Supervised legal practice - how to satisfy the two year requirement

Completing a Bachelor of Laws (or equivalent qualification) and a Graduate Diploma of Legal Practice will enable a law student to apply to be admitted as a legal practitioner in the Supreme Court of their state and obtain a practising certificate. This is not where the process of becoming a lawyer ends. Two years of supervised practice on a conditional practising certificate is required in most Australian jurisdictions before a junior lawyer can remove the condition from their practising certificate and practice as an unsupervised lawyer. So how does supervised practise work? In this blog post I examine supervised legal practice requirements in NSW, Victoria and South Australia. Requirements vary across jurisdictions so always make sure you double check your local profession rules.  

New South Wales and Victoria

Overview

The Legal Profession Uniform Law (Uniform Law) and Legal Profession General Uniform Rules 2015 (Uniform General Rules) have been incorporated in both New South Wales and Victoria laws, harmonizing legal profession rules in these jurisdictions. Section 49 of the Uniform Law provides that a holder of an Australian practicing certificate can only engage in supervised legal practice until a period or periods of two years of supervised legal practice has been obtained (or 18 months where the holder completed practical legal training principally under the supervision of an Australian lawyer to qualify for admission to practice). Section 49 uses the expression “period or periods”, and the supervised legal practice can be completed in one period of work on a full time basis (or part time equivalent), or two or more periods of work on a full time basis (or part time equivalent) that is equivalent to the period of supervised practice required (Rule 14 Uniform General Rules). Note this differs from other jurisdictions such as South Australia which requires the period of supervised legal practice to be “continuous”.  The relevant local regulatory authority in NSW or Victoria can exempt a person from the supervision requirement if satisfied the person does not need to be supervised or only needs supervision for a shorter period (s.49(4)).

Who can supervise?

The following Australian legal practitioners can provide supervision:

1.     A lawyer employed in a law practice where at least one legal practitioner at the law practice is an authorized principal and the legal practitioner engages in practice under the supervision of the authorized principal;

2.     A principal (or partner) of a law practice where the principal engaged in practice under the supervision of the authorized principal;

3.     A lawyer engaged as a corporate legal practitioner (ie an in-house lawyer working for a bank) where the person holds, or is eligible to hold but is exempt from holding a practicing certificate, authorizing the holder to supervise legal practice by others; and

4.     A lawyer engaged as a government legal practitioner (ie an in-house lawyer working in a government department) where the person holds, or is eligible to hold but is exempt from holding a practicing certificate, authorizing the holder to supervise legal practice by others.

Do not assume your supervisor at work can supervise you. Ask to see their practicing certificate and look at the conditions on the certificate. Make sure there is no condition exempting the lawyer from supervision. Where your supervision is coming from an in-house corporate lawyer or a government lawyer, where the person holds a practicing certificate make sure the certificate states that the holder is authorized to supervise legal practice of others.

It is in your interest to get the best quality legal supervision possible. Your supervisor should be experienced, provide support and regular feedback sessions, and be able to amend, override or intervene in relation to your legal work performed where appropriate.

What kind of work falls within the definition of “legal practice”?

Legal practice includes practising law or providing a legal service but does not include engaging in policy work, including developing and commenting on legal policy (see s.6 Legal Profession Uniform Law). A legal service is work done or business transacted in in the ordinary course of legal practice.

The Victorian Legal Services Board relies on the case of Cornell v Nagle [1995] 2 VR 188 in deciding what falls within the definition of legal practice. Work that falls within the definition includes but is not limited to:

• Giving legal advice;
• Interpreting and applying legislation or case law for use of a client, whether or not for fee; and
• Drafting legal documents

Work that does not fall within the definition of legal practice includes but is not limited to:

• Paralegal work;
• Working as a judge’s associate;
• Policy work;
• Working as a conveyance;
• Working as a migration agent;
• Working as a tax agent; and
• Working as a patent attorney.

Note that the work that is considered legal practice varies between jurisdictions. For example, while working as a judge’s associate is not considered legal practice in Victoria and NSW, in South Australia working as a judge’s associate is considered legal practice and time spent working as an associate to a judge can count towards supervised legal practice.

Applying to remove conditions of practice

After the two years of supervised practice have been completed, a lawyer can apply to amend their practicing certificate to remove the condition. The condition is not automatically removed. For example, in NSW, a lawyer must complete a statutory declaration, and attach letters from their supervisor or supervisors for the period and submit the application to the Law Society of NSW. In Victoria a lawyer must also complete a statutory declaration and provide a letter from their supervisor or supervisors to apply for the removal of the condition

South Australia

Overview

Rule 3 of the Legal Practitioners Education and Admission Council Rules 2004 (LPEAC Rules 2004) provides that a person admitted to practice cannot practice as a principal until they have completed two years of supervised practice (18 months where the applicant has spent at least 12 months in “articles of clerkship in South Australia”). The supervised practice can be completed in South Australia or in another State or Territory. The following types of work can constitute supervised legal practice:

1.     A continuous period of two years full time employment as an employed practitioner (or part time equivalent);

2.     A continuous period of two years full time work as a volunteer practitioner (or part time equivalent);

3.     A combination of working as a full time employed practitioner and volunteering as a practitioner for two years (or part time equivalent); and

4.     A continuous period of 18 months as an employed practitioner where the person has completed no less than 12 months service in articles of clerkship in South Australia.

A “continuous period” does not have to be with the same lawyer, but can be several jobs that make up the period. The jobs must be “continuous”, though this term is not defined in the LPEAC Rules. The LPEAC board reserve the discretion to permit discontinuous periods of employment, so even if periods of supervised practice are not continuous it may be still be possible to put this experience towards supervised legal practice where a special application is made to LPEAC. LPEAC may exempt any person from the requirements of any of the LPEAC Rules (r. 10.1).

Who can supervise?

Supervised practice can be provided by a legal practitioner entitled to practice as a principal. The supervised practice must occur at the location where the principal conducts his or her practice. Practically speaking this means the supervisor must hold a Category A or Category B principal practising certificate. Rule 3B describes Category A and Category B practicing certificates as follows:

Category A – a principal practising certificate which enables the practitioner to practise as the principal of a law practice entitled to receive and manage trust monies.

Category B – a principal practising certificate which enables the practitioner to practise as a principal of a law practice but not entitled to receive and manage trust monies, which category shall include practitioners who only practise as barristers.

The safest way to ensure your supervisor is able to provide supervised legal practice is to sight a copy of their practicing certificate and check it is a Category A or Category B certificate. Note that the supervisor and junior lawyer must be located in the same physical location unless approval has been granted by the Board of Examiners.  

Supervisors and newly admitted practitioners should read the Guidelines for the Supervision of Newly Admitted Practitioners (Guidelines) which were recently approved by LPEAC on 22 July 2016. The Guidelines provide a list of competencies that a supervisor must address to ensure adequate formal legal training:

·         Interviewing clients, taking instructions and generally dealing with clients;

·         Advising, orally and in writing;

·         Undertaking legal research;

·         Ascertaining and analysing facts against the legal framework of a matter;

·         Legal writing, including:

o    Correspondence;

o    Pleadings;

o    Contracts/deeds/equivalent.

·         Advocacy, dispute resolution/negotiation;

·         Planning the ongoing conduct of matters.

What kind of work falls within the definition of “legal practice”?

After you have found an appropriate supervisor you need to ensure the work you are doing can count towards supervised legal practice. Work that can count towards supervised legal practice is work where the supervised lawyer is engaged to perform predominantly the work of a legal practitioner:

(i)         in a private law practice;

(ii)         in a government department or semi-government authority, if the employment requires the performance of the work of a legal practitioner which the Council considers appropriate for the purposes of these rules;

(iii)        in a corporate legal office;

(iv)        in a community legal service;

(v)        in the office of the Crown Solicitor, the Director of Public Prosecutions, the Commonwealth Australian Government Solicitor or the Commonwealth Director of Public Prosecutions;

(vi)        in any other organisation, department or office which the Council approves for the purposes of this rule;

(vii)       as a judge’s associate which work so qualifies.

The work undertaken must be predominantly the work of a legal practitioner. “Work of a legal practitioner” is not defined in the LPEAC Rules and is not discussed in the Guidelines. However, the competencies discussed above give an indication of the type of work that should be undertaken. 

Applying to remove conditions of practice

To remove the condition from your practicing certificate, a statutory declaration and supporting letter from the supervisor must be submitted to the Board of Examiners.

Good luck with your first two years as an admitted practitioner. Take the steps now to ensure that your work can count towards supervised practice.

Work Christmas parties – lessons from the 2015 Christmas season

Christmas season is here again meaning there will be a string of work Christmas parties and functions for employees to attend. In December last year I wrote about Keenan v Leighton BoralAmey NSW Pty Ltd[2015] FWC 3156, a complicated unfair dismissal case resulting from an employee’s inappropriate behavior both before and after a work Christmas function in 2014. There still appears to be a need to educate employees about behavior at work Christmas functions, as the wave of unfair dismissal cases resulting from work Christmas parties continues. In this blog post I will summarize the case of McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343.

Key principles

A work Christmas party is a work event, meaning the employer’s policies and codes of conduct will generally apply to employees at work Christmas parties. Behavior management and disciplinary processes for breach of a policy or code of conduct will be the same for behavior at a work Christmas party as for behavior during ordinary work hours.  Inappropriate behavior at a work Christmas party can be sufficient reason for dismissal, particularly where the behavior effects the safety and welfare of other employees.

Work Christmas parties ordinarily occur within a set time frame. Behavior that occurs after a work Christmas party has ended at an unofficial after party will not ordinarily be considered behavior that occurred in the course of employment. However, it is still possible for an employee to be dismissed from their employment for conduct that occurs outside the workplace.

McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343

Facts

Mr McDaid was employed by Future Engineering and Communication Pty Ltd (FEC) as a Project Coordinator. FEC held a staff Christmas event on 19 December 2014 which involved a day of go-karting followed by a Christmas party on FEC premises. FEC provided alcohol, soft drink and food, and did not provide any controls on the amount of alcohol consumed. The party was held in an area where there was a swimming pool. Although the conduct occurred on 19 December 2014 and Mr McDaid’s employment was terminated on 17 March 2015, and an application for unfair dismissal must be made within 21 days, a decision was not made until 2016 due to unsuccessful attempts at conciliation.

Mr McDaid had a history of behaving in an aggressive manner towards other employees in the workplace. He attended the go-karting event and then quickly became intoxicated at the Christmas party. He was aggressive towards Mr Sinna, a Design Engineer at FEC and pushed him several times in the chest. Mr Davies, FEC’s General Manager, intervened at one point and told Mr McDaid he should go home. After a short period, Mr McDaid continued to harangue Mr Sinna, became physically aggressive towards Mr Sinna and threw Mr Sinna into the swimming pool fully clothed.

Mr Davies approached Mr McDaid and told him to leave the premises. Mr McDaid then pushed Mr Davies twice, on the second occasion with such force that Mr Davies was propelled backward, hit the front gate of the premises and suffered some minor injuries. After Mr McDaid helped Mr Davies to his feet the two men started to exchange blows until Mr Davies hit Mr McDaid on the side of the head.

Mr McDaid’s employment with FEC was terminated on 17 March 2016 for reason of his behavior at the FEC work Christmas party. Mr McDaid filed an application for unfair dismissal with the Fair Work Commission. Conciliation failed and the matter was heard by Commissioner Williams.

Legal analysis

A national system employee to which the Fair Work Act 2009 (Cth) (Fair Work Act) applies is protected from unfair dismissal if they have served the minimum employment period (6 months or 12 months for small business employers), and if they earn less than the high income threshold (currently $138,900 per year) (see s.382 Fair Work Act). Mr McDaid satisfied this criteria. Section 385 provides that an unfair dismissal will have occurred where:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

In Mr McDaid’s case, the issue to be determined was whether the dismissal was harsh, unjust or unreasonable. Section 387 provides eight criteria the FWC must take into account when determining whether a dismissal was harsh, unjust or unreasonable:

1 Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

The three incidents that occurred during the Christmas party were each alone valid reason to dismiss Mr McDaid. Haranguing Mr Sinna, verbally abusing him, pushing him and throwing him in the pool was a valid reason for dismissal. Refusing to leave the property when directed to do so by the General Manager was a valid reason for dismissal. Initiating a fight with Mr Davies, and pushing him into the gate with such force he sustained minor injuries was a valid reason for dismissal.

2. Whether the person was notified of that reason

Mr McDaid was notified FEC was investigating his conduct at the Christmas party. Over a number of meetings between FEC and Mr McDaid in January 2016 and March 2016 it was made clear to Mr McDaid his behavior at the Christmas party was being investigated. After Mr McDaid was terminated on 17 March 2016 he was notified in writing of the reason for his dismissal.

3. Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

Mr McDaid was given numerous opportunities to respond. On the morning meeting held on 17 March 2016 he was given full opportunity to explain himself. At this meeting Mr McDaid read his version of events from a written statement he had prepared. FEC told Mr McDaid his version conflicted with other accounts and that they would respond later that day. Mr McDaid’s employment was terminated later that day on 17 March 2016.

4. Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Mr McDaid had his support person Mr Horner, a Field Manager at FEC, present at discussions including those held on 17 March 2016, the date of dismissal.

5.  If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

The reason for dismissal was conduct at the Christmas party, not unsatisfactory work performance.

6. The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and

7. The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

FEC designs, manufactures, and installs communication towers, powerline infrastructure and associated equipment throughout Australia and has about 60 employees. As a medium sized business with no dedicated human resource employees the procedures followed were appropriate.

8. Any other matters that the FWC considers relevant.

The FWC noted Mr McDaid’s history of aggressive behavior towards colleagues in the workplace and that the behavior at the work Christmas party was not an isolated incident. The FWC also noted Mr Davies’ behavior on the night, especially given his role as General Manager. However, the FWC concluded the fight between Mr McDaid and Mr Davies was instigated by Mr McDaid and Mr Davies was therefore acting in self-defence.

Commissioner Williams dismissed the application and held that Mr McDaid was not unfairly dismissed and that this outcome was not surprising given his behavior.

Conclusions

Mr McDaid’s case was fairly clear cut. An employee cannot harass a colleague, throw a colleague into a pool, and start a physical altercation with the General Manager causing injury without expecting consequences. While not all cases are as clear cut, employees should be aware of the kind of conduct at a work Christmas party that may form a reason for dismissal. Instigating fights with colleagues, harassing colleagues, and even failing to leave the premises when directed may constitute valid reasons for dismissal. Employees are reminded that the standard of behavior ordinarily expected in their workplace will be the standard of behavior expected at the work Christmas party.

The consumption of alcohol is not an excuse for poor behavior, even where the alcohol is provided or paid for by the employer. In certain situations an employer may be held responsible for the provision of alcohol such as where a drunk employee falls down stairs. However, alcohol consumption is not accepted as an excuse for bad behavior and certainly not physically violent behavior.

Employers should be aware that the appropriate procedures to follow in conducting an investigation and making a decision to terminate an employee’s conduct will vary depending on factors such as the employer’s size and whether the employer has any human resource capacity. Mr McDaid attended a number of meetings with a support person and was provided with a number of opportunities to respond before the decision to terminate was made.

Please be careful at your work functions this Christmas season and hopefully I won’t have to write another blog post on the same topic next year!