Commissioner update

In this edition:

• Commissioner revokes delegation to Victorian Bar
• Complaints about lawyers by lawyers – new guidance released
• Innovation in pricing guidance – agreed and subscription pricing
• Spike in duty claims from conveyancing transactions
• New CPD website content
• Practising certificate renewals have closed
• New website forms for Certificates of Fitness, and requests for legal records
• Share your thoughts on technology and regulation
• National profile of solicitors data released
• Renew your LIV membership

Last month I attended a number of events to talk to lawyers about our work and to hear from them directly about the challenges they are facing. It was also a great opportunity to address a few misconceptions and talk about the progress we have made in improving our processes.  I thought I would share some of the issues we discussed in this update.

There was some confusion about the role of the LIV versus our role as the regulator – and when you should contact us for support with legal practice.

• If your query is about your practising certificate or any of the rules and regulations that apply to you – then please contact my office via the lawyer enquiry form.
• If you have a question about legal practice or an ethics query – please contact the LIV via their excellent practice management and ethics support services. These are funded by the VLSB+C and any lawyer can use these – you don’t need to be a member of the LIV.

I also took the opportunity to acknowledge that there have been delays in responding to both lawyers and consumers at some points during the last year. We have taken steps to address this and have made significant progress in addressing outstanding enquiries and complaints.

• We have increased the number of staff in our enquiries, complaints and investigations areas over the past few months.
• In March, we launched enhancements to our lawyer enquiry form to better assess and allocate enquiries to speed up our response times.
• We are also about to implement new telephone technology to improve how we manage incoming phone calls.

Finally, I addressed some confusion and angst about costs disclosure and complaints made to us about lawyers’ costs. Last financial year we received 1,134 enquiries from consumers of legal services that related to costs – which includes overcharging and costs disclosures. Of these, 465 proceeded to a complaint and in 40 cases we found the lawyer had not given proper disclosure – that is failure to provide initial disclosure, revised disclosure and/or delays in providing disclosure.

While these are low numbers of lawyers found not properly disclosing costs, we recognise that for both lawyers and your clients this is an area of anxiety. Costs is a significant area of miscommunication and the consequences of not complying can mean your costs agreement is void.

We are currently working on a project to help us understand some of the issues behind costs complaints and barriers to compliance. This will help us develop information and guidance to improve understanding and communications between lawyers and their clients, especially on setting expectations around costs. We will be seeking your input and you’ll read more about this project in coming updates.

In the meantime, you can read about how innovation in pricing such as subscription and value pricing is allowable under the Uniform Law below.

Be well,

Fiona McLeay
Board CEO + Commissioner

Victorian Legal Services Commissioner revokes delegation to Victorian Bar

On 30 June as Commissioner, I revoked the delegation conferred on the Victorian Bar for receiving and handling complaints regarding barristers. This was a recommendation of the Royal Commission into the Management of Police Informants.

All complaints about lawyers in Victoria are now handled by the VLSB+C. Existing complaints about barristers have been handed over to us to resolve or investigate.

Complaints about lawyers by lawyers – new guidance released

We often receive complaints by lawyers about the behaviour of other lawyers who they engage with in the course of legal practice. Some of the issues raised in these complaints do not warrant our intervention and/or raise issues that could or should have been resolved between the lawyers directly.

We have outlined in our new operational guidance ‘Complaints by lawyers about lawyers’ the types of complaints we may investigate and those we are unlikely to consider.

Read the guidance and see a handy table of what we may consider.

Innovation in pricing guidance – agreed and subscription pricing

There is a lot more to pricing legal services than billing according to the hourly rate, and evidence suggests that there are significant benefits to alternative pricing models. 

Our observations from complaints and auditing indicate that many lawyers perform their services in the traditional way: one-to-one, charged at the hourly rate rather than at an agreed or value-based price, with little standardisation or use of technology to increase efficiency. This way of practice is ‘normal’, but it may contribute to a number of bad outcomes. Time billing can be the root cause of much customer dissatisfaction, including uncertainty around pricing, and the inefficiency of the service. 

We have released information about different pricing models that you could consider instead of the traditional hourly rate model. This guidance will help you understand how agreed pricing and subscription pricing can be permitted under the Uniform Law.

Read more here.

Spike in duty claims from conveyancing transactions

The LPLC has noted that claims involving duty have increased significantly in the last 12 months. Two main aspects of duty law have contributed to this spike:

1. sub-sales involving nominations and land development, and
2. foreign purchasers.

The LPLC strongly recommends that lawyers handling conveyancing matters review their knowledge and precedents about duty immediately to ensure they reflect the current law.

The LPLC have recently published two articles and a reference flowchart to help lawyers find out more about these two areas of duty law, and provide some risk management strategies to minimise the risk of a claim.

LPLC Alert: Spike in duty claims from conveyancing transactions

LPLC Article: Foreign purchaser additional duty for discretionary trusts – what you need to know

LPLC flowchart: Timing is everything to avoid double duty

New CPD website content

We’ve updated our continuing professional development (CPD) website content to include more information and guidance for lawyers and CPD providers.

The section is easier to access and navigate, and includes dedicated pages on your CPD obligations and making the most of CPD.

More content will be added as we make progress on implementing the recommendations of our CPD review.

Access the new CPD section here.

Practising certificate renewals have closed

The renewal period for the 2021/22 practising certificate has now closed. Thank you for your patience over this time. The vast majority of applications have been processed and PCs issued. Processing of remaining applications is still underway. If you haven’t received your certificate yet we will be sending you an email link to this when it is processed.

If you submitted a renewal application prior to 1 July, and it remains pending, please don’t worry. You can continue to practise with your 2020/21 certificate as long as you have paid your renewal fees and professional indemnity insurance. We won’t penalise you for our delays, so there is no need to contact us if you haven’t received your new certificate yet. Please note, if you altered the conditions of your certificate – for example, you changed you certificate type, we are prioritising the processing of these. If you’re waiting on a response to an enquiry we will get back to you as soon as possible.

If you notified us after 1 July that you did not renew your PC in time, we are working through the assessment of these applications. We appreciate this means you cannot practise until we assess and issue your PC and have therefore also prioritised these late applications.

Our LSB Online frequently asked questions page has more information.

New website forms for Certificates of Fitness, requests for legal records

We recently published a new form on our website to streamline the process for applying for a Certificate of Fitness.

We can prepare a Certificate of Fitness for lawyers who have either been admitted to practise in Victoria, or who have held a practising certificate in Victoria. This service is free, and it takes between 15-20 business days for us to process a request.

Access the new form here.

We have also introduced a form to help consumers locate safe custody documents that were held by a law practice that no longer exists. This includes wills, deeds, files, powers of attorney and certificates of title.

We can also help law practices that currently hold these types of documents locate the law practice where they belong.

If you complete this form we can search our records and help you find the document or provide information we hold on where it’s located. If we can, we will supply you with the name of the law firm that may have the documents.

Share your thoughts on technology and regulation

The University of Melbourne are looking for Australian lawyers, legal tech developers or suppliers to complete a survey on how regulation is impacting the development of legal technology in Australia. The survey will take 20 minutes to complete and will help researchers understand the impact and challenges of automated legal technologies in Australia, and will contribute to policy discussion and formation.

Complete the survey here.

We are strongly committed to supporting innovation in the profession to improve the availability of affordable legal services for the greatest number of consumers.

The project is funded by the University of Melbourne and supported by the Australian Society of Computers & Law, and the Australian Legal Technology Association.

National profile of solicitors

Every two years we contribute to a national report that analyses the demographics of solicitors across the Australian legal profession. Commissioned by the Law Society of NSW, the latest report was released in mid-July revealing the continuation of several trends and some surprising changes.

• The number of female solicitors continues to increase, now comprising 54% of all Victorian solicitors. For the first time this trend has been replicated at a national level, with female solicitors now accounting for 53% of all Australian solicitors.
• The total number of solicitors employed in Victoria continued its trend of growth in line with previous years, increasing by around 4.5% annually.
• Private practice remains the largest sector employing solicitors.
• There was a steady increase in the number of incorporated legal practices operating, with growth of around 10% each year maintained over the past several years.
• There was also strong growth in employment in both the corporate and government sectors which increased by between 5-6% annually.
• Interestingly, the number of sole practices listed as being a solicitor’s primary place of practice declined this year, however because the total number of solicitors in employment continued to grow, this indicates that there is still work available, and some of these sole practitioners appear to be moving to other entities and legal sectors for work.
• This continued overall growth, despite the challenges we have experienced of late, shows the resilience and flexibility of the profession, and that the legal industry across Victoria is still in good shape.

You can read the national profile on the Law Society of NSW website.

Law Institute of Victoria: A Stronger Profession Together

For more than 160 years the LIV has supported Victorian solicitors and contributed to the continuing strength of the profession in Victoria and across Australia.

Membership of the LIV ensures you have access to high-quality education, resources and support, so you are best placed to achieve professional excellence throughout your career.

The pandemic has seen the LIV increase their efforts in advocating and supporting the legal community and has re-emphasised the importance of working with you to build a stronger profession together.

The LIV invites you to join or renew your membership at www.liv.asn.au/membership.