Page 1178 - Week 04 - Thursday, 4 May 2006
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Similarly, part 3.2 introduces uniform provisions for the imposition, recovery and review of legal costs charged by solicitors and barristers. There will now be standard requirements for practitioners to make disclosure of their costs to their clients, the regulation of agreements relating to legal costs and the processes for billing and the method for review of costs if there is a disagreement. Because of the training and procedural development required, this part also will have a delayed operation, commencing on 1 January 2007.
Under part 3.3 jurisdictions were given some freedom in developing their scheme to ensure that practitioners maintain professional indemnity insurance. Other provisions in the bill, however, ensure that all practitioners must have adequate insurance cover at all times. Failure to do so will result in a loss of right to practise and possible penalties, including suspension or cancellation of a practising certificate, or a fine.
Part 3.4 introduces nationally uniform provisions for the establishment and management of the solicitors fidelity fund. This is a fund to compensate people who suffer loss as a result of misdeeds of solicitors in relation to trust accounts. The process for identifying and managing defaults and for making claims against the fund has, through some considerable effort, been standardised.
Part 3.5 sets out the rules of conduct for establishing and managing mortgage practices and managed investment schemes. The part substantially re-enacts the provisions of part 12A of the Legal Practitioners Act 1970. It provides for the regulation of certain mortgage work carried out by solicitors and prevents claims against the fidelity fund from being made in respect of losses arising from certain investments made in connection with mortgage practices and managed investment schemes that are associated with solicitors.
Chapter 4 of this bill provides the scheme for making complaints about, and disciplining, Australian lawyers and foreign lawyers for unsatisfactory professional conduct or professional misconduct. The broad purposes of the chapter are to: provide a nationally consistent scheme for disciplining the legal profession; promote and enforce nationally consistent standards; encourage best practice legal service delivery and make available a means of redressing complaints against lawyers. Chapter 4 also facilitates the mutual recognition of disciplinary action, cooperation between regulators and the mutual exchange of information concerning complaints.
There is new provision for a legal professional body to recommend mediation of complaints provided there is no professional misconduct involved. The professional body may, with the agreement of the complainant and the legal practitioner involved, facilitate the mediation, but the professional body is under no obligation to either recommend or facilitate mediation. Mediators are protected from civil liability.
The bill provides for the law society or the bar association to take summary action against a practitioner or to dismiss complaints that lack merit. More serious complaints must be referred to a newly formed Disciplinary Tribunal, which has broad-ranging disciplinary powers, including the power to make orders for the payment of compensation or the imposition of fines. Under part 4.9 the law society must keep a
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