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:
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 Commissioner
Commencing 1 July 2020, Schedule 1A of the Legal Practitioners Act 1981 (SA) provides for the registration and regulation of legal practitioners with foreign qualifications who are providing legal services in relation to the laws of a foreign jurisdiction in South Australia.
An Australian-registered foreign lawyer is not permitted to appear in any court (except on the lawyer's own behalf) or to practise Australian law in SA. They may advise on the effect of an Australian law only if the giving of advice on Australian law is necessarily incidental to the practice of foreign law, and the advice is expressly based on advice given on the Australian law by an Australian legal practitioner who is not an employee of the foreign lawyer.
Please see the following information from the Law Society of South Australia regarding Australian-registered foreign lawyers here (link opens in a new window).
Under current laws, legal practitioners who practice migration law or give migration legal advice in South Australia must be registered with the Office of the Migration Agents Registration Authority (MARA), as well as hold a practising certificates through the Law Society of South Australia.
The Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) received Royal Assent on 22 June 2020. The Act has part commenced, and should be consulted in conjunction with the associated regulations.
Under the new Act, legal practitioners who hold an unrestricted practising certificate will be able to provide immigration advice to clients without also having to be registered as a migration agent. This will mean that legal practitioners who hold unrestricted practising certificates will be allowed to provide migration advice.
While the new Act has been passed by parliament, it has not yet fully commenced in operation. Until the new law has fully commenced, lawyers who practice migration legal advice are still required to be registered with MARA.
Schedule 1 of the new Act provides that it will become unlawful for legal practitioners with unrestricted practising certificates to be registered as migration agents from the earlier of:
The new Act will also allow legal practitioners on restricted practising certificates to be registered migration agents for a period of up to 2 years from when the lawyer first held a restricted practising certificate, or until the person becomes an unrestricted lawyer. Lawyers who have been newly issued with an unrestricted practising certificate must notify MARA within 28 days.
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:
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 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)]. The Commissioner may require a complainant to pay the reasonable costs of an assessment by a legal practitioner arranged under section 77N(4)(b) of the Act, and may, if the complaint is upheld, refund those costs to the complainant.
If a finding, determination, or recommendation of overcharging is made, then the costs of any assessment undertaken by a legal practitioner under subsection s 77N(4)(b) of the Act, for the purposes of investigating the complaint, are recoverable from the legal practitioner or former legal practitioner as a debt due to the Commissioner [see section 77N(10)].
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:
The Commissioner may arrange for the costs to be assessed by an independent lawyer who is qualified to make such an assessment. From 1 December 2019, the Commissioner may require a complainant to pay the reasonable costs of the assessment, but may, if the complaint is upheld, refund these costs to the complainant [s 77N(4a)].
At the conclusion of an investigation about overcharging, the Commissioner:
From 1 December 2019, the Commissioner is empowered to make binding determinations in relation to complaints of overcharging where the amount in dispute is no more than $50,000 [s77N(7)(a)]. Prior to 1 December 2019, the limit was $10,000. The new limit applies to complaints lodged from 1 December 2019, even if the final bill to which the complaint relates was delivered to the client before 1 December 2019 [see Legal Practitioners (Miscellaneous) Amendment Act 2019 (SA) Sch 1]. 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.
Australian-registered foreign lawyers who are situated in South Australia, and providing advice on foreign law matters, are subject to the same procedures and investigation by the Legal Profession Conduct Commissioner for overcharging complaints and allegations of professional misconduct.
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 Legal Practitioners Act 1981 (SA) s 39].
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 (opens new window) (LPCC). The Commissioner must investigate a complaint unless:
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:
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:
The LPCC does not have the power to:
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:
And with the consent of the lawyer the Commissioner may order the lawyer to:
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.
An Australian-registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of constituting professional misconduct or unsatisfactory professional conduct.
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 [Legal Practitioners Act 1981 (SA) s 89C(7a)].
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:
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 [Legal Practitioners Act 1981 (SA) s 82].
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.
From 1 December 2019, a charge relating to conduct by a legal practitioner up to five years after the day on which the person laying the charge became aware of the conduct to which the charge relates, unless it is laid by the Attorney-General or the Tribunal allows an extension of time [s 82(2a)]. Previously there was a time limit of three years from the date of the conduct. If the charge arises from a complaint made, or a direction from the Attorney-General or the Law Society received, or from an investigation by the Commissioner commenced on the Commissioner's own initiative, before 1 December 2019, the three year time limit continues to apply [see Legal Practitioners (Miscellaneous) Amendment Act 2019 (SA) sch 1].
Extensions of time
From 1 December 2019, an application for an extension of time may be heard by one member of the Tribunal and/or heard by the Tribunal, if it thinks fit, at the same time as the merits of the matter [s 80(1b) and ((1ba)]. If the charge or charges arise from a complaint made, or a direction from the Attorney-General or the Law Society received, or from an investigation by the Commissioner on the Commissioner's own initiative before 1 December 2019, the application for extension of time must be heard by three members of the Tribunal [see Legal Practitioners (Miscellaneous) Amendment Act 2019 (SA) sch 1].
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].
Powers of the Tribunal
If the Tribunal considers that the lawyer has been guilty of unsatisfactory professional conduct or professional misconduct it may:
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.
Australian-registered foreign lawyers
The provisions of Schedule 2 of the Legal Practitioners Act 1981 (SA) and any other provisions of the Act, the regulations or any legal profession rule relating to requirements for trust money and trust accounts, apply to Australian-registered foreign lawyers in the same way as they apply to Australian legal practitioners. An Australian-registered foreign lawyer must, at all times while practising foreign law in South Australia, be adequately insured for professional indemnity insurance.