In South Australia lawyers study at either the University of Adelaide, the Flinders University of South Australia or the University of South Australia to obtain a Bachelor of Laws. After receiving the degree they undertake a course of practical legal training conducted in conjunction with the Law Society of South Australia after which they are 'admitted'.
Law graduates are not entitled to practise the law until they have been admitted to practise in the Supreme Court. Once admitted they are entitled:
- to prepare legal documents;
- to advise clients; and
- to represent clients in all South Australian courts.
Once a practitioner is admitted he or she has a restricted practising certificate, which requires the practitioner to work under the supervision of a more senior lawyer for a period of time before working as sole practitioner. It is a standard condition of all practicing certificates that practitioners comply with a Mandatory Continuing Professional Development Scheme. Interstate lawyers who have been admitted in their own state are entitled to practise in this South Australia, subject to certain conditions.
Law graduates have a number of career choices available to them. After gaining admission to the Supreme Court (which in South Australia allows them to practise as both a barrister and solicitor) they may practise privately or work for a public authority, a government department, a corporation, as an academic at a teaching institution or in many other fields.
The difference between solicitors and barristers puzzles many people. In some States, solicitors work in offices and undertake legal work dealing directly with clients, such as preparing wills, contracts or deeds or doing conveyancing or probate work, whereas barristers undertake court work or advise on matters, but only when instructed to do so by a solicitor. In South Australia, a lawyer can practise as both solicitor and barrister, although there are a number who practise as barristers only. Generally speaking those who choose to practise as barristers join the independent Bar and operate from chambers. Most South Australian barristers voluntarily practise in the same way as their interstate colleagues although some of the larger firms employ or retain 'in house' barristers.
A notary public is a lawyer who is recognised as having the ability to verify the signing of documents or certify that copies of documents are authentic, especially for overseas purposes, and witness documents from another country. A notary public uses an official stamp which they place on official documents when they sign it.
The Legal Practitioners Act 1981 (SA) contains much of the law regulating dealings between clients and their lawyers and all references in this part are to this Act. In addition, the Law Society's Conduct Rules apply to all legal practitioners.
Legal Profession Conduct Commission
What must the lawyer tell the client about costs?
The Legal Practitioners Act 1981 (SA) sets out some things that a lawyer must disclose to the client at the outset of their engagement [Sch 3 clause 10]. These include:
- whether the lawyer will be using the appropriate scale of costs and, if not, that another lawyer may do the work at the scale rate
- the client's right to negotiate the costs agreement, receive a bill and request an itemised bill
- the intervals at which the client will be billed
- the rate of interest (if any) the lawyer will apply to any overdue bills
- a range of estimates of the total legal costs and an explanation of the things that may affect the estimates
- if the matter is going to court,
- the range of costs that may be recovered if the client is successful and
- the range of costs the client may be ordered to pay if unsuccessful
- the client's right to a progress report about the costs to date/since the last bill or their matter in general (although the latter is not free of charge)
- the details of who the client may contact to discuss their legal costs
- the details of what the client may do in the event of a dispute about the legal costs (and relevant time limits),
- raise the matter with the lawyer
- apply for an adjudication of costs under the agreement
- apply to set aside the costs agreement and adjudication
- in case of alleged overcharging, make a complaint to the Legal Profession Conduct Commissioner
A lawyer may comply with some of these disclosure requirements by providing the client with a prescribed form [Legal Practitioners Regulations 2014 (SA) Schedule1]. This form refers to the Law Society of South Australia's factsheet, Legal Costs - your right to know.
On what basis are lawyers paid?
Lawyers are entitled to receive reasonable fees for work properly performed on behalf of their clients. The Legal Practitioners Act 1981 (SA) provides that a lawyer and a client may negotiate an agreement concerning costs to be charged by the lawyer [Sch 3 clause 10(c)(i)]. The agreement may be for payment based on:
- a fixed fee, irrespective of the volume of work done;
- the time spent on the matter;
- the appropriate scale of costs (rate of fees approved by the court that hears the matter). Some court scales set amounts for each item of work (such as preparing a letter, or attendance in conference). Other scales fix a lump sum for the complete task — such as an undefended application for divorce.
- in limited circumstances, a conditional costs agreement, where some or all of the legal costs are conditional on the successful outcome of the matter [Sch 3 clause 25]. A conditional costs agreement must be in writing and may contain an uplift fee so that the client pays more if the matter is successful. However, if unsuccessful, the client will still be required to pay the legal costs of the other party.
A costs agreement must be in writing, or evidenced in writing [Sch 3 clause 24]. It may consist of a written offer to enter into the agreement, which can be accepted either in writing of by other conduct, such as by the client providing further instructions to the lawyer. The conduct that amounts to acceptance should be set out in the offer.
Who pays the costs in a court case?
There are two main kinds of legal costs in a court matter.
Solicitor/client costs — the costs of the lawyer's services and associated work in preparing and conducting the case together with the lawyer's direct 'out of pocket' expenses (called disbursements). These disbursements may include: barristers' fees, court fees, government fees, fees for medical or other reports, and fees for expert witnesses.
Party/party costs — the costs that a court may require to be paid by the losing party to the successful party. The lawyers for both sides will normally try to reach agreement about how much should be paid. If they cannot agree the Registrar of the Court will make a decision. Even if they win the case, party/party costs will not cover the entire legal bill because the court will only approve those costs considered essential to take the matter to court and at the rate payable by the court scale.
The Legal Profession Conduct Commission is an independent body set up under the Legal Practitioners Act 1981 (SA) to maintain the highest standards of professional behavior within the legal profession. The Legal Profession Conduct Commissioner is empowered to investigate complaints of unsatisfactory professional conduct or professional misconduct by lawyers.
A person who is concerned about the conduct of a lawyer, including whether they have been overcharged by their lawyer, can complain in writing to the Legal Profession Conduct Commission (LPCC).
The LPCC has a standard complaint form which can be accessed from the LPCC website www.lpcc.sa.gov.au or a complaint form can be sent out in the mail or by email.
The LPCC has a telephone and email enquiry service which provides information about the role of the Commissioner and his complaint process. You may wish to speak to the Commissioner’s enquiry officer before making your complaint however it is important to understand that the Commissioner’s office cannot provide legal advice.
If a legally aided person has a complaint about their lawyer in relation to professional misconduct, they may wish to notify the Legal Services Commission of SA as well as the LPCC.
If seeking to change to another lawyer, they will need to ask the Legal Services Commission to transfer the grant of aid from the first lawyer to second. It is not the role of the Legal Services Commission to investigate professional complaints about lawyers.
Legal Profession Conduct Commission
Telephone: 08 8212 7924 / 1800 337 570 (Toll free)
Note - for complaints against judicial offices (such as Judges) see: Complaints against Judges and other judicial officers
While both the client and the lawyer may request the court to formally adjudicate on solicitor-client costs, this procedure can be costly and time consuming. The Legal Profession Conduct Commission (LPCC) may be an appropriate alternative.
If a person makes a written complaint of overcharging the Commissioner must investigate the complaint if the complaint is made within two years of the client receiving the final bill. However, the Commissioner may still investigate a complaint if it is made outside of that two year period. The Commissioner may determine not to investigate the complaint if it considers the complaint frivolous or vexatious or if it is already the subject of civil proceedings between the client and the lawyer (for example if the solicitor has already sued the client in the magistrates court for their outstanding fees), or it would be more appropriately investigated by another body [Legal Practitioners Act 1981 (SA) s 77C, ss 77N(2)-(3)]. The Commissioner is entitled to require a complainant alleging overcharging to pay a reasonable fee for any investigation undertaken by the LPCC [s 77N(2)], but currently does not impose any charge for the investigation of cost complaints (as at July 2017).
The Commissioner will generally commence his investigation by considering whether the complaint is suitable to be resolved by agreement between the parties, usually by conciliation. Conciliation is voluntary. If both the solicitor and the client agree to participate in the conciliation process, a conciliator will facilitate a conference to attempt to resolve the issues giving rise to the complaint.
During an investigation, the Commissioner has the statutory power to require a lawyer to:
- provide a detailed report on the work carried out for the client;
- produce to the Commissioner documents relating to that work;
The Commissioner may arrange for the costs to be assessed by an independent lawyer who is qualified to make such an assessment.
At the conclusion of an investigation about overcharging, the Commissioner :
- must report to both the client and lawyer on the results of the investigation;
- may recommend that the lawyer reduce the charge or refund an amount to the client; and
- may make a binding determination that there has been overcharging and if so by how much [s 77N].
The Commissioner is empowered to make binding determinations in relation to complaints of overcharging where the amount in dispute is no more than $10,000. Where the Commissioner makes a determination that there has been overcharging, the Commissioner will determine the amount that has been overcharged. The Commissioner’s determination will specify the amount that has been overcharged and the determination is binding on, and enforceable against, the lawyer complained about.
A client who receives a 'lump sum' bill of costs from a lawyer and requires more detail or wants to dispute the amount of costs, or the number of items charged, can write to the lawyer and request an itemised bill in a detailed form [Legal Practitioners Act 1981 (SA) Sch 3 cl 34]. If the lump sum bill has already been paid, it is still possible to write to the lawyer, within a reasonable time of paying the account, requesting an itemised bill.
A bill can be submitted to the Supreme Court for adjudication (assessment) of the costs charged. It is also possible to request taxation of a lump sum bill, but in this case the Master will usually direct the lawyer to give particulars in taxable form (a type of itemised bill). As the taxation procedure can involve further costs to the client, it is much better to obtain the itemised bill before taxation.
An application for adjudication of costs must be made within six months of the bill being given, a request for payment being made, or of the bill being paid in the absence of a bill or request [Sch 3 clause 37 (4)]. The Court may exercise its discretion and allow the matter to proceed although the application has been made out of the six month period.
Lawyers who want to have their costs adjudicated in the Supreme Court, must first give a bill to the client. An application cannot be made by a lawyer unless 30 days have passed since the bill was given, a request for payment was made or of the bill being paid in the absence of a bill or request [Sch 3 clause 39].
Unless the original amount claimed by a lawyer is significantly reduced or the lawyer failed to comply with the disclosure requirements, the client probably will be ordered to pay all of the lawyer's costs, including the lawyer's costs of preparing for, and attending, the adjudication [Sch 3 clause 49]. If either the client or the lawyer has proceeded to seek an adjudication after the Legal Profession Conduct Commissioner has made a determination and the client does not obtain more than the amount determined by the Commissioner, the client may be ordered to pay the costs of the adjudication. These costs may be quite high depending on the length of the bill and the time taken on adjudication.
No useful guideline can be given as to the likely outcome of an adjudication, as the costs of an adjudication are at the discretion of the Registrar.
As an unsuccessful adjudication of costs can result in the client having to pay more, it is wise to obtain independent legal advice before proceeding to adjudication.
An unpaid lawyer's account is a debt which the lawyer can recover like any other debt, although the recovery proceedings may be stayed (halted) to allow the bill to be adjudicated. On adjudication, the bill is checked and the court decides what a fair and reasonable charge is. The Court can then order the client to pay the account in accordance with adjudicated bill. An appeal against a decision of the Registrar can be appealed to a Master of the Supreme Court. The lawyer also has the right to keep all the client's papers and documents relating to the case, and money covering costs claimed which is held on the client's behalf, until the bill is paid (this is known as a solicitor's lien). However, it is possible to apply for a court order requiring the solicitor to hand over the file, and the court will consider whether this should be done [see further s 39 Legal Practitioners Act 1981 (SA)].
A lawyer must act responsibly and ethically in his or her client's interests. Any person (whether a client or not), who is dissatisfied with the conduct of a lawyer may complain to the Legal Profession Conduct Commission (LPCC). The Commissioner must investigate a complaint unless:
- the complaint is vexatious, misconceived, frivolous or lacking in substance;
- the complainant has not responded, or has responded inadequately, to request for further information;
- the subject-matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority;
- the subject-matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body;
- the subject-matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter;
- the complaint is not one that the Commissioner has power to deal with;
- the Commissioner is satisfied that it is otherwise in the public interest to close the complaint.
The Commissioner has the power to instigate an investigation an own initiative investigation) even if he has not received a complaint.
If a lawyer fails in his or her responsibilities or ethical obligations his or her conduct may constitute unsatisfactory professional conduct or professional misconduct. These terms are defined in sections 68 and 69 of the Legal Practitioner’s Act 1981 (SA) as follows:
‘unsatisfactory professional conduct’ includes conduct of a legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of reasonably competent legal practitioners.
‘professional misconduct’ includes:
(a) unsatisfactory professional conduct of a legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of a legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practice the profession of the law.
Unsatisfactory professional conduct is misconduct of a lesser kind than professional misconduct. The difference between the two will often be unclear and only capable of definition once the circumstances of the conduct have been fully investigated.
Section 70 of the Legal Practitioner’s Act 1981 (SA) lists a number of types of conduct that is capable of constituting unsatisfactory professional conduct or professional misconduct. It includes, but is not limited to:
- conduct consisting of a contravention of the Act, regulations or the legal profession rules;
- charging excessive legal costs;
- convictions for serious offences, tax offences, or offences involving dishonesty;
- becoming an insolvent under administration or becoming disqualified from managing or being involved in the management of any;
- failing to comply with an order of the Legal Practitioners’ Disciplinary Tribunal;
- failing to comply with a compensation order made under the Legal Practitioners Act 1981 (SA);
- failing to comply with the terms of a professional mentoring agreement.
The types of behaviour by a lawyer that the LPCC can investigate may amount to unsatisfactory professional conduct or professional misconduct and include but are not limited to:
- persistent delay in answering a client's letters, emails or telephone calls
- not accounting for a client’s money held or disbursed on the client's behalf
- not keeping certain information confidential
- acting in the same matter for both the client and other people whose interests conflict with the client's interests
- acting against a former client
- misleading the client, the court, or another lawyer
- behaving inappropriately towards the client, a third party or another lawyer
- unreasonable delay in completing work on a client's behalf.
The LPCC does not have the power to:
- give legal advice; or
- order a lawyer to hand over documents to anyone other than the LPCC itself; or
- compel a lawyer to act for a particular client; or
- recommend a particular lawyer or firm of lawyers; or
- advise a lawyer how to perform his or her work, or
- investigate allegations of negligence against a lawyer.
The Commissioner will advise the complainant where he determines that there has been unsatisfactory professional conduct or professional misconduct by a lawyer arising out of the complaint investigation. The Commissioner has no power to make a finding of negligence against the lawyer. If the Commissioner has reason to believe that a person has suffered a loss as a result of unsatisfactory professional conduct or professional misconduct by a lawyer, he may advise that person accordingly.
If, after investigation, the Commissioner considers that a lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the Commissioner may:
- Reprimand the lawyer;
- Order the lawyer to apologise to any person affected by their conduct;
- Order the lawyer to redo the work subject of the investigation at no cost to the client;
- Waive or reduce the fees for the work;
- Pay the cost for having the work that is the subject of the investigation redone;
- Order the lawyer to undertake training, education or counselling or to be supervised;
- Order the legal practitioner to pay a fine not exceeding $5,000;
- Order specified conditions on the lawyer’s practicing certificate.
And with the consent of the lawyer the Commissioner may order the lawyer to:
- Submit to medical examination;
- Receive counselling;
- Participate in a program of supervised treatment or rehabilitation to address behavioural problems, substance abuse or mental impairment;
- Enter into a professional mentoring agreement and comply with that agreement;
- Submit their files and records to examination at intervals for a specified period;
- Suspend the lawyer’s practicing certificate for a period not exceeding 6 months;
- Make a specified payment or do or refrain from doing a specified act in connection with legal practice;
- Order the legal practitioner to pay a fine not exceeding $20,000.
If the Commissioner determines that the lawyer has been guilty of unsatisfactory professional conduct or professional misconduct, the Commissioner may refer the matter to the Legal Practitioner’s Disciplinary Tribunal.
If, following a determination made by the Legal Profession Conduct Commissioner finding either unsatisfactory professional conduct or professional misconduct, the person making the complaint is not satisfied with the determination, he or she may appeal the determination to the Legal Practitioners Disciplinary Tribunal (the Tribunal). Lawyers may, in certain circumstances, also appeal to the Tribunal.
An appeal must be instituted within one month unless there are good reasons to extend the time period.
A finding of Professional Misconduct, whether made by the Commissioner, the Tribunal or the Supreme Court, must be published on the Disciplinary Register. A less serious finding of Unsatisfactory Professional Conduct may be included on the Register, at the discretion of the Commissioner.
Not all lawyers subject to disciplinary action prior to 1 July 2014 are listed on the Register. Only lawyers who have been struck-off (ie removed from practice), suspended from practice or placed under supervision for a period of time (and which is still in effect as at 1 July 2014) are on the Register. Some information is not on the Register for older disciplinary actions.
The Commissioner may enable information to be removed from the Register in circumstances prescribed by regulation [s89C (7a) Legal Practitioners Act 1981 (SA)].
Lawyers found guilty of misconduct in other jurisdictions will have their details published on their state's Disciplinary Register.
The Legal Profession Conduct Commissioner (LPCC) may, at any time during the course of his investigation, arrange for a conciliation of the complaint to be conducted to try to resolve the dispute between the parties in a mutually satisfactory manner.
This is an important part of the LPCC's functions as the interests of the public will be well served if, by the process of conciliation, the Commissioner can:
- assist disputing parties to achieve a resolution which is acceptable to both parties; and
- reduce the time and cost involved in considering and answering complaints where no serious conduct issues arise.
A wide variety of complaints are able to be conciliated. Conciliation is particularly useful and effective in disputes about legal costs. Although conciliation may assist the parties to reach an agreement the Commissioner must still carry out their statutory duty to investigate any allegations of unsatisfactory professional conduct or professional misconduct by the lawyer.
If the Legal Profession Conduct Commissioner considers that a lawyer's conduct is unsatisfactory professional conduct or professional misconduct, the Commissioner can lay a charge before the Legal Practitioners Disciplinary Tribunal. The Tribunal is an independent body set up under the Act to conduct inquiries to determine whether lawyers have been guilty of unsatisfactory professional conduct or professional misconduct [section 82 of the Legal Practitioners Act 1981 (SA) Act].
Charges can also be laid by the Attorney General, the Law Society or by any person (whether a client or otherwise) who is aggrieved by the conduct of a lawyer.
When a charge against a lawyer is laid before the Tribunal it must inquire into the conduct of the lawyer [section 82(4) of the Act].
If the Tribunal considers that the lawyer has been guilty of unsatisfactory professional conduct or professional misconduct it may:
- reprimand the lawyer; or
- make orders for independent examination of the lawyer's files, or
- make orders imposing conditions on the lawyer's practising certificate relating to the lawyer's legal practice or requiring the lawyer to undertake further education or training or receive counselling; or
- order the lawyer to pay a fine of up to $50,000.
- make an order suspending the lawyer's practising certificate for up to 12 months, or
- recommend that disciplinary proceedings be taken in the Supreme Court.
There is a right of appeal to the Supreme Court from decisions of the Tribunal.
The Supreme Court has inherent jurisdiction in relation to the regulation of the conduct of all lawyers in South Australia. It determines whether they are entitled to be admitted and it can take away their right to practise by striking them off the roll or suspending their practising certificates. The Court may make any other orders it considers are necessary in relation to any lawyer.
If the Tribunal has conducted an inquiry into a lawyer and has recommended that disciplinary proceedings be taken in the Supreme Court, the Attorney-General, the Law Society or the Legal Professional Conduct Commissioner may take those proceedings.
Lawyers often seem to take a long time to handle work, although in some cases this is not their fault, rather it is the result of the complexity of legal proceedings. Often delays are caused by other parties, or problems in getting matters heard in court because of a backlog of court cases - a particular problem in family law matters. However, there are instances where it is the lawyer who is at fault. It can be difficult for clients to judge whether lawyers have provided poor quality work. In such cases it might be useful to raise the matter with the senior partner of the firm or the Commissioner might be able to conciliate the matter (either formally or informally) by contacting the lawyer directly and explaining the client's concern over the slow progress of the case.
What will be regarded as negligence varies from case to case, and no firm guideline can be given here. Even when a client loses an apparently straight forward case, that in itself is not sufficient indication that the lawyer was at fault. There must also be some evidence of negligence resulting in financial loss before the client has a legal remedy against the lawyer.
A lawyer might be negligent in allowing excessive delays that result in the client losing legal rights, or in mishandling a client's affairs by not taking the kind of precautions that are commonly taken by lawyers - for example, in a conveyancing matter, by not making the necessary inquiries about the property the client wants to buy, with the result that, after the purchase is made, the client discovers that the land cannot be used in a way that was originally intended.
The Legal Professional Conduct Commission (LPCC) does not have the power to make a finding of negligence against a lawyer. If a client believes their lawyer has acted negligently, independent legal advice should be obtained and a decision should be made whether or not to sue the lawyer for negligence. The LPCC cannot offer advice in this regard. Instead, the LPCC must investigate whether a lawyer has acted unprofessionally or unsatisfactorily and take whatever disciplinary action, if any, it deems appropriate in the circumstances. In doing so, the LPCC is unable to correct any alleged wrong occasioned to a client nor can it award compensation to the client although the parties may reach an agreement at conciliation.
Where there is evidence of negligence that has arisen as a result of unsatisfactory professional conduct or profession misconduct, the Commissioner may advise the person making the complaint that he has reason to believe that the person has suffered a financial loss. In these circumstances, the client should seek independent legal advice about a possible negligence claim. Negligence claims can be difficult, expensive and time consuming, and so the possible costs and the prospects of success must be carefully considered before pursuing a claim through the court.
Because of the nature of certain legal work carried out for their clients, lawyers often hold money belonging to those clients on trust - for example, a lawyer may hold the purchase price of a home a client is buying or a client may leave trust account funds with a lawyer to pay all the disbursements within the case (for example medical reports, lodging document fees). Sometimes lawyers insist on money being paid into trust in advance before they are prepared to act in particular matters. In all these cases the funds are kept in a trust account - a separate account maintained by the lawyer and subject to extensive control and regulation under the Legal Practitioners Act 1981 (SA). Trust accounts do not earn interest for the lawyer or the client.
A client who has difficulty obtaining money held by the lawyer on trust, or who has difficulty obtaining a financial statement from the lawyer relating to those funds, should immediately contact the Legal Profession Conduct Commission.
If a lawyer has improperly dealt with a client's money, the client may have a right to claim compensation from the Legal Practitioners Fidelity Fund, which is a fund set up under the Legal Practitioners Act 1981 (SA), and administered by the Law Society.
Claims against the Fund are investigated by the Law Society, which can put a time limit (not less than three months) on making claims. All payments from the Fund must be authorised by the Attorney-General.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.