General terms of allocation of work

Victoria Legal Aid (VLA) requires all lawyers to whom it allocates matters to comply with VLA’s general terms of allocation of work, as follows.

The matter

VLA makes grants of legal assistance only for the matter or matters set out in VLA’s grant letter. If a person needs a grant of legal assistance for other matters, then the lawyer must get written approval from VLA.

Cost ceilings, fees and costs

Approval must be sought for counsel’s fees, except in:

• matters where VLA will pay a lump sum
• family law proceedings (but not including a final defended hearing).

In these two types of matter, VLA will pay the set fee regardless of whether the lawyer engages counsel.

If a cost ceiling applies to the matter, then, usually, the lawyer must complete the matter within the cost ceiling. The lawyer may go beyond the cost ceiling only if:

• the lawyer seeks written approval from VLA to go beyond the ceiling (for family law matters, in the form of an overcap worksheet)
• VLA gives written approval.

The lawyer must accept professional costs paid in accordance with section 32 of the Legal Aid Act 1978.

See: Payments for the details of all cost ceilings, fees and costs and disbursements.

The lawyer must keep VLA informed during the matter

In addition to any other requirements in the general terms of allocation of work for the lawyer to keep VLA informed of specific events, the lawyer must:

• tell VLA of any circumstances which may be relevant to VLA continuing to make a grant of legal assistance, including any change in the assisted person’s financial or living circumstances
• give VLA any information which VLA reasonably requests which is relevant to:
  • the grant of legal assistance
  • the services being provided to the assisted person
  • the costs charged or to be charged for those services
• give VLA the file or files for the matter for which VLA made a grant of legal assistance, if VLA requests them
• tell VLA immediately if the assisted person does not accept or act on either the lawyer’s advice or counsel’s advice
• tell VLA about the progress of the allocated matter, especially about any circumstances which might substantially increase costs above the usual costs for a matter of that type.

The lawyer must treat certain work as legally assisted

If VLA requires the lawyer to treat all or any part of the work they have already completed (for which the assisted person has already paid their own money) as having been done under the grant of legal assistance, then the lawyer must do so.

If the lawyer is required to treat work as having been done under the grant of legal assistance, then they must credit VLA with all money received from the assisted person for that work.

Costs recovery

The lawyer must retain enough money out of any they receive on the assisted person’s behalf to cover the costs of the allocated matter.

The lawyer must tell VLA immediately whenever they receive any money on the assisted person’s behalf.

The lawyer must comply with VLA’s instructions when they disburse any money they receive on the assisted person’s behalf.

The lawyer must not prejudice VLA’s right to recover its costs through a financial contribution from the assisted person by:

• taking any action
• giving any advice
• entering any agreement
• doing anything else.

The lawyer must not enter any agreement which could prejudice the assisted person’s right to recover costs, unless the lawyer has VLA’s approval to do so.

The lawyer must do everything reasonable to recover any costs which a court may order in favour of the assisted person.

If it appears likely that the assisted person may not recover costs, then the lawyer must tell VLA.

Background to costs recovery by VLA

Under section 46(2) of the Legal Aid Act, if a court orders costs in favour of an assisted person, then those costs effectively become the property of VLA. The lawyer must not hinder in any way VLA’s ability to recover the costs, unless VLA agrees.

Examples:

• In a criminal case, the police may offer to withdraw charges against an accused person if the person does not seek costs against the police. The lawyer acting for the accused must seek approval from VLA before agreeing to this course of action.
• In a family law proceeding, the person against whom the court orders costs may be unable to pay them. If the person in whose favour the court orders costs is an assisted person, then VLA expects their lawyer to seek approval from VLA before pursuing those costs.

Final report and account to VLA

Within a reasonable time after the allocated matter is completed, the lawyer must give VLA:

• a report on the result of the matter, including details of any order for costs
• an account in the form (if any) which VLA provides, using the appropriate scale of costs or VLA’s fee schedules and, if VLA requests, a bill of costs in taxable form for fees and disbursements
• an account for all money the lawyer has received and paid on behalf of the assisted person during the time that the lawyer held a grant of legal assistance.

See also: Finalising grants of legal assistance.

Application for Appeal Costs Certificates

In a State matter, the lawyer must, if appropriate, request a certificate under the Appeal Costs Act 1998 and submit an application to the Appeal Costs Board.