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Vanuatu Sessional Legislation |
Not yet commenced
REPUBLIC OF VANUATU
LEGAL
PROFESSION
ACT NO.
49 OF 2005
Arrangement of Sections
PART 1
– PRELIMINARY
1 Interpretation
2 Misconduct
3 Unsatisfactory
conduct
PART 2
- LAW COUNCIL
4 Establishment of
the Law Council
5 Functions and
powers
6 Financial
matters
7 Other
matters
PART 3
- COMMITTEES OF THE LAW COUNCIL
8 Admissions Committee
9 Functions and powers of Admissions
Committee
10 Other matters relating to
Admissions Committee
11 Discipline
Committee
12 Functions and powers of
Discipline Committee
13 Other matters
relating to Discipline
Committee
14 Other Committees of the
Law
Council
PART 4
– ADMISSIONS
Division 1
– General admissions
15 Criteria for admission
16 Application for
admission
17 Fit and proper
test
18 Decision by Admissions
Committee
Division
2 – Temporary
Admissions
19 Application of
Division
20 Temporary admission for
legal proceedings
21 Temporary
Admission in public
interest
22 Application for temporary
admission
23 Decision by Admissions
Committee
24 Period of admission and
conditions
Division
3 – Practising
certificates
25 Unconditional
practising certificates
26 Renewal of
unconditional practising
certificates
27 Temporary practising
certificates
Division
4 – Appeals
28 Appeals
29 Powers
of Supreme Court on
appeal
Division
5 – Other matters
30 Transitional
arrangements
31 Offences
32 Register
of admitted
practitioners
PART
5 - RULES OF PROSESSIONAL CONDUCT AND PRACTICE
33 Rules of Professional Conduct
and
Practice
PART 6
– COMPLAINTS AGAINST LEGAL PRACTITIONERS
34 Making a
complaint
35 Time for hearing and
determining complaints
36 Procedure
for hearing of complaint
37 Powers of
Discipline Committee
38 Conflict of
interest
39 Decisions of Discipline
Committee
40 Appeals
41 Fresh
evidence
PART 7
- CONTINUING LEGAL
EDUCATION
42 Continuing Legal
Education
Program
PART 8
- MISCALLENEOUS
43 Regulations
44 Repeals
45 Commencement
SCHEDULE
1 – LAW COUNCIL
1 Chairperson and Deputy
Chairperson
2 Vacancies
3 Allowances
for members
4 Meetings of the
Council
5 Annual
Report
SCHEDULE
2 – ADMISSIONS COMMITTEE
1 Terms of office of
members
2 Chairperson and Deputy
Chairperson
3 Removal and resignation
of members
4 Acting
members
5 Allowances for
members
6 Meetings of the
Committee
7 Annual
report
SCHEDULE
3 – DISCIPLINE COMMITTEE
1 Terms of office of
members
2 Chairperson and Deputy
Chairperson
3 Removal and resignation
of members
4 Acting
members
5 Allowances for
members
6 Meetings of the
Committee
7 Annual
report
SCHEDULE
4 – RULES OF PROFESSIONAL CONDUCT AND PRACTICE
PART 1 -
PRELIMINARY
1 Interpretation
2 Compliance
PART
2 – DEALINGS BETWEEN LEGAL
PRACTITIONERS
3 Professionalism,
courtesy and fairness
4 Honour
undertakings
5 Clients of others
PART 3 –
DEALINGS BETWEEN LEGAL PRACTITIONER AND
CLIENT
6 Client
interest
7 Diligence
8 Disclosure
9 Keeping
client informed
10 Illegal
purposes
11 Instructions
12 Changing
adviser
13 Costs
14 Interests
that conflict
15 Acting for more than
one party
16 Acting for former
clients
PART 4
–ADVERTISING, PLACE OF BUSINESS AND CONDUCT OF OTHER
BUSINESSES
17 Advertising
18 Letterhead
etc
19 Place of
business
20 Management of
practices
21 Conduct of other
businesses
PART
5 – TRUST ACCOUNTS AND
AUDITS
22 Money received by a
legal practitioner on behalf of
another
23 Keeping of
accounts
24 Law council can require a
spot
audit
25 Disclosure
PART
6 – LITIGATION PRACTICE
26 Naming
persons
27 Court not to be
misled
28 Legal practitioner as
witness
29 Expert and other
witnesses
30 Consent
orders
31 Client disobeys court
order
PART 7
– ACTING FOR THE ACCUSED IN CRIMINAL
PROCEEDINGS
32 Not guilty
plea
33 Guilty
clients
34 Guilty
plea
35 Advice on
plea
36 Innocent client
37 Previous
convictions
PART
8 – ACTING FOR THE PROSECUTION
38 Prosecutor’s
duties
39 Disclosure
40 Witnesses
41 Unlawfully
or improperly maintained
material
42 Contact with
accused
43 Informing court of
supporting evidence
44 Sentencing
------------------------------------
REPUBLIC OF VANUATU
Assent:
30/12/2005
Commencement:
not yet
commenced
THE
LEGAL
PROFESSION
ACT NO.
49 OF 2005
An Act to regulate the admission and practice of legal practitioners, and for related purposes.
Be it enacted by the President and
Parliament as follows-
PART
1 PRELIMINARY
1 Interpretation
In this Act, unless
the contrary intention appears:
Admissions
Committee means the Admissions Committee
established under Part
3.
approved
legal office means
(a) a law firm in Vanuatu consisting of one or more legal practitioners; or
(b) the State Law Office; or
(c) the Public Prosecutors Office; or
(d) the Public Solicitors Office; or
(e) the Office of the Ombudsman; or
(f) another office or body in Vanuatu approved by the Admissions Committee.
Discipline
Committee means the Discipline Committee
established under Part
3.
Law Council
means the Law Council established under
Part 2.
legal
practitioner means a person admitted to
legal practice under this Act.
Minister
means the Minister responsible for
justice.
misconduct
has the meaning given by section
2.
police
report means:
(a) in the case of a citizen of Vanuatu, a written statement from the Vanuatu Police Force:
(i) indicating whether or not the person has been convicted of a criminal offence in Vanuatu during the past 5 years, other than a traffic offence that did not cause bodily harm to a person; and
(ii) if the person has been so convicted, details of the conviction; or
(b) in the case of a person who is the holder of a permit to reside in Vanuatu, a written statement from the relevant police force or police forces in the country in which the person was usually resident prior to obtaining the permit:
(i) indicating whether or not the person has been convicted of a criminal offence in that country during the past 5 years, other than a traffic offence that did not cause bodily harm to a person; and
(ii) if the person has been so convicted, details of the conviction.
practising
certificate means a temporary practising
certificate or an unconditional practising certificate.
Rules
means the Rules of Professional Conduct
and Practice set out in Schedule 4 as amended from time to time.
temporary
practising certificate means a practising
certificate issued under section
27.
unconditional
practising certificate means a practising
certificate issued under section
25.
unsatisfactory
conduct has the meaning given by section
3.
2 Misconduct
(1) Misconduct
includes all or any of the following conduct engaged in by a legal practitioner
in the course of legal practice:
(a) the legal practitioner intentionally or recklessly contravenes a provision of this Act or the Rules;
(b) the legal practitioner intentionally or recklessly fails to comply with an undertaking given to a court or other judicial body;
(c) the legal practitioner engages in conduct that amounts to a significant and consistent failure to meet reasonable standards of professional competence and diligence.
(2) Misconduct
also includes conduct by a legal practitioner that is not connected with legal
practice, but that would justify a finding
by a court that the practitioner is
not of good character or is otherwise unsuitable to engage in legal
practice.
3 Unsatisfactory
conduct
Unsatisfactory conduct
includes all or any of the following conduct engaged in by a legal practitioner
in the course of legal practice:
(a) conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent and diligent legal practitioner;
(b) conduct that would be regarded by legal practitioners generally as being unprofessional, unacceptable or unbecoming of a legal practitioner;
(c) conduct that contravenes a provision of this Act or the Rules, but that does not amount to misconduct.
PART
2 LAW
COUNCIL
4 Establishment
of the Law Council
(1) The Law Council is established.
(2) The Law Council
consists of 5 members.
(3) The
members are:
(a) the Chief Justice; and
(b) the Attorney General; and
(c) the President of the National Council of Chiefs; and
(d) the Head of the Law School, University of the South Pacific; and
(e) the President of the Vanuatu Law Society.
(4) If
a person ceases to hold an office referred to in subsection (3), the person
ceases to be a member of the Law
Council.
(5) A lawyer from the
public sector nominated by the Attorney General is to be the secretary to the
Law Council. The secretary is
not a member of the Law Council.
(6) The Law
Council:
(a) is a body corporate with perpetual succession; and
(b) is to have an official seal; and
(c) may sue and be sued.
5 Functions
and powers
(1) The Law Council has
the following functions:
(a) to have general responsibility for the control and supervision of legal practitioners;
(b) to promote good professional legal practice and standards of professional conduct;
(c) to promote public confidence in the administration of justice;
(d) to assist in the promotion of training programs and the continuing legal education of those involved in the administration of justice;
(e) to give advice to the Minister on the operation and administration of this Act;
(f) to prescribe by Order maximum amounts of fees for different categories of legal services provided by a legal practitioner;
(g) such other functions as are conferred on the Council by or under this Act.
(2) The
Law Council has the power to do all things that are necessary or convenient to
be done for or in connection with the performance
of its
functions.
6 Financial
matters
(1) The funds of the Law Council consist of:
(a) money received by way of fees paid to the Law Council under this Act; and
(b) any other money received by the Law Council from any other source.
(2) The
Law Council is to open and maintain such bank accounts as it considers necessary
and the funds of the Council are to be paid
to the credit of such of its bank
accounts as the Council determines.
(3) The funds of the Law Council are to be applied:
(a) in payment of the expenses and charges incurred by the Council in the performance of its functions or the exercise of its powers; and
(b) in payment of any travelling or subsistence allowances payable by the Council under this Act.
(4) The
Law Council may invest any money that is not required for the performance of its
functions.
(5) The Law Council
must keep proper accounting records in relation to its financial
affairs.
(6) The Law
Council’s accounts for each financial year must be audited within 3 months
after the end of the financial year by
the Auditor-General or a person
authorised in writing by the
Auditor-General.
7 Other
matters
Schedule 1 has effect.
PART
3 COMMITTEES OF THE LAW COUNCIL
8 Admissions
Committee
(1) The Admissions
Committee of the Law Council is
established.
(2) The Admissions
Committee consists of 5
members.
(3) The members
are:
(a) two lawyers working in the public sector appointed in writing by the Attorney General; and
(b) two lawyers working in the private sector appointed in writing by the President of the Vanuatu Law Society; and
(c) a member of the academic staff of the Faculty of Law, University of the South Pacific, appointed in writing by the Dean of the Faculty.
(4) The
Registrar of the Supreme Court is to be the secretary to the Committee. The
secretary is not a member of the
Committee.
9 Functions
and powers of Admissions
Committee
(1) The Admissions
Committee has the following functions:
(a) to approve the admission of persons to legal practice;
(b) to issue and renew practising certificates;
(c) such other functions as are conferred on the Committee by the Law Council.
(2) The
Admissions Committee has the power to do all things that are necessary or
convenient to be done for or in connection with
the performance of its
functions.
10 Other
matters relating to Admissions
Committee
Schedule 2 has effect.
11 Discipline
Committee
(1) The Discipline
Committee of the Law Council is
established.
(2) The Discipline
Committee consists of 5
members.
(3) The members
are:
(a) a judge of the Supreme Court appointed in writing by the Law Council; and
(b) a legal practitioner working in the public sector appointed in writing by the Attorney General; and
(c) a legal practitioner working in the private sector appointed in writing by the President of the Vanuatu Law Society; and
(d) a person who is not a legal practitioner nominated by the Vanuatu Association of Non-Government Organisations and appointed in writing by the Law Council; and
(e) a person who is not a legal practitioner nominated by the Vanuatu Christian Council and appointed in writing by the Law Council.
(4) A
legal practitioner from the public sector nominated by the Attorney General is
to be the secretary to the Discipline Committee.
The secretary is not a member
of the Discipline Committee.
(5) Within 21 days after the
making of an appointment, the secretary to the Discipline Committee is to
publish notice of the appointment
in the Gazette.
12 Functions
and powers of Discipline
Committee
(1) The Discipline
Committee has the following functions:
(a) to hear and determine complaints against legal practitioners;
(b) to make recommendations to the Law Council on amendments to the Rules;
(c) such other functions as are conferred on the Committee by the Law Council.
(2) The
Discipline Committee has the power to do all things that are necessary or
convenient to be done for or in connection with
the performance of its
functions.
13 Other
matters relating to Discipline
Committee
Schedule 3 has effect.
14 Other
Committees of the Law
Council
(1) In addition to the
Admissions Committee and the Disciplinary Committee, the Law Council may form
such other committees as are
necessary to assist the Council in the performance
of its functions.
(2) The Law
Council is to determine the composition of any committee formed under subsection
(1).
(3) A committee formed under
subsection (1) is to determine and regulate its own
procedures.
PART
4 ADMISSIONS
Division 1
– General admissions
15 Criteria for admission
(1) A person is not to be
admitted to legal practice under this Division unless the person meets the
criteria in subsections (2),
(3), (4) and
(5).
(2) The person is a citizen
of Vanuatu or the holder of a permit to reside in Vanuatu.
(3) The person has
completed:
(a) a degree in law from the University of the South Pacific or a degree in law approved by the Admissions Committee; or
(b) another course of academic study in law that in the opinion of the Admissions Committee is substantially equivalent to a degree in law.
(4) The
person:
(a) has undertaken at least one year of full time supervised legal practice in an approved legal office, or in one or more approved legal offices; or
(b) has completed a course of practical legal training approved by the Admissions Committee and undertaken at least 6 months of full time supervised legal practice in an approved legal office, or in one or more approved legal offices; or
(c) has undertaken at least 2 years of full time supervised legislative drafting in the State Law Office, or in one or more approved legal offices; or
(c) is admitted to legal practice in another jurisdiction that is approved by the Admissions Committee.
(5) The
person is in the opinion of the Admissions Committee a fit and proper person to
be admitted to legal
practice
(6) Before being admitted
to legal practice, a person must take and subscribe to the oath of admission to
legal practice.
(7) The form of
the oath is to be prescribed by the Admissions Committee.
16 Application
for admission
(1) A person is to
apply in writing to the Admissions Committee to be admitted to legal practice
under this Division.
(2) The
application is to be accompanied by:
(a) such material that will enable the Admissions Committee to determine if the applicant meets the criteria for admission under subsections 15 (2), (3) and (4); and
(b) the documents referred to in section 17 that are applicable to the applicant; and
(c) a police report; and
(c) an application fee of 10,000 Vatu or such other amount as is prescribed by the regulations; and
(d) such other information as is prescribed by the regulations.
(3) The
application fee is not refundable.
(4) In addition to the original
application and supporting material, the applicant must provide the Admissions
Committee with 5 copies
of the application and supporting
material.
17 Fit
and proper test
(1) If a person
who is a citizen of Vanuatu makes an application under section 16, the person
must include with the application a
copy of the advertisement referred to in
subsection (2).
(2) The
advertisement must include:
(a) the name and address of the applicant; and
(b) a statement to the effect that the applicant is applying to be admitted to legal practice under this Division; and
(c) an invitation to make written submissions to the Admissions Committee about whether the applicant is a fit and proper person to be admitted to legal practice; and
(d) mention of a period, being not less than 10 days after the date of the advertisement, within which persons may make submissions.
(3) The
advertisement must appear in a newspaper that is available throughout Vanuatu
and the cost of the advertisement must be paid
for by the applicant.
(4) If a person who is the holder
of a permit to reside in Vanuatu makes an application under section 16, the
person must include
with the application a written statement to the effect that
the person is a fit and proper person to be admitted to legal
practice.
(5) The statement
referred to in subsection (4) must be provided by the relevant legal
professional body in the country in which the
person was usually resident prior
to obtaining the permit to reside in
Vanuatu.
18 Decision
by Admissions Committee
(1) The
Admissions Committee is to meet and consider an application for admission within
one month after receiving the application.
(2) If, after considering the
application, the Admissions Committee is satisfied that the application contains
sufficient information
for the Committee to determine the application, the
Committee must determine it within one month after considering it.
(3) If, after considering the
application, the Committee is satisfied that the application does not contain
sufficient information
for the Committee to determine the application, the
Committee may request additional information from the applicant or any other
person. The Committee must determine the application within one month after
receiving the additional information that it requires.
(4) If the Admissions Committee
determines that a person meets the criteria for admission under section 15, the
Admissions Committee
must within 5 working days after making its decision issue
an admission certificate to the person.
(5) If the Admissions Committee
determines that a person does not meet the criteria for admission under section
15, the Admissions
Committee must within 5 working days after making its
decision advise the person in writing of its decision and the reasons for it.
(6) The form of an admission
certificate is to be prescribed by the Admissions Committee.
Division 2
– Temporary
Admissions
19 Application
of Division
This Division applies
to a person if the person is not admitted to legal practice under Division 1 of
this Part.
20 Temporary
admission for legal
proceedings
(1) A person is not to
be admitted to legal practice on a temporary basis unless:
(a) the person is required to appear in a particular legal proceeding or class of legal proceedings; and
(b) a judge or magistrate has given written approval that it is appropriate for the person to appear in the legal proceeding or class of legal proceedings in respect of which temporary admission is sought; and
(c) the person is admitted to legal practice in another jurisdiction approved by the Admissions Committee.
(2) Before
being admitted to legal practice on a temporary basis, a person must take and
subscribe to the oath of admission to legal
practice.
(3) The form of the oath is to be
prescribed by the Admissions Committee.
21 Temporary
admission in public interest
(1) A
person who is admitted to legal practice in another jurisdiction approved by the
Admissions Committee is to be admitted to legal
practice in Vanuatu on a
temporary basis if in the opinion of the Admissions Committee it is in the
public interest for the person
to be so
admitted.
(2) Before being
admitted to legal practice on a temporary basis, a person must take and
subscribe to the oath of admission to legal
practice.
(3) The form of the oath is to be
prescribed by the Admissions Committee.
22 Application
for temporary admission
(1) A
person is to apply in writing to the Admissions Committee to be admitted to
legal practice on a temporary basis.
(2) The application is to be
accompanied by:
(a) such material that will enable the Admissions Committee to determine if the applicant meets the criteria for admission under section 20 or 21; and
(b) an application fee of 10,000 Vatu or such other amount as is prescribed by the regulations.
(3) The
application fee is not refundable.
(4) In addition to the original
application and supporting material, the applicant must provide the Admissions
Committee with 5 copies
of the application and supporting
material.
23 Decision
by Admissions Committee
(1) The
Admissions Committee is to meet and consider an application for admission to
legal practice on a temporary basis within 14
days after receiving the
application.
(2) If, after
considering the application, the Admissions Committee is satisfied that the
application contains sufficient information
for the Committee to determine the
application, the Committee must determine it within 14 days after considering
it.
(3) If, after considering the
application, the Committee is satisfied that the application does not contain
sufficient information
for the Committee to determine the application, the
Committee may request additional information from the applicant or any other
person. The Committee must determine the application within 14 days after
receiving the additional information that it requires.
(4) If the Admissions Committee
determines that a person meets the criteria for admission, the Admissions
Committee must within 5
working days after making its decision issue a temporary
admission certificate to the person.
(5) If the Admissions Committee
determines that a person does not meet the criteria for admission, the
Admissions Committee must within
5 working days after making its decision advise
the person in writing of its decision and the reasons for it.
(6) The form of a temporary
admission certificate is to be prescribed by the Admissions Committee.
24 Period of
admission and conditions
(1) A
person’s admission under this Division:
(a) is valid for the period determined by the Admissions Committee and specified in the person’s temporary admission certificate; and
(b) is subject to such conditions as are specified in the person’s temporary admission certificate.
(2) A
person cannot apply for a renewal of the person’s admission under this
Division.
Division 3
– Practising
certificates
25 Unconditional
practising certificates
(1) A
person is not to be issued with an unconditional practising certificate unless
the person is admitted to legal practice under
Division 1 of this
Part.
(2) A person who wishes to
be issued with an unconditional practising certificate must apply in writing to
the Admissions Committee.
(3) The
application must be accompanied by an application fee of 5,000 Vatu or such
other amount as is prescribed by the regulations.
The application fee is not
refundable.
(4) If an applicant
satisfies the criteria in subsection (1) and has paid the application fee, the
Admissions Committee is to issue
the applicant with an unconditional practising
certificate within 5 working days after receiving the application.
(5) A person’s
unconditional practising certificate is valid for the period starting on the
date the practising certificate
is issued by the Admissions Committee and ending
on 31 December of that year.
(6) The form of an unconditional
practising certificate is to be prescribed by the Admissions Committee.
26 Renewal of
unconditional practising
certificates
(1) A person’s
unconditional practising certificate must not be renewed unless the person
has:
(a) completed the continuing legal education requirements under subsection 42 (3); and
(b) complied with any order made against the person by the Discipline Committee under Part 6.
(2) To
avoid doubt, if the Discipline Committee has suspended a person’s
unconditional practising certificate under Part 6,
the person’s
unconditional practising certificate cannot be renewed while the suspension is
in force.
(3) A person who wishes
to have his or her unconditional practising certificate renewed must apply in
writing to the Admissions Committee
before 15 December of each year.
(4) A person’s application
must be accompanied by an application fee of 10,000 Vatu or such other amount as
is prescribed by
the regulations. The application fee is not refundable.
(5) If an applicant satisfies the
criteria in subsection (1) and has paid the application fee, the Admissions
Committee is to renew
the applicant’s unconditional practising certificate
within 10 working days after receiving the
application.
(6) An unconditional
practising certificate is renewable for the period starting on 1 January of a
year and ending on 31 December
of that year.
(7) If a person:
(a) does not apply before 15 December of a particular year for the renewal of the person’s unconditional practising certificate; and
(b) wishes his or her unconditional practising certificate to be renewed;
the
person may apply under this section, but must pay to the Admissions Committee a
late fee of 10,000 Vatu or such other amount as
is prescribed by the
regulations.
(8) The late fee
referred to in subsection (7) is in addition to the application fee referred to
in subsection (4) and is not refundable.
27 Temporary
practising certificates
(1) A
person who is admitted to legal practice on a temporary basis under Division 2
of this Part is to be issued with a temporary
practising certificate by the
Admissions Committee when it approves the person’s admission.
(2) The person’s temporary
practising certificate is valid for so long as the person is admitted to legal
practice on a temporary
basis under Division 2 of this Part.
Division 4
– Appeals
28 Appeals
(1) If:
(a) a person has applied to the Admissions Committee:
(i) for admission as a legal practitioner; or
(ii) for the issue or renewal of his or her practicing certificate; and
(b) the person believes the decision of the Committee was wrong on a point of law or a question of fact;
the
person may appeal the decision to the Supreme Court.
(2) An appeal must be made not
later than 30 days after the date of issue of the advice by the Committee of its
decision.
(3) An appeal is to
proceed by way of a rehearing, unless the appellant and respondent agree
otherwise.
29 Powers
of Supreme Court on appeal
(1) On
an appeal, the Supreme Court may do any one or more of the following:
(a) confirm or revoke the decision to which the appeal relates;
(b) make a decision in place of the decision to which the appeal relates;
(c) remit the matter to the Admissions Committee for determination in accordance with the Court's finding or decision.
(2) On
an appeal, the appellant has the onus of proving the appellant’s
case.
Division
5 – Other matters
30 Transitional
arrangements
(1) This section
applies to a person if immediately before the commencement of this
Act:
(a) the person’s unconditional registration as a legal practitioner under the Legal Practitioners (Qualifications) Regulations No. 22 of 1996 was in force; or
(b) the person’s registration as a legal practitioner under Part VI of the Legal Practitioners Act [CAP 119] was in force.
(2) To
avoid doubt, this section does not apply to any other person.
(a) to be admitted to legal practice under Division 1 of this Part on and from the commencement of this Act; and
(b) to be issued with an unconditional practising certificate for the period starting on the commencement of this Act and ending on 31 December 2006.
(4) The
person must pay to the Admissions Committee a transitional fee of 5,000 Vatu
before 31 March 2006.
(5) If a
person does not pay the transitional fee in accordance with subsection (4), the
person’s unconditional practising certificate
referred to in paragraph
(3)(b) is cancelled by force of this subsection on 31 March
2006.
(6) To avoid doubt, nothing
in this section prevents a person whose unconditional practising certificate is
cancelled by force of
subsection (5) from applying under section 25 for an
unconditional practising certificate.
31 Offences
(1) A
person must not practise law in Vanuatu unless the person is admitted to legal
practice under Division 1 or 2 of this Part and
is the holder of a practising
certificate.
Penalty: a fine not
exceeding VT 1million or a term of imprisonment of not more than 2 years, or
both.
(2) A person who is not
admitted to legal practice under Division 1 or 2 of this Part must not do
anything, or permit anything to
be done, that holds out, advertises or
represents that the person is admitted under that Division.
Penalty: a fine not exceeding VT
100,000 or a term of imprisonment of not more than one year, or both.
(3) A person who is not the
holder of a practising certificate must not do anything, or permit anything to
be done, that holds out,
advertises or represents that the person is the holder
of such a certificate.
Penalty: a
fine not exceeding VT 100,000 or a term of imprisonment of not more than one
year, or both.
32 Register of
admitted practitioners
(1) The
Admissions Committee must establish and maintain a register of legal
practitioners who are admitted to legal practice under
Division 1 or 2 of this
Part, including which legal practitioners hold practising certificates.
(2) The register is to be kept in
such a form as the Admissions Committee determines and is to be readily
accessible to the
public.
PART
5 RULES OF PROSESSIONAL CONDUCT AND PRACTICE
33 Rules of
Professional Conduct and Practice
(1) The Rules of
Professional Conduct and Practice are set out in Schedule 4.
(2) After
consultation with the Law Council, the Minister may by order amend the Rules of
Professional Conduct and Practice.
PART
6 COMPLAINTS AGAINST LEGAL
PRACTITIONERS
34 Making
a complaint
(1) A person may make
a complaint to the Discipline Committee against a legal practitioner for
misconduct or unsatisfactory
conduct.
(2) A complaint is to be
made by sending or delivering the complaint to the Discipline Committee.
(3) A complaint
must:
(a) be in writing and be signed by the complainant; and
(b) contain specific allegations of misconduct or unsatisfactory conduct against a specified legal practitioner and such allegations may consist of acts or omissions; and
(c) contain the name and address of the complainant and the legal practitioner against whom the complaint is made; and
(d) contain such other information as is prescribed by the regulations.
(4) The
Committee must deliver or send a copy of the complaint to the legal practitioner
concerned within 7 days after receiving the
complaint.
(5) To avoid doubt, a complaint
may be made in relation to circumstances that occurred before the commencement
of this
Act.
35 Time
for hearing and determining complaints
(1) The Committee is to meet and
consider a complaint within one month after receiving the complaint.
(2) If, after considering the
complaint, the Committee is satisfied that the complaint contains sufficient
information for the Committee
to hear and determine the complaint, the Committee
must hear and determine the complaint within 2 months after considering it.
(3) If, after considering the
complaint, the Committee is satisfied that the complaint does not contain
sufficient information for
the Committee to hear and determine the complaint,
the Committee may request additional information from the complainant, the
respondent
or any other person.
(4) The Committee must hear and
determine the complaint within 2 months after receiving the additional
information that it has requested.
36 Procedure
for hearing of
complaint
(1) Subject to this
section, the Discipline Committee is to decide the procedure for the hearing of
a complaint.
(2) The Discipline
Committee is not bound by the rules of evidence, but must ensure the hearing is
conducted in such a way that the
complainant and respondent are accorded natural
justice.
(3) The complainant and
respondent may be represented by a legal
practitioner.
(4) The complainant
has the onus of proving the complaint.
(5) The Discipline Committee must
give the complainant and the respondent at least 7 days written notice of the
hearing date of the
complaint.
(6) To avoid doubt, the
Discipline Committee:
(a) may hear and determine a complaint in the absence of the respondent; or
(b) dismiss a complaint if the complainant does not appear at the hearing and the Committee is satisfied that the complainant does not have a reasonable excuse for not appearing.
37 Powers
of Discipline Committee
(1) The
Discipline Committee has power to do all or any of the following in relation to
the hearing of a complaint:
(a) to require the complainant to provide more specific allegations;
(b) to summon and examine the complainant, the respondent and witnesses;
(c) to require the production of documents and other evidence;
(d) to make orders for costs, but not against the complainant unless the complaint is frivolous or vexatious;
(e) to dismiss the complaint if the Committee considers it frivolous or vexatious.
(2) For
the purposes of paragraphs (1)(b) and (c), the Discipline Committee has the same
powers as a judge of the Supreme
Court.
38 Conflict
of interest
(1) A member of the
Discipline Committee who has a conflict of interest in relation to a complaint
being heard, or about to be heard,
by the Committee must disclose the matters
giving rise to that conflict to the Committee as soon as possible after becoming
aware
of the conflict.
(2) The
member must not take part in the making of a decision by the Discipline
Committee in relation to the complaint.
(3) For the purposes of this
section, a member has a conflict of interest in relation to a complaint being
heard, or about to be heard,
by the Discipline Committee if the member has any
interest, pecuniary or otherwise, that could conflict with the proper
performance
of the member's functions in relation to the complaint.
39 Decisions
of Discipline Committee
(1) If
the Discipline Committee is satisfied on the balance of probabilities that the
respondent has engaged in conduct that amounts
to misconduct or unsatisfactory
conduct, the Committee may do all or any of the following:
(a) cancel the respondent’s practising certificate;
(b) suspend the respondent’s practising certificate for a specified period;
(c) impose a fine on the respondent;
(d) order the respondent to pay a specified amount of compensation to the complainant;
(e) reprimand the respondent;
(f) order the respondent to do specified legal training;
(g) recommend, if applicable, that a customary reconciliation ceremony be held between the complainant and the respondent;
(h) make an order for costs against the respondent;
(i) make such other orders as the Committee considers necessary.
(2) If
the Discipline Committee is satisfied on the balance of probabilities that the
respondent has not engaged in conduct that amounts
to misconduct or
unsatisfactory conduct, the Committee must dismiss the complaint.
(3) The Discipline Committee must
advise the complainant and respondent of its decision and the reasons for it as
soon as practicable
after making the decision. The advice must be in
writing.
40 Appeals
(1) If
the complainant or respondent believes that:
(a) the decision of the Discipline Committee was wrong on a point of law; or
(b) the severity of the decision of the Discipline Committee was not appropriate having regard to the circumstances of the complaint;
the
complainant or the respondent may appeal the decision to the Supreme Court.
(2) An appeal must be made not
later than 30 days after the date of issue of the advice by the Discipline
Committee of its decision.
(3) On
an appeal, the Supreme Court may do any one or more of the
following:
(a) confirm or revoke the decision to which the appeal relates;
(b) make a decision in place of the decision to which the appeal relates;
(c) remit the matter to the Discipline Committee for determination in accordance with the Court's finding or decision.
(4) On
an appeal, the appellant has the onus of proving the appellant’s
case.
41 Fresh
evidence
(1) At any time after a
complaint has been heard and determined by the Discipline Committee, the
complainant or the respondent may
apply in writing to the Committee for a review
of the Committee’s decision on the ground that the applicant has fresh
evidence
of material significance that was not available at the time the
complaint was heard and determined.
(2) The Discipline Committee must
consider the application within one month after receiving it and must advise the
applicant of its
decision and the reasons for it. The advice must be in
writing.
(3) The Discipline
Committee is to determine the procedure for any review of a
complaint.
PART
7 CONTINUING LEGAL
EDUCATION
42 Continuing
Legal Education Program
(1) The
Law Council must establish a continuing legal education
program.
(2) The Law Council is
responsible for the administration of the continuing legal education
program.
(3) A legal practitioner
who is the holder of an unconditional practising certificate must
undertake:
(a) at least 10 hours of approved continuing legal education in each calendar year if the person’s unconditional practising certificate came into force before 1 July of that year; or
(b) at least 5 hours of approved continuing legal education in each calendar year if the person’s unconditional practising certificate came into force on or after 1 July of that year.
PART
8 MISCELLANEOUS
43 Regulations
The Minister may make regulations, not inconsistent with this Act, prescribing all matters that by this Act are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
44 Repeals
The following are repealed:
(a) the Legal Practitioners Act [CAP 119];
(b) the Legal Practitioners Regulation (Amendment) Act No. 39 of 1989;
(c) any regulations, orders or other instruments made under Legal Practitioners Act [CAP 119] or the Legal Practitioners Regulation (Amendment) Act No. 39 of 1989.
45 Commencement
This
Act commences on the day on which it is published in the
Gazette.
Section 7
SCHEDULE 1 - Law Council
1 Chairperson
and Deputy Chairperson
(1) The
members of the Council must elect a member to be the Chairperson and another
member to be the Deputy
Chairperson.
(2) Subject to
subclauses (3) and (4), the Chairperson and Deputy Chairperson each hold office
until such time as the Council otherwise
specifies.
(3) The Chairperson or Deputy
Chairperson ceases to be the Chairperson or Deputy Chairperson if he or she
ceases to be a member of
the
Council.
(4) The Chairperson or
Deputy Chairperson may resign as Chairperson or Deputy Chairperson by giving a
written resignation to the
Council.
2 Vacancies
If a vacancy occurs on the
Council, the Council is to ensure that the vacancy is filled as soon as
possible.
3 Allowances
for members
(1) The members of the
Council are not entitled to any sitting allowances for any meeting of the
Council.
(2) A member is entitled
to be paid such travelling and subsistence allowances as the Council may
determine in writing.
(3) A member
is not entitled to any remuneration or benefits, or other allowances, in his or
her capacity as a member of the Council,
including as the Chairperson or Deputy
Chairperson.
4 Meetings of
the Council
(1) The Council must
meet at least once every 3 months and hold such other meetings as are necessary
for the proper performance of
its
functions.
(2) The Chairperson is
to chair meetings of the Council. In the absence of the Chairperson, the Deputy
Chairperson is to chair the
meetings of the Council.
(3) If the absence of the
Chairperson and the Deputy Chairperson, the members present at a meeting are to
elect a member to chair
the meeting.
(4) At a meeting of the Council a
quorum consists of 3 members. The Council may meet despite any vacancies in its
membership so long
as a quorum is
present.
(5) Each member present
at a meeting has one vote and questions arising at a meeting are to be decided
by a majority of votes. If
the voting at a meeting is equal, the member chairing
the meeting has a casting
vote.
(6) The Council may
otherwise determine and regulate its own
procedures.
5 Annual
report
The Law Council must, within 3 months after the end of each year, prepare and give to the Minister a report with respect to its operations during that year.
Section 10
SCHEDULE 2 - Admissions Committee
1 Terms
of office of members
(1) A member
holds office for such period (not exceeding 2 years) as is specified in the
member’s instrument of appointment.
(2) Subject to subclause (3), a
person is eligible for re-appointment as a
member.
(3) A person who has been
removed as a member under clause 3 cannot be reappointed as a member.
2 Chairperson
and Deputy Chairperson
(1) The
members of the Committee must elect a member to be the Chairperson and another
member to be the Deputy
Chairperson.
(2) Subject to
subclauses (3) and (4), the Chairperson and Deputy Chairperson each hold office
until such time as the Committee otherwise
specifies.
(3) The Chairperson or Deputy
Chairperson ceases to be the Chairperson or Deputy Chairperson if he or she
ceases to be a member of
the Committee.
(4) The Chairperson or Deputy
Chairperson may resign as Chairperson or Deputy Chairperson by giving a written
resignation to the
Committee.
3 Removal
and resignation of members
(1) The
person who appoints a member to the Committee must remove that member (including
a member who is the Chairperson or Deputy
Chairperson) if he or
she:
(a) fails to attend 3 consecutive meetings without the permission of the Committee; or
(b) becomes bankrupt; or
(c) is convicted of an offence against a law of Vanuatu for which the maximum penalty is imprisonment for at least 12 months.
(2) A
member may resign at any time by giving his or her written resignation to the
Committee.
4 Acting
members
(1) The person who has
appointed a person to be a member of the Committee may appoint another person to
act for that member if he
or she is absent from Vanuatu or is for any reason
unable to perform his or her duties.
(2) A person must not be
appointed to act for more than 3
months.
(3) A person who is
appointed to act for a member who is the Chairperson or the Deputy Chairperson
does not become the Chairperson
or Deputy Chairperson by reason of the acting
appointment. In such a case, subclause 6(4) or (5) applies.
5 Allowances
for members
(1) The members of the
Committee are not entitled to any sitting allowances for any meeting of the
Committee.
(2) A member is
entitled to be paid such travelling and subsistence allowances as the Committee
may determine in writing.
(3) A
member is not entitled to any remuneration or benefits, or other allowances, in
his or her capacity as a member of the Committee,
including as the Chairperson
or Deputy Chairperson.
6 Meetings of
the Committee
(1) The Committee
must meet at such times as are necessary for the proper performance of its
functions.
(2) A member of the
Committee may call a meeting of the Committee at any time by giving one
day’s notice of the meeting to the
other members. The notice may be given
orally or in writing.
(3) The
Chairperson is to chair meetings of the Committee. In the absence of the
Chairperson, the Deputy Chairperson is to chair the
meetings of the Committee.
(4) If the absence of the
Chairperson and the Deputy Chairperson, the members present at a meeting are to
elect a member to chair
the meeting.
(5) At a meeting of the Committee
a quorum consists of 3 members. The Committee may meet despite any vacancies in
its membership so
long as a quorum is
present.
(6) Each member present
at a meeting has one vote and questions arising at a meeting are to be decided
by a majority of votes. If
the voting at a meeting is equal, the member chairing
the meeting has a casting
vote.
(7) The Committee may
otherwise determine and regulate its own
procedures.
7 Annual
report
The Committee must, within 3 months after the end of each year, prepare and give to the Law Council a report with respect to its operations during that year.
Section 13
SCHEDULE 3 - Discipline Committee
1 Terms
of office of members
(1) A member
holds office for such period (not exceeding 2 years) as is specified in the
member’s instrument of
appointment.
(2) Subject to
subclause (3), a person is eligible for re-appointment as a
member.
(3) A person who has been
removed as a member under clause 3 cannot be reappointed as a member.
2 Chairperson
and Deputy Chairperson
(1) The
member of the Committee who is a judge of the Supreme Court is to be the
Chairperson of the
Committee.
(2) The members of the
Committee must elect a member to be the Deputy Chairperson and, subject to
subclauses (3) and (4), he or she
holds office as the Deputy Chairperson until
such time as the Committee otherwise
specifies.
(3) The Chairperson or
Deputy Chairperson ceases to be the Chairperson or Deputy Chairperson if he or
she ceases to be a member of
the Committee.
(4) The Deputy Chairperson may
resign as Deputy Chairperson by giving a written resignation to the
Committee.
3 Removal
and resignation of members
(1) The
person who appoints a member to the Committee may remove that member (including
a member who is the Chairperson and Deputy
Chairperson) if he or
she:
(a) fails to attend 3 consecutive meetings without the permission of the Committee; or
(b) becomes bankrupt; or
(c) is convicted of an offence against a law of Vanuatu for which the maximum penalty is a period of imprisonment.
(2) A member may resign at any
time by giving his or her written resignation to the
Committee.
4 Acting
members
(1) The person who has
appointed a person to be a member of the Committee may appoint another person to
act for that member if he
or she is absent from Vanuatu or is for any reason
unable to perform his or her duties.
(2) A person must not be
appointed to act for more than 3 months.
(3) A person who is appointed to
act for the member who is the Chairperson becomes the Chairperson by reason of
the acting appointment.
(4) A
person who is appointed to act for the member who is the Deputy Chairperson does
not become the Deputy Chairperson by reason
of the acting appointment. In such a
case, subclause 6(4) applies.
(5) If:
(a) a member or members are unable to take part in the making of a decision by the Committee in relation to a complaint because of a conflict of interest; and
(b) the Committee does not have a quorum as a result;
the
person who appointed that member or those members must appoint another person or
persons to act for that member or those members
in order to hear and determine
the
complaint.
5 Allowances
for members
(1) The members of the
Committee are not entitled to any sitting allowances for any meeting of the
Committee.
(2) A member is
entitled to be paid such travelling and subsistence allowances as the Committee
may determine in writing.
(3) A
member is not entitled to any remuneration or benefits, or other allowances, in
his or her capacity as a member of the Committee,
including as the Chairperson
or Deputy Chairperson.
6 Meetings of
the Committee
(1) The Committee
must meet such times as are necessary to determine complaints and for the proper
performance of its other
functions.
(2) A member of the
Committee may call a meeting of the Committee at any time by giving one
day’s notice of the meeting to the
other members. The notice may be given
orally or in writing.
(3) The
Chairperson is to chair meetings of the Committee. In the absence of the
Chairperson, the Deputy Chairperson is to chair the
meetings of the Committee.
(4) If the absence of the
Chairperson and the Deputy Chairperson, the members present at a meeting are to
elect a member to chair
the meeting.
(5) At a meeting of the Committee
a quorum consists of 3 members. The Committee may meet despite any vacancies in
its membership so
long as a quorum is
present.
(6) Each member present
at a meeting has one vote and questions arising at a meeting are to be decided
by a majority of votes. If
the voting at a meeting is equal, the member chairing
the meeting has a casting
vote.
(7) The Committee is to
otherwise determine and regulate its own meeting
procedures.
7 Annual
report
(1) The Committee must,
within 3 months after the end of each year, prepare and give to the Law Council
a report with respect to its
operations during that year.
(2) The report must include a
copy of each decision in relation to a complaint made by the Committee during
the relevant year.
Section 33
SCHEDULE 4 - RULES OF PROFESSIONAL CONDUCT AND PRACTICE
PART 1
-
PRELIMINARY
1 Interpretation
(1) In
these Rules, unless the contrary intention
appears:
client
means a person to whom a legal
practitioner or a legal firm provides legal services.
legal firm
means a firm of legal practitioners and
includes the State Law Office, the Pubic Prosecutors Office and the Public
Solicitors Office.
member
of a legal firm includes a partner,
associate, employee or officer of the legal firm.
prosecutor
means:
(a) the Public Prosecutor; or
(b) the Deputy Public Prosecutor, an Assistant Public Prosecutor or a State Prosecutor within the meaning of the Public Prosecutors Act No. 7 of 2003; or
(c) any other legal practitioner prosecuting a criminal offence.
(2) The
other terms used in these Rules have the same meaning as in the Legal Profession
Act No. 49 of
2005.
2 Compliance
A
legal practitioner in the course of legal practice must regulate his or her
conduct to comply with these Rules.
PART 2 –
DEALINGS BETWEEN LEGAL
PRACTITIONERS
3 Professionalism,
courtesy and fairness
A legal
practitioner must:
(a) promote and maintain proper standards of professionalism with other legal practitioners; and
(b) treat other legal practitioners with courtesy and fairness.
4 Honour
undertakings
(1) A legal
practitioner has a professional duty to honour an undertaking given in the
course of legal proceedings or in the course
of legal
practice.
(2) Subclause (1) applies to a legal practitioner whether the
undertaking is given by the legal practitioner personally or another
member of
the legal firm of which legal practitioner is a member.
(3) Subclause
(1) applies to a legal practitioner whether the undertaking is given orally or
in writing.
5 Clients
of others
A legal practitioner must not communicate directly or indirectly with another practitioner’s client in the same matter, unless the other legal practitioner has given his or her express approval.
PART 3
– DEALINGS BETWEEN LEGAL PRACTITIONER AND
CLIENT
6 Client
interest
(1) A legal practitioner must use all reasonably available legal means to advance his or her client’s interests.
(2) However, in the
interests of the administration of justice, the overriding duty of a legal
practitioner acting in litigation is
to the court or other relevant decision
making body.
7 Diligence
(1) A
legal practitioner must use his or her reasonable endeavours to complete any
work on behalf of his or her client as soon as
is reasonably possible.
(2) If a legal practitioner
receives instructions from a client and it is or becomes apparent to the
practitioner that the practitioner
cannot perform the work within a reasonable
time, the practitioner must inform the client as soon as possible.
(3) A legal practitioner must not
take steps to perform work in such a way as to unnecessarily increase costs to
his or her client.
(4) A legal
practitioner must not accept instructions which are beyond the
practitioner’s level of competence.
8 Disclosure
(1) Subject
to subclause (2), a legal practitioner must not disclose to any other person any
information obtained in the course of
handling any matter for a
client.
(2) A legal practitioner
may make a disclosure if:
(a) it is authorised by or under any law; or
(b) it is incidental to the normal conduct of the matter; or
(c) the client expressly authorises it; or
(d) the practitioner believes on reasonable grounds that a failure to make the disclosure would result in a person’s safety being threatened.
9 Keeping
client informed
A legal practitioner must keep a client appraised of all significant developments in any matter entrusted by the client unless the client has instructed the legal practitioner to do otherwise.
10 Illegal
purposes
A legal practitioner must
not tender advice to a client when the legal practitioner knows or ought
reasonably be expected to know
that the client is requesting the advice to
advance an illegal
purpose.
11 Instructions
If a client’s instructions are such as to prevent the proper performance by a legal practitioner of his or her duties, the legal practitioner must decline to act further and must advise the client accordingly.
12 Changing
adviser
(1) A legal
practitioner must not place any fetter upon or otherwise attempt to discourage a
client from changing legal advisers at
any time.
(2) A legal practitioner
must offer all such assistance and give all such advice or information as may be
necessary to enable any
other legal practitioner instructed to take over a
matter and with the least duplication of costs.
(3) Subclause (2) does
not affect any lien a legal practitioner has on any documents held for or on
behalf of a former client.
13 Costs
(1) It is a
legal practitioner’s duty to communicate effectively and promptly with his
or her client about the costs and disbursements
the client may incur by pursuing
the legal activity requested by the client.
(2) Without limiting
subclause (1), a legal practitioner must:
(a) as soon as practicable after taking instructions from a client, give the client written advice setting out:
(i) an estimate of the costs and disbursements the client may incur by pursing the legal activity; and
(ii) the method of calculation of those costs and disbursements; and
(b) give the client as and when reasonably requested, written advice reviewing the estimated costs and disbursements; and
(c) in the case of a proposed settlement of a litigious matter – give the client advice as to the likely minimum net amount the client will receive from the proposed settlement.
(3) A
client may request a legal practitioner to enter into a written agreement in
relation to costs and disbursements. Such an agreement
may specify that all work
done by the legal practitioner for the client or all work of a particular kind
is to be charged at a specified
rate.
14 Interests
that conflict
(1) A legal practitioner must at all times make a full and frank disclosure to a client of any interest he or she may have in any transaction in which the legal practitioner is acting for that client. If such an interest is adverse to that of the client, the legal practitioner must cease to act.
(2) A
legal practitioner must at all times make a full and frank disclosure to a
client of any matter or thing which could reasonably
be regarded by the client
as raising a conflict of interest on the part of the
practitioner.
15 Acting
for more than one party
(1) A legal
practitioner may act for more than one party in a non-litigious matter
if:
(a) the practitioner informs all parties that he or she is acting; and
(b) the practitioner advises all the parties that each should seek independent legal advice; and
(c) the practitioner advises the parties of the consequences of acting for both parties as set out in subclause (2); and
(d) all the parties consent in writing to the practitioner acting.
(2) The
practitioner must cease to act for all parties if:
(a) a conflict of interest arises amongst two or more of the parties; or
(b) the matter becomes litigious between two or more of the parties.
(3) A
reference to a legal practitioner in this clause includes a reference to the
legal firm of which the legal practitioner is a
member.
16 Acting
for former clients
A legal practitioner must not act for a client in a matter against a former client of the practitioner if:
(a) the legal practitioner has prior knowledge of the former client or of his or her affairs; and
(b) the legal practitioner’s prior knowledge:
(i) would be, or would have the potential to be, to the detriment of the former client; or
(ii) could reasonably be expected to be objectionable to the former client.
PART
4 –ADVERTISING, PLACE OF BUSINESS AND CONDUCT OF OTHER
BUSINESSES
17 Advertising
A legal
practitioner may advertise in connection with his or her practice if the
advertising is not:
(a) false; or
(b) misleading or deceptive, or likely to mislead or deceive; or
(c) defamatory of another legal practitioner; or
(d) done in such a way so as to bring discredit to the legal profession.
18 Letterhead
etc
A legal firm must not mislead the public or other legal practitioners about the structure of the firm or the status of any person named on the firm’s letterhead or in any other publication or literature issued by the firm.
19 Place
of business
For the purpose of ensuring that the confidentiality of a client’s affairs is maintained, a legal practitioner must not share, occupy or use premises jointly with any person unless appropriate arrangements have been made to ensure that confidentiality.
20 Management
of practices
A legal practitioner must ensure that each place of business of the legal practitioner is at all times under effective and competent management by a practitioner who has an unconditional practicing certificate.
21 Conduct
of other businesses
A legal
practitioner must not carry on another business apart from a legal practice
unless:
(a) the conduct of the other business is kept entirely separate from the legal practice particularly with respect to correspondence, accounts and dealings with the public; and
(b) the other business is not of such a character that the practitioner’s interest and the duty to clients are likely to conflict; and
(c) the other business is not done in such a way so as to bring discredit to the legal profession.
PART
5 – TRUST ACCOUNTS AND
AUDITS
22 Money
received by a legal practitioner on behalf of another
(1) If a legal
practitioner, in the course of practising as a legal practitioner, receives
money on behalf of another person, the
legal practitioner must:
(a) hold the money exclusively for the other person; and
(b) ensure that subclause (2) is complied with in relation to the money.
(2) The
legal practitioner must:
(a) pay the money ("trust money") to the credit of a general trust account at a bank licensed under the Financial Institutions Act No.2 of 1999, except where the person on whose behalf the money is received otherwise directs; and
(b) not mix office or general funds of the legal practitioner with the trust money; and
(c) disburse the trust money in accordance with the directions of the person on whose behalf it is held.
(3) Subject
to subclause (4) or (5) (whichever applies), this clause does not operate to
prevent a legal practitioner from withdrawing
money in a trust account
for:
(a) payment of costs for services provided by the legal practitioner; or
(b) payment of disbursements to be paid by the legal practitioner; or
(c) reimbursement for disbursements paid by the legal practitioner.
(4) If
the legal practitioner has received a retainer from the client concerned, the
withdrawal of the money must be made in accordance
with the terms and conditions
of the agreement entered into in relation to the retainer.
(5) If the
legal practitioner has not received a retainer, the legal practitioner must not
make the withdrawal unless the legal practitioner:
(a) has rendered an account for the costs or disbursements to the client; and
(b) received instructions from the client to make the withdrawal.
(6) This
clause does not operate to prevent a legal practitioner:
(a) from exercising a general retaining lien for unpaid costs and disbursements in respect of money in a trust account; or
(b) from holding, or disposing of, a cheque or other negotiable instrument payable to a third party if the legal practitioner does so on behalf of a client and in accordance with directions given by the client.
(7) Money
received by a legal practitioner on behalf of another person is not available
for payment to a creditor of the legal
practitioner.
23 Keeping of
accounts
(1) A legal practitioner must keep accounting records
that disclose at all times the true position in relation to all money received
by the legal practitioner on behalf of other persons.
(2) The accounting
records must be kept in a manner that enables them to be conveniently and
properly audited.
24 Law council can require a spot audit
(1) The Law Council may at
any time, by notice in writing to a legal practitioner, require the practitioner
or the legal firm of which
the legal practitioner is a member to provide the Law
Council with an auditor’s
report.
(2) The report must be
prepared by an auditor qualified for appointment in accordance with section 166
of the Companies Act [CAP 191]
and the cost of the report is to be paid for by
the Law Council.
(3) The report
must be provided by the auditor within 3 months after the date of the notice
referred to in subclause
(1).
(4) A legal practitioner
must:
(a) allow the auditor entry to the legal practitioner’s premises; and
(b) give the auditor such assistance as is required.
(5) Without
limiting paragraph (4)(b), a legal practitioner must, if required to do so by an
auditor carrying out an audit, and despite
any legal professional
privilege:
(a) produce for inspection by the auditor any accounting or other records relating to the legal practitioner's practice; and
(b) give the auditor such other information as is reasonably necessary for the purposes of the audit.
(6) The
production of a record or statement, or the giving of information, under this
clause does not subsequently affect any legal
professional privilege to which
the record, statement or information is subject.
(7) It is a sufficient
compliance with this clause by a legal practitioner in
partnership if a
single auditor’s report is lodged for the partnership.
25 Disclosure
A
legal practitioner must promptly disclose to the Law Council the occurrence of
any conduct by another legal practitioner which the
first mentioned legal
practitioner believes on reasonable grounds is contrary to this
Part.
PART 6
– LITIGATION PRACTICE
26 Naming
persons
(1) A legal
practitioner must exercise care in court about naming a person not involved in
the proceeding.
(2) A legal practitioner must refrain in court from doing
all of the following:
(a) making scandalous or unnecessary allegations against a person;
(b) making allegations against a person that do not have any evidentiary or legal basis;
(c) attacking the reputation of a person without good cause.
27 Court
not to be misled
(1) A legal
practitioner must not in the course of making submissions or cross examining a
witness say or lead a witness to say anything
that might mislead the
court.
(2) A legal practitioner must not make any statement to the court
or put any proposition to a witness that is not supported by reasonable
instructions or that lacks factual foundation by reference to the information
available to the court.
(3) A legal practitioner must refer the court to
all relevant legislation, case law and other legal authorities relevant to the
proceedings
that are known to the legal practitioner.
28 Legal
practitioner as witness
A legal practitioner must not act as counsel and appear as a witness in the same proceeding.
29 Expert
and other
witnesses
(1) If:
(a) an expert witness has been retained by a party ("the first mentioned party") in a proceeding; and
(b) the legal practitioner for another party in the proceeding is aware of it;
the
practitioner must not approach the expert witness without first obtaining the
written consent of the practitioner acting for the
first mentioned
party.
(2) Subject to subclause
(1), a legal practitioner acting for one party may interview a witness or
prospective witness with his or
her consent at any stage prior to the hearing
whether or not the witness has been:
(a) interviewed by a legal practitioner acting for the other party; or
(b) called as a witness.
30 Consent
orders
A legal practitioner appearing for a party must not seek or agree to a consent order without the client’s instructions. So far as practicable, the instructions are to be in writing.
31 Client
disobeys court order
(1) This
clause applies to a legal practitioner whose client informs the practitioner
that the client intends to disobey a court’s
order.
(2) The legal practitioner
must:
(a) advise the client against that course and warn the client of its dangers; and
(b) not advise the client how to carry out or conceal that course; and
(c) not inform the court or the opponent of the client’s intention unless:
(i) the client has authorised the practitioner to do so beforehand; or
(ii) the practitioner believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.
PART
7 – ACTING FOR THE ACCUSED IN CRIMINAL PROCEEDINGS
32 Not guilty
plea
(1) On a plea
of not guilty, a legal practitioner acting for an accused has a duty to:
(a) place before the court any proper defence in accordance with his or her client’s instructions; and
(b) require the prosecution to discharge the appropriate onus to prove the guilt of the accused.
(2) A
legal practitioner for an accused must not recklessly attribute to another
person the crime or offence with which the accused
is
charged.
(3) However, if the facts or circumstances arising out of the
evidence or reasonable inferences drawn from it, raise a reasonable
suspicion
that the offence may have been committed by another person, such a defence may
be properly raised.
33 Guilty
clients
(1) This clause applies to
a legal practitioner’s client who informs the practitioner, before
judgment or decision, that he
or she:
(a) has lied in a material particular to the court; or
(b) has procured another person to lie to the court; or
(c) has falsified or procured another person to falsify in any way a document which has been tendered.
(2) The
legal practitioner must:
(a) advise the client that the court should be informed of the lie or falsification; and
(b) request authority from the client to inform the court of the lie or falsification; and
(c) promptly inform the court of the lie or falsification upon the client authorising the practitioner to do so.
(3) The
legal practitioner must not take any further part in the proceeding if the
client does not authorise the practitioner to inform
the court of the lie or
falsification.
(4) The legal
practitioner must not inform the court of the lie or falsification without
authority from the client to do
so.
34 Guilty
plea
(1) This clause applies if a
legal practitioner’s client in criminal proceedings confesses guilt to the
practitioner but maintains
a plea of not
guilty.
(2) The legal practitioner
may cease to act if:
(a) there is enough time for another practitioner to take over the case properly before the hearing; and
(b) the client does not insist on the practitioner continuing to appear for the client.
(3) If
the legal practitioner continues to act for the client, the legal practitioner
must not:
(a) falsely suggest that some other person committed the offence charged; or
(b) set up an affirmative case inconsistent with the confession.
(4) If
the legal practitioner continues to act for the client, the legal practitioner
may argue that:
(a) the evidence as a whole does not prove that the client is guilty of the offence charged; or
(b) for some reason of law the client is not guilty of the offence charged; or
(c) for any other reason not prohibited by paragraph (3)(a) or (b) that the client should not be convicted of the offence charged.
35 Advice
on plea
A legal practitioner must in advising his or her client:
(a) on a plea; or
(b) as to whether or not to give evidence;
discuss all relevant aspects of the case with the client and seek to ensure that the client makes an informed decision.
36 Innocent
client
(1) This
clause applies if a legal practitioner:
(a) is told by his or her client that he or she did not commit the offence; or
(b) believes that on the facts that his or her client should be acquitted;
but
for a particular reason the client wishes to plead guilty.
(2) The legal
practitioner may continue to represent the client if the practitioner:
(a) has warned the client in writing of the consequences of his or her plea; and
(b) has advised the client that he or she can act after entry of the plea only on the basis that the offence has been admitted; and
(c) has advised the client that he or she can put forward only factors in mitigation.
37 Previous
convictions
A legal practitioner must not disclose his or her client’s previous convictions without the client’s authority.
PART 8
– ACTING FOR THE
PROSECUTION
38 Prosecutor’s
duties
(1) A prosecutor’s
primary interest is that the right person is convicted, the truth is revealed
and justice is done.
(2) A
prosecutor must:
(a) fairly assist a court to arrive at the truth; and
(b) seek impartially to have the whole of the relevant evidence placed intelligibly before the court; and
(c) seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
(3) A
prosecutor must not press the prosecution’s case for a conviction beyond a
full and firm presentation of that
case.
(4) A prosecutor must not,
by language or other conduct, seek to inflame or bias the court against the
accused.
(5) A prosecutor must not
argue any proposition of act or law which the prosecutor does not believe on
reasonable grounds to be capable
of contributing to a finding of guilt and also
to carry
weight.
39 Disclosure
(1) Subject
to subclause (2), a prosecutor must disclose to the opponent as soon as
practicable:
(a) all material (including the names of and means of finding prospe