Glossary of terms
"associate" in reference to a solicitor means:
- a partner, employee, or agent of the solicitor or of the solicitor’s law practice;
- a corporation or partnership in which the solicitor has a material beneficial interest;
- in the case of the solicitor’s incorporated legal practice, a director of the incorporated legal practice or of a subsidiary of the incorporated legal practice;
- a member of the solicitor’s immediate family; or
- a member of the immediate family of a partner of the solicitor’s law practice or of the immediate family of a director of the solicitor’s incorporated legal practice or a subsidiary of the incorporated legal practice.
"associated entity" means an entity that is not part of the law practice but which provides legal or administrative services to a law practice, including but not limited to:
- a service trust or company; or
- a partnerships of law practices operating under the same trading name or a name which includes all or part of the trading name of the law practice.
"Australian legal practitioner" means an Australian lawyer who holds or is taken to hold an Australian practising certificate.
"Australian practising certificate" means a current practising certificate granted under the legal profession legislation of any Australian jurisdiction.
"Australian-registered foreign lawyer" has the same meaning as set out in legal profession legislation.
"Australian roll" means a roll of practitioners maintained under the legal profession legislation of any Australian jurisdiction.
"Authorised Deposit-taking Institution" has the same meaning as an Authorised Deposittaking Institution within the meaning of the Banking Act 1959 (Cth).
"barrister" means an Australian legal practitioner whose Australian practising certificate is subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only.
- the court proceedings for which the solicitor is engaged; or
- the dispute in which the solicitor is advising.
"client" with respect to the solicitor or the solicitor’s law practice means a person (not an instructing solicitor) for whom the solicitor is engaged to provide legal services for a matter.
"client documents" means documents to which a client is entitled.
"compromise" includes any form of settlement of a case, whether pursuant to a formal offer under the rules or procedure of a court, or otherwise.
"corporate solicitor" means an Australian legal practitioner who engages in legal practice only in the capacity of an in-house lawyer for his or her employer or a related entity.
"costs" includes disbursements.
- any body described as such;
- any tribunal exercising judicial, or quasi-judicial, functions;
- a professional disciplinary tribunal;
- an industrial tribunal;
- an administrative tribunal;
- an investigation or inquiry established or conducted under statute or by a Parliament;
- a Royal Commission;
- an arbitration or mediation or any other form of dispute resolution.
"current proceedings" means proceedings which have not been determined, including proceedings in which there is still the real possibility of an appeal or other challenge to a decision being filed, heard or decided.
"discrimination" means discrimination that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.
"disqualified person" means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:
- a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under legal profession legislation or a corresponding law;
- a person whose Australian practising certificate has been suspended or cancelled under legal profession legislation or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner or in relation to whom that suspension has not finished;
- a person who has been refused a renewal of an Australian practising certificate under legal profession legislation or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time;
- a person who is the subject of an order under legal professional legislation or a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice;
- a person who is the subject of an order under legal profession legislation or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the solicitor’s practice; or
- a person who is the subject of any order under legal profession legislation or corresponding law, disqualifying them from managing an incorporated legal practice or from engaging in partnerships with certain partners who are not Australian legal practitioners.
"engagement" means the appointment of a solicitor or of a solicitor’s law practice to provide legal services for a matter.
"employee" means a person who is employed or under a contract of service or contract for services in or by an entity whether or not:
- the person works full-time, part-time, or on a temporary or casual basis; or
- the person is a law clerk or articled clerk.
"employer" in relation to a corporate solicitor means a person or body (not being another solicitor or a law practice) who or which employs the solicitor whether or not the person or body pays or contributes to the solicitor’s salary.
"former client" for the purposes of Rule 10.1, may include a person or entity that has previously instructed:
- the solicitor;
- the solicitor’s current law practice;
- the solicitor’s former law practice, while the solicitor was at the former law practice;
- the former law practice of a partner, co-director or employee of the solicitor, while the partner, co-director or employee was at the former law practice, or, has provided confidential information to a solicitor, notwithstanding that the solicitor was not formally retained and did not render an account.
"immediate family" means the spouse (which expression may include a de facto spouse or partner of the same sex), or a child, grandchild, sibling, parent or grandparent of a solicitor.
"instructing solicitor" means a solicitor or law practice who engages another solicitor to provide legal services for a client for a matter.
"insurance company" includes any entity, whether statutory or otherwise, which indemnifies persons against civil claims.
"law practice" means:
- an Australian legal practitioner who is a sole solicitor;
- a partnership of which the solicitor is a partner;
- a multi-disciplinary partnership; or
- an incorporated legal practice.
"legal costs" means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest.
"legal profession legislation" means a law of a State or Territory that regulates legal practice and the provision of legal services.
"legal services" means work done, or business transacted, in the ordinary course of legal practice.
"managed investment scheme" has the same meaning as in Chapter 5C of the Corporations Act 2001 (Cth).
"matter" means any legal service the subject of an engagement or required to be provided by the solicitor or the solicitor’s law practice to fulfil an engagement and includes services provided for:
- a case;
- a dealing between parties that may affect, create or be related to a right, entitlement or interest in property of any kind; or
- advice on the law.
"mortgage financing" means facilitating a loan secured or intended to be secured by mortgage by –
- acting as an intermediary to match a prospective lender and borrower;
- arranging the loan; or
- receiving or dealing with payments under the loan,
but does not include:
- providing legal advice, or preparing an instrument, for the loan;
- merely referring a person to a prospective lender or borrower, without contacting the prospective lender or borrower on that person’s behalf or facilitating a loan between family members; or
- facilitating a loan secured by mortgage:
- of which an Australian legal practitioner is the beneficial owner; or
- held by an Australian legal practitioner or a corporation in his, her or its capacity as the trustee of any will or settlement, or which will be so held once executed or transferred.
"multi-disciplinary partnership" means:
- a partnership between one or more solicitors and one or more other persons who are not solicitors, where the business of the partnership includes the provision of legal services in this jurisdiction as well as other services;
but does not include:
- a partnership consisting only of one or more solicitors and one or more Australian-registered foreign lawyers.
- the practitioner appearing for a party opposed to the client of the solicitor in question; or
- that party, if the party is unrepresented.
"order" includes a judgment, decision or determination.
"party" includes each one of the persons or corporations who or which is jointly a party to any matter.
"practitioner” means a person or law practice entitled to practise the profession of law.
"principal" means a solicitor who is the holder of a principal practising certificate, within the meaning of legal profession legislation.
"professional misconduct" includes:
- unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
- conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the solicitor is not a fit and proper person to engage in legal practice.
"prosecutor" means a solicitor who appears for the complainant or Crown in criminal proceedings.
"regulatory authority" means an entity identified in legal profession legislation which has responsibility for regulating the activities of solicitors in that jurisdiction.
"serious criminal offence" means an offence that is:
- an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily);
- an offence against the law of another jurisdiction that would be an indictable offence against a law of this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or
- an offence against the law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction).
"sexual harassment" means harassment that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.
- an Australian legal practitioner who practises as or in the manner of a solicitor; or
- an Australian registered foreign lawyer who practises as or in the manner of a solicitor.
"solicitor with designated responsibility" means the solicitor ultimately responsible for a client's matter or the solicitor responsible for supervising the solicitor that has carriage of a client's matter.
"substantial benefit" means a benefit which has a substantial value relative to the financial resources and assets of the person intending to bestow the benefit.
"trustee company" is as defined in relevant jurisdictional legislation: the Trustee Companies Act 1964 (NSW), the Trustee Companies Act 1968 (QLD), the Trustee Companies Act 1984 (VIC), the Trustee Companies Act 1988 (SA), the Trustee Companies Act 1953 (TAS), the Trustee Companies Act 1987 (WA) and the Trustee Companies Act 1947 (ACT).
"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
"workplace bullying" means bullying that is unlawful under the applicable state or territory anti discrimination or human rights legislation. If no such legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms it includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimidate, offend, degrade or humiliate.