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Fiji Sessional Legislation |
FIJI ISLANDS
ARRANGEMENT OF SECTIONS
SECTION
PART I - PRELIMINARY
1. Short title and commencement
2. Interpretation
PART II - LEGAL EDUCATION BOARD
3. Establishment
4. Role of the Board of Legal Education
5. Fiji legal practice and procedure Practice
6. Practice Management Course
7. Mandatory continuing legal education
8. Remuneration
9. Meetings
10. Finality of decisions
11. Liabilities of members
PART III - FIJI LAW SOCIETY
12. Establishment and continuation of Fiji Law Society
13. Objects of the Society
14. Membership
15. Levies and subscriptions
16. Failure to pay subscription or levy
17. Honorary membership
18. Termination of membership
19. Constitution of the Council
20. Powers of the Council
21. Committees and delegation
22. Other officers
23. General Meetings
24. Requisition
25. Voting
26. Simple majority
27 Alteration of resolution
28. Common seal
29. Minutes
30. Accounts to be kept
31. Reports and accounts
32. Protection of Council
33. Regulation
PART IV - ADMISSION OF LEGAL PRACTITIONERS
34. Chief Justice to admit
35. Qualifications of legal practitioners
36. Application for admission
37. Objections
38. Admission
39. Temporary admission
40. Exemptions
41. Power to make Rules
PART V - PRACTISING CERTIFICATES
42. Application for and issue of Practising Certificates
43. Fees
44. Refusal or cancellation of Certificate
45. Suspension of Certificate
46. Appeal
47. Practice of deceased practitioner
48. Duration of Certificate
49. Transitional
PART VI - RIGHTS AND LIABILITIES OF LEGAL PRACTITIONERS
50. Right of practice
51. Officer of the Court
52. Practising without a Certificate
53. Acting as agent for unqualified persons
54. Employment of persons struck off or suspended
55. Failure to disclose fact of having been struck off etc.
56. Duty to render costs
PART VII - RECEIVERSHIPS
57. Appointment of receiver
58. Relevant property
59. Certificate of appointment
60. Bank Accounts
61. Notice
62. Delivery of property and information to receiver
63. Recovery of property
64. Removal of property
65. Powers of receiver
66. Claims by former practitioner
67. Examination on Oath
68. Termination of appointment of receiver
69. Remuneration
70. Insufficiency of funds
71. Property not to be taken in execution
72. Report by receiver
73. Proceedings and offences
74. Appointment of co-signatory
PART VIII - COSTS
75. Establishment of Costs Review Committee
76. Role of the Committee
77. Agreements as to costs
78. Contingency fees
79. Practitioner may sue for and recover costs
80. Right to particulars
PART IX - PROFESSIONAL STANDARDS
81. Disciplinary Committee
82. Proceedings of Committee
83. Complaints to Society
84. Role of Society
85. Society may require explanation
86. Role of Attorney-General
87. Reference to Committee
88. Witness to attend
89. Immunity of witness and counsel
90. Protection of members of Committee
91. Witnesses expenses
92. Witness required to answer
93. Powers of Committee on hearing
94. Costs
95. Recovery of penalties and costs
96. Fees and expenses of lay persons
97. Proceedings to be public
98. Rules of procedure
99. Orders for striking off etc to be filed in Court
100. Appeals
101. Rules of professional conduct
102. Jurisdiction of Court not affected
PART X - PROFESSIONAL INDEMNITY INSURANCE
103. Power of Minister to make Rules
104. Non-Compliance to be misconduct
105. Rules to take effect at a time specified
106. Limitation of liability
PART XI - NOTARIES PUBLIC
107. Chief Justice may appoint Notaries Public
108. Notaries to be sworn
109. Roll of Notaries Public
110. Notaries to be Officers of the Court
111. In suspicious cases notary to refuse to Act
112. Notary to mark refusal on document
113. Penalty for false Certificates etc.
114. Fees
PART XII - COMMISSIONERS FOR OATHS
115. Appointment of Commissioners for Oaths
PART XIII - BENEVOLENT FUND
116. Benevolent Fund
PART XIV - MISCELLANEOUS
117. Service
118. Evidentiary
119. Offences
120. Repeal
SCHEDULE
RULES OF PROFESSIONAL CONDUCT AND PRACTICE
(Section 101(8))
INTERPRETATION – DEFINITIONS
1. Relations with clients
2. Advertising
3. Relationship with the Court
4. Advocate for prosecution
5. Advocate for defence
6. Relations between practitioners
7. Conduct of Practice
8. Client care
9. Corporate Practice
--------------------------------------
Act No. 19 of 1997
I assent.
[L.S.]
K.K.T. MARA
President
AN ACT
TO AMEND AND CONSOLIDATE THE LAW RELATING TO LEGAL PRACTITIONERS, COMMISSIONERS FOR OATHS AND NOTARIES PUBLIC, AND RELATED PURPOSES
[17 October 1997]
ENACTED by the Parliament of Fiji -
PART I - PRELIMINARY
Short title and commencement
1. - (1) This Act may be cited as the Legal Practitioners Act, 1997.
(2) This Act shall come into force on a day appointed by the Minister and published in the Fiji Republic Gazette.
Interpretation
2. In this Act, unless the context otherwise requires -
"Attorney-General" means the Attorney-General for the Republic of Fiji;
"Board" means the Board of Legal Education;
"Chairperson" means a person appointed as such under subsection (3) of Section 3, subsection (1) of Section 75 or subsection (3) of Section 81 of this Act;
"Chief Justice" means a Chief Justice of the High Court of Fiji;
"Council" means the Council of the Society;
"Court" means the High Court of Fiji;
"Minister" means the Attorney-General for the Republic of Fiji;
"practitioner'' means a person admitted to practice as a legal practitioner under the provisions of this Act;
"Prescribed" means prescribed by rules or regulations trade under the provisions of this Act;
"Registrar" means the Chief Registrar of the Court;
"Roll" means the Roll of the Court;
"Secretary" means secretary of the Society;
"Society" means the Fiji Law Society;
"special resolution" means a resolution passed by not less than two thirds of such members of the Society as may be print and vote thereon at a general meeting of the society duly convened with full notice of the intention to propose such resolution as a special resolution.
PART II - LEGAL EDUCATION BOARD
Establishment
3. - (1) There is established by this Section the Board of Legal Education.
(2) The Board shall be a body corporate with perpetual succession.
(3) The Board shall be constituted by -
(a) the Solicitor-General for the Republic of Fiji;
(b) the President of the Society;
(c) the Dean of the school or faculty of law of the University of the South Pacific;
(d) the Chief Justice of the High Court of Fiji;
(e) the Dean, appointed by the Attorney-General, of a school or faculty of law of a University in Great Britain, Australia or New Zealand. The appointment shall not exceed three years in duration, but may be renewed;
(f) a person having legal qualifications, appointed by the Attorney-General, who shall be the Board's Chairperson. The appointment shall not exceed three years in duration, but may be renewed.
(4) Each of the persons who constitute the Board, save for the Chairperson, may delegate to some other person his or her office as a member of the Board. This delegation shall not exceed two years in duration but may be renewed.
(5) Appointments and delegations made pursuant to this Section may be terminated at any time by the person entitled to make the appointment or delegation, as the case may be.
Role of the Board of Legal Education
4. - (1) The Board shall ensure, so far as is practicable, that the educational qualifications, both academic and practical, of persons wishing to be admitted to practice as legal practitioners in Fiji are of a high quality, and sufficient to meet the needs of consumers of legal services in Fiji.
(2) The Board may approve such-
(a) courses in the study of law at tertiary educational institutions (whether within or outside Fiji), and
(b) programmes or courses of practical legal instruction and training, as it considers are appropriate educational qualifications for persons wishing to be admitted to practice as legal practitioners in Fiji.
(3) Any approval made by the Board may be reviewed by it at anytime, and may be withdrawn by it.
(4) In determining whether or not to grant or withdraw any approval, the Board may take into consideration -
(a) qualifications for entry into the course or programme;
(b) the subjects to be successfully undertaken for graduation;
(c) the language in which the course or programme is undertaken;
(d) the course curriculum;
(e) the means by which instruction and training is provided;
(f) differences between the law of Fiji, and the law in which instruction takes place;
(g) lecture and tutorial sizes;
(h) nature and standard of assessment procedures;
(i) teaching profiles, including number, qualifications, standing and teaching loads;
(j) computer and library resources, and such other matters as it may think fit.
(5) The Board shall notify the Registrar of any approval or withdrawal of approval made pursuant to this Section. These notifications shall be available for inspection by the public and may be accepted by the Chief Justice as evidence of the matters set out therein.
(6) In case of a person who is desirous of being admitted to practise as a legal practitioner, but whose educational qualifications have not been approved in all necessary respects, the Board may if it considers appropriate advise the applicant of the further educational qualifications it considers necessary to qualify the applicant for admission.
(7) The application shall be accompanied by such fee as the Board from time to time considers appropriate. This fee shall be paid to the Board to defray in part the costs and expenses of the Board.
(8) In considering the application, the Board shall take into account in respect of an applicant -
(a) all tertiary academic qualifications;
(b) the nature and extent of professional legal training;
(c) the nature and extent of professional experience;
(d) proficiency in the English language, and
(e) such other matters as the Board may in respect of a particular application, or generally, thinks fit.
(9) Should the Board decide to refuse the application, it may, if it considers appropriate, advise the applicant of the further educational qualifications it considers necessary to qualify the applicant for admission.
Fiji legal practice and procedure
5. - (1) The Board shall be responsible for the design and implementation of a course in legal practice and procedure for Fiji. The course shall be designed to acquaint recently admitted legal practitioners with an adequate knowledge of Fiji's statutes, jurisprudence, and practice and procedure.
(2) Any persons admitted to practice in Fiji after the Board has approved this course shall be required to satisfactorily complete this course within twelve months of that person's admission, or such longer period as the Council may permit. The Council may in particular circumstances dispense with this requirement, either absolutely, or subject to such conditions or undertakings as it may think fit.
(3) The Board may administer this course, or approve some other person or organisation to administer this course. This approval may be withdrawn by the Board on reasonable notice.
Practice Management Course
6. - (1) The Board shall be responsible for the design and implementation of a course of instruction in the management of a private legal practice. The Board shall consult with the Society and the faculty of law of the University of the South Pacific in relation to the design of this course.
(2) No person who has been admitted to practice in Fiji more than six months after the Board has approved this course shall be entitled to practice as a legal practitioner on his or her own account, unless that person has satisfactorily completed this course, subject to the exceptions contained in this Act. Any changes made to the course by the Board after this approval shall not be taken to be a fresh approval.
(3) The Board may administer this course, or approve some other person or organisation to administer this course. This approval may be withdrawn by the Board on reasonable notice.
(4) The Board may, upon application accompanied by such fee as the Board from time to time considers appropriate, certify that the applicant's existing educational qualifications are of such nature and quality as to warrant exemption from all or part of the course, as the case may be. The applicant shall then be deemed to have satisfactorily completed those parts of the course to which the certificate relates. The fee shall be paid to the Board to defray in part the costs and expenses of the Board.
(5) The Board may, upon sufficient cause being shown to it, grant exemption from all or such part of the course as it may think fit, either absolutely, subject to such conditions as it may think fit, or upon an undertaking in such terms as it may require.
(6) In granting such exemption the Board shall take into account in respect of an applicant -
(a) that person's qualifications;
(b) the extent and nature of that person's experience;
(c) the nature of the legal practice that person proposes to undertake;
(d) the intended duration of that person's practice on his or her own account;
(e) the number of partners, and skills and resources of the legal partnership, if any, which that person proposes to enter into; and
(f) such other matters as the Board may in respect of a particular person, or generally, thinks fit.
Mandatory continuing legal education
7. - (1) The Board shall be responsible for the design and implementation (if a programme of continuing education in the substance and practice of law. The Board shall consult with the Society and the faculty of law of the University of the South Pacific in relation to the design and implementation of this programme.
(2) The programme shall indicate the activities which may be undertaken as part of the programme, and the credit to be accorded any activity towards the fulfilment of the requirements of the programme. Activities included in the programme may be specific, or may relate to a class of activities.
(3) The programme shall indicate the minimum amount of instruction required to satisfactorily complete the programme in relation to any particular year. Such involvement shall be no less than ten hours.
(4) The Board may, from time to time add to or amend the programme as it sees fit.
(5) The programme may indicate the maximum credit to be allowed to be accorded any particular activity in any year.
(6) The Board shall promptly advise the Society of the programme upon its formulation, and of any additions or amendments to the programme from time to time. The Society shall advise its members of the requirements of the programme, and of the nature of any such additions or alterations.
(7) An applicant for a practising certificate who -
(i) is applying for the renewal of a practising certificate; or
(ii) has held a practising certificate within the six month period prior to the making of the application,
shall not be issued with a practising certificate until the applicant produces evidence satisfactory to the Secretary that the applicant has complied with the annual requirements of the programme in the twelve months preceding the application. Such evidence may be by statutory declaration or in such other from as the Secretary may from time to time or in any particular case require.
(8) The Council may nevertheless direct the Secretary to issue a practising certificate to an applicant notwithstanding such non-compliance, upon such undertakings or subject to such conditions as the Council may think fit.
(9) The Council may direct either generally, or in relation to a particular class of practitioner, that a minimum amount of instruction to be specified by the Council shall be required in a specified area of law or aspect of legal practice as part of compliance with the programme and this requirement shall be deemed to be in this respect part of the programme.
(10) Subsections (7), (8) and (9) of this Section shall not come into effect until twelve months has elapsed since the Board has advised the Society of the formulation of the programme pursuant to subsection (6) of this Section.
Remuneration
8. Members of the Board shall be paid such remuneration, if any, and reimbursed for such expenses as the Minister may from time to time approve. Remuneration paid to members need not be equal. The Board's expenses shall be funded by the responsible Ministry.
Meetings
9. - (1) The Chairperson of the Board may at any time convene a meeting of the Board.
(2) The Chairperson shall convene a meeting on receipt of a request in writing signed by three members of the Board.
(3) At a meeting of the Board three members shall constitute a quorum.
(4) The Board may regulate the conduct of its meetings as it thinks fit, and shall keep minutes of those meetings.
(5) If the Chairperson is not present at a meeting of the Board, the member of the Board present shall elect one of their number to chair that meeting.
(6) At any meeting the Chairperson or the person elected under subsection (5) to chair a meeting shall have a deliberative vote, and in the event of an equality of votes, also a casting vote.
(7) Questions arising at a meeting of the Board shall be determined by a majority of the members present and voting.
(8) Meetings may take place either wholly or partly by means of telephone or electronic communication, and members participating in such manner, although not physically present, shall be deemed to be present at the meeting, and entitled to vote accordingly.
(9) A notice or certificate which purports to express a decision of the Board, signed by a person as Chairperson, shall, in the absence of evidence to the contrary, be accepted as evidence of the matters set out therein.
Finality of decisions
10. - (1) Decisions of the Board shall be final, shall not be subject to appeal and no action shall lie against the Board in respect of any decisions made by it.
(2) The validity of any meeting or decision of the Board shall not be invited because any appointment required by this Part to be made has not been made, or because of any defect in any appointment or delegation purported to be made pursuant to this Part.
Liabilities of members
11. No member of the Board acting in good faith shall be liable for any act or omission of the Board.
PART III - FIJI LAW SOCIETY
Establishment and continuation of Fiji Law Society
12. The Society established under Section 32 of the repealed Legal Practitioners Act shall continue as a Society under the name of the Fiji Law Society and, by that name, the Society shall have perpetual succession and a common seal. The Society shall have power to hold real and personal property and may sue and be sued in matters whether relating to contract or tort or otherwise in connection with the exercise of its powers or the carrying out of its functions under this Act.
Objects of the society
13. The objects of the Society are -
(a) to maintain and improve the standards of conduct and learning of the leg al profession in Fiji;
(b) to promote the welfare and to preserve and maintain the integrity and status of the legal profession;
(c) to assist the Government and the courts in all matters affecting legislation and law reform and the administration and practice of the law in Fiji;
(d) to aid and give countenance to law reform and to represent the views, interests and wishes of the legal profession;
(e) to represent, protect and assist members of the legal profession in Fiji as regards conditions of practice and otherwise;
(f) to settle points of practice and to provide means for the amicable settlement of professional differences;
(g) to protect and assist the public and the legal profession in all matters touching, ancillary or incidental to the practice of the law;
(h) to aid in the preparation, circulation and publication of legal decisions given in or affecting Fiji;
(i) to assist needy members and former members of the Society or their relatives and the relatives of deceased members;
(j) to investigate charges of professional misconduct against any practitioner and to take such action thereon as may seem proper;
(k) to intervene in any application trade far the admission or re-admission as a barrister and solicitor, or any other application made under this Act;
(l) to acquire, hold, develop or dispose of property of all kinds, whether real or personal, and to derive capital or income therefrom, for all or any of the foregoing objects;
(m) to raise or borrow money for all or any of the foregoing objects in such manner and upon such security as may from time to time be determined by the Society;
(n) to invest and deal with moneys of the Society not immediately required in such manner as may from time to time be determined by the Society;
(o) to appoint any practitioner to appear before any court or tribunal in any of the foregoing matters or in any other matter in which the Society is concerned or interested, and any practitioner so appearing shall have audience accordingly on behalf of the Society;
(p) to pay the whole or any part of the expenses incurred by members in attending meetings of the Council or meetings of any committee appointed by the Council;
(q) to pay all costs, witnesses' expenses, and other payments incidental to or connected with the discharge of any function of the Society;
(r) to tender advice to the Chief Justice as respects any of his powers and duties under the provisions of this Act;
(s) to do all such other things as are incidental or conducive to the attainment of the foregoing objects or any of them.
Membership
14. - (1) The membership of the Society shall consist of the following -
(a) every person who holds a practising certificate pursuant to Part V of this Act;
(b) every person elected as an honorary member of the Society pursuant to the provisions of this Part;
(c) every person who, in the opinion of the Council is a fit and proper person to admit to membership, having regard to that person's involvement with the legal profession.
(2) Persons whose membership of the Society arises because of the operation of paragraphs (b) and (c) of the preceding subsection may resign from membership of the Society by notice in writing to the Society.
(3) Subject to the preceding provisions of this Section, the Council may create by resolution such classes of members as it may from time to time think fit.
Levies and subscriptions
15.-(1) No entrance fee shall be payable by any person upon becoming a member of the Society.
(2) Members of the Society shall pay to the Society such annual subscription as the Council may from time to time resolve, within the time or times limited by such resolution.
(3) The Council may by resolution impose upon members or classes of members a levy for payment into the funds of the Society, and such levy shall be payable by the time and in the manner fixed by resolution of the Council.
(4) No honorary member shall be liable to pay any subscription or levy referred to in this Section.
(5) The Council may by resolution waive all or any part of any annual subscription or levy payable by any member.
Failure to pay subscription or levy
16. - (1) If any member fails to pay any annual subscription or levy referred to in this Part after it has become due, the Society may forthwith sue for and recover such annual subscription or levy by action as for a civil debt to the Society.
(2) A member whose subscription or levy is overdue shall not vote at any meeting of the Society or at any election of members of the Council.
Honorary membership
17. The Council may elect as honorary members of the Society such persons as it may think fit, either for life or for such period as the Council may in any case deem appropriate. An honorary member shall be entitled to attend but not to vote at any meetings of the Society, and shall not be eligible to hold any elected position in the Society.
Termination of membership
18. - (1) Any member of the Society, other than an honorary member, may be expelled therefrom in such manner, and upon such grounds as may from time to time be prescribed by regulation, after being given a reasonable opportunity to answer all allegations made against such member. No member of the Society who is entitled to practice as a legal practitioner shall be expelled from the Society at anytime while entitled so to practice.
(2) Any member of the Society, other than an honorary member who ceases to be qualified for membership shall thereupon automatically cease to be a member. Such cessation shall in no way affect any antecedent liabilities and obligations on the part of such member to the Society.
Constitution of the Council
19. For the proper management of the affairs of the Society, there shall be a Council consisting of a President a Vice President and six other persons, all of whom shall be members of the Society and elected annually by the members of the Society.
Powers of the Council
20. - (1) Except as otherwise expressly provided, the Council shall have the management of the Society, and may exercise all the powers of the Society and do all things and acts as are directed or authorised to be done by the Society.
(2) The exercise of power or the performance of a function of the Council shall not be affected by the fact that at the time of such exercise or performance a vacancy existed in the membership of the Council or that the election or appointment of any member of the Council was defective.
Committees and delegation
21. The Council may from time to time appoint committees consisting of one of more members of the Society, including committees for any particular area or district of Fiji, and may, except as otherwise expressly provided by this Act or by any regulations made thereunder, delegate to any such committee any of the powers of the Council.
Other officers
22. There shall be such Secretary, treasurer and other officers of the Society (including deputy secretaries), paid or unpaid, as the Council may appoint from time to time. Any deputy secretary so appointed may exercise any of the powers conferred upon and exercise any of the functions granted to the Secretary pursuant to this Act.
General Meetings
23. The Council shall during the month of September in every year and may at any other time or times at the discretion of the Council, convene a general meeting of the Society.
Requisition
24. Any fifteen members of the Society may at any time requisition a general meeting by written notice in that behalf signed by them specifying the object of the proposed meeting and deposited with the Secretary, (or in his or her absence, the President) and thereupon the Council shall convene a general meeting of the Society accordingly. If the Council fails for fourteen days after such deposit to convene a general meeting in accordance with the requisition, to be held within thirty days after such deposit, the requisitioning members may themselves convene that general meeting to be held at any time within two months after such deposit.
Voting
25. - (1) At every general meeting of the Society, every member present shall have one vote and the member who chairs that meeting shall also have a casting vote. Members may vote by proxy.
(2) The proxy shall be a member of the Society and appointed according to the form prescribed by the Council from time to time, or to the like effect, and every such appointment shall continue in force for the particular meeting for which it purports to be given and for every adjournment thereof, but no longer.
(3) Every proxy paper, shall be delivered to the Secretary not less than forty eight hours before the time appointed for the holding of the meeting for which it is to be used.
Simple majority
26. Except for any purpose for which a special resolution is expressly required by this Act or by any regulation made thereunder, all resolutions of the Society in a general meeting shall be by simple majority vote.
Alteration of resolution
27. No resolution of the Society in a general meeting shall be altered or rescinded within nine months after the passing thereof otherwise then by a special resolution of the Society.
Common seal
28. The common seal of the Society shall be kept in such custody and used in such manner as may be prescribed by regulation from time to time.
Minutes
29. The Council shall cause proper minutes of all general meetings of the Society and of all meetings of the Council and of committees appointed by the Council to be taken and recorded. Minutes of general meetings shall be available for inspection by any member of the Society at any reasonable time, on demand.
Accounts to be kept
30. The Council shall cause proper accounts of all funds, property and assets of the Society to be kept, and to be audited as on the 30th day of June in every year. The audited accounts shall be presented by the Council to the general meeting convened in accordance with the provisions of this Part during the month of September.
Reports and accounts
31. During the month of September, the Council shall present to the Society in general meeting, a full report of the activities of the Society in respect of the twelve months preceding that date.
Protection of Council
32. No officer or servant of the Society or any member of the Council, or any committee appointed by the Council shall be liable for any act or omission done or omitted to be done in good faith and pursuant to the provisions of this Act.
Regulation
33. - (1) The Council may, subject to the provisions of this Act and to approval by special resolution, make regulations binding or members of the Society prescribing all or any of the following matters -
(a) manner of application for membership of the Society;
(b) resignation of members;
(c) manner of convening meetings of the Council and committees and the quorum and procedure thereat;
(d) manner of convening general meetings of the Society and the quorum and procedure thereat;
(e) manner of election, removal and replacement of the President, Vice President and other members of the Council, and of representatives of the Society on committees;
(f) custody and use of the common seal;
(g) arbitration in disputes;
(h) such other matters as may be deemed by the Council to be necessary for the proper conduct and regulation of the affairs of the Society;
(i) prescribing anything which is required or permitted to be prescribed by regulation by the Society or Council under this Act.
(j) A copy of any regulation made under the provisions of subsection (1) shall be forwarded to each member of the Society within fourteen days of approval by special resolution, and shall not be published in the Gazette.
(3) The regulations of the Society in force immediately prior to the enactment of this Act shall continue in force as if they were regulations made pursuant to this Act.
PART IV - ADMISSION OF LEGAL PRACTITIONERS
Chief Justice to admit
34. - (1) The Chief Justice shall have power to admit to practice as a practitioner any person duly qualified in accordance with the provisions of this Act. The Chief Justice may, upon cause being shown, refuse to admit any person as a practitioner notwithstanding that he or she may have these qualifications.
(2) Every person shall before admission as a practitioner, subscribe to the oath of allegiance in the form prescribed by law and also the oath following -
I A. B. do swear (or do solemnly sincerely and truly declare and affirm) that I will truly and honestly conduct myself in the practice as a legal practitioner according to the best of my knowledge and ability (and in the case of an oath) so help me God.
Qualifications of legal practitioners
35. A person shall be qualified for admission as a practitioner if that person is a fit and proper person to be admitted to practice as a practitioner in Fiji, and -
(a) has satisfactorily completed a course in the study of law approved by the Board and a programme or course of practical legal instruction and training approved by the Board; or
(b) that person has obtained from the Board a certificate that his or her educational qualifications are sufficient to qualify him or her for admission as a practitioner;
(c) in addition to the requirements specified under paragraph (a) or (b), before making his or her application for admission as a practitioner in Fiji that person has resided in Fiji for a period of at least three months immediately prior to making his or her application for admission unless the Chief Justice for good reasons shall dispense with such residential requirements; and
(d) in the exercise of his discretion under paragraph (c), the Chief Justice shall take into account the views of the Society.
Application for admission
36. - (1) Every application for admission shall be by petition to the Chief Justice in such form and manner as may be prescribed by rules made pursuant to this Part. Within two days of the filing thereof in the Court, or such extended time as the Chief Justice may allow, a copy thereof shall be delivered to the Society.
(2) The Society may make such enquiries into the character, qualification and experience of the applicant as it shall deem necessary.
Objections
37. - (1) Any person, including the Society and the Registrar, shall be entitled to show cause why an application for admission should not be granted.
(2) The objection shall be filed in the Court and a copy delivered to the applicant. Any person objecting who has complied with this Section and the rules made pursuant to this Part shall be entitled to appear on the hearing of the petition.
Admission
38. - (1) Upon application for admission being made the Chief Justice, upon proof of the qualification and suitability of the applicant, and production of such testimonials as to character as he or she may require, shall, unless cause to the contrary is shown to his or her satisfaction, by writing under his or her hand admit the applicant to be a legal practitioner.
(2) The name of every person admitted to practice as a legal practitioner shall be enrolled in a book kept far the purpose in the office of the Registrar called the Roll of the Court. No person shall be entitled to practice as a practitioner in Fiji unless that person's name is enrolled in the Roll.
(3) The Registrar shall, on application, grant a certificate of enrolment under the Seal of the Court to any person whose name is at the time of application on the Roll.
(4) The Registrar may remove from the Roll the name of any practitioner who applies for such removal. Such removal shall not affect any antecedent rights or obligations on the part of that person.
Temporary admission
39. - (1) A person admitted to practice as a legal practitioner, barrister or solicitor in another jurisdiction may apply by petition supported by affidavit to the Chief Justice to be admitted to practice as a legal practitioner for the purpose of any specific cause or matter.
(2) Public notice of the application shall not be required nor shall the applicant be required to appear upon the consideration by the Chief Justice of the application.
(3) At least fourteen days shall elapse between delivery of a copy of the application and supporting affidavit to the Society and the consideration by the Chief Justice of the application.
(4) The Society and the Registrar may make written submissions in relation to the application to the Chief Justice, copies of which will be forwarded at the same time to the applicant.
(5) The Chief Justice, upon considering the application and any written submissions received may -
(a) refuse the application;
(b) grant the application subject to such conditions, if any, as he or she may think fit (which conditions may limit the duration of the admission);
(c) adjourn the application to allow the applicant and objectors, if any, to be heard in person; or
(d) require such further information as he or she may think fit before considering the application further.
The Registrar shall forthwith communicate the decision of the Chief Justice to the applicant and the objectors, if any.
(6) Any applicant dissatisfied with the vision of the Chief Justice may require the Registrar to list the application for hearing and may appear in person in support of the application. Notice shall be given to the Society, and the Society and the Registrar shall have the right to appear and to be heard on the hearing of the application.
(7) Any person admitted pursuant to this Section shall only be entitled to appear or act -
(a) in the cause or matter for the purpose of which that person is admitted; and
(b) if instructed by, and if when appearing in any Court in the conduct of cause or matter, appearing together with a practitioner admitted to practice in Fiji.
(8) Any person granted admission pursuant to this Section for a period of less than three months shall -
(a) be required to take out a practising certificate;
(b) be required to take out professional indemnity insurance in Fiji pursuant to Part X of this Act; or
(c) be subject to educational requirements set out in Part II of this Act,
but shall otherwise be subject to the provisions of this Act.
(9) Any person admitted pursuant to this Section shall be included in a special Roll for temporary admission.
Exemptions
40. The Chief Justice may, on sufficient grounds and upon conditions, if any, exempt any person from complying with the formalities set out in this Part and may enlarge or abridge any period of time referred to in this Part or any rules made pursuant to it.
Power to make rules
41. - (1) The Chief Justice may make rules to give effect to this Part, and, without limiting the generality of this power, may make rules relating to all or any of the following matters -
(a) the form and manner of application;
(b) the time and manner for service and delivery of any documents, and provision of public notice;
(c) fees to be paid on the filing or lodging of any application or other documents;
(d) prescribing anything which is required or permitted to be prescribed by rules under this Part.
(2) The Barristers and Solicitors (Admission) Rules in force immediately prior to the commencement of this Act shall continue in force as if they were rules made pursuant to subsection (1).
PART V - PRACTISING CERTIFICATES
Application for and issue of practising certificates
42. - (1) Every person admitted to practice as a practitioner shall before commencing practice aid thereafter, while continuing in practice, during the month of January in each and every year apply for and obtain from the Society a certificate (in this Act known as a practising certificate) certifying that that person is entitled to practice as a legal practitioner according to the laws of Fiji. The certificate shall be issued by the Secretary. "Practice" includes employment as a legal practitioner, whether in private practice or otherwise.
(2) The application shall be in such form, accompanied by such fee, and set out such information and particulars as the Society may from time to time fix or require. The application shall be supported by a statutory declaration verifying all such information and particulars.
(3) Any holder of a practising certificate who changes his or her place of business or residence, enters into a partnership in relation to his or her practice, or dissolves any partnership relating to his or her practice or changes his or her employment shall forthwith give notice thereof in writing to the Secretary.
(4) Every practising certificate shall be in the form which the Society may fix from time to time, and where the certificate is subject to a condition required by this Act, or which the Society may properly require, there shall be endorsed on the certificate the terms of such condition.
(5) Before issuing a practising certificate the Secretary or the Society may from time to time require such further and additional information and particulars in relation to any applicant or any firm of legal practitioners of which the applicant is a member as is necessary to ensure compliance with this Act and any subsidiary legislation.
(6) The signature of the Secretary to a practising certificate may be fixed by autographical, mechanical or electronic means, and when so signed shall be validly signed by the Secretary provided it is also initialled by the Secretary.
(7) The Society may at any time cancel any practising certificate that has been obtained by fraud or misstatement, or that has been issued on the basis of information which is incorrect or untrue in some material particular.
Fees
43. - (1) The Society may in its discretion determine different fees for the issuing of a practising certificate in respect of -
(a) practitioners who are engaged in practice either on their own account or in partnership with any other practitioner;
(b) practitioners who are engaged in practice as employees of persons who are practising practitioners;
(c) practitioners who are engaged in practice as employees of Government or any statutory authority; and
(d) practitioners to whom none of the above paragraphs of this subsection apply.
(2) The Council may by resolution waive all or any part of the annual practising certificate fee payable by any practitioner.
(3) If any practitioner fails to pay such fee forthwith after it has become due, the Society may without notice sue for and recover such fee by action as for a civil debt due to the Society.
(4) The Secretary shall ratify every practitioner liable to pay the fee before it becomes due and payable. Failure to give or receive any notice shall not be a defence to any action for recovery of the fee, nor be a sufficient reason for the failure to obtain a practising certificate and it shall not be necessary in any proceedings to prove the giving or delivery of any such notice.
Refusal or cancellation of certificated
44. - (1) The Secretary may refuse to issue a practising certificate, the Council may direct the Secretary to refuse to issue a practising certificate, and the Council may cancel a practising certificate issued pursuant to this Part if the applicant for or the holder of such certificate as the case may be -
(a) is an undischarged bankrupt or has taken advantage of the law relating to bankruptcy;
(b) has been convicted in Fiji or elsewhere of an offence which involves moral turpitude or fraud on his or her part;
(c) has failed to comply with any laws relating to trust funds under his or her control, or the trust funds of any partnership of which he or she was a member;
(d) has after being called upon by the Council or the Secretary so to do failed to give to the Council an explanation in writing which is in the opinion of the Council sufficient and satisfactory in the circumstances touching any matter relating to his or her conduct or practice as a practitioner or to give to the Council any document (or copy thereof), in his or her custody or possession and which he or she is entitled at law so to give required by the Council or the Secretary to enable the Council to satisfy itself concerning an explanation, and such failure still continues;
(e) is in any way in default under the provisions of this Act or any rules or regulations made under it;
(f) is in default in the performance, fulfilment or satisfaction of any order made by the Disciplinary Committee;
(g) has acted or practised as a legal practitioner when not the holder of a current practising certificate or during any period of suspension of that person's practising certificate;
(h) has failed to reimburse the Fidelity Fund established by the Trust Accounts Act, 1996 any sum paid out of the fund on that person's account;
(i) is by reason of infirmity injury or illness (mental or physical), unfit to carry on and conduct his or her practice and it is in the interests of clients or the public that the certificate should not be issued, or should be cancelled as the case may be;
(j) has failed to pay the appropriate fee for the issue of a practising certificate.
(2) The Secretary shall promptly give notice in writing to any applicant whose application for a practising certificate is refused and to any person whose practising certificate is cancelled of such refusal or cancellation and, if so required by the applicant or holder the Secretary or the Council as the case may be shall within fourteen days after being so required state in writing the grounds for the refusal or cancellation.
(3) For the purposes of subsections (1) and (2) the Secretary, or the Council may require an applicant for or the holder of a certificate to undergo such medical examination by such medical practitioner as may be specified by the Secretary or the Council and may hold such enquiry as the Secretary or the Council thinks fit.
(4) A refusal or failure to comply with the requirement of the Secretary or the Council made pursuant to this Section may be regarded as evidence that that person is, by reason of infirmity, injury or illness (whether mental or physical) unfit to carry on or conduct a practice.
Suspension of certificate
45. - (1) The Council may suspend the practising certificate held by any practitioner for any of the reason for which it may cancel a practising certificate, and for any of the following reasons -
(a) if the Council has resolved to prefer any charge against the practitioner to the Court or the Disciplinary Committee;
(b) if the Council has been advised by the Attorney-General of any irregularity or deficiency revealed by any audit of the practitioner's trust account;
(c) if the Council has resolved to appoint a receiver to the practitioner's practice or to any trust funds held by the practitioner, or has appointed a person to take control of the practitioner's trust account;
(d) if the practitioner fails to comply with any condition to which that practitioner's practising certificate is subject.
(2) A reference in this Section to a practice, trust property, and trust account includes a reference to the practice, trust property, or trust account held by any partnership of which the practitioner is a member.
(3) Any suspension under this Section shall be notified in writing to the practitioner by the Secretary. The practitioner shall thereupon cease practising as a practitioner and shall not resume practice during the currency of the suspension, save pursuant to an order of a Court or Judge or by resolution of the Council.
Appeal
46. Where the Secretary refuses or neglects to issue a certificate or the Council cancels or suspends a certificate, or grants a certificate subject to conditions, the applicant or the holder, as time case may be, may apply to the Court or a Judge thereof who may make such order in the matter including an order for payment of costs as shall be just.
Practice of deceased practitioner
47. - (1) Notwithstanding any other provision of this Act upon the death of a sole practitioner the executors or administrators of his or her estate may, with the permission of the Council, carry on in the name of the deceased practitioner the practice formerly carried on by him or her upon condition that some other solicitor entitled to practice and having a current practising certificate shall be in charge of the practice and shall ordinarily attend at the office where the practice is carried on each day on which that office is open and shall personally carry on and supervise the work of such practice.
(2) Any permission pursuant to subsection (1) shall be in the first instance limited to a period of twelve months after the practitioner's death, but may from time to time be extended by the Council for a further period or periods.
(3) Any permission pursuant to subsection (1) maybe withdrawn by the Council at any time notwithstanding that the period for which it was granted has not expired.
(4) The decision of the Council to grant or refuse any permission for the purposes of this Section or to withdraw any such permission shall be final and shall not be subject to any appeal or application by any person aggrieved by such decision.
(5) The Council may appoint the practitioner in charge of the practice as a trustee of the trust account of the deceased practitioner.
(6) The ex tutors administrators of the estate of a deceased sole practitioner may maintain an action an or suit for the recovery of any fee reward or disbursement for or in respect of any business, matter or thing done by them in carrying on the practice of the deceased practitioner in accordance with the provisions of this Section as if such executors or administrators were a practitioner holding a current practising certificate.
(7) The legal practitioner in charge of the practice of a deceased sole practitioner pursuant to this Section shall not be subject to the direction or control of the executors or administrators of the practise of the deceased practitioner in matters of professional conduct or otherwise in respect of that practitioner's actions in the carrying on of the practice.
(8) In this Section "sole practitioner" means a practitioner who is not in partnership with any other practitioner's at the time of the practitioner's death in respect of the carrying on of his or her practice.
Duration of certificate
48. - (1) Every practising certificate shall be deemed to expire on the last day of February in each year.
(2) A practising certificate issued other than pursuant to an application for a renewal, shall take effect from the day the certificate is issued by the Secretary. A practising certificate issued pursuant to an application for renewal shall take effect from the first day of March in each year.
(3) Where a person makes application for a practising certificate after the last day in August of any year, one half only of the relevant fee shall be payable by the applicant.
(4) A practising certificate shall be automatically cancelled if the name of the holder thereof is removed from or struck off the Roll.
(5) The holder of a practising certificate that has been cancelled or suspended shall, upon being so notified immediately return the practising certificate to the Society.
(6) The Council may for any reason it considers sufficient direct that a practising certificate shall take effect from the first day of March in any year, notwithstanding that it may be issued at a later date.
(7) The Secretary shall, annually, forward to the Chief Registrar a list of practitioners with current practising certificates.
Transitional
49. Any practising certificate issued by the Registrar pursuant to legislation repealed by this Act which is current at the time of the commencement of this Act shall continue in force until the last day of February immediately following the commencement of this Act and shall have effect as if it were a certificate issued pursuant to the provisions of this Part.
PART VI - RIGHTS AND LIABILITIES OF LEGAL PRACTITIONERS
Right of practice
50. - (1) Subject to the provisions of this Act, any person who is the holder of a current practising certificate may practice as such in any of the Courts of Fiji, and may perform any of the functions which may be performed by a barrister and by a solicitor, in England.
(2) A practitioner shall not be entitled to argue any cause or matter before the Supreme Court, the Fiji Court of Appeal or the High Court (other than in chambers or before the Registrar except on an originating summons), unless with another practitioner of at least three year's standing in Fiji until he or she has practised for a period of at least two years either as a practitioner in Fiji, or as a barrister or solicitor in the United Kingdom, the Republic of Ireland, Australia or New Zealand.
(3) No person shall commence practice as a practitioner on his or her own account other than in partnership with a practitioner of at least three years standing in Fiji, unless during the five years immediately preceding the date of commencement of practice he or she has had at least three years legal experience. Such legal experience may be -
(a) as a practitioner in the office of a practitioner or barrister or solicitor or firm of practitioners or solicitors in active practice either in Fiji or in any of the jurisdictions referred to in the previous subsection, or in the legal branch of a government department, instrumentality, or statutory authority in Fiji;
(b) or such other experience as the Council may consider adequate.
(4) The Council may in particular circumstances create exemption from the requirements of subsection (3), either absolutely, or subject to such conditions as it may think fit.
(5) The restriction imposed by this Section shall not apply to any person entitled to practise on his or her own account in Fiji prior to the commencement of this Act.
Officer of the court
51. Every person practising as a practitioner and being the holder of a current practising certificate shall be deemed to be an officer of the Court.
Practising without a certificate
52. - (1) A person shall not, unless that person is the holder of a current practising certificate -
(a) practise or act as a legal practitioner of Fiji or as a Notary Public;
(b) pretend to be entitled to practise as a legal practitioner of Fiji or as a Notary Public; or
(c) draw or prepare any instrument relating to any real or personal estate or property or any legal proceeding or grant of probate or letters of administration, whether as agent for any person or otherwise, unless he or she proves that the act was not done for or in expectation of fee, gain or reward, either direct or indirect.
(2) A person who fails to comply with a provision of this Section shall be guilty of an offence and shall be liable to a fine not exceeding $500.00 and for a second or subsequent offence, to imprisonment for any period not exceeding six months in addition to or in substitution for such fine.
(3) This Section shall not apply to -
(a) any public officer who draws or prepares instruments in the performance of such office or performs any powers, functions and duties which he or she is empowered to perform under the provisions of any Act; or
(b) any person who merely types or engrosses any instrument or process.
(4) No person who breaches any of the provisions of subsection (1) of this Section be entitled to recover any fee, reward or disbursement arising out of or relating to any act or proceeding in breach of that subsection.
Acting as went for unqualified persons
53. Save with the consent of the Council, no practitioner shall knowingly act as agent any person not the holder of a current practising certificate in the performance of any act which may only be lawfully performed by the holder of a current practising certificate, nor shall that practitioner allow his or her name to be made use of by any person other than the holder of a current practising certificate in respect of the performance of such an act. A practitioner who contravenes this Section shall be guilty of professional misconduct.
Employment of persons struck off or suspended
54. Save for the consent of the Council, no practitioner shall, in connection with his or her practice, knowingly employ or remunerate any person who is prevented as a result of disciplinary proceedings or suspension from practice, from practising as a legal practitioner, barrister or solicitor in Fiji or any other jurisdiction. Any practitioner who contravenes the provisions of this Section shall be guilty of professional misconduct.
Failure to disclose fact of having been struck off etc.
55. Any person who, disqualified from practising as a practitioner by reason of the fact that he or she has been struck off the Roll other than at his or her own request or is suspended from practising as a legal practitioner or is prevented for disciplinary reasons from practising as a legal practitioner, barrister or solicitor in any jurisdiction outside Fiji, seeks or accepts employment by a practitioner in connection with that person's practise without previously informing that practitioner that he or she is so disqualified or prevented as aforesaid, shall be guilty of an offence and shall be liable to a fine not exceeding $500.00.
Duty to under costs
56. - (1) A practitioner shall within a reasonable time after being so requested in writing by a client, render to the client an account covering all work for that client to which such request relates. The practitioner shall not be required to render an account for work in relation to which an account has already been rendered.
(2) If practitioner fails or neglects to render such account within one month after receiving such request or within such further time as may be reasonable, the practitioner shall, if requested by the client, pay to the client all moneys and if so requested, deliver to the client all documents held by the practitioner on behalf of that client, notwithstanding any lien to which the practitioner might otherwise have been entitled.
PART VII - RECEIVERSHIPS
Appointment of receiver
57. - (1) In this Part, unless the context otherwise requires, the following terms shall have the meanings respectively assigned to them -
"Court" - includes a Judge;
"former practitioner" - a person in relation to whom a receiver is appointed under this Part, and (if the context permits) if that person is dead, his or her personal representatives;
"receiver" - a person who holds at any material time the appointment of a receiver under and for the purposes of this Part.
(2) The Council may appoint a receiver in relation to a person where -
(a) that person has been refused a practising certificate, or the practising certificate held by that person has been cancelled or suspended and the refusal, cancellation or suspension, as the case may be, remains of force and effect; or
(b) where that person, being a practitioner, has died; or
(c) where the Council has resolved in respect of a person conducting a legal practice who is neither an applicant for nor the holder of a practising certificate, that the circumstances relating to that person are such that, if that person were an applicant for or the holder of a certificate, the application would be refused or the certificate cancelled as the case may be or, if that person were the holder of a practising certificate, the certificate would be suspended, and such resolution remains of force and effect.
(3) Any person may be appointed receiver.
(4) (a) If the receiver is a practitioner with a current practising certificate, the Council may authorise the receiver to carry on the practice of the former practitioner or his or her legal personal representative.
(b) If the receiver is not a practitioner with a current practising certificate, the Council may authorise a practitioner with a current practising certificate to carry on the practice of the former practitioner or his or her legal personal representative on behalf of the receiver.
(5) Authority by the Council for the carrying on of a practice pursuant to this Section shall continue for such period as is necessary to properly wind up the practice in the interests of is clients.
(6) Any appointment which maybe made by the Council under this Part may be made by the Court on the application of the Society or any person likely to be adversely affected if such appointment is not made. The Court may direct that such notice of the application as it considers appropriate, if any be given to the person in respect of whom the application is made, and if that person is deceased, then his or her personal representatives.
Relevant property
58. A person appointed pursuant to this Part as receiver shall be receiver of all or any of the property of the former practitioner (or if dead, his or her personal representative) as is included in the following -
(a) moneys in a trust account in any bank in the name or firm name of the former practitioner and, except in the case of a former practitioner who has died, any other property, whether moneys or not, including a chose in action, held in trust for another person;
(b) money, including interest dividends or other income, received by the receiver during the receivership and arising from property held by the receiver;
(c) ledgers, books of accounts, vouchers, records, deeds, wills, files and other documents and writings of any description.
Certificate of appointment
59. - (1) n a receiver is appointed pursuant to this Part, the Secretary or President of Society may from time to time issue a certificate in writing of such appointment, which certificate may certify the nature of the receiver's authority in relation to any accounts or property. Any document which purports to be a certificate of appointment of a receiver purporting to be given under the hand of the Secretary or President of the Society shall be received as evidence of the matters certified to therein, and in the absence of evidence to the contrary shall be conclusive evidence of such matters, and the signature thereon shall be taken to be the signature it purports to be until the contrary be proved.
(2) A certificate of appointment of a receiver shall, if and as soon as such service is reasonably practicable, be served on the former practitioner, or if the practitioner be dead, on the practitioner's personal representative if any.
Bank accounts
60. - (1) The receiver may serve on the manager or other principal officer of the office or branch of a bank, a notice in writing, together with a certificate of appointment of receiver, forbidding any dealing, including the completion of any uncompleted dealing, except by the receiver with any trust account in the name or firm name of the former practitioner.
(2) Upon service of such a notice and certificate, the receiver shall be for all purposes a trustee of any trust account to which the notice relates and may operate the account accordingly.
(3) The bank on whose manager or officer the notice is served shall not permit any dealing with any trust account to which the notice relates except by the receiver.
Notice
61. - (1) The receiver may by one or more advertisements in such form as the receiver considers sufficient require persons having any claims in respect of any moneys which have been held in any trust account as aforesaid or any other property to which the receiver has appointed to submit their claims to the receiver, and by such advertisement or otherwise a time may be specified, being not less than thirty days from the date of publication of the advertisement, within which such claims shall be submitted to the receiver.
(2) The receiver may in administering any such moneys and other property disregard any claim not submitted to the receiver within the time so specified.
Delivers of property and information to receiver
62. - (1) The receiver may acquire or take possession of any property to which the receiver has been appointed and may require the former practitioner to immediately deliver to the receiver all property of which he or she has been appointed receiver or to immediately give to the receiver all relevant information concerning the disposition of that property.
(2) All ledgers, books of account, vouchers, records, deeds, wills, files and other documents and writings (other than those relating to moneys or property held on trust for some other person, or to the former practice of the former practitioner), shall, as soon as practicable, be returned to the former practitioner.
(3) If the former practitioner, or any other person, upon being required by the receiver to deliver or transfer to the receiver, or to permit the receiver to take possession of, any such property in his or her possession oral his or her disposition or under his or her control, does not fully comply with the requirement the receiver may apply to the Court for an order for the transfer or delivery to the receiver of such property, whereupon the Court may make such order as to the Court seems fit.
(4) If it appears to the receiver that an order thus made by the Court is not complied with, the Court may on application by the receiver authorise any member of the Police Force and that member's assistants, or the receiver or some other person and any other member of the Police Force and that member's assistants, to enter any premises or other place specified in the order and to search for any property of which the receiver is entitled under the provisions of this Section to take possession, and to seize such property and remove it to such place as the receiver thinks fit, and on such application, the Court may make such further order in the matter as to the Court seems fit.
(5) Any person who fails or refuses, without lawful justification or excuse, to immediately deliver all property or give all relevant information as required or otherwise hinders, obstructs or delays the receiver in the performance of the receiver's duties or in the exercise of the receiver's powers pursuant to this Part shall be guilty of an offence and liable upon conviction to a fine not exceeding $2,000.00 or imprisonment for six months.
Recovery of property
63. - (1) Where property has been taken by or paid or transferred to a person improperly, unlawfully or in breach of trust, and that person knew or had reasonable grounds to believe at the time of the taking, payment or transfer that it was done improperly, unlawfully or in breach of trust, the receiver shall be entitled to recover from that person the sum equal to the difference between the value of the property and any consideration paid in respect of the taking, payment or transfer of the property. Upon recovery of that sum from that person, that person shall cease to be liable in relation to that property to any other person.
(2) Where money has been paid by the former practitioner improperly, unlawfully or in breach of trust to a person in respect of a cause of action which that person had or claimed to have against some third party and that person knew or had reasonable grounds to believe at the time of the payment that it was done improperly, or unlawfully or in breach of trust, the receiver shall be entitled to recover from that person the sum so paid.
(3) Where property has been used improperly, unlawfully or in breach of trust to discharge a debt or liability of a person, and that person knew or had reasonable grounds to believe at the time of the discharge, that it was discharged improperly, unlawfully or in breach of trust, the receiver may recover from that person a sum equal to the value of the property so used.
(4) In proceedings brought pursuant to this Section, a certificate given by an accountant, being the holder of a current Certificate of Public Practice issued by the Fiji Institute of Accountants shall be evidence, and in the absence of evidence to the contrary, conclusive evidence in respect of -
(a) the taking, payment or transfer of the property;
(b) the nature and value of the property taken, paid or transferred;
(c) the date of taking, payment or transfer of the property;
(d) the identity of the person by whom the property was taken or to whom it was transferred or paid;
(e) the entries made in trust accounts, ledgers, books of account, vouchers and records of the former practitioner and of the truth or falsity of those entries;
(f) moneys and securities held at any time by the former practitioner.
Removal of property
64. Any person who at any time, whether before or after a receiver has been appointed, with intent to defeat the purposes of this Part -
(a) withdraws money from or makes any payment out of any trust account; or
(b) destroys or conceals or removes from one place to another place or delivers into the possession or places under the control of any other person any property of which a receiver may be or has been appointed,
shall be guilty of an offence and shall be liable upon conviction to a fine not exceeding $5,000.00 or to imprisonment for a term of not more than two years.
Powers of receiver
65. - (1) The receiver may deal with any trust moneys and other property which the receiver has acquired or taken possession of under the provisions of this Part in any manner in which the former practitioner might lawfully have dealt with the crust moneys, and property -
(2) The receiver may, for the purpose of performing any of the functions in subsection (1) -
(a) prove, grant, claim and draw a dividend in respect of any debt due to the former practitioner in connection with any property of which the receiver has been appointed receiver;
(b) give receipts for any money received by the receiver, which shall effectually discharge the person paying the money from all responsibility in respect of the application thereof;
(c) employ a legal practitioner or other agent to give advice or take any proceedings or otherwise act for the receiver in relation to any property of which the receiver has been appointed receiver.
(3) The receiver, and the former practitioner, and any person who has submitted to the receiver a claim in respect to any trust account or other property, may each of them apply to the Court for directions to the receiver as to the manner in which any or all of the powers conferred or duties imposed on the receiver by this Part may be performed, either generally or in respect of any particular matter specified in the application whereupon the Court may make such order as to the Court seems fit.
Claims by former practitioner
66. - (1) The receiver may give notice to the former practitioner to submit within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice, to the receiver full particulars of all moneys or other property, if any, claimed by the former practitioner and the grounds of the claims.
(2) If such notice has been given, the receiver may disregard any such claim made by the former practitioner otherwise then in accordance with the terms of the notice.
(3) The former practitioner shall not be entitled to any payment or otherwise in respect of any such claim, and shall not be entitled to a lien upon any document or writing held by the receiver unless the proper claims of all other persons are fully satisfied.
(4) If the former practitioner claims a right to payment of costs from any person or persons entitled to moneys or other property held by the receiver pursuant to the provisions of this Part, the receiver may by notice in writing require the former practitioner to deliver to the receiver, within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice, a detailed bill of costs in respect of each of the former practitioner's dealings with each of such persons, and may also by the same or a subsequent notice in writing require the former practitioner to tax any such bill of costs within a reasonable time to be specified therein by the receiver.
(5) If the former practitioner fails to comply with any such requirement the receiver may, in distributing the moneys and other properties held by the receiver, disregard any such claim for costs.
(6) If the former practitioner claims a lien for costs on any document or writing held by the receiver, the receiver may by notice in writing require the former practitioner to give to the receiver within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice, particulars of all documents and writings on which the former practitioner claims a lien and to deliver to the receiver, within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice a detailed bill of costs in respect of which each lien is claimed and may also, by the same or a subsequent notice in writing require the former practitioner to tax any such bill of costs within a reasonable time to be specified therein by the receiver.
(7) If the former practitioner fails to comply with any such requirement in respect of any lien claimed, the receiver may in dealing with such document or writing disregard the lien.
(8) If the former practitioner so requests in writing, the receiver shall give to the former practitioner or other person on his or her behalf, access to all relevant books and documents as is reasonably necessary to enable the preparation of a bill of costs and the times specified in the notice for the provision of a detailed bill of costs as requires by this Section shall not commence until the receiver gives such access.
Examination on oath
67. - (1) The receiver may apply to the Court for an order that the former practitioner do appear before the Court to be examined by the receiver as to any trust moneys or other property of which me receiver has been appointed receiver, whereupon the Court may made such order as to the examination of the former practitioner as to the Court seems fit.
(2) In such examination before the Court, the receiver may be represented by Counsel, and the Court may put or allow such questions to be put as it thinks fit.
(3) The former practitioner shall be examined upon oath and shall answer all questions as the Court puts or allows to be put.
(4) Unless the Court otherwise directs, the former practitioner shall not be excused from answering any question on the ground of any privilege claimed, or on the ground that the answer to it may expose the former practitioner to punishment.
Termination of appointment of receiver
68. - (1) The Council may at any time terminate the appointment of a receiver appointed by the Council and, if it thinks fit and subject to any order of the Court, may, thereupon appoint another person to be receiver.
(2) The Council or the former practitioner may at any time apply to the Court for an order that the appointment of a receiver be terminated, whereupon the Court may make such order, including the appointment of another person or a direction to the Council to appoint another person, to be receiver, as to the Court seems fit.
(3) If the appointment of a receiver appointed by the Court terminates other than by order of the Court, the Council may apply to the Court for the appointment by the Court of another person to be the receiver, whereupon the Court may make such order as to the Court seems fit.
(4) If a receiver's appointment is terminated and another person is appointed to be the receiver, the former receiver shall, as soon as practicable, and subject to any directions given by the Court, transfer or deliver to the receiver appointed in his or her place, all trust moneys and other property as well as all documents and writings held by the former receiver by virtue of his or her appointment as receiver.
(5) Where the former practitioner has been suspended from practice and the period of suspension has terminated, the receiver may, and upon demand in writing by the former practitioner shall, as soon is practicable, and subject to any directions given by the Court, and subject unless the Court shall otherwise determine to the payment by the former practitioner of the receiver's remuneration, expenses and costs, transfer or deliver to the former practitioner all trust moneys and other property held by virtue of his or her appointment as receiver, and upon such transfer or delivery being completed, the appointment as receiver shall terminate.
(6) If within fourteen days of termination of a receiver's appointment, no other person has been appointed to be receiver in his or her place, he or she may, and upon demand in writing by the former practitioner shall, as soon as practicable, and subject to any directions given by the Court and subject unless the Court shall otherwise determine to the payment by the former practitioner of the receiver's remuneration expenses and costs, transfer or deliver to the former practitioner all trust moneys and other property held by virtue of his or her appointment as receiver.
Remuneration
69. - (1) The remuneration of the receiver shall be as agreed between the Council and the receiver. Failing agreement, the Court may, on the application of the Council or the receiver determine the amount of the remuneration expenses and costs of the receiver.
(2) The remuneration expenses and costs of the receiver shall be payable firstly out of any funds received by the receiver on behalf of the former practitioner (and the receiver is authorised to withhold such of these funds as may be necessary for this purpose), and in the event of any insufficiency, from the Fidelity Fund established under the Trust Accounts Act, 1996. The funds trustee of that Fidelity Fund is authorised to pay such amount for remuneration expenses and costs of the receiver pursuant to this Section as may be set out in a certificate from the President or Secretary for the time being of the Society. Any amount paid from the Fidelity Fund shall be recoverable from the former practitioner as a debt due and owing. Proceedings for recovery of these moneys may be brought either by the Society or the funds trustee.
(3) If any claim or charge is made by any person against the receiver for any act or omission by the receiver or any servants or agents of the receiver done or made in good faith and in the execution or purported execution of the powers conferred or duties imposed under this Part, the Society may by notice in writing under the hand of the President or the Secretary direct the funds trustee to reimburse the receiver from the Fidelity Fund for all or any costs charges expense or damages which the receiver may have incurred in relation to such claim or charge.
Insufficiency of funds
70. If the trust moneys held by the receiver under the provisions of this Section are insufficient to satisfy all proper claims in respect of them, the trust moneys so held by the receiver shall be distributed amongst the claimants making such claims in such manner that the deficiency shall be borne by them in proportion to the amounts of their respective proper claims in respect of such trust moneys.
Property not to be taken in execution
71. Trust moneys and other property held by the receiver under the provisions of this Part shall not be levied upon or taken or attached under any judgment.
Report by receiver
72. Subject to such directions as the Court may see fit to make, every receiver shall at such times as the Court or the Council appointing the receiver may determine furnish to the said Court or Council, as the case may be, a report of the receivership containing such information as the said Court or Council may require, and upon the conclusion of the receivership shall forthwith lodge with the said Court or Council in addition to then receiver's final report, all documents and writings in his or her possession or under his or her control relating to the receivership and, subject to any order of the Court for their destruction or otherwise, such documents and writings shall be kept in the custody of the Court or Council, as the case may be.
Proceedings and offences
73. - (1) In any proceedings in the Court under the provisions of this Part, the Court may make such order as to the payment of costs of the proceedings and costs incurred in the execution of any order made by the Court as to the Court seems fit.
(2) An order may be made pursuant to any application to the Court under this Part notwithstanding that such application has not been saved upon the former practitioner or upon any other person.
(3) Without derogating from the powers of the Court, any person who contravenes or fails to comply with any provision of this Part shall be guilty of an offence against this Act, and shall be liable, if no specific penalty is provided for that offence, to a penalty not exceeding $1000.00.
Appointment of co-signatory
74. - (1) If the Council is of the opinion that any practitioner -
(a) is an undischarged bankrupt or has taken advantage of the law relating to bankruptcy; or
(b) has stolen or fraudulently misapplied any trust money; or
(c) has a general deficiency in his or her trust account; or
(d) his contravened or failed to comply with any provision of the Trust Accounts Act, 1996 or any other Act relating to trust moneys or trust accounts,
the Council may by resolution appoint any person to be the account signatory for the purposes of this Section in respect of any or all trust accounts of which that practitioner is, whether solely or jointly with any other person or persons, a trustee.
(2) As soon as practicable after any such resolution has been passed, a written copy thereof shall be served on -
(a) the practitioner concerned; and
(b) any other person authorised to operate on any trust account in respect of which the account signatory is appointed; and
(c) the manager or other principal officer of the office or branch of the bank (as the case may be) with which any trust account in respect of which the account signatory is appointed is kept.
(3) After a written copy of such resolution has been served on the manager or other principal officers, and until such resolution cases to be effective, no payment shall be made by the bank on any cheque or other instrument drawn on any trust account in respect of which the account signatory has been appointed, unless it bears the signature of the account signatory as well as the signature of any person authorised to operate on that trust account.
(4) No person on whom a written copy of such resolution has been served (for so long as such resolution remains effective) shall sign any cheque or other instrument drawn on any trust account in respect of which the account signatory has been appointed unless such cheque or other instrument has first been signed by the account signatory.
(5) A resolution passed as aforesaid shall cease to be effective -
(a) if the Council rescinds such resolution; or
(b) a receiver is duly appointed to the trust account or trust accounts in relation to which an account signatory has been appointed; or
(c) the Court orders that such resolution shall cease to be effective.
(6) Where a resolution has ceased to be effective, the Society shall serve on all persons who have been served with a copy of such resolution written notice that such resolution has ceased to be effective. Until written notice that a resolution has ceased to be effective has been served on a person, that person (and if the manager or principal officer of a bank or branch thereof, that bank) shall be entitled to deal with such trust account or trust accounts and any cheques or other instruments drawn thereon, as if the original resolution remained effective, and shall not incur any liability for acting as authorised by this subsection.
PART VIII - COSTS
Establishment of Costs Review Committee
75. - (1) There shall be established a Costs Review Committee. This Committee shall be constituted by -
(a) the Solicitor-General for the Republic of Fiji or his or her nominee, who shall be the Chairperson;
(b) two persons appointed by the Society; and
(c) a person, not being a legal practitioner or a public servant, appointed by the Minister after consultation with members of the insurance industry.
(2) Any appointment or nomination made pursuant to this Section shall not exceed two years in duration but may be renewed, and may be terminated at any time by the person entitled to make the appointment or nomination.
Role of the Committee
76. - (1) The Committee shall as soon as reasonably practicable after its formation, and thereafter biennially, review -
(a) the schedules of fees by which are calculated the amount of costs payable by one party to another pursuant to an order for costs made by a Court or Judge in any proceedings; and
(b) the schedules of fees which in the absence of any agreement to the contrary, are properly payable by a client to a practitioner, in relation to both the form and content of those schedules with a view to establishing a fair and reasonable level of fees, simplifying the schedules so far as is practicable, amending the schedules to ensure that, so far as is possible, the fees properly payable might be calculated without the need for a taxing officer's discretion to be exercised, and shall make recommendations to the Minister accordingly. The Committee shall provide written reasons for those recommendations, and shall include the views of any dissenting members of the Committee.
(2) The recommendations made by the Committee to the Minister will be available to members of the public upon payment of such fee fixed by the Minister as is in the Minister's opinion reasonably necessary to meet the costs of making the recommendations available.
(3) The Committee shall inform itself and conduct its proceedings as it sees fit.
(4) The Minister is empowered to make regulations concerning the matters set out in paragraphs (a) and (b) of subsection (1). Subject to any express provisions of this Act to the contrary, those provisions relating to the matters set out in paragraphs (a) and (b) of subsection (1) which are in force immediately prior to the commencement of this Act shall continue in force until amended as if they were regulations made by the Minister pursuant to this Section.
Agreement to costs
77. - (1) A practitioner may make a written agreement with that practitioner's client in relation to the amount and manner of payment for the whole or any part or parts of any past or future services fees charges or disbursements in respect of business done or to be done by such practitioner, either by a gross sum or otherwise howsoever.
(2) A client may apply to the Court or a Judge thereof for a review of any such agreement and, if in the opinion of the Court or Judge such agreement is unreasonable, the amount payable thereunder may be reduced or the agreement cancelled and such costs shall be payable or shall be determined in such manner as to the Court or Judge may seem fit. The Court or Judge may also make such order as to the costs of such review as to the Court or Judge may seem fit.
(3) If, before the full performance of any such agreement, any of the parties thereto shall die or become incapable of performing that party's obligations under the agreement then, subject to any provisions of the agreement to the contrary, such agreement shall cease, and the practitioner shall be entitled to charge such client such fees charges and disbursements as would have been properly payable had such agreement not been entered into.
(4) Nothing in this Act shall prevent a legal practitioner from taking such security from the practitioner's client or any other person for future services fees, charges or disbursements as may be agreed.
(5) In considering the reasonableness of such an agreement, the Court or Judge may take into account -
(a) the complexity of the matter and the difficulty or novelty of the issues involved;
(b) the experience and standing of the practitioner;
(c) whether the practitioner is to carry the costs of any disbursements;
(d) whether the practitioner is entitled to charge professional costs only in the event of success in any proceeding;
(e) the duration of the matter to which the agreement relates;
(f) the urgency and circumstances in which the business is transacted;
(g) the value or amount of any property or money involved;
(h) any other matters or circumstances which the Court or Judge considers appropriate.
Contingency fees
78. Nothing in this Act shall be construed to give validity to any purchase by a practitioner of the interest or any part of the interest of the practitioner's client in any suit action or other contentious proceeding to be brought or maintained. A practitioner may however agree to seek payment only in the event of success in any suit action or other contentious proceeding.
Practitioner may sue for and recover costs
79. - (1) Every practitioner shall be entitled to sue for and recover the practitioner's costs pursuant to any agreement made in accordance with the provisions of this Part, or in the absence of such agreement in accordance with the schedules of fees established by regulation pursuant to this Part, together with any proper disbursements, in respect of services rendered whether as a barrister or solicitor.
(2) It shall not be necessary for a practitioner to have such costs taxed prior to instituting proceedings for recovery of those costs. In the absence of taxation no claim may be made by the practitioner for any costs which are, pursuant to such agreement or the appropriate schedule of fees, as the case may be, left to the discretion of the taxing officer.
Right to particulars
80. - (1) Where an account for professional services has been delivered to a client by a legal practitioner, whether calculated pursuant to an agreement made under the provisions of this Part or any schedule of fees determined by regulation, the client may request of the practitioner particulars of the calculation of those charges.
(2) Where a client has requested such particulars of a practitioner, the practitioner shall not be able to institute proceedings, or if already instituted continue proceedings, for the recovery of those charges until those particulars have been provided and five days thereafter has elapsed.
PART IX - PROFESSIONAL STANDARDS
Disciplinary committee
81. - (1) There shall be established a committee to be known as the Disciplinary Committee (in this Part unless the context otherwise requires called "the Committee").
(2) The Committee shall consist of a panel of members not less than thirteen of whom -
(a) not less than eight shall be persons appointed by the Council who have been members of the Society for not less than five years; and
(b) five shall be lay persons appointed by the Attorney-General, being persons who are neither legal practitioners nor employees of Government.
(3) Any Committee appoint from the panel of members shall consist of -
(i) a Council nominee as the Chairperson; and
(ii) two other members, one being another Council nominee and one lay person.
(4) A member of a Committee appointed under subsection (3) shall be appointed for a term of two years and is eligible for reappointment.
(5) A member may resign from office by notice in writing to the Secretary at any time.
(6) A member may be removed from office at any time by the appointor of that member.
(7) Notwithstanding that a member's term has expired, that member shall continue to hold office (save in the event of retirement or vacation of office) until his or her successor assumes office in that member's place.
(8) It is the function of the Committee without unreasonable delay -
(a) to inquire into charges referred to it of malpractice, professional misconduct, or unprofessional conduct or practice on the part of a practitioner;
(b) to inquire into charges referred to it of misconduct or default in respect of a practitioner's practice by a clerk or servant employed in relation to that practice; and
(c) to make or cause to be made such investigations as it considers necessary for the purposes of its hearings.
Proceedings of Committee
82. - (1) The business of the Comittee [sic] shall be conducted by a quorum of not less than four members, one of whom shall be a lay person.
(2) The Committee shall meet at such times and places as it determines and shall conduct its business in such manner as is prescribed or, where not prescribed, as it determines from time to time.
(3) In the absence from any meeting of the Chairperson of the Committee, the members present shall elect one of their number being a practitioner, who shall chair that meeting.
(4) The person who chairs a meeting of the Committee shall have a deliberate vote and, in the event of an equality of votes on any matter, also a casting vote.
(5) No proceeding of the Committee shall be invalidated by reason of a defect in the appointment of a member or by reason of a vacancy in the membership of the Committee.
Complaints to society
83. - (1) Any person may make a complaint to the Society regarding any alleged malpractice, professional misconduct, or unprofessional conduct or practice by any practitioner, or any servant or agent of any practitioner. Such complaint may be made orally or in writing.
(2) The Society or any officer thereof may -
(a) require that the complaint be made in writing;
(b) require that the complaint or any matters referred to therein be verified by statutory declaration;
(c) with the complainant's approval, refer the substance of the complaint to the practitioner or if the practitioner is an employee or member of any firm, to the employer or a partner of the practitioner, as the case may be.
Role of Society
84. Upon receipt of such complaint, or upon receiving information concerning the conduct of a practitioner or any employee or servant of a practitioner, the Society may after undertaking such investigations as it sees fit -
(a) reject the complaint;
(b) censure the practitioner or other person whose conduct is in question;
(c) make such efforts as it sees fit to facilitate the resolution of the matter in question; or
(d) refer the matter to the Committee for determination.
Society may require explanation
85. - (1) The Secretary may where a written complaint against a practitioner is received by the Society require that practitioner by written notice to furnish to the Council within the time specified in that notice a sufficient and satisfactory explanation in writing of the matters referred to in the complaint.
(2) The Council may by notice in writing require a practitioner to provide to the Council a sufficient and satisfactory explanation of any matter relating to that practitioner's conductor practice. Such explanation shall be provided, at the discretion of the Council, -
(a) in writing within the time specified in the notice; or
(b) at an attendance by the practitioner before the Council or a committee thereof at a time and place appointed in that notice.
(3) The Council may require by notice in writing to a practitioner the production by the practitioner to the Council, a committee thereof, or the Secretary at a time specified in that notice of books, papers, files, securities, other documents or any other record of any type whatsoever, or copies thereof which are in the custody, possession or control of the practitioner and which the practitioner is entitled at law so to produce.
(4) (a) Where any practitioner fails to comply with any requirement of this Section (other than this subsection), the Secretary may notify the practitioner in writing that if such failure continues for a period of fourteen days from the date of receipt of such notice, the practitioner will be liable to be dealt with for professional misconduct.
(b) If such failure continues for a period of fourteen days from the date of such notification to the practitioner such failure shall be deemed to be professional misconduct, unless the practitioner finishes a reasonable explanation for such failure. In any proceedings before the Committee the tendering of a communication or requirement from the Council or Secretary with which the practitioner has failed to comply, together with proof of service of such communication or requirement, shall be prima facie evidence of the truth of the matters contained in such communication and any enclosures or annexures accompanying such communication.
Role of Attorney-General
86. - (1) Upon receipt of any complaint, the Attorney-General may require -
(a) that the complaint be made in writing,
(b) that the complaint or any matters referred to therein be verified by statutory declaration.
(2) The Attorney-General, upon receipt of a complaint of information from any other source may, after conducting such enquiries or investigations as the Attorney-General sees fit -
(a) refer the matter to the Society for investigation (in which event the Society shall advise the Attorney-General of the outcome of those investigations);
(b) if dissatisfied with the advice of the Society, the Attorney General may refer the matter to the Committee for determination.
Reference to Committee
87. - (1) Upon referral to the Committee of any charge or question, the Secretary shall give or cause to be given to every party to a charge or other matter so referred to the Committee, reasonable notice of the time when and the place where the Committee is to conduct its inquiry, and such party may appear and be heard in person or by counsel on those proceedings.
(2) The Council or the Attorney-General, as the case may be, who has referred the charge or matter to the Committee shall assist the Committee in its determination and shall appear by counsel in those proceedings.
(3) If a party to whom notice has been given pursuant to this Section does not attend at the time and place mentioned in the notice, the Committee may determine the reference in that party's absence.
Witness to attend
88. - (1) The Committee may by notice in writing signed by the Chairperson or other member thereof require to appear before it any person (including any complainant and the practitioner in respect of whose conduct any matter has been referred to it) who may, in its opinion, be able to give evidence or produce documents touching the matter in question, or whom any party to the reference may desire to call as a witness.
(2) The Committee may require evidence to be given on oath, either orally or by affidavit, and for that purpose the Chairperson of the Committee may administer oaths and affirmations. The Chairperson of the Committee shall have the same power and authority with respect to the discovery and production of documents and in the conduct of the reference as a judge of the Court has for the purpose of a trial of issues in a civil action.
(3) Any person who without lawful justification fails to comply with a requirement by the Committee or the Chairperson of any meeting of the Committee lawfully made pursuant to this Section, or to answer truly and fully any question put to that person, commits an offence against this Section and shall be liable on conviction to a fine not exceeding $1,000.00.
Immunity of witness and counsel
89. - (1) Witnesses and counsel shall have the same privileges and immunities in relation to references under the provisions of this Part as if they were proceedings in a court of law.
(2) The hearing of an application or inquiry under the provisions of this Part shall for the purpose of Chapter XII of the Penal Code be deemed to be a judicial proceeding.
Protection of members of committee
90. Every member of the Committee shall in the exercise of that member's duty as a member, have the same privileges and immunities as a Judge of the Court.
Witnesses expenses
91. - (1) Every witness giving evidence or attending to give evidence at the hearing of any inquiry under this Part shall be entitled at the discretion of the Committee to such sum for expenses and loss of time as the Committee may determine.
(2) Subject to any order made by the Committee as to the payment of costs and expenses, all such witnesses expenses shall be paid by the Society.
Witness required to answer
92. Where a witness at a hearing of the Committee objects to answering any questions put or to discovery or production of any document or other thing by reason that such answer or the discovery or production of that document or thing may tend to incriminate that witness, that witness shall not be excused from answering or from discovery or production of that document or thing, but no such answer given after such objection shall be admissible in proceedings for an offence other than the offence of perjury.
Powers of Committee on hearing
93. - (1) After inquiring into a charge or matter referred to the Committee pursuant to this Part the Committee may -
(a) direct that no further action be taken against the practitioner, clerk or servant in respect of the matter before the Committee;
(b) in the case of a practitioner, if it is of the opinion that the charge or matter has been proved -
(i) censure the practitioner;
(ii) order the practitioner to pay to the Society such sum not exceeding $50,000-00 as the committee thinks fit;
(iii) order that the practitioner's name be struck from the roll;
(iv) order that the practitioner's right to practice as a practitioner be suspended for such period as the committee thinks fit;
(v) order the practitioner to make ledgers, books of accounts records, deeds, files and other documents relating to the practitioner's practice available for inspection at such times and by such persons as are specified in the order;
(vi) order the practitioner to make reports on the practitioner's practice in such manner and at such times and to such persons as are specified in the order;
(vii) order the practitioner to comply with conditions, including attendance at continuing legal education programmes and other educational programmes and seminars relating to legal education, practice management and other related topics in respect of the conduct of the practitioner's practice;
(viii) order that a penalty imposed pursuant to this Section be suspended subject to compliance with conditions;
(ix) order that any fees or costs paid to the practitioner by any person in relation to the subject matter of the inquiry be reimbursed by the practitioner to such person;
(x) make such other orders as may be provided for in the rules of procedure made pursuant to this Part,
(c) in the case of a clerk or servant, if it is of the opinion that the charge has been proved order that on and from the date specified in the order no person shall employ that clerk or servant in relation to a practitioner's practice except on such conditions as may be specified in the order.
(2) Where the Committee by its order directs that something be done, it may also direct the period of time within which the order is to be complied with.
(3) Where a person against whom an order is made is not present at the time the order is made, the Secretary shall as soon as practicable cause a copy of the order to be served on that person.
(4) Where a person against whom an order is made fails to comply in all respects with the order, the Committee may make a further order at anytime varying an order previously made.
(5) A person against whom an order is made may apply to the Committee at any time for a variation of the order. In varying an order, the Committee may revoke an order and make any order which could have been made in the first instance pursuant to this Section.
Costs
94. After hearing any application or referral under this Part, the Committee may make such order as to the payment of costs and expenses as it thinks fit, and, in particular -
(a) may order that costs and expenses be awarded to any practitioner, clerk or servant in relation to whom an application or reference has been made, and that those costs be paid by the party referring the matter to the Committee, being the Society or the Attorney-General, as the case may be;
(b) without making any finding adverse to a practitioner, clerk or servant, may nevertheless if the Committee considers that the application or enquiry was justified and that it is just to do so, order that person to pay to the Society such sums as the Committee may think fit in respect of costs and expenses of and incidental to the proceedings, including costs and expenses of any investigation carried out by the Society;
(c) order that the costs of the Committee be paid by such party to the proceedings as it thinks fit, and these costs shall be paid to the Society.
Recovery of penalties and costs
95. Any sum ordered by the Committee to be paid by way of a penalty or costs or expenses under this Part shall be deemed to be a debt due by the person ordered to pay it to the person to whom it is ordered to be paid, and shall be recoverable accordingly in any Court of competent jurisdiction.
Fees and expenses of lay persons
96. Each member of the Committee who is a lay person shall be entitled to such fees and expenses as the Society may from time to time approve in respect of the attendance of such member at meetings of the Committee and in the discharge of that member's functions under this Act.
Proceedings to be public
97. - (1) Proceedings before the Committee shall be open to the public unless the Chairperson of the Committee in relation to a particular matter orders otherwise.
(2) If the Chairperson of the Committee orders the members of the public be excluded from such proceedings, the Chairperson may nevertheless direct that specified persons shall be entitled to attend and observe proceedings.
Rules of procedure
98. The Society may from time to time make rules in respect of the making, hearing and determination of applications and enquiries under this Part. Proceedings shall be instituted and conducted before the Committee in accordance with these rules.
Orders for striking off etc. to be filed in court
99. Where the Committee orders that the name of any practitioner be struck off or restored to the Roll, the order shall be filed in the Court, and the Roll noted accordingly.
Appeals
100. - (1) An appeal shall lie to the Court of Appeal from any order of the Committee at the instance of either the Attorney-General, the Society or any other party to the proceedings.
(2) Such appeal shall be in the nature of a rehearing and shall be made within such time and in such form and shall be heard in such manner as shall be prescribed by the rules of procedure made under this Part.
Rules of professional conduct
101. - (1) The Society may, with the approval of the Minister, make rules of professional conduct and practice with which practitioners shall be expected to comply.
(2) Upon approval by the Minister, these rules shall be published in the Gazette.
(3) Failure by a practitioner to comply with any of the provisions of these rules may amount to professional misconduct on the part of that practitioner, subject to the provisions of the rule in question and the circumstances of the matter.
(4) A rule may provide that its breach shall, in the absence of lawful excuse, be deemed to be professional misconduct on the part of the person so breaching the rule.
(5) These rules shall not be exhaustive as to the matters or circumstances which might amount to professional misconduct or unprofessional conduct.
(6) The power to make rules pursuant to this Section includes the power to repeal and amend rules.
(7) Nothing in this Section shall prevent the Society from recommending and publishing standards of professional courtesy, behaviour, performance and practice.
(8) The rules of professional conduct and practice set out in the Schedule to this Act shall be deemed to have been duly made pursuant to this Section, and shall be effective upon the commencement of this Act.
Jurisdiction of court not affected
102. Nothing in this Part shall affect the jurisdiction exercisable by any Court or Judge thereof, over practitioners.
PART X - PROFESSIONAL INDEMNITY INSURANCE
Power of minister to make rules
103. - (1) The Minister may, after consultation with the Society, make rules relating to insurance and indemnity against loss arising from claims in respect of civil liability incurred by a practising practitioner or former practising practitioner in connection with a practitioner's practice or in connection with any trust of which the practitioner is or was formerly a trustee.
(2) These rules shall be known as the professional indemnity rules.
(3) Without limiting the generality of subsection (1), the professional indemnity rules may -
(a) require practitioners in private practice, or any class there of to take out and maintain insurance with insurers;
(b) specify the insurer or insurers with whom insurance is to be taken out and maintained;
(c) determine the level of insurance to be maintained and may specify the level of and terms and conditions on which indemnity is to be available;
(d) specify the circumstances in which the right to indemnity is to be excluded or modified;
(e) prescribe the terms and conditions with which an insurance policy required by the rules must comply;
(f) specify the circumstances in which the Society or an insurer may take proceedings against a practitioner or former practitioner in respect of sums paid by way of indemnity relating to a matter in relation to which that person has failed to comply with a policy or the professional indemnity rules;
(g) specify the circumstances in which practitioners shall be exempt from the professional indemnity rules;
(h) provide for the establishment of a fund or funds by the Society;
(i) provide for insurance to be taken out and maintained by the Society, and determine the amount of payments to be made by practitioners in respect thereof;
(j) require practitioners or any class of practitioners to provide information to the Society or an insurer relating to their practices.
Non-compliance to be misconduct
104. Failure by a practitioner to comply with professional indemnity rules shall, in the absence of lawful excuse, be deemed to be professional misconduct on the part of that practitioner.
Rules to take effect at a time specified
105. The Minister may, in respect of any rule made pursuant to this Part, specify the date from which such rules shall take effect.
Limitation of liability
106. If a practitioner has in place a policy of insurance pursuant to professional indemnity rules made under this Part which rules require a minimum level of insurance to be maintained, then the practitioner may enter into an agreement with a client excluding the practitioner from any claims made by the client against the practitioner arising out of the negligence of the practitioner, or any partners or employees of the practitioner, in relation to such part of those claims as exceeds the minimum level of insurance required by the professional indemnity rules, but not otherwise.
PART XI - NOTARIES PUBLIC
Chief Justice may appoint Notaries Public
107. The Chief Justice, from time to time, may appoint any legal practitioner whom he or she shall consider a fit and proper person to be a Notary Public for Fiji to discharge the duties assigned to such office by the laws of the United Kingdom and or Fiji or by the practice of commerce, and every person so appointed shall, on his or her appointment, pay as stamp duty to the Commissioner of Stamp Duties the sum of $50.00.
Notaries to be sworn
108. Every person so appointed shall before entering upon the duties of his or her office be sworn before the Chief Justice well and faithfully to discharge the duties of his or her office.
Roll of Notaries Public
109. - (1) Every person appointed to the office of a Notary Public shall cause his or her name to be enrolled in a book to be kept for that purpose in the office of the Registrar and to be called the Roll of Notaries Public, and shall be entitled to a certificate of enrolment under the seal of the Court and no person whose name has not been enrolled as aforesaid shall be entitled to perform the duties of a Notary Public within Fiji.
(2) The Chief Justice may, in his discretion, strike off the roll of Notaries Public a person who in the Chief Justice's opinion is no longer a fit and proper person to be a Notary Public.
Notaries to be officers of the court
110. Every person discharging the duties of a Notary Public shall be deemed to be an officer of the Court and upon any Notary Public being guilty of misconduct in the execution of the duties of his or her office such Notary Public shall forthwith be discharged by the Chief Justice from the duties of his or her said office.
In suspicious cases Notary to refuse to act
111. In any case where the circumstances shall appear to a Notary Public suspicious and not warranting the protest or other notarial act demanded, he or she shall refuse to act:
Provided always that any person who considers himself or herself aggrieved by the refusal of a Notary Public to note the protest onto do any other notarial act demanded may apply to the High Court for an order calling upon such Notary Public to act in the execution of his or her office, and before applying for such order; written notice of the application shall be given to the Notary Public refusing to act, and to such persons (if any) in Fiji as have any interest in the subject matter of the protest or other notarial act.
Notary to mark refusal on document
112. When a Notary Public refuses to note or to do any protest or other notarial act the Notary Public so refusing shall mark in or on the log book, bill of exchange or other document, his or her refusal with his or her signature and the date of refusal subscribed thereon.
Penalty for false certificates, etc.
113. Any Notary Public or other person who wilfully certifies or propounds any false statement or document or who fraudulently with intent to deceive conceals, withholds or perverts any fact or document pertinent to the subject of the protest or other notarial act shall be guilty of a misdemeanour and shall be liable to imprisonment for a term not exceeding two years.
Fees
114. The fees chargeable by a Notary Public for discharging his or her duties under the provisions of this Act shall be as prescribed by the Cost Review Committee.
PART XII - COMMISSIONERS FOR OATHS
Appointment of Commissioners for Oaths
115. - (1) The Chief Justice may appoint, under his or her signature and the seal of the High Court from time to time, such and so many legal practitioners and other persons as may be requisite to be commissioners for taking affidavits and declarations and receiving production of document or for taking the examination of witnesses on interrogatories or otherwise which may be necessary to be taken in respect of any proceedings in any court, and any order of a court for the attendance and examination of witnesses or production of documents before any such Commissioner within the jurisdiction of the Court shall be enforced in the same manner as an order to attend or be examined or produce documents before the Court.
(2) No action shall be brought against any Commissioner in respect of any act or order performed or made by him or her in good faith in the execution or supposed execution of the powers or jurisdiction vested in him or her, but every such act or order, if in excess of such powers and jurisdiction, shall be liable to be revised, altered, amended or set aside upon application to the Court.
(3) A practitioner, not being the holder of an appointment under subsection (1), who is the holder of a practising certificate that is in force shall, notwithstanding the absence of such an appointment, be deemed, for the purposes of this Act and any other written law, to be a Commissioner appointed under subsection (1).
(4) The signature of a person, when placed on a document in the exercise by that person of the powers of a Commissioner under this Section, shall be followed by the description "Commissioner for Oaths".
PART XIII - BENEVOLENT FUND
Benevolent Fund
116. - (1) The Society may establish a fund for the purpose of affording pecuniary and other assistance to persons in need of such assistance who are or have at any time been members of the Society, or to the spouse or children of any such person, or to the widow or widower or children or parent or parents of any such person who is deceased.
(2) The fund shall consist of -
(a) such part of its income as the Society decides to set aside for the purpose;
(b) any donations, gifts or bequests made to the Society for the purposes of the fund;
(c) the interest from time to time accruing from the investments of the fund;
(d) any other money that may lawfully be paid into the fund.
(3) The fund shall be administered by the Council on behalf of the Society.
(4) All money in the fund may be invested in any manner in which trustees are, for the time being, authorised to invest trust funds.
PART XIV - MISCELLANEOUS
Service
117. Any notice or other document whatsoever required under this Act to be given or served on a practitioner or former practitioner may, unless otherwise provided, be given or served by delivering such notice or document personally to that person, or posting such notice or document by pre-paid post to that person at his or her usual or last known place of business or abode or the place of business or abode last notified by that person to the Society.
Evidentiary
118. - (1) In any proceedings against any person a certificate under the hand of the Secretary that any such person -
(a) is or was a practitioner or person practising as a practitioner in Fiji;
(b) is or was a member of the Society;
(c) is not or was not a practitioner at any date nor for any period stated;
(d) acts or has acted as a practitioner on any date or for any period stated or has wilfully and falsely pretended to be a practitioner on any date or for any period stated;
(e) practises or has practised as a practitioner on any date or for any period stated;
(f) has failed to pay to the Society any moneys due to it on or before any date specified; or
(g) has not obtained or has failed to obtain a practising certificate for any period stated,
may be tendered to and shall be accepted by the Disciplinary Committee and all Courts and persons acting judicially within Fiji as prima facie evidence of the matters set out therein without proof of the signature or office of the person appearing to have signed the certificate as Secretary.
(2) In any proceedings a certificate under the hand of the Secretary that any resolution has or has not been passed by the Council maybe tendered and shall be accepted by the Disciplinary Committee and all Courts and persons acting judicially as prima facie evidence of the passing of any resolution set out therein or that a resolution has not been passed, without proof of the signature or office of the person appearing to have signed same as Secretary.
(3) In any prosecution and in any proceedings before the Disciplinary Committee the averment in the complaint referral or written charge, or the oral averment of counsel appearing in such proceedings that any letter or other writing purports to have been written by the practitioner or other person charged (as the case may be) shall, on production of the letter or other writing before any Court or before the Disciplinary Committee, be prima facie evidence that the letter or other writing was written by the practitioner or other person so charted.
(4) Any letter purporting to have been written by the Secretary shall be deemed to have been duly authorised by the Council.
Offences
119. - (1) Any person who contravenes or fails to comply with any provision of this Act or any rules or regulations made pursuant to it shall be guilty of an offence against this Act and shall be liable, if no specific penalty is provided for that offence, to a penalty not exceeding $1,000.00.
(2) The power to make any rules or regulations, pursuant to this Act shall include the power to make rules providing for penalties for the breach of any such rule or regulation, provided that the penalty for such breach does not exceed $1,000.00.
Repeal
120. The Legal Practitioners Act, Chapter 254 is repealed.
________
SCHEDULE
(SECTION 102(8))
RULES OF PROFESSIONAL CONDUCT AND PRACTICE
Interpretation - Definitions
In these rules:
(i) "the Act" means the Legal Practitioners Act;
(ii) "the Council" means the Council of the Society;
(iii) "practitioner" means -
(a) any person admitted as a legal practitioner in Fiji; and
(b) unless the context otherwise requires in the case of a practitioner practising on his or her own account or employed by a practitioner so practising, includes any partner, employee or employer of a practitioner,
(iv) "the Society" means the Fiji Law Society.
CHAPTER 1 - RELATIONS WITH CLIENTS
1.01 A practitioner shall rent abuse the relationship of confidence and trust with a client.
1.02 A party shall not act for more than one party in the same matter without the prior consent of all parties.
1.03 On becoming aware of a conflict of interest between clients a practitioner shall forthwith -
(i) advise all clients involved in the matter of the situation;
(ii) continue acting for all clients only with the consent of all clients and only if no actual conflict has occurred;
(iii) decline to act further for any party where so acting would disadvantage any one or more of the clients.
1.04 Information received by a practitioner from or on behalf of a client is confidential and shall not be communicated to others save with the client's consent or where so required by law.
1.05 Where a practitioner has received information from or on behalf of a client, a practitioner shall not thereafter act for another client in circumstances where the practitioner's receipt of such information may result in detriment to the first mentioned client.
1.06 A practitioner shall not borrow from nor provide security to a client, nor be in way involved in the borrowing from or provision of security to a client by any spouse, parent, child or sibling of the practitioner, or any company or other entity in which the practitioner or any such family member has any beneficial interest. For the purposes of this rule, "client" shall mean any person (save any person advised by another practitioner independently instructed in respect of that transaction) between whom and a practitioner (or any part or employer of a practitioner) any relationship of solicitor and client exists.
This rule does not apply where the client is:-
(a) a member of the family of the practitioner;
(b) any corporation or other entity in which all the beneficial interest is vested in one or more members of the family of the practitioner;
(c) a corporation carrying on the business of banking;
(d) a corporation carrying on the business of insurance;
(e) a building society or other corporation conducting a business of lending money to the general public;
(f) a Government instrumentality;
(g) a company listed on any stock exchange, or any subsidiary thereof;
(h) such other client or class of clients as the Council may from time to time resolve.
1.07 A practitioner shall not advise a client to engage in conduct which the practitioner believes may be illegal except in good faith to test the validity or scope of the law and provided the client is fully informed of the consequences.
1.08 A practitioner shall not knowingly assist a client in providing incorrect information to a Court, revenue authority, or a third party.
1.09 Where a practitioner becomes aware that a client may have a potential claim against the practitioner for negligence, the practitioner must advise the client to seek independent advice.
1.10 A practitioner shall honour an undertaking, written or oral, given in the course of legal practise, whether the undertaking is given by the practitioner personally, or by a partner or employ in the course of the practice.
1.11 No practitioner shall be permitted to secure the payment of his fees through a mortgage or such other securities over the family home of any of his clients.
CHAPTER 2 - ADVERTISING
2.01 - (1) No stationery or any advertising undertaking by a practitioner shall contain any statement which: -
(a) is false misleading or deceptive or likely to mislead or deceive;
(b) claims or implies the superiority of the practitioner over any or all other practitioners;
(c) contains or implies any testimonial or endorsement concerning the practitioner.
(2) If a practitioner makes any statement, either orally or in writing, claiming expertise or speciality, the practitioner shall, if so required by the Council, justify that claim to the satisfaction of the Council. If the Council is not so satisfied, the claim shall be deemed to be misleading and deceptive.
(3) All statements contained in any stationery or advertising used by or published on behalf of a practitioner shall be deemed to have been made by that practitioner, unless the practitioner proves that the statement in issue as made without the practitioner's authority.
(4) A practitioner shall not receive a fee or commission arising in any way from a transaction on behalf of a client, from any other party, save with the prior knowledge and consent of the client.
(5) A practitioner who has a personal interest in any matter shall not act for any party concerned therein without first disclosing the practitioner's interest to that party and advising of that party's right to seek independent advice.
2.02 A practitioner shall not advertise on television or radio without the consent of the Council, which consent may be of specific or general application. Nothing in this rule shall prevent a practitioner from appearing on radio or television to answer questions of a legal nature or provide public information on legal issues, in circumstances where no payment or inducement has been provided by the practitioner to obtain this publicity.
2.03 A practitioner shall, in seeking instructions for professional business from members of the public other than existing clients, ensure that approaches to such persons are made in a manner which does not bring the profession in to disrepute. Such approaches shall be made in professional manner, and shall not be misleading, deceptive, intrusive, offensive, harassing, intimidatory, or otherwise inappropriate.
2.04 The firm name used by a practitioner must not be misleading as to the nature or structure of the firm or tend to bring the profession into disrepute.
In particular,
(i) a sole practitioner shall not use the words "& Co." or any words suggestive of partnership after the practitioner's name unless the words were used by a former practice (and are identified with that practice) the goodwill of which has been obtained by the practitioner, or the Council in a particular case approves;
(ii) where a firm name includes the name of a practitioner appointed to judicial office, that practitioner's name shall be removed from the firm name, and shall not be used by the remaining members of that firm, unless the Council otherwise approves;
(iii) the name of a practitioner struck off the Roll for professional misconduct or unprofessional conduct shall not be retained in the name of the firm of which the practitioner was previously a member.
CHAPTER 3 - RELATIONSHIP WITH THE COURT
3.01 A practitioner shall not knowingly deceive or mislead the Court.
3.02 A practitioner shall at all times: -
(i) act with due courtesy to the Court;
(ii) take all reasonable steps to avoid unnecessary expense or waste of the Court's time.
3.03 A practitioner shall inform the Court of any relevant decision or legislative provision of which the practitioner is aware relating to the matter in issue, whether or not these support the practitioner's contention.
3.04 A practitioner shall not, save in exceptional circumstances, continue to act for a client in a matter in which the practitioner is likely to be a witness unless: -
(i) the practitioner's evidence relates solely to an uncontested matter;
(ii) the practitioner's evidence relates solely to formal matters;
(iii) the practitioner's evidence will relate solely to the nature and value of legal services rendered;
(iv) refusal to act or withdrawal from the matter will jeopardise the client's interest.
3.05 A practitioner shall not on behalf of a client attack a person's reputation without good cause.
3.06 A practitioner shall not maintain any issue, compromise any matter, or consent to any order, save on the client's instructions.
3.07 Subject to the foregoing and the overriding obligation of a practitioner to the Court, a practitioner shall conduct each case in such manner as the practitioner considers will be most advantageous to his client.
CHAPTER 4 - ADVOCATE FOR PROSECUTION
4.01 A prosecutor prosecuting a criminal matter shall do so dispassionately and with fairness.
4.02 A practitioner acting as a prosecutor shall, save in exceptional circumstances, advise the defence of any matters of which the practitioner is aware, which might tend to indicate the innocence of the accused, or mitigate the seriousness of the offence.
4.03 A practitioner acting as a prosecutor shall comply with all lawful directions of the Director of Public Prosecutions relating to the manner of conducting prosecutions.
CHAPTER 5 - ADVOCATE FOR DEFENCE
5.01 A practitioner acting for an accused who has pleaded not guilty to a charge has a duty to ensure that the prosecution discharges the appropriate onus to prove guilt of the accused, and to put before the Court any proper defence in accordance with the client's instructions.
5.02 A practitioner shall not without good cause attribute to another person the offence with which the client is charged. However if inferences drawn from the evidence raise a reasonable suspicion that the offence may have been committed by another person, such a line of defence may be proper.
5.03 Where a clear confession of guilt has been made to a practitioner by his or her client, the practitioner may, if the confession is made before proceedings have commenced or shall, if the confession is made before proceedings continue to act notwithstanding that the client may wish to maintain a plea of "not guilty", but shall not assert any case or make any allegation inconsistent with the confession.
5.04 A practitioner must not disclose a client's previous convictions without the client's authority.
5.05 A practitioner shall not make any statement to the Court or put any proposition to a witness that is not supported by reasonable instructions or information available to the practitioner.
5.06 Subject to the foregoing, a practitioner's duty to defend a person on criminal charge shall not be affected by the practitioner's opinion regarding the guilt or innocence of client.
5.07 A practitioner shall ensure that the client's decision on a plea, or as to whether or not to give evidence, is properly informed.
CHAPTER 6 - RELATIONS BETWEEN PRACTITIONERS
6.01 A practitioner shall treat other practitioners with courtesy and fairness.
6.02 Save in exceptional circumstances, a practitioner shall not communicate with a client of another practitioner in relation to a matter in which the practitioner is, or has previously been dealing with the other practitioner.
6.03 A practitioner who suspects that another practitioner is in breach of that practitioner's obligations under any legislation relating to trust accounts shall make the Society or the relevant officer of the Society aware of those concerns.
6.04 Save in exceptional circumstances, a practitioner shall not stop a trust account cheque or bank cheque drawn on a practitioner's trust account to the order of another practitioner, after it has been forwarded to the other practitioner.
CHAPTER 7 - CONDUCT OF PRACTICE
7.01 Every practitioner shall keep proper books of account in respect of all moneys received by the practitioner in the course of practice whether such moneys be trust moneys or not.
7.02 A practitioner shall comply with the provisions of the Act, and any legislation dealing with the regulation of trust accounts.
7.03 A practitioner shall not charge a client a fee greater than is reasonable in the circumstances.
7.04 A practitioner practising, on his or her own account shall not share with any unqualified person the receipts of the practice save as authorised by the Act, pursuant to any approval given by the Council, or in payment of an annuity or other sum out of profits to a retired partner or predecessor of the practice or the personal representative of a deceased partner or predecessor.
7.05 A practitioner shall ensure that all persons employed by that practitioner in a legal practice are properly supervised.
7.06 - (1) A practitioner in private practice shall ensure that he or she, or another practitioner with a current practising certificate is at all times in charge of any office including any branch office, at which the practitioner's practice is conducted and gives reasonable attendance upon each day during the hours on which such office is open except in case of temporary absences of short duration:
Provided that in the case of a branch office, the practitioner in charge of that office must have at least three years experience as a practitioner.
(2) A practitioner in private practice shall not share occupy or use jointly and contemporaneously any offices with any company or persons not being practitioners unless the Council otherwise approves.
(3) A visited office may occupy a room or office in a building in which some other activity is normally conducted, providing that adequate safeguards have been taken to ensure the confidentiality of all client records, that the office is only open for the business of the legal practice when a practitioner with a current practising certificate is in attendance, and that during the hours when the practitioner is visiting, such room or office is in the sole occupation of the practitioner and his or her staff.
7.07 A practitioner in private practice may carry on another profession or business unless the profession or business is of such a nature or is conducted in such a manner as to inhibit the practitioner's independence as a legal practitioner or adversely affect the proper performance of the practitioner's professional obligations and duties to his or her clients or any of them.
7.08 Before a practitioner, whether in partnership or practice solely, sells, winds up or closes down his or her practice, it shall be his or her duty before so doing, to advise the Society in writing of future arrangement for the management of the affairs of existing clients and also his or her address for service as appropriate.
7.09 Where practitioners referred to in Rule 7.08 intends to practise in a foreign Jurisdiction, the Society shall:
(i) not be obliged to provide any assistance unless such practitioners have duly complied with the obligations imposed under Rule 7.08; and
(ii) advise the relevant foreign legal professional body of such non-compliance.
7.10 Practitioners appointing other practitioners as city agents shall notify the Society and the Chief Registrar of the High Court of Fiji in writing immediately after making such appointment, the name and address of service of such agents.
CHAPTER 8 - CLIENT CARE
8.01 - (1) Subject to paragraph (2) of this rule, every principal in private practice shall:
(a) have in place a procedure whereby at the outset of a matter a client is given the information set out below:
(i) The name and status within the firm of the person responsible for the day to day conduct of the matter and, if appropriate, the partner responsible for its overall supervision;
(ii) The basis upon which costs will be charged and if reasonably possible an estimate of costs;
(iii) The procedure adopted within the firm for handling complaints where the client has been unable to resolve any problem with a person or persons referred to in subparagraph (i) above, and that the client may refer unresolved problems to the Society,
(b) Both at the outset and during the course of the matter cause the client to be informed, where appropriate, as to the issues raised by the matter, the steps which are likely to be required, how long it is likely to be before it is concluded, and progress from time to time.
(c) During the course of the matter, if unreasonable delay occurs, provide the client with an explanation of such delay including whether or not it is within the control of the person responsible for the matter to resolve such delay.
(d) At the earliest reasonable opportunity provide the client with written confirmation of the matters set out in paragraphs (a) and (b) above.
(2) (a) It shall not be necessary for a practitioner to comply with sub-paragraphs (i) and (iii) of paragraph (1)(a) above, nor with (1)(d) above when performing work of a repetitive nature for a client.
(b) It shall not be necessary for a practitioner to comply with paragraph (1) if -
(i) the client is a longstanding client of the firm; or
(ii) the practitioner reasonably considers it unnecessary, in view of the knowledge and experience of the client in instructing and dealing with practitioners;
(iii) the matter is one which the practitioner reasonably anticipates will be concluded in 21 days;
(iv) the matter is one in which the practitioner reasonably anticipates that costs, excluding outlays, will be less than $250.00 or such sum as the Council resolves from time to time.
(3) A practitioner shall not be prosecuted for an isolated breach of this rule unless -
(i) the practitioner wilfully refuses or consistently neglects to comply with this rule; or
(ii) the failure to comply with this role is associated with some other matter or circumstance which might give rise to a charge of professional misconduct or unprofessional conduct.
CHAPTER 9 - CORPORATE PRACTICE
9.01 A practitioner employed as such who is not employed and remunerated by another practitioner is subject to the same ethical and practising rules as a practitioner in private practice and shall comply with those rules notwithstanding any conflict with his or her duty as an employee.
9.02 It is proper for a practitioner to be the employee of a person or corporation and to act as practitioner for his or her employer.
9.03 An employed practitioner who is not employed and remunerated by another practitioner shall not permit his or her name together with words indicating he or she is a practitioner to be printed upon the letterhead in general use by his or her employer.
Passed by the House of Representatives this seventh day of August, in the year of our Lord One Thousand, Nine Hundred and Ninety-Seven.
Passed by the Senate this second day of October, in the year of our Lord One Thousand, Nine Hundred and Ninety-Seven.
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