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New law to minimise red tape

News

Cite as: March 2015 89 (3) LIJ, p.22

Commissioner for Uniform Legal Services Regulation Dale Boucher continues to explain the new Uniform Law regime in the second of a two-part Q&A.

Are you satisfied that the national legislation is not inserting a layer of bureaucracy to the regulation of the legal profession, that it is beneficial to lawyers and clients?

One of the great things about the Legal Profession Uniform Law is that it preserves the role of existing judicial and regulatory bodies in participating jurisdictions, while still achieving the overall goal of uniformity. The Supreme Courts in particular maintain their respective jurisdictions over admissions and independent local regulatory bodies also continue.

So that there is consistency in approach between jurisdictions, it is desirable that there be a small overarching regulatory body to promote and ensure the achievement of the aims of the law. For that to be successful there will be some cost, albeit small in comparative terms. To that end the Uniform Law establishes a Legal Services Council and Commissioner for Uniform Legal Services Regulation, whose functions are limited to those required to ensure, and enhance, uniformity in all participating jurisdictions.

It is also worth noting that since the draft law was submitted to COAG in December 2010, the Victorian and NSW governments made significant amendments to create the regulatory structure now established by the Uniform Law. These seek to ensure that the new bodies are as streamlined as possible and that operational functions continue to be performed by existing local bodies. I am confident that the Legal Services Council is not oversized nor is it in any sense adding an unnecessary layer.

Is the legislation free of red tape, is it economical and easily understood by lawyers?

The Uniform Law will certainly minimise red tape – the same law and rules will apply across all participating jurisdictions. The law is economical – it has been designed to be principles-based rather than an overly detailed or prescriptive piece of legislation.

The commencement of any new law requires a period of familiarisation. With anticipated commencement in mid-2015, I am confident that lawyers, consumers and the community more broadly will have sufficient time to familiarise themselves with the Uniform Law. Such familiarisation will be supported by the Council and, I understand, local regulators and professional associations.

Lawyers should not find the new law surprising. The proposed rules are well grounded in established practice in Victoria and NSW, with relatively minor changes being made to accommodate jurisdictional differences. It is also important to note that existing local regulators will continue to perform regulatory functions and that there are transitional provisions in the law which will assist lawyers and consumers to quickly adjust to life under the Uniform Law.

What are the reasonable steps a law firm would take to satisfy itself a client has approved course of action and understood costs?

There is a considerable body of established common law that lawyers can, and do, rely on to assist themselves in this regard. I am confident that most lawyers who need to know this information will be aware of the relevant principles but the Council could in time, if it proves necessary or desirable, issue guidelines on the subject. The Council will produce a standard costs disclosure form which may be useful in assisting law practices to satisfy themselves that clients have understood and consented to proposed courses of action and proposed costs. As a lawyer myself, I know that it is necessary to fully understand what your client is seeking to do from the outset. Lawyers also need to agree with their clients about costs and other administrative matters.

How much time will you spend in Victoria hearing the concerns/interests of local practitioners?

Since being appointed Uniform Commissioner, I have spent a number of fruitful days in Victoria – meeting with key stakeholders. They have shared with me the concerns and interests of Victorian lawyers and consumers.

I will continue to liaise with (and hope to continue to develop a consultative and cooperative relationship with) those stakeholders, as well as those in other participating and non-participating jurisdictions, over the course of my appointment.

It is also most important to note that the chair of the Legal Services Council, the Hon Michael Black AC QC, and two of the other members of the Council live in Victoria and will help to keep an ear to the ground and an eye out for matters of relevance to consumers and to the legal profession in Victoria.

How will you engage with professional associations?

The Law Council of Australia and the Australian Bar Association have important functions under the Uniform Law and I speak with them regularly.

Primarily, they are responsible for developing the Legal Practice Rules, Legal Profession Conduct Rules and the Continuing Professional Development Rules.

The Council and I as Commissioner will continue to liaise with those bodies to ensure that the Uniform Law continues to develop and be applied in a consultative and cooperative manner.

Should professional associations such as the LIV continue in a co-regulation model of promoting professional standards?

The Law Council of Australia is the professional association for solicitors that is recognised under the Uniform Law.

I encourage local professional associations, including the LIV, to continue to work with the Law Council of Australia to promote professional standards.

I am a government lawyer with more than two years experience who doesn’t hold a PC. How will the supervision requirements and transitional provisions apply to me?

Government lawyers who are required to hold a PC under the Uniform Law will need to engage in a period of supervised legal practice. There will, however, be some transitional allowances for government lawyers to minimise the practical impact of the new requirement for them to hold a PC. Those transitional allowances are specific to each participating jurisdiction. In Victoria, people who, before the commencement of the Uniform Law, fell within the Legal Profession Act exemption (s2.2.2(2)(g)), will get credit for any period of legal practice engaged in by that person, whether supervised or not, as “supervised legal practice”.

As a government lawyer when I apply for a PC, what evidence should I provide of: a. my supervision? b. the effect of the transitional/deeming provisions?

The transitional/deeming provisions in relation to government lawyers are specific to each participating jurisdiction.

As such, I expect that each local regulator will provide more information in this regard closer to commencement.

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