty: $50 000.
(2) The regulations
may make provision for or with respect to determining whether and when a
corporation ceases to engage in legal practice in this jurisdiction.
8—Incorporated legal practice must have legal practitioner director
(1) An incorporated
legal practice is required to have at least 1 legal practitioner director.
(2) Each
legal practitioner director of an incorporated legal practice is, for the
purposes of this Act only, responsible for the management of the legal
services provided in this jurisdiction by the incorporated legal practice.
(3) Each
legal practitioner director of an incorporated legal practice must ensure that
appropriate management systems are implemented and maintained to enable the
provision of legal services by the incorporated legal practice—
(a) in
accordance with the professional obligations of legal practitioners and other
obligations imposed by or under this Act, the regulations or legal
profession rules; and
(b) so
that those obligations of legal practitioners who are officers or employees of
the practice are not affected by other officers or employees of the practice.
(4) If it ought
reasonably to be apparent to a legal practitioner director of an
incorporated legal practice that the provision of legal services by the
practice will result in breaches of the professional obligations of legal
practitioners or other obligations imposed by or under this Act, the director
must take all reasonable action available to the director to ensure
that—
(a) the
breaches do not occur; and
(b)
appropriate remedial action is taken in respect of breaches that do occur.
(5) Nothing in this
Schedule derogates from the obligations or liabilities of a director of an
incorporated legal practice under any other law.
(6) The reference in
subclause (1) to a legal practitioner director does not include a
reference to a person who is not validly appointed as a director (but this
subclause does not affect the meaning of the expression "legal practitioner
director" in other provisions of this Act).
9—Obligations of legal practitioner director relating to misconduct
(1) Each of the
following is capable of constituting unsatisfactory professional conduct or
professional misconduct by a legal practitioner director:
(a)
unsatisfactory professional conduct or professional misconduct of a
legal practitioner employed by the incorporated legal practice;
(b)
conduct of any other director (not being a legal practitioner) of the
incorporated legal practice that adversely affects the provision of
legal services by the practice;
(c) the
unsuitability of any other director (not being a legal practitioner) of the
incorporated legal practice to be a director of a corporation that provides
legal services.
(2) A
legal practitioner director is not guilty of unsatisfactory
professional conduct or professional misconduct under subclause (1) if
the director establishes that he or she took all reasonable steps to ensure
that—
(a)
legal practitioners employed by the incorporated legal practice did not engage
in conduct or misconduct referred to in subclause (1)(a); or
(b)
directors (not being legal practitioners) of the incorporated legal practice
did not engage in conduct referred to in subclause (1)(b); or
(c)
unsuitable directors (not being legal practitioners) of the
incorporated legal practice were not appointed or holding office as referred
to in subclause (1)(c),
as the case requires.
(3) A
legal practitioner director of an incorporated legal practice must ensure that
all reasonable action available to the legal practitioner director is taken to
deal with any unsatisfactory professional conduct or professional misconduct
of a legal practitioner employed by the practice.
10—Incorporated legal practice without legal practitioner director
(1) An incorporated
legal practice contravenes this clause if it does not have any legal
practitioner directors for a period exceeding 7 days.
Maximum penalty: $50 000.
(2) If an
incorporated legal practice ceases to have any legal practitioner directors,
the incorporated legal practice must notify the Supreme Court as soon as
possible.
Maximum penalty: $50 000.
(3) An
incorporated legal practice must not provide legal services in this
jurisdiction during any period it is in default of director requirements under
this clause.
Maximum penalty: $50 000.
(4) An
incorporated legal practice that contravenes subclause (1) is taken to be
in default of director requirements under this clause for the period from the
end of the period of 7 days until—
(a) it
has at least 1 legal practitioner director; or
(b) a
person is appointed under this clause or a corresponding law in relation to
the practice.
(5) The Supreme Court
may, if it thinks it appropriate, appoint a legal practitioner who is an
employee of the incorporated legal practice or another person nominated by the
Court, in the absence of a legal practitioner director, to exercise or perform
the functions or duties conferred or imposed on a legal practitioner director
under this Schedule.
(6) A
legal practitioner is not eligible to be appointed under this clause unless
the practitioner holds an unrestricted practising certificate.
(7) The appointment
under this clause of a person to exercise or perform functions or duties of a
legal practitioner director does not, for any other purpose, confer or impose
on the person any of the other functions or duties of a director of the
incorporated legal practice.
(8) An
incorporated legal practice does not contravene subclause (1) during any
period during which a person holds an appointment under this clause in
relation to the practice.
(9) A reference in
this clause to a legal practitioner director does not include a reference to a
person who is not validly appointed as a director (but this subclause does not
affect the meaning of the expression "legal practitioner director" in other
provisions of this Act).
11—Obligations and privileges of practitioners who are officers or
employees
(1) A legal
practitioner who provides legal services on behalf of an incorporated legal
practice in the capacity of an officer or employee of the practice—
(a) is
not excused from compliance with professional obligations as a
legal practitioner, or any obligations as a legal practitioner under any law;
and
(b) does
not lose the professional privileges of a legal practitioner.
(2) For the purposes
only of subclause (1), the professional obligations and professional
privileges of a practitioner apply as if—
(a)
where there are 2 or more legal practitioner directors of an
incorporated legal practice—the practice were a partnership of the legal
practitioner directors and the employees of the practice were employees of the
legal practitioner directors; or
(b)
where there is only 1 legal practitioner director of an incorporated
legal practice—the practice were a sole practitioner and the employees
of the practice were employees of the legal practitioner director.
(3) The law relating
to client legal privilege (or other legal professional privilege) is not
excluded or otherwise affected because a legal practitioner is acting in the
capacity of an officer or employee of an incorporated legal practice.
(4) The directors of
an incorporated legal practice do not breach their duties as directors merely
because legal services are provided pro bono by a legal practitioner employed
by the practice.
12—Professional indemnity insurance
(1) If a scheme under
section 52 is in force requiring incorporated legal practices, or
specified classes of incorporated legal practices, to be insured against
liabilities that may arise in the course of, or in relation to, legal
practice, an incorporated legal practice, or the specified classes of
incorporated legal practices, must have the insurance required by the scheme.
Note—
See also section 52AA.
(2) If the obligation
referred in subclause (1) is not complied with, the
practising certificate held by each legal practitioner director of the
incorporated legal practice will be taken to be suspended until the legal
practice obtains such insurance.
(3) Subclause (1)
does not affect an obligation of a legal practitioner, who is an officer or
employee of an incorporated legal practice, to comply with the provisions of
this Act relating to insurance.
For the purposes of the application of any law (including the common law) or
legal profession rules relating to conflicts of interest to the conduct of a
legal practitioner who is—
(a) a
legal practitioner director of an incorporated legal practice; or
(b) an
officer or employee of an incorporated legal practice,
the interests of the incorporated legal practice or any related body corporate
are also taken to be those of the practitioner (in addition to any interests
that the practitioner has apart from this clause).
14—Application of legal profession rules
(1) The
legal profession rules, so far as they apply to legal practitioners, also
apply to legal practitioners who are officers or employees of an
incorporated legal practice, unless the rules otherwise provide.
(2) Nothing in this
clause prevents legal profession rules prescribing additional duties and
obligations in connection with the conduct of an incorporated legal practice.
15—Requirements relating to advertising
(1) Any restriction
imposed by or under this or any other Act, the regulations or the legal
profession rules in connection with advertising by legal practitioners applies
to advertising by an incorporated legal practice with respect to the provision
of legal services.
(2) If a restriction
referred to in subclause (1) is limited to a particular branch of the
legal profession or for persons who practise in a particular style of legal
practice, the restriction applies only to the extent that the
incorporated legal practice carries on the business in that branch of the
legal profession or in that style of legal practice.
(3) Any advertisement
of the kind referred to in this clause is, for the purposes of disciplinary
proceedings taken against a legal practitioner, taken to have been authorised
by each legal practitioner director of the incorporated legal practice.
(4) This clause does
not apply if the provision by which the restriction is imposed expressly
excludes its application to incorporated legal practices.
16—Extension of vicarious liability relating to failure to account, pay
or deliver and dishonesty to incorporated legal practices
(1) This clause
applies to any of the following proceedings (being proceedings based on the
vicarious liability of an incorporated legal practice):
(a)
civil proceedings relating to a failure to account for, pay or deliver money
or property received by, or entrusted to, the practice (or to any officer or
employee of the practice) in the course of the provision of legal services by
the practice, being money or property under the direct or indirect control of
the practice;
(b)
civil proceedings for any other debt owed, or damages payable, to a client as
a result of a dishonest act or omission by a legal practitioner who is an
employee of the practice in connection with the provision of legal services to
the client.
(2) If the
incorporated legal practice would not (but for this clause) be vicariously
liable for any acts or omissions of its officers and employees in those
proceedings, but would be liable for those acts or omissions if the practice
and those officers and employees were carrying on business in partnership, the
practice is taken to be vicariously liable for those acts or omissions.
17—Sharing of receipts, revenue or other income
(1) Nothing in this
Act, the regulations or the legal profession rules prevents a
legal practitioner from sharing with an incorporated legal practice receipts,
revenue or other income arising from the provision of legal services by the
practitioner.
(2) This clause does
not extend to the sharing of receipts, revenue or other income in
contravention of clause 18.
(1) An incorporated
legal practice is guilty of an offence if a person who is a disqualified
person—
(a) is
an officer or employee of the incorporated legal practice (whether or not the
person provides legal services) or is an officer or employee of a
related body corporate; or
(b) is
engaging in legal practice in partnership with the incorporated
legal practice; or
(c)
shares the receipts, revenue or other income arising from the provision of
legal services by the incorporated legal practice; or
(d) is
engaged or paid in connection with the provision of legal services by the
incorporated legal practice.
Maximum penalty: $50 000.
(2) The failure of a
legal practitioner director of an incorporated legal practice to ensure that
the practice complies with subclause (1) is capable of constituting
unsatisfactory professional conduct or professional misconduct.
(3) On application,
the Tribunal may authorise an incorporated legal practice to be a party to an
agreement or arrangement of a kind referred to in subclause (1), subject
to conditions (if any) specified by the Tribunal.
(4) An application for
such an authorisation may be made to the Tribunal by an
incorporated legal practice.
(5) The Tribunal may
grant such an authorisation in its discretion but only if satisfied—
(a) that
the disqualified person will not practise the profession of the law; and
(b) that
granting the authorisation on the specified conditions (if any) is not likely
to create a risk to the public.
(6) For the purposes
of a hearing of an application under this clause, the Tribunal is constituted
of a panel of 3 of its members chosen by the presiding member (1 of
whom may be the presiding member).
(7) The Tribunal must
give to the Commissioner, and to the incorporated legal practice on whose
application a hearing is to be held, not less than 7 days written notice
of the time and place at which it intends to conduct the hearing, and must
afford the Commissioner, and any such person, a reasonable opportunity to call
and give evidence, to examine witnesses, and to make submissions to
the Tribunal.
(8) Subject to this
clause, sections 80, 84, 84B, 85, 86 and 88 apply to a hearing of an
application under this clause in the same way as to proceedings before
the Tribunal under Part 6.
(9) If an application
is granted by the Tribunal, and the Tribunal or the Supreme Court is satisfied
that an appeal against the authorisation has been instituted, or is intended,
it may suspend the operation of the authorisation until the determination of
the appeal.
(10) If the Tribunal
has suspended the operation of an authorisation under subclause (9),
the Tribunal may terminate the suspension, and where the Supreme Court has
done so, the Supreme Court may terminate the suspension.
(11) An
incorporated legal practice must comply with any conditions imposed on an
authorisation by the Tribunal or the Supreme Court.
Maximum penalty: $50 000.
(12) An
incorporated legal practice is not guilty of an offence against this clause in
relation to an agreement or arrangement to which the legal practice is a party
at the commencement of this clause if—
(a) the
agreement or arrangement is authorised under this clause on an application
made within 12 months after that commencement; and
(b) the
incorporated legal practice complies with any conditions imposed on the
authorisation.
(13) In this
clause—
disqualified person means any of the following persons whether the thing that
has happened to the person happened before or after the commencement of this
definition:
(a) a
person whose name has (whether or not at his or her request) been removed from
the roll of legal practitioners maintained under this Act, or the roll kept in
a participating State that corresponds to the roll maintained under this Act,
and who has not subsequently been admitted or re-admitted to the legal
profession under this Act or a corresponding law;
(b) a
person whose practising certificate has been cancelled or suspended under this
Act or a corresponding law and who, because of the cancellation, is not a
legal practitioner or in relation to whom that suspension has not finished;
(c) a
person who has been refused a renewal of a practising certificate under this
Act or a corresponding law, and to whom a practising certificate has not been
granted at a later time;
(d) a
person who is the subject of an order under this Act or a corresponding law
prohibiting a law practice from employing or paying the person in connection
with the relevant practice;
(e) a
person who is the subject of an order under this Act or a corresponding law
prohibiting a legal practitioner from being a partner of the person in a
business that includes the practitioner's practice;
(f) a
person who is the subject of an order under this Act or the provisions of a
corresponding law disqualifying the person from being involved in the
management of an incorporated legal practice or a firm that provides
legal services (however described).
19—Audit of incorporated legal practice
(1) The Society may
conduct an audit of—
(a) the
compliance of an incorporated legal practice (and of its officers and
employees) with the requirements of this Act, the regulations or the legal
profession rules, so far as they relate specifically to incorporated legal
practices; and
(b) the
management of the provision of legal services by the incorporated
legal practice (including the supervision of officers and employees providing
the services).
Note—
Clause 8 requires legal practitioner directors to ensure that appropriate
management systems are implemented and maintained.
(2) The Society may,
in writing, appoint a suitably qualified person to conduct an audit under this
clause.
(3) The appointment
may be made generally, or in relation to a particular
incorporated legal practice, or in relation to a particular audit.
(4) An audit may be
conducted whether or not a complaint has been made against a
legal practitioner with respect to the provision of legal services by the
incorporated legal practice.
(5) A report of an
audit—
(a) is
to be provided to the incorporated legal practice concerned; and
(b) may
be provided by the Society to the Regulator or a corresponding authority; and
(c) may
be provided by the Regulator to a corresponding authority; and
(d) may
be taken into account in connection with any disciplinary proceedings taken
against legal practitioner directors or other persons or in connection with
the grant, amendment, suspension or cancellation of practising certificates.
20—Application of Schedule 4 (Investigatory powers)
The investigatory powers set out in Schedule 4 apply to an audit under this
Schedule.
21—Banning of incorporated legal practices
(1) The Supreme Court
may, on the application of the Regulator, the Attorney-General or the Society,
make an order disqualifying a corporation from providing legal services in
this jurisdiction for the period the Court considers appropriate if satisfied
that—
(a) a
ground for disqualifying the corporation under this clause has been
established; and
(b) the
disqualification is justified.
(2) An order under
this clause may, if the Supreme Court thinks it appropriate, be made—
(a)
subject to conditions as to the conduct of the incorporated legal practice; or
(b)
subject to conditions as to when or in what circumstances the order is to take
effect; or
(c)
together with orders to safeguard the interests of clients or employees of the
incorporated legal practice.
(3) Action may be
taken against an incorporated legal practice on any of the following grounds:
(a) that
a legal practitioner director or a legal practitioner who is an officer or
employee of the corporation is found guilty of professional misconduct under a
law of this jurisdiction or another jurisdiction;
(b) that
the Society is satisfied, after conducting an audit of the
incorporated legal practice, that the incorporated legal practice has failed
to implement satisfactory management and supervision of its provision of legal
services;
(c) that
the incorporated legal practice (or a related body corporate) has contravened
clause 2;
(d) that
the incorporated legal practice has contravened clause 18;
(e) that
a person who is an officer of the incorporated legal practice, and who is
acting in the management of the incorporated legal practice, is the subject of
an order under this Act or the provisions of a corresponding law disqualifying
the person from being involved in the management of an
incorporated legal practice or a firm that provides legal services (however
described).
(4) If a corporation
is disqualified under this clause, the applicant for the order must, as soon
as practicable, notify the Regulator of every other jurisdiction.
(5) If a corporation
is disqualified from providing legal services in another jurisdiction under a
corresponding law, the Regulator may determine that the corporation is taken
to be disqualified from providing legal services in this jurisdiction for the
same period, but nothing in this subclause prevents the Regulator, the
Attorney-General or the Society from instead applying for an order under this
clause.
(6) A corporation that
provides legal services in contravention of a disqualification under this
clause is guilty of an offence.
Maximum penalty: $50 000.
(7) A corporation that
is disqualified under this clause ceases to be an incorporated legal practice.
(8) Conduct of a
legal practitioner who provides legal services on behalf of a corporation in
the capacity of an officer or employee of the corporation is capable of
constituting unsatisfactory professional conduct or professional misconduct
where the practitioner ought reasonably to have known that the corporation is
disqualified under this clause.
(9) The regulations
may make provision for or with respect to the publication and notification of
orders made under this clause, including notification of appropriate
authorities of other jurisdictions.
22—Disqualification from managing incorporated legal practice
(1) The Supreme Court
may, on the application of the Regulator, the Attorney-General or the Society,
make an order disqualifying a person from managing a corporation that is an
incorporated legal practice for the period the Court considers appropriate if
satisfied that—
(a) the
person is a person who could be disqualified under section 206C, 206D, 206E or
206F of the Corporations Act 2001 of the Commonwealth from managing
corporations; and
(b) the
disqualification is justified.
(2) The Supreme Court
may, on the application of a person subject to a disqualification order under
this clause, revoke the order.
(3) A disqualification
order made under this clause has effect for the purposes only of this Act and
does not affect the application or operation of the Corporations Act 2001 of
the Commonwealth.
(4) The regulations
may make provision for or with respect to the publication and notification of
orders made under this clause.
(5) A person who is
disqualified from managing a corporation under provisions of a
corresponding law that correspond to this clause is taken to be disqualified
from managing a corporation under this clause.
23—Disclosure of information to Australian Securities and Investments
Commission
(1) This clause
applies if the Regulator, the Attorney-General or the Society, in connection
with exercising powers or performing functions under this Act, acquired
information concerning a corporation that is or was an
incorporated legal practice.
(2) The Regulator, the
Attorney-General or the Society may disclose to the Australian Securities and
Investments Commission information concerning the corporation that is relevant
to the Commission's functions.
(3) Information may be
provided under subclause (2) despite any law relating to secrecy or
confidentiality, including any provisions of this Act.
24—External administration proceedings under Corporations Act 2001
(1) This clause
applies to proceedings in any court under Chapter 5 (External administration)
of the Corporations Act 2001 of the Commonwealth—
(a)
relating to a corporation that is an externally-administered body corporate
under that Act; or
(b)
relating to a corporation becoming an externally-administered body corporate
under that Act,
being a corporation that is or was an incorporated legal practice.
(2) The Regulator, the
Attorney-General and the Society are entitled to intervene in the proceedings,
unless the court determines that the proceedings do not concern or affect the
provision of legal services by the incorporated legal practice.
(3) The court may,
when exercising its jurisdiction in the proceedings, have regard to the
interests of the clients of the incorporated legal practice who have been or
are to be provided with legal services by the practice.
(4) Subclause (3)
does not authorise the court to make any decision that is contrary to a
specific provision of the Corporations Act 2001 of the Commonwealth.
(5) The provisions of
subclauses (2) and (3) are declared to be Corporations legislation
displacement provisions for the purposes of section 5G of the
Corporations Act 2001 of the Commonwealth in relation to the provisions of
Chapter 5 of that Act.
Note—
Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a
State law declares a provision of a State law to be a Corporations legislation
displacement provision, any provision of the Corporations legislation with
which the State provision would otherwise be inconsistent does not apply to
the extent necessary to avoid the inconsistency.
25—External administration proceedings under other legislation
(1) This clause
applies to proceedings for the external administration (however expressed) of
an incorporated legal practice, but does not apply to proceedings to which
clause 24 applies.
(2) The Regulator, the
Attorney-General and the Society are entitled to intervene in the proceedings,
unless the court determines that the proceedings do not concern or affect the
provision of legal services by the incorporated legal practice.
(3) The court may,
when exercising its jurisdiction in the proceedings, have regard to the
interests of the clients of the incorporated legal practice who have been or
are to be provided with legal services by the practice.
(4) Subclause (3)
does not authorise the court to make any decision that is contrary to a
specific provision of any legislation applicable to the
incorporated legal practice.
Courts of this jurisdiction may make arrangements for communicating and
cooperating with other courts or tribunals in connection with the exercise of
powers under this Schedule.
27—Relationship of Act to constitution of incorporated legal practice
The provisions of this Act or the regulations that apply to an incorporated
legal practice prevail, to the extent of any inconsistency, over the
constitution or other constituent documents of the practice.
28—Relationship of Act to legislation establishing incorporated legal
practice
(1) This clause
applies to a corporation that is established by or under a law (whether or not
of this jurisdiction), is an incorporated legal practice, but is not a company
within the meaning of the Corporations Act 2001 of the Commonwealth.
(2) The provisions of
this Act or the regulations that apply to an incorporated legal practice
prevail, to the extent of any inconsistency, over provisions of the
legislation by or under which the corporation is established or regulated that
are specified or described in the regulations.
29—Relationship of Act to Corporations legislation
(1) The regulations
may declare any provision of this Act or the regulations that relates to an
incorporated legal practice to be a Corporations legislation displacement
provision for the purposes of section 5G of the Corporations Act 2001 of the
Commonwealth.
(2) The regulations
may declare any matter relating to an incorporated legal practice that is
prohibited, required, authorised or permitted by or under this Act or the
regulations to be an excluded matter for the purposes of section 5F of the
Corporations Act 2001 of the Commonwealth in relation to—
(a) the
whole of the Corporations legislation; or
(b) a
specified provision of the Corporations legislation; or
(c) the
Corporations legislation other than a specified provision; or
(d) the
Corporations legislation otherwise than to a specified extent.
(3) In this
clause—
matter includes act, omission, body, person or thing.
A person (whether or not an officer or an employee of an incorporated legal
practice) must not cause or induce or attempt to cause or induce—
(a) a
legal practitioner director; or
(b)
another legal practitioner who provides legal services on behalf of an
incorporated legal practice,
to contravene this Act, the regulations, the legal profession rules or his or
her professional obligations as a legal practitioner.
Maximum penalty: $250 000 or imprisonment for 2 years.
31—Obligations of individual practitioners not affected
Except as provided by this Schedule, nothing in this Schedule affects any
obligation imposed on a legal practitioner director or a legal practitioner
who is an employee of an incorporated legal practice under this or any other
Act, the regulations or the legal profession rules in his or her capacity as a
legal practitioner.
(1) The regulations
may (without limitation)—
(a) make
provision for or with respect to the legal services provided by
incorporated legal practices or a specified class of incorporated legal
practices;
(b)
prescribe requirements to be observed by incorporated legal practices, or a
specified class of incorporated legal practices, in this jurisdiction.
(2) A regulation
prevails over any inconsistent provision of the legal profession rules.
(3) A regulation may
provide that a breach of the regulations is capable of constituting
unsatisfactory professional conduct or professional misconduct by a
legal practitioner director, or by a legal practitioner responsible for the
breach, or both.