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17. Costs and Fees

17.4. Private practitioners prohibited from charging legal aid client

17.4.1 Section 41 of the Act

Section 41 of the Act prohibits a private legal practitioner from charging or recovering any costs from a legally assisted person for work that has been assigned by Legal Aid NSW to the practitioner on behalf of the legally assisted person.

A breach of s41 is an offence.

Any agreement to exclude, modify or restrict the operation of s41 of the Act is void.

Some examples of the effect of s41 of the Act are:

  • a legal practitioner cannot receive costs from anyone on behalf of the legally assisted person without prior approval of Legal Aid NSW
  • a legal practitioner cannot recover from a legally assisted person any of the 20 per cent deducted from their costs by Legal Aid NSW (transferred into Legal Aid NSWs Legal Aid Fund)
  • a legal practitioner cannot charge for travel or accommodation costs without approval of Legal Aid NSW
  • at the conclusion of a stage in a staged model grant of aid a legal practitioner cannot charge for a subsequent stage unless Legal Aid NSW has informed the legally assisted person that the grant of aid has been terminated.

Section 41 of the Act does not cover any legal fees earned and/or disbursements incurred by the private legal practitioner prior to the date their client received the grant of legal aid.

17.4.2 Legal Aid NSW can determine that s41 does not apply to grant of aid

Legal Aid NSW may determine that s41 of the Act will not apply when authorising a lump sum grant under s30(2) and (4) of the Act.

See Types of Grants of Aid chapter for policy on lump sum grants.

See Act chapter for commentary on s41 of the Act.

Date Last Published: 21/12/2016