Commissioner update
In this issue:
- Introduction from the Commissioner
- CPD year ends 31 March
- Trust year ends 31 March
- PC renewals open on 27 March
- Are you subject to the SLP condition?
- Survey on SLP
- Three times you should rethink using a confidential document
- Tips for developing digital legal self-help tools
- LIV 2023 Essential Briefing on the State of the Profession
- LIV Accredited Specialisation
- Practice management resources from LPLC
As summer gives way to autumn, the new legal year is in full swing. Personally I have felt a renewed sense of energy and purpose in the air. It was almost as palpable as the aroma of coffee at Victoria Law Foundation’s recent Legal Laneway Breakfast, where I had the pleasure of speaking to some of you in person. This energy bodes well for the busy months ahead.
If 2023 feels like something of a fresh start, plenty of unfinished business remains. This has been forefront in my mind since commencing my second term as Victorian Legal Services Board CEO and Commissioner in January. What a privilege it is to continue in this role and have the opportunity to see through to fruition work now well under way to protect and empower consumers, improve legal practice and ethics, and improve access to justice.
With the PC renewal period fast approaching, we will likely be on your radar more than usual. This may even be the only time of year that you normally interact with us. But staying in touch is worthwhile. One of the easiest ways is to follow us on LinkedIn or Twitter. We regularly post tips and reminders to these channels that can help you meet your obligations as a lawyer. Or if you have a specific question on a regulatory issue, please do not hesitate to drop us a line.
I will also keep you updated on our activities and priorities as the year progresses, including at key events such as the LIV Essential Briefing later this month. This is always a great opportunity to hear from different voices in the legal profession, so I hope you can tune in.
Fiona McLeay
Board CEO and Commissioner
CPD year ends 31 March
The end of the Continuing Professional Development (CPD) year is only weeks away. You need to have completed 10 units of CPD (or pro-rata) by 31 March 2023.
It is important to ensure that the CPD you complete isn’t just a box-ticking exercise but is relevant and meaningful to your area of practice. If you are audited on your CPD compliance you may be asked to explain how the CPD you have done has assisted your professional development.
You can find more information on the end of the CPD year on our website including:
- applying for an exemption
- how many pro-rata units you need if you didn’t work a full year; and
- what to look for in your CPD.
Trust year ends 31 March
The trust year also ends on 31 March. All lawyers who held a practising certificate with trust authorisation for any time between April 2022 and March 2023 are required to complete the Part A Form.
All law practices and barristers’ clerks that operate trust accounts are required to have their trust records examined. Now is the time to contact your External Examiner and ensure that your trust account records, including reconciliations, are up to date. You should also make arrangements to undertake your law practice’s annual trust account examination.
We require External Examiners to report on all the issues that are identified in trust account records, regardless of the underlying reasons or causes for any breaches. We take a risk-based approach to these reports, in line with our policy, and do not investigate every breach that is reported. If you would like more information about what the External Examiners must consider, the External Examiners checklist can be a useful resource.
Key dates for 2023:
- 4 April – LSB Online opens for law practices and approved barristers’ clerks to complete Part A and Part B forms
- 30 April – Due date for Part A and Part B forms
- 31 May – Due date for External Examiner reports
Practising certificate renewals open on 27 March
Your current practising certificate will expire on 30 June 2023. If you intend to practise beyond this date, you will need to apply to renew your certificate. LSB Online will open for practising certificate renewals on Monday, 27 March.
We will send you a reminder later in March with more details. In the meantime, here are a couple of simple steps you can take to make the process as smooth as possible:
- Log in to LSB Online now and review/update your contact and employment details
- Check you have completed 10 points of CPD (see article above)
Reset your password
All registered users of LSB Online, including all lawyers and those managing entity accounts, will be required to reset their password when next logging in to the portal. This is part of security enhancements we are making to LSB Online. You can quickly and easily reset your password on the LSB Online login screen. If you are unable to reset your password because you have a new email address, please contact us via the lawyer enquiry form.
Update your phone number
We have taken steps to standardise the input of phone numbers across LSB Online for easier communication to the profession. As part of this, you will be required to check your phone number in the account settings and apply the correct country code. You’ll also have to do this in the PC renewal form and anywhere else a phone number is required. This applies to mobile and landlines.
Are you subject to the supervised legal practice condition?
Our records indicate there are approximately 7,800 lawyers in Victoria who are currently subject to a statutory condition on their practising certificate requiring them to be supervised by a lawyer with an unrestricted practising certificate. However, we have noticed that not all of these lawyers seem aware they are subject to this condition.
The supervised legal practice condition is not automatically removed from practising certificates after the requisite period passes. You must apply to our office to have it removed. If you don’t have your supervised legal practice condition removed from your practising certificate, you must continue to be supervised when engaging in legal practice.
You can check if your practising certificate is subject to the supervision condition by logging in to LSB Online. A calculator is also available on our website to help you work out the total period of supervised legal practice you have completed.
If you have met the requirements and are ready to have the condition removed, please submit an application form via the Lawyer Enquiry Form on our website. The application should be submitted separately to any application to renew your practising certificate to avoid delays.
The New Lawyers section on our website contains helpful resources including supervised legal practice guidelines, the calculator and application templates.
Survey on supervised legal practice
Each year, we conduct a short optional survey that lawyers can complete when they submit their practising certificate renewal application. These surveys are an opportunity for lawyers to share their perspectives on issues and trends that are emerging within the profession.
This year’s survey will look at lawyers’ experiences with their supervised legal practice period, and will be open to lawyers who are currently completing their supervision period, or have completed supervision in the last five years.
Hearing about your experiences of supervision, including any challenges you faced, will help us better support supervised lawyers in the future.
The anonymous survey will take about 10-15 minutes to complete and survey participation is voluntary. Any information you provide is confidential and won’t be linked to regulatory data we hold. The survey invitation will be available to you once you complete your practising certificate renewal application.
Three times you should rethink using a confidential document
We’re providing guidance on common issues seen in complaints and investigations. Here is some information on dealing with confidential documents:
If you are in possession of a document that is not publicly available, you should exercise care in its use or risk breaching your professional obligations. Here are some examples to watch out for:
1. Accidentally disclosed documents
If you suspect that you have received a document that you were not meant to, you should urgently consider your obligations under Rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 regarding inadvertent disclosure. Failure to do so may result in an application for you to cease acting and/or disciplinary consequences.
Some cases dealing with this issue include:
- Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Privileged documents were accidentally included in the list of non-privileged documents and, even though there was some delay in making the claim for privilege over those documents, the Court found there was no waiver. At paragraph 66, the Court made the following reference to Rule 31: “Such a rule should not be necessary. In the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications. It permits a prompt return to the status quo and thereby avoids complications which may arise in the making of orders for the rectification of the mistake and the return of documents.”
- Demetriou & Demetriou [2018] FamCA 310
In a family law matter, the wife’s solicitors received a box of documents sent directly to them by the husband in the matter. The wife’s solicitors reviewed some of the documents prior to ascertaining they had been sent by the husband and eventually returned them to his solicitors. The husband’s solicitors then sought orders that the wife’s solicitors be restrained from acting. Although the husband’s solicitors were unsuccessful, the matter still provides an excellent example of the risks in failing to tackle inadvertent disclosure to you as directly and efficiently as possible.
2. Commonwealth Courts portal
We have seen a recent spate of complaints relating to lawyers accessing the Commonwealth Courts Portal to obtain confidential documents or information about a client after the lawyer ceased to act in a matter. If the only reason a lawyer has access to information is that they were previously acting, that access should cease along with the retainer.
3. The Harman undertaking and compulsive powers
Any document produced under a compulsive power is likely to have restrictions on its use for other purposes. This is particularly so for documents produced to a court pursuant to a subpoena or other court order. The Harman undertaking is an implied undertaking given to the court when you receive such material and any breach is likely to be a serious matter.
As with all complex legal issues, don't be afraid to seek help from colleagues or get specialist advice when in doubt.
Tips for developing digital legal self-help tools
Many law practices and legal service providers are embracing digital self-help tools to assist consumers with simple legal processes and save lawyers time. We recognise the benefits of these tools but are mindful they can pose a potential risk to users if mislabelled or poorly designed.
If you are thinking about developing a digital self-help tool, we have put together some tips for ensuring it is safe and consumer-friendly. Following this guidance can also help you avoid regulatory intervention down the line.
LIV 2023 Essential Briefing on the State of the Profession
Our CEO and Commissioner Fiona McLeay will join Attorney-General Jaclyn Symes and Chief Justice Anne Ferguson as the lead speakers at this free online event on Wednesday 22 March at 8am.
A panel of legal professionals will also come together to discuss the big issues affecting lawyers this year. Register to watch the live broadcast: www.liv.asn.au/EssentialBriefing
LIV Accredited Specialisation
Applications are open for the 2023 Accredited Specialisation program. LIV Accredited Specialisation is a nationally recognised certification that sets lawyers apart as experts in their field.
At the end of 2022, the LIV accredited 78 new specialists across seven areas of law. If you are considering the next step in your career, think about applying. This year, specialisation is offered in in five areas: Administrative, Commercial Tenancy, Family, Personal Injury and Property law.
Accredited Specialisation is a self-paced, in-depth study program based on the areas and topics provided. The program is delivered in a fully digital format to allow practitioners from across the state to participate.
Learn how to join the cohort of Accredited Specialists.
Practice management resources from LPLC
LPLC offer a range of free resources to help you review your firm’s practice management essentials and get set up for success. Here are their top picks:
1. Practice Health Check Tool
This self-assessment tool takes around 10 minutes and provides a baseline for taking the pulse of your firm and looking at ways to improve.
2. Cyber Security Guide for Lawyers
This guide outlines five key focus areas when considering cybersafety — securing your technology, establishing policies and procedures, creating a culture of cyber risk awareness, warning clients about risks and having an incident response plan.
3. Engagement Decision Tool
This tool can help you develop a more manageable approach to client engagement. It contains prompts to help you determine the ‘right client’, ‘right matter’ and ‘right time’.
4. Meticulous File Notes article and electronic file note template.
This resource can help you fine-tune your approach to creating and maintaining thorough file notes. It includes a template you can adapt to your needs.
5. Working Together client brochure
This resource helps you manage your clients’ expectations and explain both your and your client’s roles and obligations. It can also be personalised to your firm.