Professional practice standards for casework

1. Ethical obligations
2. Dealings with clients, other lawyers and the public
3. Handling a client's matter
4. Assisting other VLA staff
5. Conflict of interest
6. Management of casework files

1. Ethical obligations

Victoria Legal Aid lawyers observe the highest standard of ethical behaviour.

1.1 VLA lawyers comply with all of their duties to legally assisted clients and to the Court.

1.2 VLA lawyers comply with and adhere to all of their ethical obligations under the common law, the Legal Practice Act and rules made by their recognised professional association under that Act.

1.3 VLA lawyers do not disclose any information concerning an application for legal assistance or a client’s matter in breach of an applicant’s or a client’s entitlement to confidentiality or legal professional privilege or the provisions of the Legal Aid Act (except to the extent that such disclosure is permitted by the applicant or client or is authorised by Victoria Legal Aid in accordance with section 43 of the Act).

In accordance with this requirement, VLA lawyers do not talk about a client’s case where they can be overheard and they take care with clients’ files and documents so they are not open to observation by others.

1.4 Any formal request for information or subpoena requiring production of documents in breach of the obligations set out in paragraph 1.3 is referred immediately to the lawyer’s General Manager or Solicitor in Charge or VLA’s Client Services Review Officer, Grants Division.

1.5 As employees of an independent statutory authority, VLA lawyers comply with and adhere to the ethical standards of public employees specified in VLA’s Code of Conduct and Human Resource Management Manual.

1.6 If a complaint is made to a VLA lawyer concerning the merit of a case receiving a grant of legal assistance or the lawyer becomes aware of information which could affect the client’s entitlement to aid under the merits test, the lawyer reports the complaint or information to his or her General Manager or Solicitor in Charge.

1.7 If a complaint is made to a VLA lawyer concerning the financial eligibility of a person receiving a grant of legal assistance or the lawyer becomes aware of information which could affect the client’s entitlement to aid under the national means test, the lawyer reports the complaint or information to his or her General Manager or Solicitor in Charge.

1.8 If a VLA lawyer becomes aware of any circumstances which could give rise to a potential claim for professional negligence, the lawyer:

• immediately notifies his or her General Manager or Solicitor in Charge and
• provides a detailed statement (including the relevant client records and other relevant material) in relation to the matter to his or her General Manager or Solicitor in Charge who assesses the matter and, if he or she is of the opinion that there may be a possible claim against VLA, reports the matter to the Managing Director.

1.9 Lawyers handling casework files do not have access to any other VLA file (or any information on that file) which involves another party in the matter.

1.10 Any lawyer receiving an authority signed by a client to hand over VLA’s file to a private practitioner refers the authority to the file’s grants officer to re-assign or terminate the grant of assistance. The VLA lawyer will, in those cases, lodge a notice of ceasing to act in the Court when advised to do so by the grants officer and facilitate the transfer of the file to the new practitioner (if appropriate).

2. Dealings with clients, other lawyers and the public

All people contacting or dealing with Victoria Legal Aid, whether in person, by correspondence or by telephone, are treated promptly and with respect, dignity and courtesy.

VLA lawyers are aware that VLA’s clients may be disadvantaged by their financial or domestic situation, background, language difficulties or mental or physical disabilities and take all of these factors (as appropriate) into account in their dealings with them.

2.1 The General Manager of each division ensures adequate staffing levels to manage all inquiries during business hours. In particular, the General Manager ensures that staff have made arrangements to answer incoming telephone calls so that a staff member is available to deal with inquiries if voice mail messages are inadequate for the caller’s purpose.

2.2 Lawyers are available to see clients in conference at appointed times (unless prevented by factors beyond their control, such as late court sittings). Any delay is explained to the client by other VLA staff when it arises.

2.3. All telephone calls are answered within five rings (whenever possible). All calls requiring a response are returned no later than the next working day.

2.4 All messages taken on behalf of another VLA staff member include the following information:

• the name of the lawyer the message is for
• the date and time received
• the name of the caller and his or her telephone number (and such other details as are appropriate)
• details of the message and the action required.

2.5 All correspondence receives a meaningful reply (where appropriate) within five working days except:

• urgent matters which receive a more prompt reply
• detailed requests for advice which may require more time.

2.6 Lawyers do not react adversely to angry or aggressive callers or clients but adopt strategies to calm them and deal with the substantive issues which are concerning them. In some circumstances, it may be necessary for VLA lawyers to terminate calls politely if the caller makes it impossible to deal constructively with those substantive issues.

2.7 If VLA is unable to assist a person making an inquiry, VLA staff consider appropriate referrals which may be of assistance.

2.8 VLA lawyers correspond and deal with other lawyers involved in a matter in a prompt, courteous and professional manner. All letters and documents are clear, presentable and in an appropriate, professional form.

2.9 All advice or instructions given to clients by VLA lawyers is given or written as clearly and directly as possible in plain English to ensure that the client understands the advice or instructions. VLA lawyers do not use legal terminology which non-lawyers will have difficulty understanding or, if that is unavoidable, the meaning of the terminology is clearly explained.

2.10 All copies of documents provided by VLA lawyers to clients or other lawyers are clear and presentable (unless the condition of the original document prevents that standard being achieved).

3. Handling a client's matter

Victoria Legal Aid provides effective, economic and efficient legal aid services of a high quality and in a manner which dispels fear and distrust.

3.1 Clients are advised by the file’s grants officer or the VLA lawyer to whom their case is assigned as soon as possible of:

• the terms of his or her grant of assistance (including any liability for costs)
• the name of the VLA lawyer who will be handling his or her matter
• arrangements for the first interview
• the lawyer’s address for correspondence, facsimile number and direct telephone number.

3.2 If necessary, VLA lawyers help clients apply for a grant of legal assistance. Applications for further grants and requests for reconsiderations and reviews are lodged promptly and accompanied by all relevant information and material supporting the application or request to enable a decision to be made without delay.

3.3 Where possible, no interview is conducted with a person who does not speak English fluently without the assistance of a qualified interpreter.

3.4 VLA lawyers keep clients advised at all times of any major developments or progress in his or her case and promptly responds to the client’s requests for information. VLA lawyers ensure clients are aware of the likely date for their hearing or trial or timeframe for resolution of their case by other means.

3.5 Clients in family and civil cases are provided with copies of key letters or documents (except transcripts) relevant to their case unless there is a good reason for not doing so. Clients in criminal cases are provided with copies of all relevant statements and evidentiary material (except transcripts) unless there is a good reason for not doing so. Medical reports are normally not given to clients except with the consent of the reporting doctor. If transcripts are given to clients at their request, they are told that VLA has not retained a copy.

3.6 Clients are promptly notified of any delay in their matter and the reason for it.

3.7 VLA lawyers are frank and open with clients, particularly in assessing the merits of their case and providing realistic assessments of their prospects in their litigation.

3.8 VLA lawyers:

• act within the scope of their training and experience and seek advice or assistance from other lawyers when necessary
• maintain an up-to-date knowledge of the law in the areas in which they practice
• in appropriate cases, comply with the provisions of the Crimes (Criminal Trials) Act 1993
• in criminal cases, use their best endeavours to co-operate with the prosecution in a timely manner before a trial to establish the issues which are in dispute and to be determined at the trial 
• in family law cases, endeavour to seek a resolution of the dispute as quickly as possible (and, where appropriate, by primary dispute resolution processes) to minimise the period of conflict between the parties and the adverse effect that has on the children involved.

4. Assisting other VLA staff

VLA lawyers co-operate with other VLA staff and assist them to do their jobs in a timely, effective and orderly manner.

4.1 VLA lawyers treat other VLA staff with respect, dignity and courtesy.

4.2 VLA lawyers lodge applications for grants of assistance, reconsideration or review promptly.

4.3 To enable clients to obtain prompt and appropriate decisions from VLA, VLA lawyers lodge full details and all relevant documents and other material provided by applicants in support of their applications (for assistance, reconsideration or review) with the appropriate grants officer in sufficient time to permit the application to be processed in an efficient and orderly manner.

4.4 VLA lawyers certify accounts promptly on receipt.

4.5 VLA lawyers provide appropriate information promptly on request from officers in other divisions needing information about practice files.

5. Conflict of interest

VLA lawyers take steps to avoid a potential conflict of interest and will not act where a conflict exists.

5.1 No grant of legal assistance is made without a thorough check of VLA’s client records to ensure that there is no conflict of interest in making the proposed grant.

5.2 The provision of information or advice on an earlier occasion does not necessarily establish a solicitor-client relationship between VLA and the person receiving that information or one-off advice which could give rise to a conflict when VLA provides advice or legal assistance to another person.

When VLA acts for a client under a grant of legal assistance, a solicitor-client relationship is formed which could prevent another VLA lawyer acting for another client or giving advice to another party in the same matter.

In determining whether a conflict may exist, VLA lawyers have regard to the extent to which VLA has previously been given details about the facts of a matter or a person’s personal circumstances which could prevent VLA acting for another party in relation to the same matter or those facts or circumstances. To enable VLA to avoid situations in which a conflict could arise, VLA lawyers make clear file notes of such facts and circumstances to assist in future conflict checks.

5.3 If a conflict of interest arises during the course of a matter, the VLA lawyer notifies his or her General Manager or Solicitor in Charge immediately. Appropriate steps are taken to resolve or avoid the conflict. These steps may involve the VLA ceasing to act and reassigning the matter to a private practitioner.

5.4 If the matter is assigned to another practitioner due to a conflict of interest, the client is informed of the change and the reasons for it immediately.

6. Management of casework files

VLA lawyers maintain their files in an order that will allow another lawyer to quickly and easily understand the factual basis of the matter, the client’s instructions, the stage the matter has reached and further action required.

6.1 VLA lawyers conduct casework files within the terms of the grant of assistance. When appropriate, they remind clients that the clients may be called upon to repay all or part of their legal costs to VLA and that the clients should take account of the costs involved in complying with their instructions in the conduct of their case.

6.2 Where aid has been granted for two or more separate matters, separate files are opened for each matter.

6.3 At their first interview, VLA lawyers advise clients about the conditions of the grant of assistance (such as the requirement to make a contribution to their legal costs if they can afford it) and the level or type of service VLA will provide to them including:

• the best way and the best times to contact the lawyer
• the name and telephone number of an administrative officer who may be able to assist with inquiries
• what the client needs to do to assist in the effective and efficient handling of the file.
• A note of that advice is recorded on the client’s file.

6.4 When possible and appropriate, VLA lawyers conduct prison interviews by video link.

6.5 If a VLA lawyer is unable to meet with or represent a client on a particular occasion, the lawyer arranges for another VLA lawyer to meet with or represent the client in his or her place and ensures that the substitute lawyer is fully and adequately briefed about the matter.

6.6 VLA casework files contain a complete, readily identifiable record of relevant events, documents and work. Correspondence, file memorandums, notes of meetings or instructions, telephone notes, copy accounts are normally attached to the file in reverse chronological order.

All handwritten notes are an adequate record of the matters they contain and are clear and legible. Drafts are clearly marked “Draft”. Once drafts have been settled and final correspondence or documents prepared, obsolete drafts are removed from the file and discarded.

The following documents are normally spiked, clipped or otherwise held together in or with the file in reverse chronological order:

• Medical reports and certificates
• Witness proofs, statements, expert reports and photographs (in protective envelopes)
• Court documents
• Briefs and instructions to Counsel
• Research documents or material
• Other material relevant to the file.

6.7 Details of personal or telephone attendances are noted on the file. The file record shows:

• the date of attendance (and the time, if appropriate)
• the persons present
• the instructions taken
• the advice given
• any other relevant information.

6.8 Confidential material removed from casework files (such as obsolete drafts) is placed in document shredding bins or otherwise destroyed or shredded before they are discarded.

6.9 VLA lawyers maintain timely and accurate records of their time spent on casework files on Legal Aid Office.

6.10 Details (and the outcome or relevance) of any research undertaken by VLA lawyers is recorded on the file.

6.11 As a general principle, VLA lawyers will only conduct cases or propose arguments with a reasonable prospect of success and will focus on those elements of the case which are likely to lead to a successful outcome for the client to the exclusion of peripheral or insignificant issues.

6.12 Briefs and instructions given to Counsel by VLA lawyers are in writing, marked “Victoria Legal Aid” and include: 

• all relevant documentation
• sufficient observations on facts and law to assist Counsel to quickly grasp the issues involved
• brief fee and the terms of engagement (as appropriate)
• VLA’s file reference.

6.13 When briefing Counsel, VLA lawyers (in addition to complying with the grant of assistance) have regard to:

• the client’s instructions
• obtaining the most appropriate available Counsel .
• VLA’s responsibility as a significant public sector agency to ensure men and women advocates have equal opportunity to develop professionally.

6.14 VLA lawyers review all case work files monthly (or more regularly) and take steps to progress or bring non-active files to finality (where appropriate). Any files which have been inactive for a period of six months are reported to their supervisor, General Manager or Solicitor in Charge.

6.15 On completion of a matter, VLA lawyers inform clients in writing (unless the circumstances of the case make it inappropriate to do so) about:

• anything the client needs to do
• what (if anything) the client can expect to happen as a result of the case. In cases where VLA lawyers do not write to clients about those matters, they make a note on their file containing that information.

6.16 VLA lawyers review all files upon completion to ensure all necessary steps have been taken before the file is recorded as finalised in VLA’s computer system. These steps include the following (and are noted on or apparent from the file): 

• sending a final report letter to the client (unless it is inappropriate to do so, in which case the relevant information is recorded in a note on the file) 
• original documents have been returned to the client 
• all orders have been filed and served
• any undertakings given to the Court or another practitioner have been met
• any trust monies have been disbursed to the client in pursuance with the client’s written instructions or otherwise dealt with in accordance with the Legal Practice Act and rules governing solicitors’ trust accounts
• any costs reimbursement payable from the Appeal Costs Fund has been recovered from the Fund
• any appropriate advice about the prospects of an appeal has been given to the client.

6.17 Once the casework has been completed and all accounts have been certified for payment, VLA lawyers promptly refer the file to the file’s grants officer for finalisation in VLA’s computer system so that the file is recorded as finalised and any unused commitment is written out of the system.

6.18 All correspondence, file notes, memorandums, facsimiles and electronic mail messages on VLA’s casework files are written in a competent, professional and polite manner . They do not refer to any clients, practitioners or other persons in an offensive way. VLA lawyers are aware that their file may need to be produced to the Court or possibly under Freedom of Information legislation (in some circumstances).

6.19 VLA lawyers maximise their use of VLA’s information and communications technology to enhance the speed, accuracy and effectiveness of the services provided to legally assisted clients. These facilities include electronic mail, Internet access, CD-ROM library databases, video-conferencing and all standard computer applications (such as word processing precedents and glossaries and standard documentation). Wherever possible, VLA lawyers process their own computer functions (including their own time recording).

6.20 If a VLA lawyer receives any trust money (as defined in the Legal Practice Act and the Legal Aid Act), that trust money is immediately deposited into VLA’s solicitor’s trust account. Trust money is only paid out of the VLA trust account in accordance with the provisions of those Acts and the rules made under the Legal Practice Act. The provisions of the Legal Aid Act specify that initial contributions paid by clients are not trust money and do not have to be deposited in VLA’s trust account.

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