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.

Attwells v Jackson Lalic Lawyers [2016] HCA 16 – High Court rules on the advocate’s immunity from suit

On 4 May 2016 the High Court handed down its decision on whether to extend the advocate’s immunity from suit to situations where negligent advice is given which leads to the settlement of a case by agreement between parties and consent orders. This case summary has been written for junior lawyers working in litigation and law students studying Ethics and the Legal Profession.

The advocate’s immunity from suit

The two High Court precedents on advocate’s immunity are:

1.       Giannarelli v Wraith (1988) 165 CLR 543

The advocate’s immunity was said to extend beyond conduct of a case in court to “work done out of court which leads to a decision affecting the conduct of the case in court” (at 560). Mason CJ described two tests for determining whether work outside of court will attract the immunity:

a.       “work done out of court which leads to a decision effecting the conduct of the case in court” (at 559)

b.      “where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing” (adopted from the New Zealand case of Rees v Sinclair [1974] 1 NZLR 180) (the “intimately connected” test).

In D’Orta the High Court held that these two tests are essentially the same.

2.       D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 (applying Giannarelli)

In D’Orta, the High Court confirmed there are two categories where the immunity arises (inside of court and outside of court) and approved Mason CJ’s scope of the immunity for work occurring outside of court. The High Court held the immunity applied in the facts before it where an accused was given negligence advice to plead guilty, as the acceptance of this advice to plead guilty effected the determination of the case by the court as the court cannot conclude its function until a conviction is recorded, and the decision about a plea of guilty is intimately connected to the hearing of a criminal case as it is a decision made preliminary to the hearing of a charge which effects the conduct to the matter before the court.

Facts in Attwells v Jackson Lalic Lawyers

Gregory Attwells was a guarantor of payment of liabilities of a company to a bank. The company defaulted on the payments and the bank commenced proceedings against both the company and the guarantors (see Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335). The guarantors were represented by Jackson Lalic Lawyers in the proceedings. Proceedings settled (on what turned out to be negligent advice from Jackson Lalic Lawyers). The settlement was reflected in consent orders. The negligent advice from Jackson Lalic Lawyers included that the guarantors would be liable to pay the bank $3,399,347, when the guaranteed amount was $1,856.122, and the guarantors were not liable to pay more than this amount. The guarantors signed the consent orders based on this advice. The guarantors commenced negligence proceedings against Jackson Lalic Lawyers in the NSW Supreme Court, where Smchmidt J ordered that the question of whether Jackson Lalic Lawyers is immune from suit be decided separately from the other issues in the negligence proceedings.   

Legal question

Does the advocate’s immunity extend to negligent advice which leads to the settlement of a case by agreement between the parties?

Court of Appeal - Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335

The Court of Appeal held that Jackson Lalic Lawyers’ advice was within the scope of the immunity as the advice fell into the category of work done out of court affecting the conduct off the case in court, that the advice was intimately connected with the conduct of the guarantee proceedings.

High Court

The High Court held 5:2 that the immunity does not extend to negligent advice that leads to a disadvantageous settlement, even where the settlement is made into consent orders. Nettle J and Gaudron J dissented in separate judgments.

French CJ, Kiefel, Bell, Gageler and Keane JJ (the majority judgment):

a.       Intimate connection – look to the policy reason behind the immunity

The High Court majority began its analysis by identifying the policy reason behind the immunity. The rationale behind the advocate’s immunity is that the community at large has a vital interest in the final resolution of decisions by judicial determination, and that after a judicial determination has been made, it should not be open to collateral attacks seeking to demonstrate that a judicial determination is wrong ([34]). The immunity exists to protect the public interest in the finality of judicial decisions ([35]). This rationale is why the scope of the immunity is limited to conduct of the advocate which contributes to a judicial determination ([37]). The Law Society of NSW (as an intervener in proceedings) submitted that the immunity should be extended otherwise lawyers will not encourage their clients to settle their claims, as they will not have immunity from protection ([52]). The High Court rejected this argument, as it does not accord with the primary policy reason for the immunity.  Extending the immunity to advice which leads to the settlement of litigation takes the immunity away from its primary rationale, which is to protect the exercise of judicial power from collateral attack. The “intimate connection” between the advocate’s work and the conduct of the case in court must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision.

b.      Historical connection alone is not sufficient

The joint judgment discussed what would constitute an “intimate connection”, distinguishing “merely historical connections” from “functional connections” ([49]). The Law Society of NSW submitted that negligent advice not to settle is intimately connected with an ensuing judicial decision of the court so as to attract the immunity. The High Court rejected this “historical connection”, stating it is not sufficient that one event precedes another event to create an “intimate connection”. The “intimate connection” discussed in Giannarelli and D’Orta is a “functional connection” which is the connection required by the public policy reason for the immunity.

c.       Consent orders

The settlement was embodied in consent orders, and the respondent argued that this involvement of the court was sufficient to constitute an “intimate connection”. The High Court rejected this argument, as the substantive content of the rights and obligations in the consent orders were determined by the parties without any determination by the court. The terms of the settlement agreement “were not, in any way, the result of the exercise of judicial power”. The High Court left the question open as to whether it would be different in situations where “the making of the order itself requires the resolution of issues by the exercise of judicial power” such as where representative proceedings are settled or where proceedings on behalf of a person under legal incapacity are to be compromised.

The dissenters

Gordon J held that the advocates immunity does extend to negligent advice leading to settlement where the agreement is reflected in consent orders. Gordon J focused on a different aspect of the plurality’s judgment in D’Orta, being that the immunity plays a part in a series of rules which are “designed to achieve finality in the quelling of disputes by the exercise of judicial power” ([100]), equating the final quelling of disputes with “work intimately connected with” work in the court, and proceeded to focus on the final quelling of disputes rather than the intimate connection test the plurality focused on. While the majority distinguished Attwells v Jackson Lalic Lawyers from D’Orta, Gordon J argued that both cases involved a final quelling of the outcome, in that both admissions were given legal effect by authority of the court – in one case by entry of conviction, and in the other by entry of verdict and a judgment. Gordon J was careful to analyse the orders made by the court. Orders 1-9 constituted orders of the court recording a verdict and judgment made, whereas paragraphs 10 onwards in the orders merely noted the agreement made between the parties. The verdict and final judgment contained in Orders 1-9 constituted a final quelling of a controversy by exercise of judicial power which attracts the advocate’s immunity from suit.

Nettle J agreed with Gordon J’s reasons for dissenting, focusing on the final quelling of a dispute by judicial power. Even where the parties are agreed on the orders which should be made for the final determination of their rights and liabilities, it remains for the court to be satisfied that it is appropriate to do so to order, which involved judicial power and attracts the advocate’s immunity.