89 Application of the Uniform Law to approved clerks
(1) Part 4.2 of the Legal Profession Uniform Law (Victoria) applies to, and in relation to, an approved clerk as if—
(a) a reference in that Part to a law practice or a former law practice were a reference to an approved clerk or a former approved clerk; and
(b) a reference in that Part to the Uniform Rules were a reference to the Uniform Rules as modified by rules made under section 90 of this Act; and
(c) in section 128—
(i) for the definition of general trust account there were substituted—
"general trust account means an account maintained by an approved clerk with an authorised ADI for the holding of trust money received by the clerk;"; and
(ii) for the definition of trust account there were substituted—
"trust account means an account maintained by an approved clerk with an authorised ADI to hold trust money;"; and
(iii) the following definition were inserted—
"trust money means money received by an approved clerk on account of the legal costs of one or more barristers in advance of the provision of the legal services to which those costs relate;"; and
(d) sections 129, 130, 131, 134 and 135(2) were omitted; and
(e) for section 137 there were substituted—
"137 Certain trust money to be deposited in general trust account
An approved clerk must deposit trust money (other than cash) into the approved clerk's general trust account as soon as practicable after receiving it unless the approved clerk has a written direction by a person legally entitled to provide it to deal with the money otherwise than by depositing it in the account.
Section 143 deals with trust money received in the form of cash."; and
(f) sections 139, 140 and 143(2) were omitted; and
(g) for section 144(2) there were substituted—
"(2) An approved clerk may do any of the following, in relation to trust money held in a general trust account—
(a) withdraw money for payment to a barrister for whom the clerk acts in respect of the barrister's account for legal costs owing to the barrister if the relevant procedures or requirements specified in the Uniform Rules for the purposes of this Division are complied with;
(b) withdraw money in accordance with the instructions of the client or as otherwise authorised by law;
(c) deal with the balance as unclaimed money."; and
(h) section 150 were omitted; and
(i) for sections 153 and 154 there were substituted—
"153 When money is received
For the purposes of this law, an approved clerk receives money when the clerk obtains possession or control of it directly.
154 Reporting irregularities and suspected irregularities
(1) As soon as practicable after an approved clerk becomes aware that there is an irregularity in any of his or her trust accounts or trust ledger accounts, the clerk must give written notice to the designated local regulatory authority.
(2) An approved clerk who believes on reasonable grounds that there is a deficiency in a trust account of another approved clerk must report it to the designated local regulatory authority as soon as practicable after forming the belief.
(3) An approved clerk who believes on reasonable grounds that there is an irregularity in a trust account or a trust ledger account of a law practice must report the irregularity to the designated local regulatory authority as soon as practicable after forming the belief.
Civil penalty: 50 penalty units."; and
(j) sections 156(2) and 157 were omitted.
(2) Part 4.5 of the Legal Profession Uniform Law (Victoria) applies to, and in relation to, an approved clerk as if—
(a) a reference in that Part to a law practice were a reference to an approved clerk; and
(b) a reference in that Part to the Uniform Rules were a reference to the Uniform Rules as modified by rules made under section 90 of this Act; and
(c) in section 219, for the definition of default there were substituted—
"default means a failure by an approved clerk to pay or deliver trust money that was received by the clerk in his or her capacity as an approved clerk, where the failure arises from or is constituted by an act or omission of the clerk or an employee of the clerk that involves dishonesty;"; and
(d) section 220 were omitted; and
(e) for section 221(1) there were substituted—
"(1) This Part applies to a default of an approved clerk.
See section 233 for entitlement to make a claim for a default."; and
(f) for section 233 there were substituted—
"233 Entitlement to make a claim
A person who suffers pecuniary loss as a result of a default of an approved clerk is entitled to make a claim about the default against the fidelity fund."; and
(g) section 239 were omitted; and
(h) in section 249, a reference to a lawyer were a reference to an approved clerk; and
(i) Division 6 were omitted.
See Division 2 of Part 8 of this Act for contributions to the fidelity fund by, and levies by the fidelity authority on, approved clerks.
S. 89(2A) inserted by No. 38/2017 s. 57.
(2A) Parts 6.1, 6.2, 6.3 and 6.6 of the Legal Profession Uniform Law (Victoria) apply to, and in relation to, an approved clerk as if—
(a) the following definitions apply for the purposes of those Parts—
affairs of an approved clerk means all accounts and records that—
(a) relate to trust money received by the approved clerk; and
(b) are required by or under this law or the Uniform Rules as modified by rules made under section 90 of this Act to be maintained by the approved clerk;
associate of an approved clerk means a person who is authorised by the approved clerk to cause money to be withdrawn from the clerk's general trust account (whether by signing a cheque or otherwise);
ceasing to be an approved clerk includes—
(a) being suspended from being an approved clerk; and
(b) ceasing to undertake the functions of an approved clerk;
general trust account means an account maintained by an approved clerk with an authorised ADI for the holding of trust money received by the clerk;
trust account means an account maintained by an approved clerk with an authorised ADI to hold trust money;
trust money means money received by an approved clerk on account of the legal costs of one or more barristers in advance of the provision of the legal services to which those costs relate; and
(b) a reference in those Parts to a law practice, or to a principal of a law practice, were a reference to an approved clerk; and
(c) a reference in those Parts to the designated local regulatory authority, or to the appropriate authority, were a reference to the Victorian Legal Services Board; and
(d) a reference in those Parts to a law practice's trust account were a reference to an approved clerk's trust account; and
(e) a reference in those Parts to a law practice's trust money were a reference to trust money entrusted to an approved clerk; and
(f) every reference in those Parts to trust property or a transfer of trust property were omitted; and
(g) a reference in those Parts to a client of a law practice were a reference to the clients of a barrister on behalf of whom an approved clerk receives money; and
(h) a reference in those Parts (excluding section 367) to the Uniform Rules were a reference to the Uniform Rules as modified by rules made under section 90 of this Act; and
(i) section 323 were omitted; and
(j) for section 324 there were substituted—
"324 Further application of this Chapter
This Chapter applies, with any necessary adaptations, to a former approved clerk in the same way as it applies to an approved clerk."; and
(k) section 325 were omitted; and
(l) for section 326(a) there were substituted—
"(a) where an approved clerk has died, ceases to be an approved clerk, has become an insolvent under administration or is in prison;"; and
(m) section 326(b), (c) and (d)(vii) were omitted; and
(n) for section 326(d)(ix) there were substituted—
"(ix) has ceased to be an approved clerk without making provision for properly dealing with trust money received by the approved clerk;"; and
(o) for section 327(2) there were substituted—
"(2) The Victorian Legal Services Board may determine to initiate the appointment under this Chapter of a supervisor of trust money of the approved clerk if the Board is of the opinion that external intervention is required because of issues relating to the approved clerk's trust accounts."; and
(p) in section 328, for the words "a particular legal practitioner associate or to matters connected with a particular office" there were substituted "a particular associate of the approved clerk"; and
(q) in section 329(3)(b), for the words "law practices' trust accounts" there were substituted "trust accounting"; and
(r) in section 331(2)(a), for the words "its engaging in legal practice" there were substituted "the approved clerk engaging in the business of being an approved clerk"; and
(s) in section 331(2)(b), for the words "the law practice or an associate or former associate of the law practice" there were substituted "the approved clerk"; and
(t) for section 331(5) there were substituted—
"(5) The supervisor does not have a role in the management of the approved clerk except in relation to the management of the affairs of the approved clerk."; and
(u) a reference in section 332(1)(b) to a law practice were a reference to either a law practice or an approved clerk; and
(v) section 333(1)(c) and (d) were omitted; and
(w) section 356(4) were omitted; and
(x) after section 357(2) there were inserted—
"(3) Nothing in this section subjects an approved clerk to any personal liability.
(4) Any liability resulting from an act or omission that, but for subsection (3), would attach to an approved clerk attaches instead to the Victorian Legal Services Board."; and
(y) for section 358(2)(d) there were substituted—
"(d) a barrister who has an interest in trust money held by the approved clerk; or"; and
(z) section 358(6) were omitted; and
(za) section 360 were omitted; and
(zb) in section 361, each reference to an associate of the law practice were omitted; and
(zc) for section 362(2)(e) and (f) there were substituted—
"(e) the approved clerk concerned;
(f) a barrister—
(i) for whom the approved clerk has held money on account of legal costs in advance of the provision of the legal services to which those costs relate; and
(ii) to whom the information relates;
(fa) a client or former client of a barrister referred to in paragraph (f) if the information relates to the client or former client;".
(3) Chapter 7 of the Legal Profession Uniform Law (Victoria) applies to, and in connection with, a trust records examination or trusts records investigation in relation to an approved clerk as if—
(a) a reference in that Part to a law practice were a reference to an approved clerk; and
(b) a reference in that Part to the Uniform Rules were a reference to the Uniform Rules as modified by rules made under section 90 of this Act; and
(c) Part 7.4 were omitted.
(4) Section 466 of the Legal Profession Uniform Law (Victoria) applies to a requirement referred to in that section that is made or given in relation to an approved clerk.
S. 89A inserted by No. 38/2017 s. 58.