Proctor : August 2018
8 PROCTOR | August 2018 In response to an increasing number of wilful or substantial breaches of the trust accounting requirements of the Legal Profession Act 2007 (the Act) and its regulations, especially in newly established practices, Queensland Law Society has established a Trust Account Consultancy and a Trust Account Remedial Course. The Trust Account Consultancy The Trust Account Consultancy comprises a visit by a trust account investigator to review the trust accounts and trust accounting procedures of a practice. While preference is given to newly established practices, the service is available to all. This half-day service is neither an audit nor a trust account review. It is simply a consultancy to ensure the practice’s trust accounting procedures meet the requirements of a subsequent audit or review. More information can be found at qls.com.au/trustaccountconsultancy . The Trust Account Remedial Course The constitution of the Trust Account Remedial Course can be found at qls.com.au/tarc . A practitioner may be referred to the course by the Executive Committee of the Council of the Society when: a. the practitioner has been subject to an investigation of the affairs of their law practice because of a resolution of the Professional Conduct Committee, and b. that investigation of affairs has disclosed that the trust accounts of the law practice have not been maintained to the standard of a competent practitioner and that it is capable of constituting unsatisfactory professional conduct or professional misconduct This process requires some explanation. The Executive Committee only considers such matters as are recommended to it by the Professional Conduct Committee of Council (PCC). That committee oversees all of the Society’s trust account investigations and this course. The committee consists of practitioners appointed by Council. All law practice trust accounts are subject to investigation by the Society. When an investigation finds a law practice in wilful or substantial breach of the Act and regulations, a report of that investigation is referred to the PCC, together with the responsible practitioner’s response for a direction as to what action to next take. A substantial breach is a failure on the part of the law practice to comply with legislative provisions of the Act and/or regulations that is material in amount, frequency or impact. Breaches may be wilful if the act is done voluntarily with either an intentional disregard of, or plain indifference to, the requirements of the Act and/or regulations. Substantial and/or wilful breaches are sufficient to constitute unsatisfactory professional conduct and may be referred to the Legal Services Commissioner. The Society generally does not do this. The PCC considers the nature of the breaches and if wilful or sufficiently substantial, resolves to have the practice put on short review; that is, another investigation in six or 12 months. The aim is to monitor the law practice and improve its standard of trust accounting. This process can go on ad infinitum until a satisfactory audit takes place. This has Help available for trust account issues extended to three or four consecutive short reviews without a clear audit. The number of repeat short reviews has grown. To solve this problem of multiple reviews and to lift the standard of trust accounting in such practices, the Society has introduced the remedial course. The Constitution provides for a referral to the course after an unsatisfactory result on the first review undertaken upon a resolution of the PCC. The PCC has decided only to refer a law practice to the Executive Committee to consider a referral when there has been two consecutive investigations because of PCC resolutions that have yielded substantial or wilful breaches of the same kind. A practitioner at jeopardy of referral to the Trust Account Remedial Course by the Executive Committee will be given an opportunity to make submissions to the Executive Committee to consider prior to deciding on making the referral. If a practitioner refuses to undertake the course after a referral by the Executive Committee, the Society considers that a matter that might give cause to consider if the practitioner is fit and proper to hold a principal practising certificate pursuant to s60 of the Act. In such a case, the Society might also refer the practitioner to the Legal Services Commissioner to consider whether to bring disciplinary action in respect of the substantial and/or wilful breaches. The course costs $1500 and is conducted by a senior member of the trust accounts investigation staff. It is also open to the Legal Services Commission or a disciplinary tribunal to refer a practitioner to the Trust Account Remedial Course. The course is also open to any practitioner who wishes to undertake it independent of any referral. Should a practitioner be interested in the course they should contact Deborah Mok, email@example.com. News Doyle Wilson has opened its first Brisbane office, in Matisse Tower, 110 Mary Street, on 10 July. The firm’s directors, Andrew Doyle and Lachlan Wilson, have welcomed special counsel Jude Ellyett to the new office. Jude focuses on insolvency and commercial litigation, and has extensive experience Doyle Wilson arrives in Brisbane in advising companies, company directors and insolvency practitioners in all aspects of litigation and external administrations. She is joined by special counsel Niall Powell, who concentrates on commercial property, commercial and retail leasing, and property management agreements. A third special counsel, with insolvency expertise, has also been appointed and will join the Doyle Wilson Brisbane team this month. “Our founding Brisbane team members will add three senior specialised lawyers to our ranks who will work with our clients across Goondiwindi, Brisbane and Sydney,” Doyle Wilson chair Andrew Doyle said.