Professional Standards Scheme
The proposed Western Australian Bar Association Professional Standards Scheme was notified in the press on 4 March 2020. The Professional Standards Council of Western Australia has invited comments and submissions in relation to the proposed Scheme from interested stakeholders, until COB on 31 March 2020. A public consultation document about the proposed Scheme, prepared by the Western Australian Bar Association, is also available for stakeholder information.
About the Scheme
The Scheme applies to all members of the Association (as set out in cl.2.1 of the Scheme) and will, subject to the provisions of the Scheme, limit the liability of members to whom the Scheme applies (Scheme Participants) to damages in the amount of $2 million.
The liability limited by the Scheme includes, to the extent permitted by the Act, civil liability arising (in tort, contract or otherwise) directly or vicariously from anything done or omitted by a Scheme Participant in acting in the performance of his or her occupation. The limit on liability extends only to those matters that fall directly within the scope of a Scheme Participant’s professional work as a barrister and does not apply to liability for damages arising from breach of trust, fraud or dishonesty or liability expressly excluded under the Act.
For the purposes of regulation 97(1)(a)(ii) of the Legal Profession Regulations 2009, for the 2019-2020 year the minimum level of cover is $2 million for each claim inclusive of costs.
It should be noted that the Scheme can only affect liability for a single cause of action where liability results in damages exceeding $2 million. The definition of damages in section 4 of the Act, includes costs ordered to be paid in connection with the award of damages and interest payable on the amount of damages or costs.
It remains the responsibility of each barrister to determine his or her professional indemnity insurance requirements and the level of cover.
Members should familiarise themselves with the terms of the Act, and in particular sections 34, 41, 42, 44, 45 and the relevant defined terms in section 4.
The Scheme does not apply to Interstate, Honorary, Judicial, Magistrate or Ex Officio members of the Association, or to members who have applied for, and been exempted from, participating in the Scheme by Bar Council.
Scheme Participants’ Obligations
Under section 45 of the Act all documents given, or caused to be given to a client or prospective client by a Scheme Particpant must include a disclosure statement as to a Scheme Participant’s limited liability status.
The Professional Standards Legislation requires the following disclosure statement for association members who are covered by a Professional Standards Scheme:
“Liability limited by a scheme approved under Professional Standards Legislation”
¹ This scheme was extended beyond its original five-year term.