Helping a client apply for a grant of legal assistance

Helping a client apply for a grant of legal assistance

Part of a lawyer’s professional duty to a client is to advise them of any rights they may have to apply for a grant of legal assistance (except where it is clear they are not eligible) (rule 39.2(b) Professional Conduct and Practice Rules 2005.

If you are a private lawyer and your client may be able to receive a grant of legal assistance, then you may choose to either:

  • refer your client to Victoria Legal Aid (VLA) – stop acting for your client and refer them to VLA for help from an in-house lawyer in applying for the grant
  • help your client apply for the grant of legal assistance but don’t handle the matter further. If VLA makes a grant of legal assistance, then the person’s matter will be assigned to either an in-house lawyer or another private lawyer
  • help your client apply for the grant and then, possibly, handle the matter yourself.

If VLA makes a grant of legal assistance then for VLA to assign the matter to you:

  • your client must nominate you as their lawyer
    and
  • except in exceptional cases, you must be a member of one of VLA’s referral or practitioner panels.

VLA decides to whom legally assisted matters will be assigned. If you are a private lawyer, you may be able to register as a member of one of VLA’s referral or practitioner panels.

Section 30 general referral panel members will not be allocated grants of legal assistance for criminal law, family violence (including personal safety) intervention orders and child protection matters and will be no longer be able to use VLA assessed templates for applications in accordance with allocation of work to lawyers and law firms guidelines.

Conflicts of interest

Before agreeing to represent a legally assisted person, VLA’s in-house lawyers and private lawyers must check that they do not have a conflict of interest in the matter. See rules 4, 8 and 9 of the Professional Conduct and Practice Rules, and also the condition of membership of VLA’s section 29A practitioner panel (at clause 3.3 of VLA’s Section 29A panel practitioner manual).

A lawyer must:

  • take reasonable steps to avoid a conflict of interest and if there is a conflict, then they must not act for a person
  • not seek or accept a legally assisted matter from VLA without thoroughly checking the relevant records to ensure there is no conflict of interest in the matter
  • make a clear file note that they have checked for a conflict of interest and that no conflict exists; or that it does exist, in which case the lawyer must not accept the assisted matter
  • tell VLA as soon as practicable if a perceived or actual conflict of interest arises during the course of an assisted matter, and take all reasonably appropriate steps to end the conflict.

Rules for lawyers helping people apply for a grant of legal assistance

In addition to the rules for lawyers contained in the Legal Profession Act 2004 and in the Professional Conduct and Practice Rules, VLA has some specific rules for lawyers who help people apply for a grant of legal assistance.

A lawyer must not charge for helping a person apply

A lawyer who helps a person apply for a grant of legal assistance must not charge the person for any of the work involved in:

  • preparing the application
  • providing or preparing information required to support the application.

This work comes within the definition of ‘legal advice’ in section 2 of the Legal Aid Act 1978. Lawyers must provide such legal advice free of charge.

If a lawyer attempts to charge a person for this work and the lawyer is a member of a section 29A panel or the Section 30 Referral Panel, then VLA may remove them from the panel. See: VLA’s referral and practitioner panels.

Standard application form – the lawyer’s certificate

If an applicant uses the standard application form, then a lawyer who helps the person apply or who sends VLA the application form on behalf of the person must sign the Lawyer’s Certificate on the last page of that form. In signing, the lawyer is certifying that the case has enough merit for a grant of legal assistance. If the lawyer does not sign the certificate, then VLA will assume the case does not deserve a grant of legal assistance. (Note: The simplified application form does not contain a lawyer’s certificate.)

Simplified application form – attaching the relevant checklist

VLA has produced checklists for the different legal matters that are processed using the simplified grants assessment process. Checklists are available in the Invoices, worksheets and forms section of this site.

If a person uses the simplified application form, then their lawyer must:

  • fill in the relevant checklist for the matter
  • attach the checklist to the simplified application form.

By completing the checklist the lawyer is doing one of the following:

  • recommending that the application meets the relevant guideline and has merit; certifying that all necessary supporting information and documents are on the lawyer’s case file and recommending that VLA should make a grant of legal assistance
  • recommending that the application does not meet the relevant guideline but advising that special circumstances may apply and attaching all relevant documents for VLA to consider
  • recommending that the application does not meet the relevant guideline or does not have merit; certifying that all necessary supporting information and documents are on the lawyer’s case file and recommending that VLA should refuse a grant of legal assistance.

There is also scope on the checklist for the lawyer to request that VLA waive its requirement for the person’s documentary proof of means.

The lawyer must tell VLA about any extraordinary events

If a practitioner considers that there is work to be completed which goes beyond that reasonably expected under a grant of legal assistance, and is seeking further funding for this, the practitioner must notify VLA before undertaking the work. The practitioner must explain the circumstances, the additional work required, and the further funding that is sought, for VLA’s consideration of a further grant of assistance to undertake the additional work.