Legal Practitioners Act 1981

This Act may be cited as the Legal Practitioners

Act 1981.

In this Act, unless the contrary intention appears—

amend includes—

in relation to a practising certificate—

impose a condition on the certificate; and

amend or revoke a condition already imposed on the certificate;

and

in relation to registration as a foreign lawyer—

amend the lawyer's registration certificate; and

impose a condition on the registration; and

amend or revoke a condition already imposed on the registration;

associate—see section 5A;

Associate Justice means an Associate Justice of the Supreme Court;

Australian Government Solicitor means the

Australian Government Solicitor constituted under the Judiciary Act 1903 of the

Commonwealth and includes any person authorised by or under that Act to act in the name of the Australian Government Solicitor;

Australian-registered foreign lawyer means a locally registered foreign lawyer or an interstate-registered foreign lawyer;

Chief Executive of the Society means the principal executive officer employed by the Society and includes any person who is, for the time being, discharging the duties of that officer;

Chief Justice means the Chief Justice of the

Supreme Court and includes an acting Chief Justice of the Supreme

Court;

the combined trust account means the Legal

Practitioners Combined Trust Account maintained by the Society under

Part

4;

Commissioner means the person holding or acting in the office of Legal Profession Conduct Commissioner under

Part

6Division 2;

community legal centre means a body that provides legal services to the community, or a section of the community, on a non‑profit basis, and includes the Aboriginal Legal Rights Movement, but does not include the Legal Services Commission;

conduct of a legal practitioner includes any act or omission by the legal practitioner;

conviction includes a formal finding of guilt;

corporation means—

a company within the meaning of the Corporations Act 2001 of the

Commonwealth; or

any other body corporate, or body corporate of a kind, prescribed by the regulations;

corresponding authority means—

a person or body having powers or functions under a corresponding law; or

when used in the context of a person or body having powers or functions under this Act (the local authority)—

a person or body having corresponding powers or functions under a corresponding law; and

without limiting subparagraph (i), if the powers or functions of the local authority relate to local legal practitioners generally or are limited to any particular class of local legal practitioners—a person or body having corresponding powers or functions under a corresponding law regardless of whether they relate to interstate legal practitioners generally or are limited to any particular class of interstate legal practitioners;

corresponding disciplinary body means—

a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the

Tribunal; or

the Supreme Court of another jurisdiction exercising—

its inherent jurisdiction or powers in relation to the control and discipline of legal practitioners; or

its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to legal practitioners;

corresponding law means the following:

a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction;

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;

the Council means the council of the Law

Society;

director, in relation to—

a company within the meaning of the Corporations Act 2001 of the

Commonwealth—means a director as defined in section 9 of that Act;

or

any other body corporate, or body corporate of a kind, prescribed by the regulations—means a person specified or described in the regulations;

document means book, file, account, paper (including a security or any instrument) or any record of information, whether in writing or accessible only through the use of a computer or other device;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

elective officer of the Society means an officer of the Society elected by the members of the Society in accordance with its rules;

Fidelity Fund means the Legal Practitioners

Fidelity Fund maintained by the Society under

Part

4;

fiduciary or professional default in relation to a legal practitioner means—

any defalcation, misappropriation or misapplication of trust money received in the course of legal practice by the legal practitioner or an incorporated legal practice or firm of which the legal practitioner is a member; or

any wrongful or negligent act or omission occurring in the course of the practice of the legal practitioner, or an incorporated legal practice or firm of which the legal practitioner is a member, whether committed by the legal practitioner, an employee of the legal practitioner or any other person;

foreign country means—

a country other than Australia; or

a state, province or other part of a country other than

Australia;

foreign law means law of a foreign country;

home jurisdiction—see section 5B;

incorporated legal practice has the same meaning as in Schedule

1;

interstate legal practitioner means a natural person—

who has been admitted as a legal practitioner in a participating

State; and

who holds an interstate practising certificate issued or given by a regulatory authority in that State or is entitled by admission or otherwise to practise the profession of the law in that State; and

who is not a local legal practitioner; and

whose principal place of legal practice is not this

State;

interstate practising certificate means a certificate or other form of authorisation issued by a regulatory authority in a participating State that confers an authority to practise the profession of the law in that State, whether that authority is general or subject to limitations or conditions;

interstate-registered foreign lawyer means a person who is registered as a foreign lawyer under a corresponding law;

jurisdiction means a State or Territory of the

Commonwealth;

law practice means—

a legal practitioner who is a sole practitioner; or

a firm of—

legal practitioners; or

incorporated legal practices; or

legal practitioners and incorporated legal practices;

or

an incorporated legal practice that practises on its own account;

or

a community legal centre;

the Law Society or the

Society means The Law Society of South

Australia;

legal costs includes disbursements;

legal practitioner or

practitioner means—

a person duly admitted and enrolled as a barrister and solicitor of the Supreme Court; or

an interstate legal practitioner who practises the profession of the law in this State;

legal practitioner director means a director of an incorporated legal practice who is a legal practitioner holding an unrestricted practising certificate;

legal profession rules means—

the Society's professional conduct rules;

any other rules prescribed by the regulations for the purposes of this definition;

legal services means work done, or business transacted, in the ordinary course of engaging in legal practice;

local legal practitioner means a legal practitioner who holds a practising certificate;

locally registered foreign lawyer means a person who is registered as a foreign lawyer under this Act;

LPEAC means the Legal Practitioners Education and Admission Council established under

Division

1 of

Part

2A;

money includes any instrument for the payment of money that may be negotiated by an ADI;

mortgage financing means facilitating a loan secured by mortgage by—

acting as an intermediary to match a prospective lender and borrower; and

subsequently arranging the loan; and

receiving or dealing with payments for the purposes of, or under, the loan, but does not include the provision of legal advice or the preparation of an instrument;

officer means—

in relation to a company within the meaning of the

Corporations Act 2001 of the Commonwealth—an officer as defined in section 9 of that Act;

or

in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations;

participating State means a State in which a corresponding law is in force;

partner includes—

an incorporated legal practice that engages in legal practice as a member of a firm of incorporated legal practices or a firm of legal practitioners and incorporated legal practices; and

a legal practitioner director of an incorporated legal practice referred to in paragraph (a);

practise the profession of the law, in relation to a legal practitioner or incorporated legal practice—see section 21 (and engage in legal practice and practise have the same meaning);

practising certificate means a practising certificate issued under Part

3;

principal—see section 5A;

professional mentoring agreement—see section 90B;

professional misconduct—see section 69;

professional obligations of a legal practitioner or an incorporated legal practice include—

duties to the Supreme Court; and

obligations in connection with conflicts of interest;

and

duties to clients, including disclosure; and

ethical rules required to be observed by legal practitioners;

Regulator means—

in relation to this jurisdiction—the Commissioner;

or

in relation to another jurisdiction—the person or body defined as the Regulator in relation to that jurisdiction by the corresponding law of that jurisdiction or, if there is no such definition, the person or body with functions or powers under the corresponding law that correspond to those of the Commissioner under this Act;

regulatory authority means—

in relation to this State—the Supreme Court, LPEAC, the

Society, the Commissioner or the Tribunal;

in relation to a participating State—a person or body in that State having a function conferred by legislation relating to regulation of legal practice that corresponds to a function exercised under this Act by a regulatory authority of this State;

in relation to another jurisdiction—

if there is only 1 regulatory authority for the other jurisdiction—that regulatory authority, unless subparagraph (iii) applies; or

if there are separate regulatory authorities for the other jurisdiction for different branches of the legal profession or for persons who practise in a particular style of legal practice—the regulatory authority relevant to the branch or style concerned, unless subparagraph (iii) applies; or

if the regulations specify or provide for the determination of

1 or more regulatory authorities for the other jurisdiction either generally or for particular purposes—the regulatory authority or authorities specified or determined in accordance with the regulations;

related body corporate means—

in relation to a company within the meaning of the

Corporations Act 2001 of the Commonwealth—a related body corporate within the meaning of section 50 of that Act; or

in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations;

serious offence means an offence, whether committed in or outside this State, that is—

an indictable offence against a law of this State, the Commonwealth or a State or Territory of the Commonwealth (whether or not the offence is or may be dealt with summarily); or

an offence against a law of a State or Territory of the

Commonwealth that would be an indictable offence against a law of this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State); or

an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State);

show cause event, in relation to a person, means the person—

becoming bankrupt or being served with notice of a creditor's petition presented to the Court under section 43 of the

Bankruptcy Act 1966 of the Commonwealth; or

presenting (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor's petition or presenting (as a debtor) such a petition under section 55 of that Act; or

applying to take the benefit of any law 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; or

being convicted of a serious offence or a tax offence, whether or not—

the offence was committed in or outside this State;

or

the offence was committed while the person was practising the law as a legal practitioner or was practising foreign law as an

Australian-registered foreign lawyer, as the case requires; or

other persons are prohibited from disclosing the identity of the offender;

sole practitioner means a legal practitioner who practices the profession of the law on his or her own account;

solicitor includes attorney and proctor;

spouse—a person is the spouse of another if they are legally married;

State includes a Territory;

the statutory interest account means the

Statutory Interest Account maintained by the Society under

Part

4;

tax offence means an offence under the

Taxation Administration Act

1953 of the Commonwealth, whether committed in or outside this

State;

the Tribunal means the Legal Practitioners

Disciplinary Tribunal established under

Part

6;

trust account has the meaning given in

Schedule

2;

trust money has the meaning given in

Schedule

2;

unqualified person means a person (including a body corporate) who is not entitled to practise the profession of the law;

unrestricted practising certificate means a practising certificate that is not subject to any condition under this Act or a corresponding law requiring the holder to engage in supervised legal practice or restricting the holder to practise as, or in the manner of, a barrister;

unsatisfactory professional conduct—see section 68.

If under a corresponding law an interstate legal practitioner's right to practise does not derive from the holding of an interstate practising certificate, then a reference in this Act to an interstate practising certificate, or the endorsement of a condition on an interstate practising certificate, is to be read as a reference to the practitioner's right to engage in legal practice under that law or to the imposition of a condition on that right.

For the purposes of this Act, a legal practitioner establishes an office in a State when the practitioner offers or provides services in the course of legal practice to the public in the State from an office maintained by the practitioner, or by the employer or a partner of the practitioner, or by a corporation of which the practitioner is a director, for the purpose in the

State.

Nothing in this Act or the legal profession rules affects the exercise by the Director of Public Prosecutions, the Crown Solicitor or a prosecutor instructed by the Director of Public Prosecutions or the Crown

Solicitor of any discretion in the context of a prosecution.

The Governor may, by proclamation, declare a law of another State to be a corresponding law and may, by subsequent proclamation, vary or revoke any such declaration.

For the purposes of this Act, an associate of a law practice is—

a legal practitioner who is—

a sole practitioner (in the case of a law practice constituted by the practitioner); or

a partner in the law practice (in the case of a firm of legal practitioners); or

a legal practitioner director in the law practice (in the case of an incorporated legal practice); or

a legal practitioner director in an incorporated legal practice that is a member of the law practice (in the case of a firm of incorporated legal practices or a firm of legal practitioners and incorporated legal practices); or

an employee of, or consultant to, the law practice;

or

an agent of the law practice who is not a legal practitioner;

or

an employee of the law practice who is not a legal practitioner;

or

an Australian-registered foreign lawyer who is a partner in the law practice; or

an Australian-registered foreign lawyer who has a relationship with the law practice, being a relationship that is of a class prescribed by the regulations.

For the purposes of this Act, a legal practitioner associate of a law practice is an associate of the practice who is a legal practitioner.

For the purposes of this Act, a principal of a law practice is a legal practitioner who is—

a sole practitioner (in the case of a law practice constituted by the practitioner); or

a partner in the law practice (in the case of a firm of legal practitioners or of incorporated legal practices or of both); or

a legal practitioner director in the law practice (in the case of an incorporated legal practice that is a law practice); or

a legal practitioner director of an incorporated legal practice that is a member of the law practice (in the case of a firm of incorporated legal practices); or

a legal practitioner who is generally responsible for the provision of legal services by the law practice (in the case of a community legal centre).

The home jurisdiction for a legal practitioner is the jurisdiction in which the practitioner's only or most recent current

Australian practising certificate was granted.

The home jurisdiction for an

Australian-registered foreign lawyer is the jurisdiction in which the lawyer's only or most recent current registration was granted.

It is Parliament's intention that the legal profession should continue to be a fused profession of barristers and solicitors.

The voluntary establishment of a separate bar is not, however, inconsistent with that intention, nor is it inconsistent with that intention for legal practitioners voluntarily to confine themselves to practice as solicitors.

An undertaking by a legal practitioner to practise solely as a barrister or to practise solely as a solicitor is contrary to public policy and void (but this subsection does not extend to an undertaking contained in or implied by a contract or professional engagement to provide legal services of a particular kind for or on behalf of another person).

Nothing in this section affects the validity of any undertaking given to the Supreme Court by a legal practitioner who receives the title

"Queen's Counsel", "King's Counsel" or "Senior Counsel" relating to the use of that title in the course of legal practice.

Despite this section, an association of legal practitioners may be lawfully constituted on the basis that membership is confined to legal practitioners who practise solely in a particular field of legal practice or in a particular way.

No contractual or other requirement may be lawfully imposed on a legal practitioner to join an association of legal practitioners.

The society formerly known as the "Law Society of South Australia

Incorporated" continues in existence as a body corporate under the name The

Law Society of South Australia.

The Society—

has perpetual succession and a common seal; and

is capable of suing and being sued.

Where an apparently genuine document purports to bear the common seal of the Society, it will be presumed in any legal proceedings, in the absence of proof to the contrary, that the common seal of the Society was duly affixed to that document.

The Society has the powers of a natural person.

The membership of the Society consists of all persons who have been admitted to membership of the Society, and who, for the time being, continue to be members of the Society, in accordance with the rules of the

Society.

The following officers of the Society will be elected in accordance with the rules of the Society:

the President; and

the President-Elect; and

the Vice-Presidents (the number of whom will be determined by the rules); and

such other elective officers as may be stipulated by the rules.

There will be a Chief Executive of the

Society.

The Chief Executive and any other employees of the Society will be appointed and hold office on such terms and conditions as the Society may determine.

There will be a council of the Society.

The Council consists of—

the Attorney-General; and

the President of the Society; and

the President-Elect of the Society; and

the Vice-Presidents of the Society; and

the other elective officers of the Society; and

any persons who are, in accordance with the rules of the Society, members of the Council ex officio; and

any persons who are co-opted in accordance with the rules of the

Society to membership of the Council; and

such other persons as are elected, in accordance with the rules of the Society, to be members of the Council.

No act or proceeding of the Council is invalid by virtue of any vacancy in its membership or any defect in the appointment or election of any member of the Council.

Subject to this Act, and to the rules of the Society, the Council has the management of all the affairs of the Society, and may exercise all the powers of the Society.

Subject to this Act, the Council may delegate any of its powers to—

a committee consisting of such persons as the Council thinks fit;

or

a company that is a subsidiary of the Society within the meaning of section 46 of the Corporations

Act 2001 of the Commonwealth; or

any officer or employee of the Society.

A delegation under this section is revocable at will and does not derogate from the power of the Council to act itself in any matter.

The Society must cause minutes of the proceedings of—

all general meetings of the members of the Society;

and

all meetings of the Council, to be entered in a book or books kept for the purpose.

An apparently genuine document purporting to be verified by the

Chief Executive and—

purporting to be—

minutes entered in pursuance of this section; or

an extract from any such minutes; or

purporting to be—

minutes of the proceedings of any committee established by the

Council; or

an extract from any such minutes, will be accepted in any legal proceedings as evidence of the proceedings to which the document relates.

Subject to subsection (4), the Society must at the request of any member of the Society produce for inspection the minutes of—

any general meeting of the Society; and

any meeting of the Council; and

any meeting of any committee established by the

Council.

The Society is not required to produce minutes for inspection under subsection (3) if the minutes are of a confidential nature and have been entered in a minute book kept specifically for the purpose of recording minutes of such a nature.

In any legal proceedings it will be presumed, in the absence of proof to the contrary, that any meeting of—

the members of the Society; or

the Council; or

any committee established by the Council, was duly convened and constituted, and that the proceedings of any such meeting were regularly conducted.

An apparently genuine document purporting to be under the hand of the President, the President-Elect, a Vice-President, or the Chief Executive, of the Society and to certify that a person named in the document has been duly elected or appointed to a specified office in the Society, or in the employment of the Society, will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the matter so certified.

The Society may appoint a legal practitioner to appear before any court, commission or tribunal in any matter affecting the interests of the

Society or the members of the Society, or in which the Society is directly or indirectly concerned or interested.

Without limiting the generality of subsection (1), a practitioner so appointed is entitled to appear—

in any proceedings instituted by the Society; or

in any proceedings in which a person seeks admission as a legal practitioner; or

in any proceedings in which it is alleged that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct;

or

in any proceedings under this Act.

The Society must, as soon as practicable after appointing a legal practitioner to appear before a court, commission or tribunal under subsection (1), notify the Attorney‑General of the appointment.