Regulatory approach
Our Regulatory Approach Statement provides a clear statement of how the we seek to perform our role as regulators of the legal profession in Western Australia.
Regulatory Approach Statement 2022
Introduction
About us
The Legal Practice Board has the statutory responsibility for the regulation of the provision of legal services in Western Australia.
The Board’s mission is to be an effective, efficient, and innovative regulator of legal services in Western Australia, with the purpose of advancing the administration of justice and protect the public by:
- regulating the competence and behaviour of legal practitioners in Western Australia
- enabling the effective operation of the Board and its committees.
Underpinning everything we do are our core values:
- competence
- integrity
- empathetic engagement.
Legislative reform
On 1 July 2022, Western Australia joined the Legal Profession Uniform Law scheme. This scheme designates the Board as the Local Regulatory Authority, the Principal Registrar of the Supreme Court as the Local Roll Authority, the State Administrative Tribunal as the Tribunal, and the Legal Contribution Trust as the Fidelity Authority. The Uniform Law came into operation in Victoria and New South Wales on 1 July 2015, and Western Australia joining is an important step towards a national legal profession.
The Uniform Law harmonises regulation of the legal profession, cuts red tape and creates a single system to govern legal practice. The scheme also promotes informed consumer choice and has strong consumer protection measures.
The objective of the Uniform Law is to promote the administration of justice and an efficient and effective Australian legal profession by:
- inter-jurisdictional consistency in the law applying to the Australian legal profession
- ensuring legal practitioners are competent and maintain high ethical and professional standards
- enhancing the protection of clients and the public
- empowering clients to make informed choices about their legal options
- efficient, effective, targeted and proportionate regulation
- a co-regulatory framework with an appropriate level of independence for the legal profession.
As a result of the legislative reform, legal services in Western Australia are no longer regulated in accordance with the Legal Profession Act 2008 and its subsidiary legislation.
From 1 July 2022, the regulatory framework for legal services in Western Australia is in accordance with the:
- Uniform Law, made up of the:
- Legal Profession Uniform Law Application Act 2022
- Legal Profession Uniform Law Application Act 2014 (Victoria) Schedule 1
- The shared Uniform Rules, made up of the:
- Legal Profession Uniform Law General Rules 2015
- Legal Profession Uniform Law Admission Rules 2015
- Legal Profession Uniform Conduct (Barristers) Rules 2015
- Legal Profession Uniform Conduct (Solicitors) Rules 2015
- Legal Profession Uniform Legal Practice (Solicitors) Rules 2015
- Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015
- Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015
- The Western Australian rules and regulations, made up of the:
- Legal Profession Uniform Law Application Regulations 2022
- Legal Profession Uniform Law Application (Accreditation) Rules 2022.
Purpose of this Regulatory Approach Statement
The purpose of this Regulatory Approach Statement is to provide an overview of how we, the Board, intend to perform our role as the regulator of legal services in Western Australia under Uniform Law. It highlights our approach to delivering on our legislative responsibilities by explaining our regulatory activities, how we will set regulatory priorities, make resource allocation decisions and apply the range of regulatory tools at our disposal.
This Statement is also intended to help the legal profession in Western Australia further understand our role as a regulator and develop a strong compliance culture.
The importance of collaboration
The Uniform Law scheme encourages collaboration between the Legal Services Council, the Commissioner for Uniform Legal Services Regulation and each participating jurisdiction’s Designated Local Regulatory Authority, to identify and promote best practice and continuous improvement for the benefit of the legal profession and the broader community. We will seek opportunities to work with our Uniform Law partners, in particular when setting our regulatory priorities, to maximise consistency.
In addition to our Uniform Law partners, we will collaborate with key Western Australian stakeholders, such as the Law Society of Western Australia and the Western Australian Bar Association. We respect their expertise and we will work closely with them on activities that benefit the legal profession.
The importance of compliance
Each legal practitioner is ultimately responsible for complying with their obligations under the regulatory framework. Proactive steps by legal practitioners to identify and address potential or actual non-compliance avoids the need for us to take action.
We are eager to work with the legal profession, provide them with clear guidance on the regulatory framework and support their endeavours to comply with their obligations, to ensure Western Australia has an engaged, active, competent and ethical legal profession.
Our regulatory activities
Our core activities under the regulatory framework are to:
- receive and assess applications for admission of local, interstate and foreign legal practitioners
- receive and assess applications for the grant or renewal of an Australian practising certificate in this jurisdiction
- monitor the non-renewal of Australian practising certificates in this jurisdiction
- monitor the continuing professional development obligations
- accredit providers of continuing professional development activities
- oversee professional indemnity insurance obligations
- monitor legal practice structures monitor, audit, and investigate or inspect, law practices and their trust accounts
- receive and assess enquiries and complaints about legal practitioners, legal practice structures and unqualified legal practice, and to conduct investigations and disciplinary processes where appropriate
- resolve disputes between legal practitioners and consumers of legal services
- educate the legal profession.
Setting our regulatory priorities
The legal profession and the broader Western Australian community expect that we will be an efficient and effective regulator of legal services. To meet this expectation, we will target our regulatory resources towards activities that address the areas of greatest potential harm to consumers of legal services. In doing so, we aim to strike a balance between responding to immediate issues and identifying emerging areas of concern.
Immediate issues
One of our core regulatory activities is responding to immediate issues identified from information we receive through enquiries and complaints. When resourcing these immediate issues, we will aim to prioritise issues of high risk while looking for ways to streamline our response to lower the risk of harm.
Emerging issues
We will use data collected from our core regulatory activities to identify and monitor future trends, as well as design programs of regulatory work that proactively address emerging issues.
Our guiding principles
We will use a set of principles to guide the way we approach our work, as well as our aspirations for continuous improvement. Our principles signal to our partners in regulation, the legal profession and the Western Australian community, what they should expect from us.
Principles
| Collaborative | We will:
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| Proportionate | We will:
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| Consistent | We will:
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| Transparent | We will:
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| Consumer focused | We will:
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| Informed by data | We will:
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Our regulatory tools
Immediate issues
We have a range of regulatory tools we can employ to address immediate and emerging issues.
In determining which tools to use, we will assess the impact of the conduct we are seeking to prevent or mitigate, and apply an appropriate tool in a way that is consistent with our guiding principles.
Regulatory tools – low impact conduct
| Negotiated outcome | We may seek to negotiate with a legal practitioner if there is evidence of a possible low risk breach or service concern that can be addressed by the legal practitioner agreeing to certain actions to come into compliance. Negotiated sanctions may include seeking an undertaking or imposing or varying conditions on a practising certificate with the legal practitioner’s consent. |
| Warning | We may issue a warning if a possible breach is low risk and there are mitigating factors like previous good performance that indicates the legal practitioner is unlikely to re-offend. For example, a legal practitioner may be asked to correct and improve costs disclosure and billing practices. |
| Dispute resolution – minor issues | We may seek to resolve disputes between legal practitioners and consumers that may not amount to a breach, but would benefit from informal resolution, mediation or an informal agreement. Common examples of disputes include costs, poor service and communication issues. A warning about certain practices, for example in relation to billing and disclosure, may be given as part of the resolution. |
Regulatory tools – high impact conduct
| Compliance audits and management system directions | Where there is an indication of systemic problems in the management of a law practice, we may audit a law practice to assist the legal practitioner in correcting these issues. In the event the issues are not satisfactorily dealt with, we may give a management system direction to a law practice (or a class of law practices) if we consider it reasonable to do so to ensure that appropriate business and practice management systems are implemented and maintained. A management system direction may also be made as a result of issues in a complaint or a trust account investigation. |
| External intervention | We may intervene in the business and professional affairs of a law practice where there is a need to protect the interests of the clients of the law practice, the law practice and its employees, and the general public. The intervention may range from the appointment of a supervisor of trust money, the appointment of a manager or a recommendation to the Supreme Court for the appointment of a receiver. |
| Determination to resolve a dispute | We may make a determination to resolve a dispute about services, legal costs or order compensation for consumer loss if, in our view, it is fair and reasonable to do so. A determination may order that a legal practitioner:
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| Determination for unsatisfactory professional conduct | We may make a determination if we are satisfied that a legal practitioner’s conduct amounts to unsatisfactory professional conduct. A determination may caution or reprimand a legal practitioner or may order the legal practitioner to take actions, including:
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| Variation of Practising Certificate | We may vary a practising certificate for the same general reasons as suspending or cancelling a practising certificate, where the conduct does not justify that extreme action. Conditions we may impose include:
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| SAT orders | We may apply to the State Administrative Tribunal (SAT) for an order against a legal practitioner if we are satisfied that the conduct may amount to:
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| Criminal prosecutions and other court-based responses | Criminal investigations / prosecutions can be undertaken for:
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| Suspension and / or cancellation of Practising Certificate | We may immediately suspend a practising certificate where it is considered necessary in the public interest. We may suspend or cancel a practising certificate if we are satisfied a legal practitioner is no longer fit and proper because, for example, they: have been charged with or convicted of certain offences; are unable to fulfil the inherent requirements of legal practice; or failed to comply with certain requirements under the Uniform Law. In addition, we must suspend or cancel a practising certificate at the direction of the SAT |
| Removal from the Supreme Court Roll (strike-off) | We may seek to have a legal practitioner’s name removed from the Supreme Court Roll if, for example, a legal practitioner has: been found guilty of an indictable offence, principally involving dishonesty; a history of serious adverse conduct that demonstrates they are no longer fit and proper to be a legal practitioner; or been removed from an interstate roll. |
Emerging issues
Ongoing regulatory tools
| Monitoring compliance |
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| Setting standards |
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| Education and information |
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