Frequently Asked Questions

• Who can be a personal representative / alternate?

  A personal representative and alternate must be a legal practitioner who:

  • holds a current principal practising certificate and, if you have a trust account, is also be authorised to hold trust money
  • holds appropriate PI insurance
  • has made the required fidelity fund contribution.
• If I am not selling my practice what do I need to consider when closing a practice?

  If I am not selling my practice what do I need to consider when closing a practice?

  There can be a number of reasons for closure of a practice:  retirement, incapacitation or death of a sole practitioner, cessation of practice, merger with another firm, dissolution of a partnership or an incorporated legal practice, or the declared insolvency of a practice. When there is time to prepare for the closure of a practice the following should be done:

  • You should have thoroughly understood and reviewed the practice and had it audited. There should be an audit of finances, stock, deeds held, contracts, closed files.
  • Note that parts of the Running Your Practice Checklist may be of assistance.
  • You should have determined that sale or merger is not a viable option.
  • You should have considered your obligations to employees and sought advice regarding the requirements under employment law.
  • You should have resolved third parties obligations including to donors of powers of attorney, to trusts and to estates.
  • You should have resolved the issue of storage of deeds and closed files.
• What are some of the issues to think of when considering selling a small practice?
  • Ensure that your practice is as ‘sale ready’ as possible. The longer the time allowed for being ‘sale ready’, the better.
  • If you think you may sell some time in the future, don’t await a crisis such as a health issue thus forcing a ‘fire sale’ or closure.  It is also good to have a ‘disaster management plan’ in place. See LPLC: When a sole practitioner dies May 2015 89 (5) LIJ, p. 70.
  • Those practitioners who have sold successfully have had software packages that enable prospective buyers to see a ‘snap shot’ of the finances of the firm. See How to succeed at succession September 2012 86 (09), LIJ p.13.
  • Consider providing an ‘executive summary’ of your practice to give prospective buyers. This could include the areas of practice, number of deeds and ‘live’ wills held, the type of clients, the staff, the premises and the technology in use. See Practice Management: Preparing to sell Jan/Feb 2015 89 (1/2) LIJ, p. 79. Consider also: Top Tips when acting in a sale or purchase of a business
  • Andy Shaw May 2017  and “Is it time to sell or merge” by Rohan Harris June 2017 LIJ, p 70.
  • Note that valuation of a practice maybe difficult to determine and need professional input
  • Methods of sale:
    • Advertising( including in the classifieds section of the LIJ)
    • Networking with other practitioners in the practice or geographical area. A suburban or regional law association may be useful for discrete inquires.
    • Using a  broker. However note that unless a practice is worth over a $100,000 the use of a broker will not be justifiable. See Practice Management: Preparing to sell Jan/Feb 2015 89 (1/2) LIJ, p 79.
• How do I select the right person to be my personal representative / alternate?

  An ideal personal representative and alternate is someone who you know well, perhaps a practitioner who is a longstanding personal friend or a local lawyer. The person needs to be someone who:

  • is familiar with the areas of law in which you practice
  • you trust to be a potential caretaker of your practice, clients and staff
  • who is willing and able to take on the responsibility at short notice.

  A reciprocal arrangement with another practitioner may be an option. Although this may not always be practical if either of you has insufficient time to devote to another practice in an emergency.
  To assist you to select a personal representative and alternate, the LIV has prepared a checklist of relevant considerations.

• What does my personal representative / alternate need to know about my practice before they agree to act?

  The LIV has prepared a checklist to assist you to identify relevant considerations.

• What are human resources?

  Human resources (HR) is about the management of people – every law firm's most important asset.  

  It involves getting the right people in the right roles, and for those people to be motivated, appropriately rewarded, developed and supported. Activities associated with HR include:

  • recruitment – getting the right people into the right roles
  • staff development – retaining your existing staff through training, mentoring and professional development
  • performance management
  • employee relations
  • administration of awards, wages, terms and conditions, including leave allowances and benefits
  • training, mentoring and professional development
  • HR policy management (eg occupational health and safety, work-life balance).

  The LIV has developed a checklist to help you manage your HR function and requirements. The LIV also provides an HR Information service to members on 03 9607 9548.

• How do I effect the appointment of my personal representative / alternate?

  It is recommended that you enter a formal arrangement, to ensure the scope and terms of the arrangement are clear to both parties, as well as reduce the need for, and associated cost of, a formal management appointment under the Uniform Law.

  The LIV is developing a power of attorney (contingency and business continuity) form to assist practitioners who wish to formalise the appointment of your personal representative / alternate in the event you are incapacitated due to serious injury or illness.

  However, in the event of your death, your powers of attorney do not survive. Therefore, you may wish to consider making appropriate provision in your will, either by appointing your personal representative / alternate as:

  • a limited or joint executor, or
  • a trustee to wind up or sell your law practice.
• When will my personal representative / alternate have to act?

  The most common circumstances in which your personal representative / alternate may be called on to act are if:

  • you are incapacitated due to death, serious injury or illness
  • your practising certificate is suspended or cancelled, if the VLSB+C determines it is appropriate.

  Additionally, you may ask you personal representative / alternate to act as a locum when you are voluntarily absent from your practice, for example due to planned leave (personal, medical, carer’s, parental, etc).

• What steps do I need to take when closing a practice?

  Note that this is a non-exhaustive list.

  1. Contact the VLSB+C

  Regarding your practising certificate: Notification of change of information - Local legal practitioner.

  Note that this must be done through LSB Online.     

  For legal practices (non-ILP) see: Legal practice other than incorporated legal practice.

  For ILP’s: Termination of provision of legal services: incorporated legal practice.

  If the practice is an ILP you will also need to meet ASIC requirements regarding closure.

  2. Notify the LPLC that you will not be renewing your practising certificate and insurance.

  Note the LPLC’s run-off insurance policy.

  3. Retain or transfer files and deeds. Note your obligations regarding files under the Uniform Law.

  Note the LIV’s Ethics: File ownership retention and destruction guidelines

  The following articles may be useful as a guide but note that these reflect the position under the Legal Profession Act 2005:

  Practice management: Filing facts

  November 2014 88(11) LIJ, p.78

  LPLC: The Seven Year Ditch

  May 2011 85(5) LIJ, p.74

  4. Notify clients of the intention to transfer or store deeds and files to give them an opportunity to collect these. Your obligation is to give clients at least 14 days’ notice when transferring files and deeds (See Rule 6 Legal Profession Uniform Legal Practice (Solicitors) Rules 2015). The obligation to seek client approval extends to closed files including closed files in electronic form. Note that it may be the legal personal representative who has rights over the deceased client’s deeds and files.

  5. Close the trust account. Information and forms can be found on the VLSB+C’s Website:

   Fact Sheet: Closing the trust account

  6. While in no way compulsory it is advisable to permit the closure of practice details to be noted on the Legal Archives Register so that former clients and other practitioners can trace deeds and files etc. This can be done by contacting the LIV as the Library holds these records.

• Where can I find awards and salaries information?

  Information about awards and salaries can be found here.

• Can my personal representative / alternate charge for the work they do?

  Yes. Your personal representative / alternate is entitled to charge clients for work undertaken while acting in such capacity. However, they must only do so in accordance with the existing costs agreement between your law practice and the individual client.
  It is up to you and your personal representative / alternate to determine whether any payment will be made for managing the affairs of your practice beyond what is chargeable in client matters. It is recommended that you expressly address this in your agreement, including the identification of whether what, if any:

  • annual retainer is payable
  • fees will be charged in relation to work undertaken other on client files
  • percentage of proceeds obtained in the sale of the practice and/or any client files or deeds can be retained.

  The VLSB+C may consider your personal representative / alternate has acted in conflict of interest if s/he benefits from acting otherwise than in accordance with the agreement.

• What if I don’t have a personal representative / alternate in place?

  If you die or are incapacitated without a formal appointment of a personal representative / alternate in place, it is likely that the VLSB+C will need to appoint an external intervener under the Uniform Law, to enable someone to have the necessary powers to manage your law practice.

  External intervention is an invariably lengthy, disruptive and costly process (the average cost is $40,000). The VLSB+C appointee may not be known to you, and is unlikely to be familiar with your practice, clients or staff. Under the Uniform Law, s/he must conduct a full audit of the law practice before s/he can conduct its day-to-day affairs, attempt to sell it, or wind it up. The costs of the external intervention are borne by your law practice or estate.

  Thus, external intervention is an added pressure on your clients, staff and family at a time when they are already dealing with the implications of your unexpected absence, and practitioners are advised to take steps to avoid it by ensuring a formal personal representative / alternate appointment is in place.

• Why do I need an alternate if I have a personal representative in place?

  The VLSB+C encourages you to appoint an alternate so that someone can step in if your personal representative is unable to act when required, to avoid the cost and impost of external intervention on your practice (see previous FAQ).