|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Nauru Sessional Legislation |
REPUBLIC OF NAURU
______________________________
No. 13 of 2019
______________________________
An Act to regulate the legal profession and legal practice and for related purposes
Certified: 14th June 2019
Table of Contents
PART 1 – PRELIMINARY
1 Short Title
2 Commencement
3 Objective
4 Definitions
PART 2 – ADMISSION OF LEGAL PRACTITIONERS
5 Chief Justice to approve admission of practitioners
6 Admission as a barrister and solicitor or pleader
7 Qualifications of barristers and solicitors
8 Qualifications of pleaders
9 Qualifications for foreign practitioners
10 Application for admission to practice as a practitioner
11 Oath or affirmation of admission
12 Roll of Legal Practitioners
PART 3 – TEMPORARY ADMISSION
13 Temporary admission
PART 4 – PRACTICING CERTIFICATES
14 Practicing certificates
15 Application for practicing certificates
16 Practicing certificate may be declined
17 Suspension of certificate
18 Cancellation of certificate
PART 5 – RIGHTS AND LIABILITIES OF LEGAL PRACTITIONERS
19 Right to practice
20 Limitation on right of practitioner to commence private practice on own account
21 Officer of the court
PART 6 – COSTS
22 Recovery of costs
23 Agreement to costs
24 Taxation of costs
25 Right to particulars
26 Agreements exempting negligence to be void
PART 7 – DISCIPLINARY MATTERS
27 Legal Practitioners Disciplinary Tribunal
28 Secretary to the Tribunal
29 Functions of Tribunal
30 Powers of the Tribunal
31 Orders by Tribunal
32 Rules of evidence
33 Tribunal hearing open to public
34 Witnesses
35 Judgments, decisions or orders of Tribunal
36 Appeal
37 Complaints about conduct of legal practitioners
38 Referral by Court, judge, etc.
39 Power of Registrar to institute proceedings
40 Practitioner may be appointed
41 Jurisdiction of court not affected
42 Limitation period
43 No fees for complaints
44 Register of Complaints
45 Information to be recorded
46 Records of complaints dismissed
PART 8 – NAURU LAW SOCIETY
47 Establishment of Nauru Law Society
48 Common seal
49 Constitution of the Society
50 Functions of the Law Society
51 Council of the Nauru Law Society
52 Council to act as executive
53 Law Society bank account
54 Meetings of the Council
55 Conflict of interest
56 Annual or Special General Meetings
57 Minutes
58 Reports and accounts
PART 9 – COMMISSIONER FOR OATHS
59 Appointment of Commissioners for Oaths
60 Roll of Commissioners for Oaths
PART 10 – NOTARIES PUBLIC
61 Chief Justice may appoint Notaries Public
62 Notaries to be sworn
63 Roll of Notaries Public
64 Notaries to be officers of the court
65 Fees
PART 11 – OFFENCES
66 Prohibition to practice
67 Unqualified person practicing
68 Acting as agent for unqualified persons
69 Employment of person struck-off or suspended
70 Failure to disclose fact of having been struck-off etc.
71 Acting as Commissioner for Oaths
72 Acting as Notary Public
PART 12 – MISCELLANEOUS
73 Liability
74 Admission fees
75 Designated countries
76 Trust accounts
77 Publication of Rolls
78 Service of notices
79 Jurisdiction of the District Court
80 Rules
81 Regulations
PART 13 – REPEAL SAVINGS AND TRANSITIONAL
82 Repeal
83 Savings and transitional
SCHEDULE 1
SCHEDULE 2
Enacted by the Parliament of Nauru as follows:
PART 1 – PRELIMINARY
This Act may be cited as the Legal Practitioners Act 2019.
This Act commences on 2 September 2019.
The objective of this Act is to:
(a) provide for the regulation of the legal profession and the practice of law;
(b) prescribe requirements for the admission of practitioners and the rights and obligations of practitioners;
(c) provide for the engagement, admission and appearance of foreign practitioners;
(d) establish the Nauru Law Society;
(e) regulate the holding of trust accounts for the purposes of practice as a practitioner as required by this Act or under any other written law;
(f) provide for the fixing of a scale of professional fees and costs and monitoring compliance of professional service delivery;
(g) establish a Legal Practitioners Disciplinary Tribunal to deal with any act of professional misconduct; and
(h) establish and enforce the Professional Conduct Rules for Legal Practitioners.
In this Act:
‘client’ means a person who:
(a) consults a practitioner and on whose behalf the practitioner renders or agrees to render a legal service with or without fees;
(b) having consulted a practitioner, reasonably concludes that the practitioner has agreed to render services on his or her behalf, -
and includes a client of the law practice of which the practitioner is a partner or employee whether or not the practitioner handles the client’s work;
‘Commissioner for Oaths’ is a person appointed under section 59;
‘conflict of interest’ means the existence of a genuine risk that the practitioner’s loyalty to or acting in the best interest of a client would be materially and adversely affected by the practitioner’s own interest or the practitioner’s duty to other clients;
‘Council’ means the Executive Council of the Nauru Law Society established under section 51;
‘foreign practitioner’ means a practitioner who is not a citizen of Nauru;
‘judicial officer’ means a Justice of Appeal, Judge, Magistrate, Registrar, Deputy Registrar or any other person exercising judicial powers under any written law;
‘law practice’ or ‘practice’ means a law firm registered under the Business Names Registration Act 2018, the Business Licences Act 2017, Beneficial Ownership Act 2017 and where applicable, the Partnership Act 2018 but does not include a department of the Government providing legal services or a legal section of an Instrumentality of the Republic;
‘legal practitioner’ or ‘practitioner’ means a barrister and solicitor or a pleader duly admitted to practice law under Parts 2 or 3 of this Act and who has a current practicing certificate;
‘Minister’ means the Minister for Justice;
‘President’ means the President of the Law Society who shall be a barrister and solicitor;
‘professional misconduct’ includes:
(a) unsatisfactory professional conduct of a legal practitioner, law practice, employee or agent where the conduct involves a substantial and or consistent failure to reach or maintain a reasonable standard of competence and diligence;
(b) conduct of a legal practitioner where the occasion in the practice of law or occurring otherwise than in connection with the practice of law, that would, where established justify a finding that the practitioner is not a fit and proper person to engage in legal practice;
(c) conduct of the law practice, its employee or agent in the practice of law or occurring otherwise than in connection with the practice of law where established justify a finding that the law practice is not fit to operate; or
(d) any misconduct which practitioners of good repute and competency would reasonably regard as disgraceful or dishonourable;
‘Registrar’ means the Registrar of the Courts;
‘resident practitioner’ means a practitioner having a law practice in the Republic and has a current practicing certificate;
‘secretary’ means the secretary of the Law Society;
‘Society’ means the Nauru Law Society established under section 47;
‘the Court’ means the Supreme Court unless stated otherwise;
‘Tribunal’ means the Legal Practitioners Disciplinary Tribunal established under section 27.
PART 2 – ADMISSION OF LEGAL PRACTITIONERS
(a) in the case of a barrister and solicitor who is a Nauruan citizen, the requirements in section 7;
(b) in the case of a pleader, the requirements in section 8;
(c) in the case of a foreign practitioner, the requirements in section 9; or
(d) in the case of a temporary admission, the requirements in Part 3.
no later than 14 days from the publication of the application in the Gazette.
(6) The Registrar may provide a copy of the objection to the person seeking to be admitted as a practitioner and require the applicant to respond to the objection in writing within 7 days of receipt of the copy of the objection.
(7) The Registrar shall include the name of the person objecting to the application for admission, the reasons for such objection in the report under section 5(1)(c) and any response received under subsection (6).
(8) Where an application for admission is dismissed, the Chief Justice shall deliver his or her decision or judgment and publish the reasons for his or her determination.
PART 3 – TEMPORARY ADMISSION
(7) Where the Chief Justice grants an application for admission, the foreign practitioner shall subscribe to the oath or affirmation contained in Schedule 1 before being enrolled in the Roll of Temporary Legal Practitioners.
(8) The foreign practitioner shall not be enrolled in the Roll of Temporary Legal Practitioners or practice law unless he or she has complied with the requirement under subsection (7).
- (9) A foreign practitioner admitted under this Part shall:
- (a) represent a client limited to the cause or matter for which he or she is admitted; and
- (b) appear on instructions of a resident barrister and solicitor or a pleader with more than 10 years’ experience, for that cause or matter.
- (10) The Registrar shall issue a temporary practicing certificate under this Part to a foreign practitioner with a condition of practice limited to the specific cause or matter and any other conditions granted by the Court under subsection (6)(b).
- (11) A temporary practicing certificate issued under this Part shall be valid for 6 months from the date of issue or the earlier determination of the specific cause or matter for which admission was granted.
- (12) Before the expiry of the practicing certificate under subsection (1), the foreign practitioner shall renew his or her temporary certificate unless:
- (a) the cause or matter is determined by the Court;
- (b) the foreign practitioner formally withdraws from the cause or matter;
- (c) the instructing practitioner under subsection (9)(b) has formally withdrawn from the cause or matter; or
- (d) the foreign practitioner is unable to enter the Republic.
- (13) Where the temporary practicing certificate has lapsed, the foreign practitioner shall:
- (a) cease to practice; or
- (b) apply for temporary admission under this Part.
PART 4 – PRACTICING CERTIFICATES
shall immediately notify the Registrar and the secretary in writing.
(3) A practicing certificate issued under this section shall:
- (a) be in the prescribed form with or without any conditions; and
- (b) where the certificate is subject to a condition, such condition shall be endorsed on the certificate; and
- (c) be signed by the Registrar and the seal of the Supreme Court shall be affixed.
(4) The Registrar in considering an application for the issuance of a practicing certificate may require the practitioner to provide further information or particulars as the Registrar deems fit.
A practicing certificate may be cancelled by the Registrar where the practitioner:
(a) has been struck-off the Roll of Legal Practitioners or Roll of Temporary Legal Practitioners;
(b) habitually fails to comply with the provisions of this Act and conditions of the practicing certificate; or
(c) is absent from the Republic for more than a continuous period of 3 months without any reasonable cause or without having a practitioner managing the practice.
PART 5 – RIGHTS AND LIABILITIES OF LEGAL PRACTITIONERS
Any person who is duly admitted as a practitioner and has a current practicing certificate may practice law in the Republic in accordance with this Act or any other written law.
A practitioner is an officer of the court.
PART 6 – COSTS
A practitioner may, in respect of services rendered, sue for and recover:
(a) costs pursuant to any agreement as to costs made under section 23; or
(b) in the absence of such agreement, in accordance with the schedules of fees prescribed by the Chief Justice in consultation with the Society.
Any provision in any agreement between a practitioner and a client providing that the practitioner shall not be liable for negligence or that the practitioner shall be relieved from any responsibility to which he or she would otherwise be subject as such practitioner, shall be wholly void.
PART 7 – DISCIPLINARY MATTERS
The Tribunal:
(a) may hear and determine all charges of professional misconduct;
(b) may summarily dismiss a complaint which lacks any merit;
(c) may record any settlement reached between a practitioner and a complainant;
(d) shall give the practitioner adequate notice of the hearing and adequate opportunity to prepare and state his or her defence;
(e) may inquire into the allegations against the practitioner in any manner that it deems necessary;
(f) may regulate its own proceedings;
(g) may make a finding that the conduct amounts to professional misconduct and impose a penalty accordingly; or
(h) may impose a penalty under section 31 which shall take immediate effect.
The hearings of the Tribunal shall be open to the public unless the Tribunal may otherwise determine.
Any complaint against a practitioner shall be:
(a) in writing; and
(b) provided to the Registrar.
No complaint relating to an alleged professional misconduct of any practitioner or law practice shall be lodged by an intended complainant after the expiry of 2 years from the time when the right to bring the complaint accrued or when the intended complainant first became aware of the act complained of had occurred entitling him or her to lodge a complaint.
The Registrar shall keep and maintain a Register of Complaints made against practitioners and law practices.
PART 8 – NAURU LAW SOCIETY
The functions of the Society are to:
(a) advance the interests, integrity and practice of the legal profession;
(b) provide education and training for professional development;
(c) facilitate continuing legal education;
(d) appear by the President or the secretary of the Society or a nominated legal representative in matters relating to professional misconduct, admissions and judicial ceremonial occasions or when invited by the Court;
(e) in consultation with the Registrar, review and fix annual membership fees for practitioners;
(f) represent and promote the views and interests of the legal profession;
(g) encourage the profession to promote the welfare and interests of clients or client care;
(h) make internal administrative rules for the governance of the profession; and
(i) carry out any other functions under this Act and any other written law.
The Council shall be the executive body of the Society and shall be responsible for the administration, control and management of the affairs of the Society, its funds and other assets.
The Society shall:
(a) establish and maintain a bank account to be called the ‘Nauru Law Society Account’;
(b) ensure that all monies lawfully received by the Society or the Council are deposited into the account; and
(c) provide for the keeping and maintaining of such account in the Society’s constitution.
(1) The Society shall keep proper records and books of account and shall cause its account to be audited annually.
(2) The Council shall present to the Society in a general meeting, a full report of the activities of the Society in respect of the 12 months preceding that date.
(3) The Secretary shall provide to every member of the Society, a copy of the annual accounts together with the auditor’s report on the account at a general meeting.
PART 9 – COMMISSIONER FOR OATHS
PART 10 – NOTARIES PUBLIC
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 Chief Justice.
PART 11 – OFFENCES
PART 12 – MISCELLANEOUS
The Chief Justice, a Supreme Court Judge, Tribunal, Registrar, Secretary for Justice and the Council shall not be liable for any act or omission in the performance in good faith of any function, duty or power under this Act.
The Chief Justice may by notice in the Gazette, prescribe fees for the purposes of Part 2 and Part 3.
The Registrar shall publish in the Gazette on or before 15 March of each year:
(a) the Roll of Legal Practitioners;
(b) the Roll of Temporary Legal Practitioners;
(c) the Roll of Commissioners for Oaths; and
(d) the Roll of Notaries Public.
Any notice or other document required under this Act to be provided or served on a practitioner may, unless otherwise provided, be given or served by:
(a) delivering such notice or document personally to that practitioner;
(b) posting such notice or document by pre-paid post to that practitioner at his or her usual or last known place of business or abode last notified by that practitioner to the Registrar; or
(c) transmission of an electronic mail message to the electronic mail address of the practitioner or the place with whom the practitioner is employed, as provided to the Registrar.
The District Court shall have jurisdiction to hear and determine all criminal offences under this Act and, shall have power to impose the penalty or punishment in respect of the offences under this Act.
The Chief Justice may make rules to give effect to certain provisions of this Act 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 for admission;
(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 document;
(d) prescribing anything which is required or permitted to be prescribed by rules under this Act;
(e) prescribing the form of practicing certificates;
(f) regulating the fees chargeable by practitioners;
(g) requiring the production to such auditors of books and account;
(h) as to the opening and keeping by practitioners of accounts at a bank for clients’ money;
(i) as to the keeping by practitioners of accounts containing particulars and information as to moneys received, held or paid by them or on account of their clients; and
(j) prescribing anything which is required under this Act to be prescribed and carried out by the Chief Justice.
The Cabinet may make regulations prescribing all matters necessary or convenient to be prescribed to give effect to this Act including disciplinary proceedings.
PART 13 – REPEAL SAVINGS AND TRANSITIONAL
The Legal Practitioners Act 1973 is hereby repealed.
SCHEDULE 1
“I A.B. swear by the almighty God that I will be faithful and bear true allegiance to the Republic of Nauru and will truly and honestly conduct myself in the practice of law as a (barrister and solicitor/pleader) of the Supreme Court of the Republic of Nauru according to the best of my knowledge and ability so help me God.”
Affirmation of legal practitioner
“I A.B. solemnly sincerely and truly declare and affirm that I will truly and honestly conduct myself in the practice of law as a (barrister and solicitor/pleader) of the Supreme Court of the Republic of Nauru according to the best of my knowledge and ability.”
‘I, A.B., do swear (or solemnly sincerely and truly declare and affirm), that I will faithfully exercise the office of a Notary Public.
I will faithfully make contracts or instruments for or between any party or parties requiring the same and I will not add or diminish anything without the knowledge and consent of such party or parties that may alter the substance of the fat; I will not attest any act, contract or instrument in which I shall know there is violence or fraud; and in all things, I will uprightly and justly in the business of notary public according to the best of my skill and ability (and in the case of an oath) so help me God.”
‘I, A.B., do solemnly sincerely and truly declare and affirm, that I will faithfully exercise the office of a Notary Public.
I will faithfully make contracts or instruments for or between any party or parties requiring the same and I will not add or diminish anything without the knowledge and consent of such party or parties that may alter the substance of the fact; I will not attest any act, contract or instrument in which I shall know there is violence or fraud; and in all things, I will uprightly and justly in the business of notary public according to the best of my skill and ability.”
SCHEDULE 2
LEGAL PRACTITIONERS (PROFESSIONAL CONDUCT) RULES 2019
Table of Contents
In exercise of the powers conferred by section 80 of the Legal Practitioners Act 2019, the Chief Justice makes the following Rules:
PART 1 – PRELIMINARY
1 Citation
(1) These Rules may be cited as the Legal Practitioners (Professional Conduct) Rules 2019.
(2) The Rules must be cited as follows:
- (a) in case of the general Rule, must be cited as ‘Rule X’ for example, ‘Rule 3’; and
- (b) in case of a subrule of the general Rule, must be cited as ‘subrule X(y)’ for example, ‘subrule 3(a)’.
2 Commencement
These Rules come into effect on 2 September 2019.
3 Application
These Rules apply to the practitioners admitted to practise under Parts 2 and 3 of the Act.
4 Definition
(a) consults a practitioner and on whose behalf the practitioner renders or agrees to render a legal service;
(b) having consulted a practitioner, reasonably concludes that the practitioner has agreed to render services on his or her behalf, -
and includes a client of the law practise of which the practitioner is a partner or employee whether or not the practitioner handles the client’s work;
‘conflict of interest’ means the existence of a genuinely substantial risk that the practitioner’s loyalty to or acting in the best interest of a client would be materially and adversely affected by the practitioner’s own interest or the practitioner’s duty to other clients;
‘consent’ means a fully informed and voluntary consent after full disclosure;
‘judicial officer’ means a Justice of Appeal, Judge, Magistrate, Registrar, Deputy Registrar or any other person exercising such judicial powers under any written law;
‘law practice’ or ‘practice’ means a law firm registered under the Business Names Registration Act 2018, the Business Licences Act 2017, Beneficial Ownership Act 2017 and where applicable, the Partnership Act 2018 but does not include a department of the Government providing legal services or a legal section of an Instrumentality of the Republic;
‘practitioner’ means a barrister and solicitor and a pleader duly admitted to practise law under Parts 2 and 3 of the Act and has a current practising certificate;
‘professional misconduct’ means the conduct of a practitioner’s professional capacity that tends to bring disrepute to the legal profession including:
(a) breaching or attempting to breach the Act, these Rules or any other written law;
(b) knowingly assist or inducing another practitioner to breach or attempt to breach the Act, these Rules or any other written law;
(c) misappropriating or otherwise dealing dishonestly with a client’s or other party’s moneys or property;
(d) engaging in conduct which is prejudicial to the administration of justice;
(e) stating or implying an ability to influence a government agency or official;
(f) knowingly assisting a judicial officer in conduct that is in breach of the applicable rules of judicial conduct;
‘sexual harassment’ means a one-off incident or a series of incidents involving unwelcome sexual advances, requests for sexual favours or other verbal or physical conduct of a sexual nature when:
(a) such conduct might reasonably be expected to cause insecurity, discomfort, offence or humiliation to the recipients of the conduct;
(b) such conduct is made implicitly or explicitly a condition for the provision of legal services;
(c) such conduct is made implicitly or explicitly a condition of employment; or
(d) such conduct has the purpose or effect of interfering with the person’s work performance or creating an intimidating, hostile or offensive work environment.
PART 2 - LAW AND SOCIETY
5 Duty to uphold the Constitution and the law
(1) A practitioner must uphold the Constitution, abide by the written and other laws and promote respect for law and legal processes
(2) A practitioner must:
(a) not engage in unlawful, dishonest, immoral or deceitful conduct;
(b) not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system;
(c) not for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause; and
(d) encourage his or her clients to avoid, end or settle a controversy where it will promote justice and fair outcome of a dispute.
6 Availability of legal services, integrity, independence and effectiveness
(1) A practitioner must avail his or her legal services in an efficient and convenient manner compatible with professional independence, integrity and effectiveness.
(2) A practitioner must not:
- (a) except for valid reasons, reject the provision of legal services for the cause of those unable to afford legal services or are without a defence or oppressed;
- (b) refuse to render legal advice to the person concerned where it is necessary to protect a person’s legal right; and
- (c) do or permit to be done any act designed primarily to solicit legal business.
7 Practitioners to represent their actual capabilities
(1) A practitioner in making known the facts and capabilities of his or her legal services to the public must be objective, honest, fair and dignified.
- (2) A practitioner:
- (a) must not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his or her capabilities, qualifications or legal services;
- (b) in choosing the name of the law practise, must not use a false, misleading or assumed name, except may continue to use the name of a deceased partner provided the practise indicates in all its communications that the respective partner is deceased; and
- (c) when accepting appointment to public office, must withdraw from private practise and his or her name from the private law practise unless the Registrar of the Courts allows the retention of the name.
8 Participation in development of the legal system
A practitioner must participate in the development of the legal system by initiating or supporting efforts in law reform and in the promotion, development and maintaining of the administration of justice.
9 Professional development of legal practitioners
(a) where practicable, keep abreast of legal developments;
(b) participate in continuing legal education programs;
(c) support efforts to achieve high standards as well as in the practical training of junior members of the bar; and
(d) assist in disseminating the law and jurisprudence.
10 Practitioners in government service
(1) A practitioner in the government service must:
- (a) discharge their duties with due diligence and care;
- (b) not use his or her public position to promote or advance his or her private interests or to allow private interest to interfere with his or her public duties; and
- (c) not after leaving government service, accept engagement or employment in connection with any matter in which he or she had carriage of or has any knowledge of.
(2) A practitioner engaged in public prosecution:
- (a) must while prosecuting ensure justice is done and not conviction as the only final outcome; and
- (b) in making disclosures, must not suppress facts or conceal witnesses capable of establishing the innocence of the accused.
(3) A practitioner employed in the government service may provide services to the Instrumentalities of the Republic with the authorisation or approval of the Cabinet.
11 Prohibition on sexual harassment
A practitioner shall not sexually harass a fellow practitioner, a staff member, a client or any other person in the course of delivering legal services.
PART 3 - THE LEGAL PRACTITIONER AND THE COURTS
12 Practitioner to act with candour and good faith
(1) A practitioner owes candour, fairness and good faith to the Courts.
(2) A practitioner must:
- (a) not mislead or allow the Court to be misled by any artifice;
- (b) not knowingly misquote or misrepresent the contents of pleadings or evidence, the language or the argument of opposing counsel or the principles or text of a decision or authority or knowingly cite as law a provision already rendered inoperative by repeal or amendment or assert as a fact that which has not been proven; and
- (c) observe the rules of procedure and must not misuse them.
13 Practitioner to observe and respect the Courts and judicial officers
(1) A practitioner must observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.
(2) A practitioner must:
- (a) appear in court properly attired in accordance with the practise directions issued by the Chief Justice on dress code;
- (b) be punctual for all the fixtures of the Courts;
- (c) attend to such sittings of the Courts unless he or she has obtained prior leave of the Court to be absent or instructs another practitioner to appear on his or her behalf;
- (d) address the judicial officers and professional colleagues in the appropriate manner;
- (e) maintain proper decorum in Court;
- (f) abstain from scandalous, offensive or menacing language or behaviour before the Courts;
- (g) conduct the cause or matter in logical sequence to assist the Court and the opposing practitioner to follow the cause or matter or issues with ease;
- (h) prepare for a cause or matter and not seek unnecessary adjournments;
- (i) not attribute to a Judge motives not supported by the record or evidence; and
- (j) submit grievances against a judicial officer only to the Chief Justice or duly appointed proper authorities.
14 Practitioner to promote the speedy and efficient administration of justice
(1) A practitioner must exert every effort and consider it his or her duty to assist in the speedy and efficient administration of justice.
(2) A practitioner must:
- (a) be adequately prepared for his or her cause or matter on law and facts for the hearing of the cause or matter before the Courts;
- (b) not file multiple actions arising from the same facts or cause of action;
- (c) not after obtaining extensions of time to file pleadings, evidence, submissions or other documents let the period lapse without filing the same or providing an explanation or justification for his or her failure to do so;
- (d) not unduly delay a case, impede the execution of a judgment or abuse the processes of the Courts;
- (e) refrain from talking to his or her witness during a break or recess of a hearing or proceeding while the witness is still under oath or affirmation and giving testimony;
- (f) not knowingly assist a witness to misrepresent himself or herself or to impersonate another;
- (g) not abuse, badger or harass a witness; and
- (h) avoid testifying on behalf of his or her client except:
- (i) on formal matters;
- (ii) on substantial matters, in cases where his or her testimony is essential to the ends of justice, in which event he or she must, during his or her testimony, entrust the trial of the case to another counsel; or
- (iii) when lawfully required to testify but must ensure the solicitor-client privilege is not breached.
15 Practitioner to present the merits of a case
(1) A practitioner must:
- (a) rely on the merits of the cause or matter which he or she is representing; and
- (b) refrain from any impropriety which tends to influence or gives the appearance of influencing the court.
(2) A practitioner must not:
- (a) extend extraordinary attention or hospitality to nor seek opportunity for cultivating familiarity with judicial officers;
- (b) make public statements in the mass media in print or electronic form regarding a pending case tending to arouse public opinion for or against the facts or outcome of the case or a party; and
- (c) allow or invite interference by another branch or agency of the Government in the normal course of judicial proceedings.
PART 4 - LEGAL PROFESSION AND LEGAL PRACTITIONER
16 Practitioner to uphold integrity and dignity of the profession
(1) A practitioner must uphold the integrity and dignity of the legal profession and support the activities of the Nauru Law Society.
(2) A practitioner must not:
- (a) knowingly make a false statement or suppress a material fact in connection with his or her application for admission to practise;
- (b) support the application for admission to the bar of any person known by him or her to be unqualified in respect of character, education or other relevant attribute; and
- (c) engage in any conduct whether in public or private life that adversely reflects on his or her fitness to practise law or behave in a scandalous manner which would bring disrepute to the legal profession.
17 Practitioner to show courtesy and candour to other practitioners
(1) A practitioner must conduct himself or herself with courtesy, fairness and candour towards his or her professional colleagues and must avoid harassing tactics against opposing counsel.
(2) A practitioner must not:
- (a) in his or her professional dealings, use language which is abusive, offensive or otherwise improper; and
- (b) directly or indirectly, encroach upon the professional employment of another practitioner.
(3) Subrule (2)(b) does not prohibit a practitioner from rendering proper advice and assistance to persons seeking relief against practitioners conducting themselves in breach of these Rules or that is expected of a reasonable and prudent practitioner.
18 Practitioner to prohibit unauthorised practise of law
(1) A practitioner must not, directly or indirectly, assist in the unauthorised practise of law.
(2) A practitioner must:
- (a) not delegate to any unqualified person the performance of any legal services which by law may only be performed by a practitioner;
- (b) not share a fee for legal services with persons not authorised to practise law under the Act including practitioners on the Roll of Practitioners having no current practising certificates;
- (c) pay all such monies payable over a reasonable period of time to a partner upon his or her death where a pre-existing agreement provides for the payment of such money to his or her estate or to persons specified in the agreement; and
- (d) undertake to complete unfinished legal business of a deceased practitioner being a partner or employee.
19 Communication amongst practitioners
(1) A practitioner must not in the course of professional practise send correspondence or otherwise communicate with another practitioner in a manner that is abusive, offensive or otherwise inconsistent with the proper tone of a professional communication with a practitioner.
(2) A practitioner must respond with reasonable promptness to all communication with other practitioners that require a response.
(3) A practitioner when dealing with an unrepresented person must take care to ensure that the unrepresented person is not proceeding under the impression that such person’s interest will be protected by the practitioner.
(4) A practitioner must not give an undertaking that cannot be fulfilled and must fulfil all undertakings given once accepted by the other practitioner or person.
PART 5 - THE LEGAL PRACTITIONER AND THE CLIENT
20 Practitioner not to refuse his or her services
(1) A practitioner must not refuse his or her services to a person in need of such advice.
(2) A practitioner must not:
- (a) decline to represent a person solely on account of race, sex, creed or inability to pay or because of a personal opinion regarding the guilt or otherwise of such person;
- (b) except for serious and sufficient cause, decline an appointment as amicus curiae or a request from the Nauru Law Society or for rendering of free legal assistance; and
- (c) refuse to accept representation of an indigent client except where:
- (i) he or she is unable to carry out the work effectively and competently; or
- (ii) he or she has a conflict of interest.
21 Practitioner not to discriminate the level of representation
A practitioner who accepts the cause of a person unable to pay his or her professional fees must observe the same standard of conduct governing his or her relations with paying clients.
22 Practitioner to maintain candour, fairness etc. when dealing with clients
(1) A practitioner must observe candour, fairness and loyalty in his or her dealings and transactions with his or her clients.
(2) A practitioner must:
- (a) in conferring with a prospective client ascertain as soon as practicable, whether the matter would involve a conflict with another client or his or her own interest and inform the prospective client;
- (b) be bound by the principles of privileged communication in respect of matters disclosed to him or her by a client;
- (c) not represent conflicting interests except with the written consent of the client after a full disclosure of the facts;
- (d) with the written consent of clients or other parties concerned to act as mediator, conciliator or arbitrator in settling disputes;
- (e) when advising his or her client, give a candid and honest opinion on the merits and probable results of the client's cause or matter, neither overstating nor understating the prospects of the cause or matter;
- (f) not state or imply that he or she is able to influence any public official, tribunal or legislative body;
- (g) impress upon his or her client compliance with the laws and the principles of fairness; and
- (h) not engage in another profession or occupation concurrently with the practise of law and where the practitioner does in engage in such profession, he or she make clear to his or her client whether he or she is acting as a practitioner or in another profession.
23 Practitioner to hold moneys on trust
(1) A practitioner must hold in trust all moneys and properties of his or her client that may come into his or her possession.
(2) A practitioner must:
- (a) account for all money or property collected or received for or from the client;
- (b) keep the funds of each client separate and apart from his or her own and those of others kept by him or her;
- (c) deliver the funds and property of his or her client when due or upon demand;
- (d) not borrow money from his or her client unless the client's interest are fully protected by the nature of the case or by independent legal advice; and
- (e) not lend money to a client except, when in the interest of justice, he or she has to advance necessary expenses in a legal matter he or she is handling for the client.
(3) For the purposes of subrule (2)(c), where a practitioner has a lien over the client’s funds held on trust, the practitioner may apply such sums as may be necessary to satisfy the lien:
- (a) for the lawful fees and disbursements on notice and proper accountability to the client; or
- (b) to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.
24 Practitioner owes fidelity to client
A practitioner owes fidelity to his or her client and must accept that the clients do repose trust and confidence in the practitioner for the professional delivery of legal services.
25 Practitioner must serve client with competence and diligence
(a) not undertake any legal service which he or she knows or ought to have known that he or she is not qualified to render except where the practitioner may render such service in collaboration or assistance of a competent practitioner with the consent of his or her client;
(b) not handle any legal matter without adequate preparation;
(c) not neglect a legal matter entrusted to him or her; and
(d) keep the client informed of the status of his or her cause or matter or any other purpose of engagement of the practitioner at regular intervals or within a reasonable time in response to the client's request for information.
26 Practitioner to act in best interest of client
(1) A practitioner must represent his or her client with passion and in the best interest of the client within the bounds of the law.
(2) A practitioner must:
- (a) employ only fair and honest means to attain the lawful objectives of the client and must not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any cause or matter;
- (b) inform his or her client of any relevant information received in the course of the representation, perpetration of fraud and must promptly call upon the client to rectify the same; and
- (c) not allow his or her client to dictate the procedure in handling the cause or matter.
27 Practitioner must charge only fair and reasonable fees
(1) A practitioner must be guided by the following factors in determining his or her fees:
- (a) the time spent and the extent of the service rendered or required;
- (b) the novelty and difficulty of the questions involved;
- (c) importance of the subject matter;
- (d) skills demanded;
- (e) probability of losing other employment as a result of acceptance of the proffered case;
- (f) customary charges for similar services;
- (g) amount involved in the controversy and the benefits resulting to the client from the service;
- (h) contingency or certainty of compensation;
- (i) character of the employment, whether occasional or established; and
- (j) the professional standing of the practitioner.
(2) In case of referral to another practitioner, the practitioner is entitled to a division of fees in proportion to the work performed and responsibility assumed with the consent of the client.
(3) The practitioner must not without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.
(4) A practitioner must avoid controversies with clients concerning compensation and must resort to judicial action only to prevent imposition, injustice or fraud.
28 Practitioner bound by client confidentiality
(1) A practitioner must preserve the confidentiality of the client even after the practitioner-client relation is terminated.
(2) A practitioner must:
- (a) not reveal the confidences or secrets of his or her client except when:
- (i) authorised by the client after having provided an advice on the consequences of such disclosure;
- (ii) required by law or in compliance with a court order; or
- (iii) necessary to collect his or her fees or to defend himself or herself, his or her employees or associates or by judicial action;
- (b) not to the disadvantage of the client by using the information acquired in the course of engagement of service;
- (c) not without the written consent of his client, give information from his or her files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose;
- (d) not disclose the affairs of a client of the firm to partners or associates unless necessary;
- (e) adopt such measures as may be required to prevent those whose services are utilised by him, from disclosing or using confidences or secrets of the clients;
- (f) avoid indiscreet conversation about a client's affairs even with members of his or her family; and
- (g) not reveal that he or she has been consulted about a particular case except to avoid possible conflict of interest.
(3) This Rule extends to all other practitioners including the non-legal staff in the practise.
(4) Communications with practitioners are privileged and protected from disclosure in judicial and other proceedings.
29 Practitioner not to abandon or withdraw
(1) A practitioner must not abandon or withdraw from his or her services except for good cause and upon notice appropriate in the circumstances.
(2) A practitioner must withdraw his or her services where:
- (a) the client pursues an illegal or immoral course of conduct in connection with the cause or matter the practitioner is handling;
- (b) the client insists that the practitioner to act to the contrary these Rules;
- (c) the client persists against the practitioner’s advice and remonstrance in pressing for a frivolous cause or defence;
- (d) the practitioner has the inability to work with co-counsel who will not promote the best interests of the client;
- (e) the mental or physical condition of the practitioner renders it difficult for him or her to carry out the employment effectively;
- (f) the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement;
- (g) the practitioner is elected or appointed to public office; and
- (h) other similar cases.
(3) A practitioner who has agreed to act in a criminal cause or matter may withdraw where the client has not paid the agreed fees and where the interval between the withdrawal and date set for the trial of a case is sufficient to enable the client to obtain representation and the new practitioner has adequate time for preparation.
(4) A practitioner must not withdraw from a criminal cause or matter for the reason of payment of fees if the date set for the trial of the cause or matter is not sufficient for the client to obtain new representation without adversely affecting the client’s interests.
(5) A practitioner who withdraws or is discharged must, subject to a retainer lien, immediately turn over all papers and property to which the client is entitled and must cooperate with his or her successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.
PART 6 - RUNNING A LAW PRACTISE
30 Practitioner must maintain a reputable practise
(1) A practitioner practising on his or her own account or as an employee must keep his or her office and the working style of a professional reputation as an autonomous and independent service.
(2) A practitioner:
- (a) must maintain an orderly and timely record of all cases, develop a storage system and accurate files of all fixtures for appointments, conveyancing instruments or court commitments so that both the practitioner and the client are always able to check the files for any data on a particular case;
- (b) must always provide without delay any information required by the Registrar, Nauru Law Society, Courts or other lawful authorities within the bounds of legal professional privilege;
- (c) must be responsible for the work of his or her law office;
- (d) must be particularly conscientious and punctual in his or her financial operations and not permit:
- (i) to commingle a client's money with his or her own; and
- (ii) must always be in a position to pay out such money;
- (e) may put office sign on the building and in the building in which the law office is located.
31 Practitioner duty to report on any money laundering
A practitioner must inform the relevant authorities for any suspicious activities of money laundering by clients under the Anti-Money Laundering Act 2008.
PART 7 - FREE LEGAL ASSISTANCE TO DEPRIVED PERSONS
32 Practitioner to provide free legal assistance
A practitioner must provide at least 1 annual pro bono legal assistance to persons unable to afford legal services and such assistance must be carried out to the standard of practise of a reasonable and prudent practitioner.
PART 8 – ENFORCEMENT OF THE RULES
33 Enforcement of Rules
(1) Where a practitioner acts in contravention of these Rules or fails to perform any duty imposed by the Rules, he or she shall be guilty of professional misconduct and is liable to such punishment as provided in the Act or any other written law.
(2) It is the duty of every practitioner to report any breach of these Rules that comes to his or her knowledge to the Registrar.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/nr/legis/num_act/lpa2019207
