If the records in a case file do not comply with Victoria Legal Aid's (VLA's) requirements, the compliance officer may choose to give one of the following levels of notice to the lawyer:
- a file review notice
- a non-compliance notice
- a restitution notice
- a compliance failure notice
- a compliance failure notice 2.
The levels of notice reflect increasing levels of seriousness of the compliance breach.
General contents of notices
When a compliance officer gives any of these notices to a lawyer, the notice must contain:
- details of the nature of the breach
- details of any action the lawyer must carry out to remedy the breach (‘remedial action’)
- the time period within which the lawyer must carry out any remedial action.
Choosing which level of notice to give
The compliance officer chooses the level of notice to give after considering:
- the nature of the compliance breach
- the seriousness of the compliance breach
- the consequences flowing from the compliance breach, including any risk of detriment to the assisted person and to the Legal Aid Fund from which grants are made
- the need to deter further compliance breaches by that lawyer
- any explanation that the lawyer gives for the breach.
File review notice
The compliance officer will give the lawyer a file review notice to:
- educate the lawyer about their rights and obligations
- prevent serious breaches in the future
- seek further information.
The compliance officer does not formally record a file review notice against the lawyer. However, the compliance officer will keep a copy of the file review notice on the lawyer’s compliance folder. It may be taken into account when deciding what notice to issue for further breaches at later compliance checks.
If the lawyer satisfactorily takes the required remedial action within the specified time, then the compliance officer may seek fruther information or may take no further action. However, if the lawyer does not satisfy the requirements of any remedial action, the compliance officer:
- will give the lawyer a compliance warning
- if appropriate also give the lawyer a restitution notice.
The breach will be recorded at this time.
The compliance officer will give a non-compliance notice when they formally record a breach by the lawyer. The notice may require the lawyer to either:
- take remedial action within a specified time to avoid being issued with a restitution notice
- comply with a restitution notice.
If the lawyer satisfactorily takes the required remedial action within the specified time, then the non-compliance notice remains on the record but the compliance officer will take no further action. However, if the lawyer does not satisfy the requirements of any remedial action, then the compliance officer will either:
- give the lawyer a restitution notice where this has not yet been issued
- restitute monies if a restitution notice was issued.
If a lawyer does not comply with a non-compliance notice, then the compliance officer may also give the lawyer a compliance failure notice.
The compliance officer will give a lawyer a restitution notice if:
- the lawyer has failed to rectify a breach of a non-compliance notice relating to the lawyer not having obtained and retained documentary proofs of their client’s means
- the lawyer has failed to rectify a breach of a non-compliance notice relating to the lawyer not having obtained and retained documentary proof of the legal matter
- the lawyer has spent amounts of money without proper authorisation by VLA (for example, if the lawyer has incurred a disbursement which required approval in advance by VLA)
- they are not satisfied that the grant of legal assistance was properly made within the guidelines for assistance
- the lawyer has not satisfied the requirements of any remedial action in a non-compliance notice
- they are not satisfied that the costs paid are appropriate.
The restitution notice will require the lawyer to repay VLA an amount of money. That amount will not be more than the amount of money spent by VLA on the improper grant of legal assistance.
Compliance failure notice
The compliance officer will give a lawyer a compliance failure notice if they find any of the following:
- the lawyer has failed to carry out any required remedial action after a non-compliance notice
- the compliance breach or breaches are particularly serious (for example, compliance officers have issued non-compliance notices in more than half of the lawyer’s files which they have checked)
- non-compliance repeatedly relates to the same issues .
The compliance failure notice will require the lawyer to take remedial action within a specified time.
Compliance failure notice 2
The compliance officer will give a lawyer a compliance failure notice 2 if the lawyer has not carried out the remedial action required by a compliance failure notice within the specified time.
If a lawyer does not comply with a compliance failure notice 2, then VLA will consider giving the lawyer either:
- a notice to suspend them from the Section 29A Practitioner Panel
- a notice to remove them from the Section 29A Practitioner Panel.
Where such action is being taken against an in-house lawyer, the matter is brought to the attention of the lawyer’s manager for appropriate performance management steps to be taken.