A recent case highlights the importance of ILPs letting the local law society know they are performing work in their state.
Generally speaking, the various legislation governing the legal profession in each Australian state – usually the local version of the Legal Profession Act or Uniform Law – is drafted to allow interstate lawyers to do anything they are entitled to do in their own state.
For Incorporated Legal Practices, however, notice must be given, and a failure to do so can have significant consequences, as in the recent case of Larussa -v- Anna Carr as administratrix of the estate of Giuseppe Larussa [2024] WASCA 16.
In that case, the WA Supreme Court considered whether or not a corporation engaged in legal practice could recover any costs for its work if it had contravened the requirement for notice in the WA legislation, which at the relevant time was s102 of the WA Legal Profession Act 2008. The court noted (at 64):
By s 102(5), a corporation is not entitled to ‘recover’ any amount for anything done by the corporation in contravention of s 102(2). That necessarily means the corporation does not have a legal right to require payment of any amount for work or anything else done while the corporation engaged in legal practice in default of s 102. If the corporation does not have a legal right to require payment then it necessarily follows that the client does not have a legal liability to make payment.
The upshot of that case was that the successful party in the substantive litigation was unable to recover his costs, as the ILP acting on his behalf failed to provide notice and so his obligation to pay the firm was extinguished. It is likely that the situation in Queensland would be the same, as the corresponding requirement for notice in Queensland, set out in s114 of the Legal Profession Act 2007, is in almost identical terms:
114 NOTICE OF INTENTION TO START PROVIDING LEGAL SERVICES
(1) Before a corporation starts to engage in legal practice in this jurisdiction, the corporation must give the law society notice, in the law society approved form, of its intention to do so.
(2) A corporation must not engage in legal practice in this jurisdiction if it has not given a notice under subsection (1).
Interstate ILPs seeking to perform legal services in Queensland therefore must provide notice to the Queensland Law Society before they start work, using Form 23.
Queensland ILPs should note that they have similar obligations when providing legal services interstate. To assist in this regard, the Ethics Centre has created this practice support tip which identifies the requirements for each jurisdiction, and links the specific notice forms.
Practitioners should, of course, familiarise themselves with the governing legislation prior to providing the requisite notice, and take note of any guidance provided by the relevant law society.
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