ByLawyers News and Updates

Legal Profession Uniform Law – WA

by

The Legal Profession Uniform Law applies in Western Australia from 1 July 2022.

Overview

The Legal Profession Uniform Law Application Act 2022 applies the existing national Legal Profession Uniform Law (LPUL) in WA, together with subordinate legislation. it is intended to simplify and standardise regulation for legal practitioners. It brings WA into line with New South Wales and Victoria. The Uniform Law replaces the Legal Profession Act 2008 (WA).

The Uniform Law is governed by the Legal Services Council and the office of the Commissioner for Uniform Legal Services Regulation. Each participating jurisdiction has a representative on the council.

The council establishes the rules and policies that underpin the Uniform Law. The Commissioner oversees the dispute resolution and compliance functions of the Uniform Law.

The WA Legal Services and Complaints Committee and the Legal Practice Board continue to carry out complaint and investigation functions, grant practising certificates, and provide professional development.

While the Uniform Law makes many sweeping changes, the main effects on everyday practice concern costs disclosure and billing.

Costs disclosure

Disclosure obligations vary depending on the estimated legal costs in a matter.

Disclosure is not required where the total legal costs are not expected to exceed $750 excluding GST and disbursements. Where the total legal costs are not expected to exceed $3,000 excluding GST and disbursements, a law practice may use the prescribed uniform standard disclosure form contained in Schedule 1 of the Legal Profession Uniform General Rules.

Costs disclosure must be in writing and given to the client when instructions are taken, or as soon as reasonably practical after. It must include the basis on which legal costs will be calculated and an estimate of the total legal costs. It must include information about the client’s rights to negotiate the costs agreement, receive a bill, request an itemised bill, negotiate the billing method, and whether the costs are subject to a costs determination.

If there is any significant change the disclosure must be updated.

If a law practice fails to meet its disclosure obligations any cost agreement is void and the client is not required to pay the costs. The law practice cannot then commence or maintain any proceedings for recovery of costs until they are assessed, or any dispute determined by the Legal Practice Board. A contravention can also result in disciplinary action.

Where disclosure is made under the main disclosure requirements of the Uniform Law, a law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs.

Billing

The billing provisions of the Uniform Law do not apply if the client is a commercial organisation or government authority.

A bill may be expressed as a lump sum, or itemised. A client receiving a lump sum bill may request an itemised bill. The request must be made within 30 days after the date on which the legal costs became payable, and must be complied with within 21 days after receiving the request.

If the total amount of legal costs specified in an itemised bill is higher than the amount previously specified in a lump sum bill, the additional costs are only recoverable if the law practice previously told the client in writing that could be the case.

Each bill or covering letter accompanying each bill must be signed by a principal of the law practice, or nominate a principal of the law practice as the responsible principal for the bill.

A client may request progress reports on costs which must be provided within a reasonable period.

Lawyers may not charge for preparing or giving a bill or a progress report.

Bills must include a written statement setting out the client’s options to dispute the legal and the time limits applicable.

Interest may be charged on unpaid costs 30 days after a complying bill has been given if the bill contains a statement that interest will be payable and the rate chargeable. The maximum rate is prescribed, currently 2% above the cash rate target specified by the Reserve Bank of Australia at the time the bill was given.

By Lawyers updates

By Lawyers have made the introduction of the Legal Profession Uniform Law easy for our WA subscribers. Changes to By Lawyers publications to cover the LPUL include:

  • New costs agreements and short form costs disclosure for all WA guides and Federal guides. These are also available in 101 Costs Answers.
  • Updates to the Example Invoice Incorporating Notification of Client’s Rights – WA and the stand-alone Notification of Client’s Rights – WA precedents available on all WA and Federal matter plans.
  • Updates to the commentary on the requirements for professional executors in the Probate and Letters of Administration publications for WA.
  • Updates to the costs section in the Wills commentary including the Conflicts concerning practitioner’s own interests section and the Solicitors as executors section.
  • Updates to the WA trusts accounting section in the Practice Management guide
  • Relevant updates to 101 Costs Answers.

Uniform Legal Profession Law – WA

by

By Lawyers are preparing for the Legal Profession Uniform Law in Western Australia

Legal Profession Uniform Law (LPUL) is due to commence in Western Australia on 1 July 2022.

By Lawyers guides and precedents will be updated in due course.

Overview

The WA provisions are contained in the Legal Profession Uniform Law Application Bill 2021 (WA) which will replace the Legal Profession Act 2008 and the Law Society Public Purposes Trust Act 1985 on commencement.

Simplified and standardised regulations for WA legal practitioners will align with those in New South Wales and Victoria. The Uniform Law is governed by the Legal Services Council and the office of the Commissioner for Uniform Legal Services Regulation. Each participating jurisdiction has a representative on the council which sets the rules and policy underpinning the Uniform Law. The Commissioner oversees dispute resolution and compliance functions.

The WA Legal Services and Complaints Committee and the Legal Practice Board will continue to carry out complaint and investigation functions, the granting of practising certificates, and professional development.

Costs disclosure and billing under the LPUL

While the Uniform Law makes sweeping changes, those which impact day-to-day practice the most relate to costs disclosure and billing.

Costs disclosure

Written costs disclosure must be given when instructions are taken or as soon as reasonably practical after. It must include the basis on which costs will be calculated and an estimate of the total costs. It must be updated if there is any significant change.

The client must be informed of their rights to negotiate a costs agreement, receive a bill, request an itemised bill, negotiate the billing method and the availability of costs determination.

If a law practice fails to meet its disclosure obligations, then any cost agreement with the client is void and the client is not required to pay the legal costs. The firm cannot commence or maintain any proceedings for recovery of legal costs until they have been assessed, or the dispute is determined by the Legal Practice Board. A contravention can also result in disciplinary action.

Firms must take all reasonable steps to ensure the client has understood and given consent to the proposed conduct of the matter and the proposed costs.

Disclosure obligations vary depending on the estimated costs in a matter. Disclosure is not required if costs are not expected to exceed $750 excluding GST and disbursements. Where costs are not expected to exceed $3000 excluding GST and disbursements, the prescribed uniform standard disclosure form can be used.

Billing under the LPUL

A bill may be lump sum or itemised. A client who receives a lump sum bill may request an itemised bill. The request must be made within 30 days after the date on which the legal costs became payable and must be complied with within 21 days after receiving the request.

If the costs in an itemised bill are higher than the a lump sum bill, the additional costs will only be recoverable where the client was told that the costs in any itemised bill may be higher – and the additional costs are determined to be payable after a costs assessment or binding determination.

Each bill or a covering letter accompanying each bill must be signed by a principal of the firm, or nominate a principal as responsible for the bill.

A law practice must not charge for the preparation or delivery of a bill.

Each bill must include or be accompanied by a written statement setting out the options available to the client in the event of a dispute about the costs and any time limits which may apply.

Interest can be charged on costs unpaid 30 days or more after a complying bill has been given. Interest can only be charged where the bill contains a statement that interest will be payable and the rate chargeable. The maximum rate is prescribed; currently it is 2% above the cash rate target specified by the Reserve Bank of Australia at the time the bill was given.

The billing provisions of the Uniform Law do not apply if the client is a commercial or government authority

Cost assessment procedure

The Uniform Law does not change the procedure for party / party cost assessments in Western Australia. The procedure and form for an assessment of costs is set out at rule 4.7 of the Consolidated Practice Directions of the Supreme Court.

By Lawyers guides:

All WA specific By Lawyers guides will be amended to cover the Legal Profession Uniform Law. So too will the relevant WA commentary and precedents in Federal guides and reference materials.

The main changes will include:

  • New LPUL compliant costs agreements and short form costs disclosure for all WA guides, Federal guides including Family Law, Employment Law, Companies, Trusts, Joint Ventures and Superannuation.
  • Updates to the 101 Costs Answers reference manual, which will also include the LPUL compliant costs agreements.
  • Updates to the ‘Example invoice incorporating notification of client’s rights’ and the stand-alone ‘Notification of client’s rights’ precedents available on all WA and Federal matter plans.
  • Updates to the commentary on professional executor regulations in the Probate and Letters of Administration guides.
  • Updates to the costs section in the Wills commentary including the ‘Conflicts concerning practitioner’s own interests’ section and the ‘Solicitors as executors’ section.
  • Updates to the WA trust accounting section in the By Lawyers Practice Management guide.
  • Updates to 101 Costs Answers.
  • Updates to the ‘Solicitor mortgages’ section in the Mortgages commentary.

Restraining orders – New publication – WA

by

By Lawyers are delighted to announce the release of our newest publication, Restraining orders in Western Australia.

Our new guide covers all types of restraining orders available under the Restraining Orders Act 1997 including:

  • family violence restraining orders (FVRO);
  • violence restraining orders (VRO) – when an act of abuse has been, or is feared will be, committed; or
  • misconduct restraining orders (MRO) – when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.

With detailed commentary and precedents, the new publication provides everything a practitioner will need to represent either a respondent or a person seeking to be protected in proceedings for restraining orders in the Magistrate’s Court or Children’s Court.

The commentary sets out important factors which influence an application, including the presence of a family relationship and other important eligibility criteria, the service and duration of orders as well as the types of restraints that a magistrate may place on the person bound.

The commentary also provides valuable guidance on how to negotiate restraining orders at court, as well as other valuable strategies such as a conduct order on a without admissions basis and the use of undertakings. Appeals and costs orders are also covered.

The commentary also assists with advising a client that is bound by a restraining order on the offences and penalties which may apply.

Other issues discussed in the commentary include:

  • interim orders;
  • telephone applications;
  • the role of police and welfare officers in making a restraining order applications;
  • restraining orders in bail applications and family law proceedings;
  • interstate applications and the National Domestic Violence Orders Scheme.

Key precedents include:

  •  The application forms as well as example content precedents to use for the application;
  • Undertakings; and
  • Instructions to oppose or consent to an order.

By Lawyers is always working to increase our content for subscribers. Our new guide for WA Restraining orders is available in the WA Criminal guide from a LEAP matter via the Guides & Precedents tab, or on the By Lawyers website.

 

 

Access to criminal case information – WA

by

There is now a greater public right of access to criminal case information in the WA Magistrates Court. Practitioners acting for accused persons in the WA Magistrates Court should be aware – and, where appropriate, advise their clients – that an amendment to the Magistrates Court (General) Rules 2005 (new rule 40) now allows any person to request from the court the following information relating to a particular case:

  1. the charge;
  2. any conviction or order made in respect of the charge; and
  3. any penalty imposed on the accused in relation to the charge.

However, this rule is expressly subject to the non-publication provisions of s 171 of the Criminal Procedure Act 2004. In appropriate circumstances, consideration should be given to seeking a non-publication order under s 171(4) to avoid the effect of this rule.

Also, this rule does not allow anyone to generally access the accused’s criminal history other than the outcome of the specific case.

The commentary in the By Lawyers Criminal Magistrates Court (WA) guide has been updated accordingly.

WA Estates – Subscriber feedback prompts enhanced precedents and commentary

by

At By Lawyers we love hearing from our subscribers about content that might improve our publications. A recent subscriber query brought to our attention that, while our WA Estates publication included precedents for notice and consent forms where an application is not made by all executors for probate, it is also sometimes necessary to have the equivalent for letters of administration.

This query prompted a review of the WA Estates Guide by our editorial team, after which By Lawyers have now published the following new or enhanced precedents:

  • Notice and consent forms for persons entitled to apply for Letters of Administration;
  • Consent form where there is no guarantee;
  • Letters to accompany such forms;
  • Letter to beneficiary re executor’s claim for commission;
  • Motion to dispense with the requirement for guarantees;
  • Motion for revocation of grant of probate or administration.

We have also enhanced our WA Estates commentaries with new content including:

  • Who is a beneficiary?
  • Solicitors dealing with beneficiaries when acting for the estate;
  • Challenge to the will by a beneficiary;
  • Vesting of a beneficiary’s interest in an estate;
  • Right to a copy of a will and inventory of assets.

By Lawyers always endeavour to be responsive to our subscribers’ needs. We hope that these improvements will assist not only the firm which prompted them, but all users of our WA Estates Guide.

New publication – WA Criminal Magistrates Court

by

We are pleased to announce the release of another comprehensive step-by-step guide for Western Australian practitioners, being Criminal Magistrates Court WA .

This publication covers all aspects of criminal practice and procedure, for both simple and indictable offences, when acting for the defendant in criminal proceedings in the Magistrates Court.

The guide assists practitioners with all aspects of conducting a criminal matter from arrest and bail, or a first appointment in the office, through to hearing and/or sentencing, including avenues of appeal and possible costs applications. The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedures relating to arrest and bail, including the right to silence, the record of interview and practical tips for lawyers attending at the police station. Retainer instructions, including for a bail application, are included on the matter plan.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. Precedent letters to the Crown are included on the matter plan for this purpose, as well as an instruction sheet for a plea and mitigation.
  • Procedures involved when attending court for both simple and indictable matters, pre-sentence reports and conducting the plea.
  • Preparing for hearing when a plea of not guilty has been entered.
  • Sentencing options and procedure for guilty pleas in the Magistrates Court.
  • Client mental health considerations, with a letter instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence are included on the matter plan.
  • Information on appeal rights.

This guide is a valuable tool for all practitioners who appear in the Magistrates Court, especially those with limited experience in criminal work, or those supervising younger lawyers.

New publication – Estates WA

by

As of today, our library of publications now includes an Estates publication for Western Australia.

Make an application for probate or administration with ease and confidence.

Supported by comprehensive commentary.

Precedents include all necessary documentation for obtaining the grant, getting in the assets and making the distribution together with releases, indemnities and deeds of family arrangement.

To learn more about what this publication includes, please click here.

As always, if you have any questions, please email us at support@bylawyers.com.au.

Connect with us