Rules of Practice 1994

Rules of Practice 1994

In pursuance and exercise of the powers conferred on it by the Legal Profession Act 1993, the Council of The Law Society of Tasmania makes the following Rules of Practice under and for the purposes of that Act.

These rules may be cited as the Rules of Practice 1994.

These rules take effect on 31 December 1994.

In these rules –

act includes omission;

Act means the Legal Profession Act 1993;

approved means approved by the Council;

client includes a person by whom, or on whose behalf, money for investment is advanced to, or held by, a firm;

corporation means a corporation within the meaning of the Corporations Act;

disbursements means any fees, costs or charges other than those incurred by a practitioner for advice given, or work done, by another practitioner who is a partner of, or employed by, the same practice as the practitioner;

Executive Director means the Executive Director of the Law Society;

firm means – an Australian legal practitioner who is a sole practitioner; or a law firm; or a multi-disciplinary partnership; or an incorporated legal practice – where at least one person holds a practising certificate issued by the Law Society;

lease includes an agreement for lease;

litigation loan agreement means an agreement between a client, a lending institution and a practitioner to provide the client with money to pay the legal costs of the practitioner in relation to the conduct of litigation for or on behalf of the client;

money includes – a cheque, bank draft, bill of exchange or any other negotiable instrument; and any instrument or asset that is capable of being converted into money;

money for investment means money received or held by a firm or fund operator on behalf of an investor as – money borrowed by the firm or fund operator; or money received or held for application in the acquisition of any securities that are to be held – beneficially by or for the firm or fund operator; or by any person for an investor;

partnership includes a limited partnership;

party includes any person who is jointly a party to any proceedings or transaction;

practise means to practise as a barrister or legal practitioner;

practitioner– means a person who is practising as a barrister or legal practitioner; and for the purposes of rule 12, includes a firm or a partner, an employer or an employee of a practitioner;

proceedings, for the purposes of rule 12, means any action or claim at law or in equity;

solicitor includes an Australian-registered foreign lawyer who practises as or in the manner of a solicitor;

statutory tribunal means any tribunal or other quasi-judicial body established under an Act;

transaction means any dealing between parties which may affect, create or be related to any legal or equitable right or entitlement or interest in property of any kind.

A firm must not carry on a practice in any place unless a practitioner – is in charge of that practice at that place; and gives substantial attendance at that practice at that place during the normal hours of business of that practice at that place.

A firm that carries on a practice in any place in accordance with subrule (1) must not carry on another practice in any other place that is a branch of that firm unless – a practitioner is in charge of the branch; and a notice, in an approved form, that contains the following information is publically displayed in a prominent area of the branch:the days, and times, when the practitioner who is in charge of the branch will be in attendance at that branch; the contact details, at the other practice of the firm to which the branch relates, for the practitioner who is in charge of that branch.

A notice under subrule (1A)(b) is to be in a form approved by the Council.

A firm may apply to the Council for approval not to comply with subrule (1) or (1A).

The Council may – grant the approval with or without conditions; or refuse to grant the approval.

An application for approval is to be – in writing; and lodged with the Executive Director.

The Council may withdraw an approval at any time.

In this rule – branch includes a place that is the Tasmanian office of a firm whose practice is mainly carried on in another State or a Territory.

A practitioner may carry on a practice under a firm name that includes – that practitioner's name; or the names of any partner or former partner of the firm.

A practitioner must not carry on a practice under a firm name, other than a firm name specified under subrule (1), without the approval of the Society.

An application for approval is to – be in writing; and specify the proposed firm name; and be lodged with the Executive Director.

The Society may – grant the approval; or refuse to grant the approval.

The Society must not grant an approval if a firm name is misleading or deceptive or is likely to mislead or deceive.

A practitioner may advertise in connection with his or her practice if the advertisement – does not contain a statement that the practitioner knows to be false; and is not misleading or deceptive or likely to mislead or deceive; and does not make or imply a comparison with another practitioner; and is not vulgar, sensational or of a nature that, in the opinion of the Society, is likely to bring the practitioner, the legal profession or the legal system into disrepute.

In respect of any investigation of a complaint or any disciplinary proceedings under Part 8 of the Act, a practitioner claiming expertise or specialty in a particular field of the law, if required by the Society, must prove that the claim is – not false; and not misleading or deceptive or likely to mislead or deceive.

Subrule (2) does not apply to the practice of mediation or arbitration.

A practitioner, directly or indirectly, must not –

apply for, or seek instructions for, professional business from a person whom the practitioner knows is a client of another practitioner in a current matter; or do any act or thing, or permit or cause any act or thing to be done, that may reasonably be regarded as – attracting business in an offensive manner; or using harassment or coercion; or calculated to attract business unfairly.

When a solicitor intends to transfer to another solicitor the whole or part of the solicitor’s practice, including clients’ work in progress, and to put the other solicitor in possession of documents held by the solicitor on behalf of clients, before the solicitor delivers possession of the practice to the solicitor who is acquiring it the solicitor must give to each client at least 14 days’ (or such other period as may be reasonable in the circumstances) notice in writing of – the intended transfer of documents to the solicitor who is acquiring the practice, unless a contrary direction is received from the client; and the client’s right to give to the solicitor a contrary direction in relation to the conduct of the client’s affairs and the delivery of the client’s documents.

Any notice sent to a client on whose behalf the solicitor holds money in trust or under the solicitor’s control must advise the client of – the balance of money held on the client’s behalf; and the solicitor’s intention to transfer the relevant account to the solicitor who is acquiring the practice, unless advised by the client to the contrary; and the client’s right to give to the solicitor a contrary direction as to the manner in which the solicitor should deal with the account on the client’s behalf.

Subrules (1) and (2) do not apply where a new partner is admitted to a partnership which continues to conduct the practice.

A solicitor must not allow the solicitor’s business name or stationery to be used by a debt collection agent or mercantile agent in a manner that is likely to mislead the public.

A solicitor who receives, from a debt collection agent or mercantile agent, instructions to act for a client must ensure that – the solicitor’s relationship with the agent is fully disclosed in writing to the client; and the information required to be disclosed to the client by any relevant legislation and these rules is communicated to the client; and the solicitor maintains direct control and supervision of any proceedings or correspondence on behalf of the client; and any money recovered on behalf of the client is accounted for by the solicitor.

A solicitor who engages in the conduct of another business concurrently, but not directly in association, with the conduct of the solicitor’s legal practice must – ensure that the other business is not of such a nature that the solicitor’s involvement in it would be likely to impair, or conflict with, the solicitor’s duties to clients in the conduct of the legal practice; and maintain separate and independent files, records and accounts in respect of the legal practice and the other business; and disclose the solicitor’s financial or other interest in that business to any client of the solicitor who, in the course of dealing with the solicitor, deals with the other business; and cease to act for the client if the solicitor’s independent service of the client’s interest is reasonably likely to be affected by the solicitor’s interest in the other business.

For the purposes of this rule, a solicitor is taken to engage in the conduct of another business where the solicitor, or an associate – is entitled, at law or in equity, to an interest in the assets of the business which is significant or of relatively substantial value; or exercises any material control over the conduct and operation of the business; or has an entitlement to a share of the income of the business which is substantial, having regard to the total income which is derived from it.

A solicitor who has assisted a client to obtain a litigation lending account with a bank, or other financial institution, for the purpose of funding litigation, must not withdraw, or cause or permit the withdrawal of, money from the client’s account for any purpose other than – to reimburse the solicitor for disbursements (including Counsel’s fees) already paid; or to pay on behalf of the client any accounts due for payment to a third party, including the payment of costs due to a solicitor who has previously acted for the client where such a payment is required to obtain delivery of documents retained under a lien for unpaid costs claimed by that solicitor.

All withdrawals of money from the client’s account under subrule (1) must be made in accordance with the client’s instructions.