Incorporated Legal Practices - a New Era in the Provision of Legal Services in the State of New South Wales

Abstract

By virtue of legislation which is unprecedented in Australia, legal services providers in New South Wales are permitted to incorporate and provide legal services either alone or alongside other legal service providers who may, or may not be "legal practitioners." Essentially, the legislation permits the formation of an Incorporated Legal Practice ("ILP") provided the ILP has at least one "solicitor director" and complies with the requirements of the Legal Profession Amendment (Incorporated Legal Practices) Act 2000 ("Act") and the Legal Profession Amendment (Incorporated Legal Practices) Regulation 2001 ("Regulations"). This Article commences with an introduction to the development of ILP's in NSW and the reasons for introducing such legislation. The Article will then discuss some of the advantages and disadvantages of ILP's and some of the key features of the Act and Regulations. Some of the problem areas of the legislation and the economic versus ethical issues surrounding the use of ILPs will also be examined. Finally, developments to date and the approach adopted to the regulation of ILPs will be described.

In relation to regulation, an office independent of the legal profession, namely the Office of the Legal Services Commissioner ("OLSC") was established in NSW in 1994 to receive complaints against legal practitioners. The OLSC is part of a co-regulatory system that also involves the NSW Law Society and the NSW Bar Association, which are the professional organizations for solicitors and barristers respectively. While the OLSC receives all complaints against NSW legal practitioners and tries to resolve the majority of complaints, it also investigates complaints, or oversees the investigation of complaints that it refers to the Law Society or Bar Association. Where the OLSC is satisfied that there is a reasonable likelihood that a legal practitioner will be found guilty of professional misconduct (and in some circumstances, the lesser offence of unsatisfactory professional conduct), it will prosecute the legal practitioner in the Legal Services Division of the Administrative Decisions Tribunal.

Keywords: incorporated legal practices, legal services, New South Wales, Australia, lawyers