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.
