From the conduct Commissioner: A smorgasbord of important issues for practitioners – By Greg May

A smorgasbord of important issues for practitioners

GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

Legal Profession Conduct Commissioner Greg May informs practitioners of a number of important updates and developments in the legal profession.

CHANGES TO THE MIGRATION ACT 1958

Those lawyers who practice in this area are hopefully already fully aware of the changes to the Migration Act 1958 that took place a few weeks ago on 22 March, 2021. But for those who haven’t yet gotten on top of those changes, here’s a brief summary: • Most lawyers no longer need to (or can) register as a migration agent through the Offi ce of the Migration Agents

Registration Authority (OMARA). Most lawyers can now provide migration services in the course of legal practice. • The only ones who can’t are those who hold a restricted practising certifi cate (ie one that is subject to supervised practice restrictions). For those in that position who want to provide migration services, the rules are quite complex.

You should refer to InBrief Issue 4 (18

February, 2021) for a fuller explanation of those rules. • From 22 March, 2021, a lawyer with an unrestricted practising certifi cate will be subject to regulation only under the

Legal Practitioners Act. • If you were a registered migration agent, and if you had been subject to disciplinary investigation or action by

OMARA, then you may have to disclose this in any application for fi rst issue or renewal of a practising certifi cate. • If you were subject to a disciplinary investigation by OMARA that was ongoing as at 22 March, 2021, then that investigation will have been transferred to my offi ce, and you can expect one of my investigating solicitors to be in touch with you about that shortly.

Further detail about these changes can be obtained from OMARA’s website. benefi ciaries have complained about the fees charged to the estate. There are two main issues that have arisen.

First, assuming the lawyer prepared the Will, did the lawyer give appropriate advice to the testator about his or her fees at the time the testator signed the Will? The lawyer should have had regard to rule 12 of the Australian Solicitors’ Conduct Rules, which requires a lawyer to have “[informed] the client in writing before the client signs the Will. . . of the inclusion in the Will of any provision entitling the solicitor. . . to charge legal costs in relation to the administration of the estate” (emphasis added).

If the lawyer can’t satisfy me that that information was given in writing and at the appropriate time, then that breach of the ASCRs may well amount to misconduct.

Second, if a testator’s Will doesn’t have in it an appropriate charging clause, then the lawyer/executor who carries out the administration of the estate has no legal right to charge solicitor/profi t costs against the estate. The lawyer/executor can’t just decide to take his or her fees from the estate without authority. The lawyer/ executor cannot validly enter into a contract (or costs agreement) with him/herself. The lawyer/executor can only be paid for his or her work in relation to the estate if: • the lawyer applies to the Supreme Court under section 70 of the Administration and

Probate Act for remuneration the Court considers is just and reasonable; or • all of the benefi ciaries are of age, and give their consent to the fees being charged.

Again, any lawyer/executor who charges fees to an estate without appropriate authority may well have engaged in misconduct, and may be required to reimburse any fees so paid to the estate.

WILLS AND DECEASED ESTATES

We have had to consider a number of matters recently in which a lawyer has been the executor of a deceased estate, and the SEXUAL HARASSMENT IN THE LEGAL PROFESSION

In case you have been living under the proverbial rock, this is becoming quite a signifi cant issue for the profession! The Equal Opportunity Commission is currently conducting, at the request of the South Australian Parliament, an independent review into harassment in the legal profession. The EOC only recently released its report following a similar review into harassment in the South Australian parliamentary workplace.

So, there will be much more happening in the very near future in relation to this type of conduct, which is a scourge not only of our profession but of the community generally. In the meantime, can I encourage everyone who hasn’t already done so to read my article about this in the November, 2020 Bulletin, and to keep up to date with everything the Law Society publishes about this incredibly important topic. And, for anyone who considers they have been the victim of such conduct or who has witnessed it, please go to the section on “inappropriate personal conduct” on my website.

COSTS DISCLOSURE

I continue to be amazed by the blatant disregard some lawyers have to the rules that everyone is required to comply with under Schedule 3 of the Legal Practitioners Act. As I said in my article in the April, 2020 Bulletin, “the professionalism I will be expecting of practitioners extends to their compliance with the requirements of Part 3 of Schedule 3”. The failure to make ongoing disclosure under clause 17 is my main concern, but I am still seeing some instances where lawyers aren’t even complying with the most important requirement under clause 10 by giving “an estimate of the total legal costs” that will likely be billed to the client.

If there are any parts of the Legal Practitioners Act that you should know off by heart, they are clause 10 and clause 17 of Schedule 3.

I have recently made a number of misconduct fi ndings in relation to practitioners who have breached these requirements. Please pay attention to them and comply with them. B April 2021 THE BULLETIN 25