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.