Requesting a change of allocated lawyer

Requesting a change of allocated lawyer

If an assisted person wants to change their allocated lawyer, then they may do so only if Victoria Legal Aid (VLA) agrees.

Giving reasons and other information

If an assisted person wants a change of lawyer, then, in all matters, they (or their new lawyer) must tell VLA:

  • why they want to transfer the matter to the new lawyer
  • how much work the original lawyer has done on the matter
  • how much VLA has already paid in costs and disbursements for the matter
  • how close in time the next stage of the proceedings is
  • whether the original lawyer is willing to keep acting for the assisted person.

See also: Abandoning legal assistance.

Special rules for criminal law matters

VLA will approve a change of lawyer in a criminal law matter only if, either:

  • the original lawyer has a conflict of interest
  • there is another compelling reason why the original lawyer should not act for the assisted person (see below for examples).

‘Compelling reasons’ may include that:

  • there is a pre-existing, long-term professional relationship between the assisted person and the new lawyer and the same lawyer has acted for the assisted person in relevant criminal proceedings before
  • there is proof the original lawyer has breached professional practice and conduct rules
  • there are other special circumstances, for example, the client is suffering from a psychiatric disability .

Changing counsel between a committal and the trial

VLA will agree to a change of counsel between a committal and the trial only if there are satisfactory reasons for the unavailability of counsel who appeared in the committal. An allocated lawyer must ensure they brief only counsel who is prepared to undertake both legally assisted committals and the trials.

If an assisted person withdraws instructions from their allocated lawyer and VLA does not approve a change of lawyer

If an application is made under section 197 of the Criminal Procedure Act 2009 for an order that VLA make a grant of legal assistance to an accused person, then the person applying must ensure that the application is:

  • made in writing
  • filed in the court and served on VLA at least seven days prior to the hearing date
  • accompanied by a letter from VLA to the applicant refusing a grant of legal assistance.

Where the refusal of the grant of legal assistance is on the ground that the person applying does not meet the means test, then the person must be able to produce to the court copies of all documents relied on in support of the application for a grant of legal assistance.

The obligations of the original lawyer

If VLA approves a change of lawyer, then the original lawyer must immediately:

  • report to VLA about the progress of the matter;
  • tell VLA about the merits of continuing the grant of legal assistance; and
  • give VLA an account for the work they did before the assisted person withdrew their instructions.

The original lawyer must also keep the case file until VLA allows the transfer of both the file and the grant of legal assistance to the new lawyer.

If the original lawyer is a member of the Section 29A Practitioner Panel the lawyer must ensure that all necessary material is retained on file to satisfy any compliance requirements. See: Compliance reviews.

The obligations of the new lawyer

If VLA approves a change of lawyer, then the new lawyer must:

  • accept the transfer of the grant of legal assistance on its existing terms and conditions
  • if necessary (that is, if there is any issue with the costing and VLA requests the file), give the file to VLA for VLA to cost the work of the original lawyer
  • if possible, retain the same counsel.

Transfer of case file and grant

If VLA approves the transfer of the matter, then the original lawyer and the new lawyer must arrange for the transfer of the case file between them.

Responsibility for delays and their consequences

VLA will not be responsible for any delays caused by a change of lawyer. The assisted person will be responsible for:

  • the consequences, including costs, of any delays that may occur during the transfer of the grant
  • any necessary steps, such as adjourning the proceeding to let the grant be transferred.

Costs of the transfer will not be paid

VLA will not pay for any costs involved in the change of lawyer. This includes that VLA will not pay for the cost of the new lawyer familiarising themselves with the matter.

Soliciting or poaching clients

Members of VLA’s Section 29A Practitioner Panel and Section 30 Referral Panel must not solicit or poach the clients of VLA in-house lawyers or of other panel lawyers in assisted matters.