Legal Practitioners Regulations 2014

Transcription

1 Version: South Australia Legal Practitioners Regulations 2014 under the Legal Practitioners Act 1981 Contents Part 1 Preliminary 1 Short title 3 Interpretation Part 2 Notice requirements 4 Notification of changes to Supreme Court and Law Society 5 Notification by interstate practitioners establishing South Australian office (section 23D of Act) Part 3 Register of Disciplinary Action 6 Register of Disciplinary Action (section 89C of Act) Part 4 Professional mentoring agreements 7 Duties of professional mentor (section 90B of Act) 8 Fees and expenses of professional mentor (section 90B of Act) Part 5 Incorporated legal practices 9 Notice of termination of provision of legal services (Schedule 1 clause 7 of Act) 10 Disqualifications and prohibitions (Schedule 1 clauses 21 and 22 of Act) 11 Approved form Part 6 Trust money and trust accounts Division 1 Preliminary 12 Definitions 13 Operation of Part Division 2 Computerised accounting systems 14 Application of Division 15 Copies of trust records to be printed 16 Chronological record of information to be made 17 Requirements regarding computer accounting systems 18 Back-ups Division 3 General trust accounts 19 Establishment of general trust account 20 Receipting of trust money 21 Deposit records for trust money [ ] This version is not published under the Legislation Revision and Publication Act

2 Legal Practitioners Regulations Contents 22 Direction for non-deposit of trust money in general trust account (Schedule 2 clause 12 of Act) 23 Written record to be kept of verbal direction to disburse trust money 24 Payment by cheque 25 Payment by electronic funds transfer 26 Recording transactions in trust account cash books 27 Trust account receipts cash book 28 Trust account payments cash book 29 Recording transactions in trust ledger accounts 30 Journal transfers 31 Reconciliation of trust records 32 Trust ledger account in name of law practice or legal practitioner associate 33 Notification requirements regarding general trust accounts Division 4 Controlled money 34 Maintenance of controlled money accounts (Schedule 2 clause 15 of Act) 35 Receipt of controlled money 36 Deposit of controlled money (Schedule 2 clause 15 of Act) 37 Withdrawal of controlled money must be authorised 38 Register of controlled money Division 5 Transit money 39 Information to be recorded about transit money (Schedule 2 clause 17 of Act) Division 6 Trust money generally 40 Trust account statements 41 Trust account statements for sophisticated clients 42 Register of investments 43 Trust money subject to specific powers (Schedule 2 clause 18 of Act) 44 Register of powers and estates in relation to trust money 45 Withdrawing trust money for legal costs (Schedule 2 clause 22 of Act) 46 Keeping of trust records (Schedule 2 clause 25 of Act) 47 Keeping other records and information 48 Statements regarding receipt or holding of trust money Division 7 External examinations 49 Appointment of external examiner (Schedule 2 clause 34 of Act) 50 No requirement for external examinations for transit money 51 Carrying out examination (Schedule 2 clause 38 of Act) 52 External examiner's report (Schedule 2 clause 39 of Act) 53 Conditions on approval of ADIs (Schedule 2 clause 41 of Act) 54 Information to be provided to Society (Schedule 2 clause 48 of Act) Division 8 Miscellaneous 55 Law practice closing down, closing office or ceasing to receive or hold trust money 56 Exemptions 57 Transitional provision retention of accounts and records kept under revoked regulations Part 7 Costs disclosure and assessment 58 Substantial connection with this State (Schedule 3 of Act) 59 Disclosure of costs to clients form (Schedule 3 clause 10 of Act) 60 Exceptions to requirement for disclosure (Schedule 3 clause 13 of Act) 2 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

3 Legal Practitioners Regulations 2014 Contents 61 Interest on unpaid legal costs (Schedule 3 clause 23 of Act) 62 Costs agreement with associated third party payer (Schedule 3 clause 24) 63 Notification of client's rights form (Schedule 3 clause 33 of Act) Part 8 Miscellaneous 64 Fees 65 Miscellaneous prescribed matters under Act 66 Oath of public notary 67 Obligation to provide information to Supreme Court 68 Offences 69 General defence Part 9 Transitional provisions Legal Practitioners (Miscellaneous) Amendment Act Operation of amendment (requirement of incorporated legal practice to give notice) 71 Reporting obligations for 2013/2014 financial year Schedule 1 Forms Schedule 2 Fees Legislative history Part 1 Preliminary 1 Short title These regulations may be cited as the Legal Practitioners Regulations Interpretation In these regulations Act means the Legal Practitioners Act Part 2 Notice requirements 4 Notification of changes to Supreme Court and Law Society (1) Subject to subregulation (2), a law practice must, within 1 month, give the Supreme Court and the Society notice in writing containing details of any of the following events: establishment of a new place of business by the law practice; closure of a place of business of the law practice; amalgamation of the law practice with another law practice. (2) A law practice that is required to give the Society written notice in accordance with regulation 9 or regulation 55(1) is not required to give notice under subregulation (1) or. [ ] This version is not published under the Legislation Revision and Publication Act

4 Legal Practitioners Regulations Part 2 Notice requirements (3) A legal practitioner must, within 1 month, give the Supreme Court and the Society notice in writing containing details of any of the following events: commencement or recommencement of practice on the part of the practitioner; cessation of practice by the practitioner; entry by the practitioner into partnership with another practitioner; if the practitioner practises in partnership dissolution of the partnership or the death or retirement of a member of the partnership or addition of a new member. (4) For the purposes of subregulation (3), a reference to ceasing to practise includes a reference to ceasing to practise in a way that entitles the practitioner to receive trust money or will involve the receipt of trust money. (5) The legal representative of a practitioner who dies while engaged in practice on his or her own behalf and not in partnership with another practitioner must, within 1 month after the death or 14 days after the grant of probate or letters of administration (whichever is the later), notify the Supreme Court and the Society of the death. (6) If the function of receiving notices under subregulation (1), (3) or (5) is assigned to the Society under section 52A of the Act, the subregulation is to be taken to require that the notices be given only to the Society. Note The functions of the Supreme Court under subregulations (1), (3) and (5) are assigned by the Court, by rules of court, to the Law Society (see section 52A of the Act and Chapter 17 of the Supreme Court Civil Rules 2006). 5 Notification by interstate practitioners establishing South Australian office (section 23D of Act) (1) For the purposes of section 23D(1) of the Act, an interstate legal practitioner who establishes an office in this State must give the notice required under that section within 28 days after establishing the office. (2) For the purposes of section 23D(2) of the Act, the notice must contain the following particulars: (f) (g) the practitioner's full name and date of birth; each jurisdiction in which the practitioner currently holds an interstate practising certificate; what conditions or limitations (if any) are imposed on an interstate practising certificate held by the practitioner; the address of the practitioner's place of business in this State; the practitioner's current residential and other business addresses; whether the practitioner will practise in this State as a member of a partnership, as an employee, or as a legal practitioner director, and, if so, the name and business addresses of the firm, employer or incorporated legal practice of which the practitioner is a member, employee or director; whether the practitioner will operate a trust account in this State. 4 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

5 Legal Practitioners Regulations 2014 Register of Disciplinary Action Part 3 Part 3 Register of Disciplinary Action 6 Register of Disciplinary Action (section 89C of Act) For the purposes of section 89C(3) of the Act, particulars of the date and jurisdiction of the person's first and each later admission to the legal profession are prescribed as particulars to be included in the Register of Disciplinary Action. Part 4 Professional mentoring agreements 7 Duties of professional mentor (section 90B of Act) (1) A professional mentor appointed under section 90B of the Act has the following duties: to act in good faith; to maintain confidentiality in his or her dealings with the practitioner, and in particular to maintain confidentiality in respect of the practitioner's practice and the practitioner's dealings with the profession at large; to respect the relationships between the legal practitioner and his or her staff, professional colleagues and clients; to meet with the practitioner as required under the professional mentoring agreement. (2) For the purposes of section 90B(3) of the Act, a professional mentor must report on the practitioner and the practitioner's practice as follows: if the professional mentor is appointed under an agreement entered into with the Commissioner in accordance with agreements made from time to time with the Society; in any other case as required by the Society. 8 Fees and expenses of professional mentor (section 90B of Act) For the purposes of section 90B(6) of the Act the fees set out in the scale of costs in force under the Supreme Court Civil Rules 2006; and the expenses reasonably incurred by the professional mentor in the performance of his or her duties imposed by or under the Act, are payable to the professional mentor by the practitioner or law practice. Part 5 Incorporated legal practices 9 Notice of termination of provision of legal services (Schedule 1 clause 7 of Act) For the purposes of Schedule 1 clause 7 of the Act, the prescribed period within which a corporation must give a notice under that clause is 14 days after it ceases to engage in legal practice in this jurisdiction. [ ] This version is not published under the Legislation Revision and Publication Act

6 Legal Practitioners Regulations Part 5 Incorporated legal practices 10 Disqualifications and prohibitions (Schedule 1 clauses 21 and 22 of Act) (1) This regulation applies to an order made under Schedule 1 clause 21 of the Act disqualifying a corporation from providing legal services in this jurisdiction; or an order made under Schedule 1 clause 22 of the Act disqualifying a person from managing a corporation that is an incorporated legal practice. (2) The Regulator, the Attorney-General or the Society or all of them may publicise an order in any manner the Regulator, the Attorney-General or Society thinks fit. (3) The applicant for an order must, as soon as practicable after the order is made, give written notice of the order to the corresponding authority of every other jurisdiction; and may give written notice of the order to any other regulatory authority of any jurisdiction. (4) The notice under subregulation (3) for an order made under Schedule 1 clause 21 of the Act must state the corporation's name; and the Australian Company Number (ACN) of the corporation; and (iii) the office or business address of the corporation, as last known to the applicant for the order; and (iv) the date of the order; and may contain other relevant information; and may be accompanied by a copy or summary of, or extract from, the order. (5) The notice under subregulation (3) for an order made under Schedule 1 clause 22 of the Act must state the person's name; and the person's address, as last known to the applicant for the order; and (iii) the date of the order; and may contain other relevant information; and may be accompanied by a copy or summary of, or extract from, the order. (6) No liability is incurred by a protected person in respect of anything done or omitted to be done in good faith for the purpose of this regulation. (7) In this regulation protected person means the State; or the Regulator; or 6 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

7 Legal Practitioners Regulations 2014 Incorporated legal practices Part 5 (f) 11 Approved form the Society; or a person responsible for keeping the whole or any part of a register or any similar record in or by which an order is publicised; or an Internet service provider or Internet content host; or a person acting at the direction of the State or of any person or body referred to in this definition. For the purposes of Schedule 1 clauses 4, 5 and 7 of the Act, an approved form is a form approved by the Supreme Court. Part 6 Trust money and trust accounts Division 1 Preliminary 12 Definitions In this Part BSB number (Bank State Branch number) means the number assigned to identify a particular branch of a particular ADI; business day means a day other than a Saturday, a Sunday or a public holiday; matter description means a brief phrase or expression assigned by a law practice to describe a matter; matter reference means a number or other reference assigned by a law practice to identify a matter; named month means one of the 12 named months of the year starting with January; trust money means trust money to which this Part applies, in accordance with regulation Operation of Part This Part has effect for the purposes of Schedule 2 of the Act, and accordingly applies to a law practice in respect of trust money received by the practice in this jurisdiction, unless the practice has an office in 1 or more other jurisdictions but not in this jurisdiction; and trust money received by the practice in another jurisdiction, if the practice has an office in this jurisdiction but in no other jurisdiction; and trust money received by the practice in another jurisdiction, if the practice has an office in this jurisdiction; and 1 or more other jurisdictions but not in the jurisdiction in which the money was received, unless the money is dealt with in accordance with the corresponding law of a jurisdiction in which the practice has an office. [ ] This version is not published under the Legislation Revision and Publication Act

8 Legal Practitioners Regulations Part 6 Trust money and trust accounts Division 2 Computerised accounting systems Division 2 Computerised accounting systems 14 Application of Division This Division applies if a law practice maintains trust records (including records relating to controlled money) by means of a computerised accounting system. 15 Copies of trust records to be printed (1) The law practice must print a paper copy of trust records as follows: (f) trust account receipts and payments cash books are to be printed monthly as at the end of each named month, unless a copy of the books as at the end of the named month is kept in electronic form that is readable or reportable on demand; reconciliation statements prepared under regulation 31 are to be printed as at the end of each named month; lists of trust account ledgers and their balances are to be printed monthly as at the end of each named month; lists of controlled money accounts and their balances are to be printed monthly as at the end of each named month; trust ledger accounts, the register of controlled money and the trust account transfer journal are to be printed before they are archived or deleted from the system; trust ledger account and controlled money account details are to be printed on request by and provided to an investigator (within the meaning of Schedule 2 clause 1 of the Act). (2) The trust records printed monthly as at the end of a named month under subregulation (1) to must be printed within 15 business days after the named month. (3) The paper copies printed under subregulation (1) are to be kept by the law practice, except where they are printed on request under that subregulation. (4) The electronic copy of the trust account cash books under subregulation (1) is to be kept by the law practice. 16 Chronological record of information to be made (1) The law practice must maintain a record, compiled in chronological sequence, of the creation, amendment or deletion of information in its computerised accounting system in relation to the following: client name; client address; matter reference; matter description; ledger account number or other descriptor. (2) The record is to be kept by the law practice. 8 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

9 17 Requirements regarding computer accounting systems Legal Practitioners Regulations 2014 Trust money and trust accounts Part 6 Computerised accounting systems Division 2 (1) The law practice must ensure that its computerised accounting system is not capable of accepting, in respect of a trust ledger account, the entry of a transaction resulting in a debit balance to the account, unless a contemporaneous record of the transaction is made in a manner that enables the production in a permanent form, on demand, of a separate chronological report of all occurrences of that kind. (2) The law practice must ensure that the system is not capable of deleting a trust ledger account unless the balance of the account is 0 and all outstanding cheques have been presented; and when the account is deleted, a copy of the account is kept in a permanent form. (3) The law practice must ensure that any entry in a record produced in a permanent form appears in chronological sequence. (4) The law practice must ensure that each page of each printed record is numbered sequentially or is printed in such a way that no page can be extracted. (5) The law practice must ensure that its computerised accounting system is not capable of amending the particulars of a transaction already recorded otherwise than by a transaction separately recorded that makes the amendment. (6) The law practice must ensure that its computerised accounting system requires input in every field of a data entry screen intended to receive information required by this Part to be included in trust records. 18 Back-ups The law practice must ensure that a back-up copy of all records required by this Part is made not less frequently than once each month; and each back-up copy is kept by the law practice; and a complete set of back-up copies is kept in a separate location so that any incident that may adversely affect the records would not also affect the back-up copy. Division 3 General trust accounts 19 Establishment of general trust account (1) A law practice may at any time establish a general trust account that satisfies the requirements of this regulation, but must, as soon as practicable after receiving trust money that is required to be paid into a general trust account, establish a general trust account that satisfies those requirements if the practice does not already have such a general trust account. (2) A general trust account satisfies the requirements of this regulation if the account is established in this jurisdiction, before or after the commencement of this regulation, with an approved ADI (within the meaning of Schedule 2 of the Act); and [ ] This version is not published under the Legislation Revision and Publication Act

10 Legal Practitioners Regulations Part 6 Trust money and trust accounts Division 3 General trust accounts the account is and is to be maintained in this jurisdiction; and the name of the account includes the name of the law practice or the business name under which the law practice engages in legal practice; and the expression "law practice trust account" or "law practice trust a/c"; and the account is of a kind that is for the time being approved by the Society. (3) Subregulation (2) does not apply to an account established in this jurisdiction before the commencement of this regulation. (4) Subregulation (2) does not require the repetition of the words "law practice" if those words form part of the name or business name of the law practice. 20 Receipting of trust money (1) This regulation applies if a law practice receives trust money that is required to be paid into a general trust account. (2) After receiving the trust money, the law practice must make out a receipt. (3) The receipt must be made out as soon as practicable after the trust money is received, except as provided by paragraph ; or in the case of trust money received by direct deposit after the law practice receives or accesses notice or confirmation (in written or electronic form) of the deposit from the ADI concerned. (4) The receipt, containing the required particulars, must be made out in duplicate, whether by way of making a carbon copy or otherwise, unless at the time the receipt is made out those particulars are recorded by computer program in the trust account receipts cash book. (5) For the purposes of subregulation (4), the required particulars are as follows: (f) (g) (h) the date the receipt is made out and, if different, the date of receipt of the money; the amount of money received; the form in which the money was received; the name of the person from whom the money was received; details clearly identifying the name of the client in respect of whom the money was received and the matter description and matter reference; particulars sufficient to identify the purpose for which the money was received; the name of the law practice, or the business name under which the law practice engages in legal practice, and the expression "trust account" or "trust a/c"; the name of the person who made out the receipt; the number of the receipt. 10 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

11 Legal Practitioners Regulations 2014 Trust money and trust accounts Part 6 General trust accounts Division 3 (6) The original receipt is to be delivered, on request, to the person from whom the trust money was received. (7) Receipts must be consecutively numbered and issued in consecutive sequence. (8) If a receipt is cancelled or not delivered, the original receipt must be kept. 21 Deposit records for trust money (1) This regulation applies if a law practice receives trust money that is required to be paid into a general trust account and the money is not paid into a general trust account by direct deposit. (2) A deposit record must be produced to the approved ADI at the time the deposit is made. (3) The following particulars must be recorded on the deposit record: the date of the deposit; the amount of the deposit; whether the deposit consists of cheques, notes or coins (and the amount of each); for each cheque the name of the drawer of the cheque; and the name and branch (or BSB number) of the ADI on which the cheque is drawn; and (iii) the amount of the cheque. (4) The deposit record must be made out in duplicate, whether by way of making a carbon copy or otherwise. (5) The duplicate deposit record must be kept for each deposit to the general trust account and must be kept in a deposit book or be otherwise securely filed in the order in which the deposits were made. 22 Direction for non-deposit of trust money in general trust account (Schedule 2 clause 12 of Act) For the purposes of Schedule 2 clause 12(3) of the Act, the prescribed period for which a written direction referred to in Schedule 2 clause 12(1) of the Act is to be kept is 7 years after finalisation of the matter to which the direction relates. 23 Written record to be kept of verbal direction to disburse trust money If the person on whose behalf trust money is held gives a verbal direction for the money to be disbursed, a contemporaneous written record of the direction must be made by the law practice setting out the date and time that the direction was given and the purpose of the disbursement. 24 Payment by cheque (1) This regulation applies to the withdrawal of trust money from a general trust account of a law practice by cheque. [ ] This version is not published under the Legislation Revision and Publication Act

12 Legal Practitioners Regulations Part 6 Trust money and trust accounts Division 3 General trust accounts (2) A cheque must be made payable to or to the order of a specified person or persons and not to bearer or cash; and must be crossed "not negotiable"; and must include (3) A cheque must be signed the name of the law practice or the business name under which the law practice engages in legal practice; and the expression "law practice trust account" or "law practice trust a/c". by an authorised principal of the law practice; or if a principal referred to in paragraph is not available by an authorised legal practitioner associate; or by an authorised legal practitioner who holds a practising certificate that does not prohibit the receipt of trust money; or (iii) by 2 or more authorised associates jointly. (4) A person referred to in subregulation (3) must not sign a cheque unless he or she has seen a written direction, given by the person on whose behalf the trust money is held, authorising the disbursement; or if the money is being disbursed in accordance with a verbal direction given by the person on whose behalf the trust money is held he or she has made a contemporaneous written record of the direction or seen a contemporaneous written record of the direction made by the person to whom the direction was given. (5) Subregulation (4) does not apply if the trust money is disbursed in accordance with an order of a court or as otherwise authorised by law. (6) A written record of the required particulars (which may be in the form of a cheque butt) must be kept of each payment made by cheque, whether by way of making a carbon copy or otherwise, unless at the time the cheque is issued those particulars are recorded by computer program in the trust account payments cash book. (7) If at the time the cheque is issued the required particulars are recorded by computer program in the trust account payments cash book, a written record must be kept that is sufficient to enable the accuracy of the particulars recorded by the computer program to be verified. (8) For the purposes of subregulations (6) and (7), the required particulars are as follows: the date and number of the cheque; the amount ordered to be paid by the cheque; the name of the person to whom the payment is to be made or, in the case of a cheque made payable to an ADI, the name of the ADI and the name of the person receiving the benefit of the payment; 12 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

13 (f) (g) Legal Practitioners Regulations 2014 Trust money and trust accounts Part 6 General trust accounts Division 3 details clearly identifying the name of the person on whose behalf the payment was made and the matter reference; details clearly identifying the ledger account to be debited; particulars sufficient to identify the purpose for which the payment was made; the name of the person or persons effecting, directing or authorising the payment. (9) Written records relating to payments by cheque (including cheque requisitions) must be kept in the order in which the cheques were issued. (10) Subregulation (2) does not apply to an account established in this jurisdiction before the commencement of this regulation. (11) Subregulation (2) does not require the repetition of the words "law practice" if those words form part of the name or business name of the law practice. (12) In this regulation associate means an associate of the law practice; authorised means authorised by the law practice to sign cheques drawn on the general trust account. 25 Payment by electronic funds transfer (1) This regulation applies to the withdrawal of trust money from a general trust account of a law practice by electronic funds transfer. (2) An electronic funds transfer must be effected by, under the direction of or with the authority of an authorised principal of the law practice; or if a principal referred to in paragraph is not available an authorised legal practitioner associate; or an authorised legal practitioner who holds a practising certificate that does not prohibit the receipt of trust money; or (iii) 2 or more authorised associates jointly. (3) A person referred to in subregulation (3) must not effect, direct or authorise an electronic funds transfer unless he or she has seen a written direction, given by the person on whose behalf the trust money is held, authorising the disbursement; or if the money is being disbursed in accordance with a verbal direction given by the person on whose behalf the trust money is held he or she has made a contemporaneous written record of the direction or seen a contemporaneous written record of the direction made by the person to whom the direction was given. (4) Subregulation (3) does not apply if the trust money is disbursed in accordance with an order of a court or as otherwise authorised by law. [ ] This version is not published under the Legislation Revision and Publication Act

14 Legal Practitioners Regulations Part 6 Trust money and trust accounts Division 3 General trust accounts (5) A written record of the required particulars must be kept of each payment unless at the time the electronic funds transfer is effected those particulars are recorded by computer program in the trust account payments cash book. (6) If at the time the electronic funds transfer is effected the required particulars are recorded by computer program in the trust account payments cash book, a written record must be kept that is sufficient to enable the accuracy of the particulars recorded by the computer program to be verified. (7) For the purposes of subregulations (5) and (6), the required particulars are as follows: (f) (g) (h) the date and number of the transaction; the amount transferred; the name and number of the account to which the amount was transferred and relevant BSB number; the name of the person to whom the payment was made or, in the case of a payment to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment; details clearly identifying the name of the person on whose behalf the payment was made and the matter reference; details clearly identifying the ledger account to be debited; particulars sufficient to identify the purpose for which the payment was made; the name of the person or persons effecting, directing or authorising the payment. (8) Any written confirmation that an electronic funds transfer has been made must be retained by the law practice. (9) Written records relating to payments by electronic funds transfer (including transfer requisitions) must be kept in the order in which the transfers were effected. (10) In this regulation associate means an associate of the law practice; authorised means authorised by the law practice to effect, direct or give authority for an electronic funds transfer from the general trust account. 26 Recording transactions in trust account cash books A law practice that maintains a general trust account must keep the following trust account cash books: a trust account receipts cash book in accordance with regulation 27; a trust account payments cash book in accordance with regulation Trust account receipts cash book (1) The following particulars must be recorded in a law practice's trust account receipts cash book in respect of each receipt of trust money: the date a receipt was made out for the money and, if different, the date of receipt of the money; 14 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

15 (f) (g) (h) the receipt number; the amount of money received; the form in which the money was received; Legal Practitioners Regulations 2014 Trust money and trust accounts Part 6 General trust accounts Division 3 the name of the person from whom the money was received; details clearly identifying the name of the client in respect of whom the money was received and the matter description and matter reference; particulars sufficient to identify the purpose for which the money was received; details clearly identifying the ledger account to be credited. (2) The date and amount of each deposit in the general trust account must be recorded in the trust account receipts cash book. (3) The particulars in respect of receipts must be recorded in the order in which the receipts are made out. (4) The particulars in respect of a receipt must be recorded within 5 business days counting from and including the day the receipt was made out. 28 Trust account payments cash book (1) The following particulars must be recorded in a law practice's trust account payments cash book in respect of each payment of trust money by cheque: (f) the date and number of the cheque; the amount ordered to be paid by the cheque; the name of the person to whom the payment is to be made or, in the case of a cheque made payable to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment; details clearly identifying the name of the person on whose behalf the payment was made and the matter reference; details clearly identifying the ledger account to be debited; particulars sufficient to identify the purpose for which the payment was made. (2) The following particulars must be recorded in a law practice's trust accounts payments cash book in respect of each payment of trust money by electronic funds transfer: (f) the date and number of the transaction; the amount transferred; the name and number of the account to which the amount was transferred and the relevant BSB number; the name of the person to whom the payment was made or, in the case of a payment to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment; details clearly identifying the name of the person on whose behalf the payment was made and the matter reference; details clearly identifying the ledger account to be debited; [ ] This version is not published under the Legislation Revision and Publication Act

16 Legal Practitioners Regulations Part 6 Trust money and trust accounts Division 3 General trust accounts (g) particulars sufficient to identify the purpose for which the payment was made. (3) The particulars in respect of payments must be recorded in the order in which the payments are made. (4) The particulars in respect of a payment must be recorded within 5 business days counting from and including the day the payment was made. 29 Recording transactions in trust ledger accounts (1) A law practice that maintains a general trust account must keep a trust account ledger containing separate trust ledger accounts in relation to each client of the practice in each matter for which trust money has been received by the practice. (2) The following particulars must be recorded in the title of a trust ledger account: the name of the person for or on behalf of whom the trust money was paid; the person's address; particulars sufficient to identify the matter in relation to which the trust money was received. (3) Details of any changes in the title of a trust ledger account must be recorded. (4) The following particulars must be recorded in the trust ledger account in respect of each receipt of trust money for the matter: the date a receipt was made out for the money and, if different, the date of receipt of the money; the receipt number; the amount of money received; the name of the person from whom the money was received; particulars sufficient to identify the purpose for which the money was received. (5) The following particulars must be recorded in the trust ledger account in respect of each payment of trust money by cheque: the date and number of the cheque; the amount ordered to be paid by the cheque; the name of the person to whom the payment is to be made or, in the case of a cheque made payable to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment; particulars sufficient to identify the purpose for which the payment was made. (6) The following particulars must be recorded in the trust ledger account in respect of each payment of trust money by electronic funds transfer: the date and number of the transaction; the amount transferred; the name and number of the account to which the amount was transferred and the relevant BSB number; 16 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

17 Legal Practitioners Regulations 2014 Trust money and trust accounts Part 6 General trust accounts Division 3 the name of the person to whom the payment was made or, in the case of a payment to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment; particulars sufficient to identify the purpose for which the payment was made. (7) The following particulars must be recorded in the trust ledger account in respect of each transfer of trust money effected by a journal entry: the date of the transfer; the amount transferred; the journal reference number; the name of the other trust ledger account from which or to which the money was transferred; particulars sufficient to identify the purpose for which the payment was made. (8) Transactions relating to trust money must be recorded in the trust ledger account in the order in which the transactions occur. (9) The particulars in respect of a receipt, payment or transfer of trust money must be recorded within 5 business days counting from and including the day the receipt was made out, the payment was made or the transfer was effected, as the case requires. (10) The trust ledger account balance is to be recorded in the trust ledger account after each receipt, payment or transfer of trust money. 30 Journal transfers (1) Trust money may be transferred by journal entry from 1 trust ledger account in a law practice's trust ledger to another trust ledger account in the trust ledger, but only if the law practice is entitled to withdraw the money and pay it to the other trust ledger account; and subregulation (2) is complied with. (2) The transfer must be authorised in writing by an authorised principal of the law practice; or if a principal referred to in paragraph is not available by an authorised legal practitioner associate; or by an authorised legal practitioner who holds a practising certificate that does not prohibit the receipt of trust money; or (iii) by 2 or more authorised associates jointly; or by a supervisor or manager appointed in relation to the practice. (3) In a paragraph of subregulation (2) associate means an associate of the law practice; authorised means authorised by the law practice or a supervisor or manager appointed in relation to the practice to effect, direct or give authority for the transfer of trust money by journal entry from one trust ledger account in the practice's trust ledger to another trust ledger account in the trust ledger. [ ] This version is not published under the Legislation Revision and Publication Act

18 Legal Practitioners Regulations Part 6 Trust money and trust accounts Division 3 General trust accounts (4) A law practice must keep a trust account transfer journal if it transfers trust money by journal entry. (5) The following particulars must be recorded in the trust account transfer journal in respect of each transfer of trust money by journal entry: the date of the transfer; the trust ledger account from which the money is transferred (including its identifying reference); the trust ledger account to which the money is transferred (including its identifying reference); the amount transferred; particulars sufficient to identify the purpose for which the transfer is made, the matter reference and a short description of the matter. (6) Journal pages or entries must be consecutively numbered. (7) A law practice must keep particulars of the authorisation for each transfer of trust money by journal entry, whether in the trust account transfer journal or in some other way. 31 Reconciliation of trust records (1) A law practice that maintains 1 or more general trust accounts must reconcile the trust records relating to each account. (2) The trust records relating to a general trust account are to be reconciled as at the end of each named month by preparing a statement a statement reconciling the general trust account balance as shown in ADI records with the balance of the practice's trust account cash books; and showing the date the statement was prepared; and reconciling the balance of the trust ledger accounts with the balance of the practice's trust account cash books; and containing a list of the practice's trust ledger accounts showing the name, identifying reference and balance of each and a short description of the matter to which each relates; and (iii) showing the date the statement was prepared. (3) The statements must be prepared within 15 business days after the end of the month concerned. (4) The statements must be kept by the law practice. 32 Trust ledger account in name of law practice or legal practitioner associate (1) A law practice must not maintain a trust ledger account in the name of the practice or a legal practitioner associate of the practice except as authorised by this regulation. 18 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

19 (2) A law practice may maintain in its trust ledger Legal Practitioners Regulations 2014 Trust money and trust accounts Part 6 General trust accounts Division 3 a trust ledger account in the practice's name, but only for the purpose of aggregating in the account, by transfer from other accounts in the trust ledger, money properly due to the practice for legal costs; and a trust ledger account in a legal practitioner associate's name, but only in respect of money in which the associate has a personal and beneficial interest as a vendor, purchaser, lessor or lessee or in another similar capacity. (3) In a case to which subregulation (2) applies, the law practice must ensure that the money in the trust ledger account is withdrawn from the general trust account not later than 1 month after the day on which the money was transferred to the trust ledger account. (4) In a case to which subregulation (2) applies, the law practice must ensure that the money in the trust ledger account is withdrawn from the general trust account at the conclusion of the matter to which the money relates. 33 Notification requirements regarding general trust accounts (1) Within 14 days after establishing a general trust account, a law practice must give the Society written notice of that fact. (2) Subregulation (1) does not apply to a general trust account established before the commencement of this regulation. (3) A law practice either before, or within 14 days after, authorising or terminating the authority of an associate of the practice to sign cheques drawn on a general trust account of the practice; or otherwise to effect, direct or give authority for the withdrawal of money from a general trust account of the practice, must give the Society written notice of that fact (including the name and address of the associate or practitioner and indicating, in the case of an associate, whether the associate is an employee of the practice); and during April of each year, must give the Society written notice of the associates (including their names and addresses) who are authorised, as at 31 March of that year to sign cheques drawn on a general trust account of the practice; or otherwise to effect, direct or give authority for the withdrawal of money from a general trust account of the practice. (4) A law practice must, within 14 days after closing a general trust account maintained by the practice, give the Society written notice of the closure. (5) A notice under this regulation given by a law practice must include particulars sufficient to identify the general trust accounts of the practice. [ ] This version is not published under the Legislation Revision and Publication Act

20 Legal Practitioners Regulations Part 6 Trust money and trust accounts Division 3 General trust accounts (6) In this regulation law practice includes a former law practice and the persons who were principals of a law practice immediately before the law practice ceased to exist as a law practice or to engage in legal practice in this jurisdiction. Division 4 Controlled money 34 Maintenance of controlled money accounts (Schedule 2 clause 15 of Act) (1) For the purposes of Schedule 2 clause 15(4) of the Act, a controlled money account must be maintained under an account name that includes the following particulars: the name of the law practice concerned; the expression "controlled money account" or the abbreviation "CMA" or "CMA/c"; such particulars as are sufficient to identify the purpose of the account and to distinguish the account from any other account maintained by the law practice. (2) This regulation does not apply to an account established in this jurisdiction before the commencement of this regulation. 35 Receipt of controlled money (1) This regulation applies if a law practice receives controlled money. (2) The law practice must operate a single controlled money receipt system for the receipt of controlled money for all its controlled money accounts. (3) After receiving controlled money, the law practice must make out a receipt. (4) The receipt must be made out as soon as practicable after the controlled money is received, except as provided by paragraph ; or in the case of controlled money received by direct deposit after the law practice receives or accesses notice or confirmation (in written or electronic form) of the deposit from the ADI concerned. (5) The receipt, containing the required particulars, must be made out in duplicate, whether by way of making a carbon copy or otherwise, unless at the time the receipt is made out those particulars are recorded by computer program in the register of controlled money. (6) For the purposes of subregulation (5), the required particulars are as follows: the date the receipt is made out and, if different, the date of receipt of the money; the amount of money received; the form in which the money was received; the name of the person from whom the money was received; details clearly identifying the name of the person on whose behalf the money was received and the matter description and matter reference; 20 This version is not published under the Legislation Revision and Publication Act 2002 [ ]

21 (f) (g) (h) (j) Legal Practitioners Regulations 2014 Trust money and trust accounts Part 6 Controlled money Division 4 particulars sufficient to identify the purpose for which the money was received; the name of and other details clearly identifying the controlled money account to be credited, unless the account has not been established by the time the receipt is made out; the name of the law practice, or the business name under which the law practice engages in legal practice, and the expression "controlled money receipt"; the name of the person who made out the receipt; the number of the receipt. (7) If the controlled money account to be credited has not been established by the time the receipt is made out, the name of and other details clearly identifying the account when established must be included on the duplicate receipt (if any). (8) The original receipt is to be delivered, on request, to the person from whom the controlled money was received. (9) Receipts must be consecutively numbered and issued in consecutive sequence. (10) If a receipt is cancelled or not delivered, the original receipt must be kept. (11) A receipt is not required to be made out for any interest or other income received from the investment of controlled money and credited directly to a controlled money account. 36 Deposit of controlled money (Schedule 2 clause 15 of Act) For the purposes of Schedule 2 clause 15(5) of the Act, the prescribed period for which a written direction referred to in Schedule 2 clause 15(1) of the Act is to be kept is 7 years after finalisation of the matter to which the direction relates. 37 Withdrawal of controlled money must be authorised (1) A withdrawal of money from a controlled money account of a law practice must be effected by, under the direction of or with the authority of an authorised principal of the law practice; or if a principal referred to in paragraph is not available an authorised legal practitioner associate; or an authorised legal practitioner who holds a practising certificate that does not prohibit the receipt of trust money; or (iii) 2 or more authorised associates jointly. (2) A written record of the required particulars must be kept of each withdrawal unless at the time the withdrawal is made those particulars are recorded by computer program. (3) If at the time the withdrawal is made the required particulars are recorded by computer program, a written record must be kept that is sufficient to enable the accuracy of the particulars recorded by the computer program to be verified. (4) For the purposes of subregulations (2) and (3), the required particulars are as follows: the date and number of the transaction; [ ] This version is not published under the Legislation Revision and Publication Act