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.

How do I comply with Continued Professional Development (CPD) requirements? How do I keep track of my CPD points?

As a junior lawyer with a restricted practicing certificate, the world of CPD points can seem confusing. Colleagues may tell you not to worry too much, and to just follow them to whatever seminars they are going to. This is a risky approach. It is your responsibility to make sure you are compliant. It is your practicing certificate is on the line (though you get a fair few second chances before it comes to this).

Note: this blog post is relevant to solicitors working in NSW and Victoria under the Legal Profession Uniform Laws. CPD requirements outside of these jurisdictions will vary. Different rules apply to Barristers.  

Where do I find the law on CPD requirements?

The detailed law is contained in the Legal Profession Uniform Continuing Professional Development (Solicitor) Rules 2015 (CPD Rules). The enabling legislation for the CPD Rules is the Legal Profession Uniform Law Application Act 2014 (Vic). Section 427 of the Act permits Continuing Professional Development Rules to be developed by the Law Council of Australia, which must be approved by the Legal Services Council before submitted to the Standing Committee. The CPD Rules can require practitioners to comply with provisions for continuing professional development and may provide for any aspect of continuing professional development (s.424).

What are the most important CPD Rules?

The most important rules are the minimum CPD requirements in Rules 5 and 6. A minimum of 10 CPD units each year must be completed, including at least one unit in each of the four following fields:

1.       Ethics and professional responsibility;

2.       Practice management and business skills;

3.       Professional skills; and

4.       Substantive law.

The CPD year runs from 1 April to 31 March, which is why you often see lawyers scrounging around for any CPD points they can get their hands on in the month of March.  If you received your practising certificate midway through the CPD year, the number of CPD points you need to obtain is reduced pro rata. For example, my practising certificate commenced in September 2015, so I only have to obtain 5 CPD points this CPD year. See Rule 10 for the pro rata reduction relevant to you.

Don’t stop at 10 points...

If you have excess points at the end of the CPD year, you can carry a maximum of 3 points across to the new CPD year (Rule 11).

How do I know how many units a CPD activity is worth?

Most seminars will state how many CPD points attendance at the seminar is worth. However, you should always check this figure and there will be situations where you have to calculate the relevant CPD points yourself. This grid shows the type of activity and relevant CPD points. I made this grid by combining the data from Rules 8 and 9:

Type of activity	Activity Rule reference	How to calculate units	Maximum units you can claim for this type of activity in  a CPD year
Seminar, workshop, lecture, conference etc	8.1.1	One point for one hour of the activity	No limit
Researching, preparing or editing of an article in a legal publication, a legal article in a non-legal publication or published Law Reports	8.1.2	One point for every 1000 words of the article	5
Preparation and/or presentation of written or oral material to be used in a CPD activity or other form of legal education	8.1.3	One point for one hour of the activity	5
Membership of a committee, taskforce or practice section of a professional association, designated local regulatory authority or the Law Council of Australia or of other committees, provided that the solicitor regularly attends its meetings, if the work performed on the committee, taskforce or practice section is of substantial significance to the practice of law and is reasonably likely to assist the solicitor’s professional development	8.1.4	One point for every two hours of the activity	3
Postgraduate studies relevant to practice needs	8.1.5	One point for one hour of the activity	No limit
Private study of audio-visual material specifically designed to update knowledge and/or skills relevant to the solicitor’s practice needs	8.2	One point for one hour of the activity	5
Completion of a specialist accreditation assessment process	9.3	-	10

You need to take record keeping seriously

You might have colleagues who don’t bother recording their CPD points until the end of the CPD year where they then struggle to remember what points they have accrued. You may have colleagues who copy each other’s CPD record, as they assume they attended the same seminars throughout the year. This is a risky practice. You can be subjected to a CPD audit at any time where you will be required to produce your record and evidence. You must retain your record and evidence for at least three years (Rule 12). If you are audited you will have 21 days to provide your record and evidence to the auditor (Rule 14).

How do I report my CPD points?

CPD points are certified on an annual basis. When you reapply for your practicing certificate you will be required to certify that you complied with the CPD Rules the previous year (Rule 13).

How should I keep a record of my CPD points?

As you attend each CPD activity write it in your record and print proof of your attendance/enrollment in the activity. This is the form I use to record my CPD points. Feel free to use it for yourself.

Date activity undertaken	Description of CPD Activity	CPD Category (E/PM/PS/S)	CPD points

The new Legal Profession Uniform Law takes effect from 1 July 2015. Be prepared.

The Legal Profession Uniform Law (“Uniform Law”) is a new statutory and regulatory framework which will apply to solicitors and barristers across NSW and Victoria from 1 July 2015. The Uniform Law is the result of years of negotiations at an intergovernmental level, and years of work by the National Legal Profession Reform Taskforce. At this initial stage, only NSW and Victoria are participating in the harmonisation, though it is expected other jurisdictions will adopt the Uniform Law after it has been implemented in NSW and Victoria. Almost three quarters of Australia’s lawyers work in NSW and Victoria, so this is a solid start to harmonisation. The Uniform Law standardises areas including practicing certificates, billing practices, complaints procedures, and continued professional development.

What is the purpose of the Uniform Law?

A main purpose behind the Uniform Law is to cut costs for law firms and clients. The harmonisation of laws is meant to make it easier and simpler for lawyers and firms practising across the Eastern states. The current system is particularly challenging for small firms operating in NSW and Victoria and the Uniform Law attempts to encourage the growth of smaller law firms and businesses. Section 3 of the Legal Profession Uniform Law (NSW) outlines the objects of the legislation as promoting the administration of justice and an efficient and effective Australian legal profession by:

a.       Providing interjurisdictional consistency in law applying to the legal profession;

b.      Ensuring high ethical and professional standards in the provision of legal services;

c.       Protecting clients and the general public;

d.      Empowering clients to make informed choices about services and costs involved;

e.      Promoting efficient, effective, targeted and proportionate regulation of the legal profession; and

f.        Providing a framework where the legal profession has an appropriate level of independence from the executive arm of government.

Outline of the new statutory regime

1.       Legal Profession Uniform Law

The Uniform Law is incorporated into the law of NSW by the Legal Profession Uniform Law Application Act 2014 (NSW). It covers areas including admission to practice, legal practice, practising certificates, business practice and professional conduct, costs agreements, costs disclosure, billing, costs assessment, professional indemnity insurance and fidelity cover. The Uniform Law will replace the Legal Profession Act 2004 (NSW).

2.       Legal Profession Uniform General Rules (“Uniform Rules”)

The Uniform Rules replace the Legal Profession Regulation 2005 (NSW), and “flesh out” in detail requirements under the Uniform Law, such as the threshold requirements for legal practice, trust accounting, legal costs, and business management.

3.       Legal Profession Uniform Admission Rules (“Admission Rules”)

Under the new regime, admission to practice rules have been separated into their own separate delegated legislation.

4.       Legal Profession Uniform Law Australian Solicitors’ Conduct Rules (“Solicitors Rules”)

The new Solicitors Rules replace the Professional Conduct and Practice Rules 2013 (NSW).

5.       Legal Profession Uniform Legal Practice (Solicitors) Rules (“Legal Practice Rules”)

The new regime also has a short set of Legal Practice rules dealing with transfer of a solicitors practice, debt collection, conducting another business, litigation lending, and loan and security documents.

Uniform Law timeline

February 2009	COAG appoints the National Legal Profession Reform Taskforce to propose draft uniform legislation and in the process enhance the clarity and accessibility of client/consumer protection.
May 2010	The Taskforce release a draft National Law and National Rules. The three month public consultation period began.
December 2010	The Taskforce release the amended draft National Law.
19 October 2011	The Attorney General of NSW and the Attorney General of Victoria commit their respective states to the implementation of the Uniform Law.
3 October 2012	Queensland withdraw from the harmonisation talks. NSW and Victoria continue reform discussions.
5 December 2013	NSW and Victoria sign an Intergovernmental Agreement and formalise their participation.
10 December 2013	Legal Profession Uniform Law Application Bill (Vic) is introduced into Victorian parliament.
25 March 2014	The Victorian Bill receives assent.
27 March 2014	NSW introduce legislation applying the Legal Profession Uniform Law.
20 May 2014	Legal Profession Uniform Law receives assent in NSW.
1 July 2015	The new Legal Profession Uniform Law and Rules will come into effect.

New bodies are created

The Law Society of NSW will continue having the same regulatory functions such as monitoring trust accounting and licensing. The Uniform Law creates the following new bodies:

1.       Standing Committee

The Standing Committee has a general supervisory role, supervising the functions and duties of the Council, Commissioner and local authorities such as the NSW Law Society (s391 Uniform Law).

2.       Legal Services Council (“LSC”)

The Legal Services Council is established by section 394 of the Uniform Law. Each Council is appointed for a 3 year term (s394). The LSC undertakes a number of functions including:

·         Rule making in accordance with the  Uniform Law (s419);

·         Monitoring the implementation of the Uniform Law to ensure consistent application in jurisdictions (s394);

·         Ensuring the framework remains efficient, targeted and effective at promoting the maintenance of professional standards (s394);

·         Ensuring the framework appropriately protects clients (s394);

·         Monitoring and reviewing the exercise of the Commissioner’s functions (s396);

·         Examining the Commissioner’s annual report (s396); and

·         Recommending to the Standing Committee any changes to the role of Commissioner (s396).

3.       The Commissioner for Uniform Legal Services Regulation (“Commissioner”)

The Commissioner has a range of functions including promoting compliance with Uniform Laws and Rules, making guidelines for dispute resolution and professional discipline, and raising awareness about the Uniform Law and its objectives (s398). The Commissioner is to act independently of the Council (s401).

4.       Admissions Committee

The primary function of the Admissions Committee is to develop and maintain Admission Rules. The Admissions Committee also has the role of advising the council about guidelines and directions relating to admission (s402).

What are some of the changes?

1.       Changes to cost disclosure protocols

There is a new “fundamental billing principle” in section 172 that a legal practice must not charge more than what is “fair and reasonable in all the circumstances”. In particular, the costs must be proportionately and reasonably incurred and proportionate and reasonable in amount (s172). The Uniform Law also introduces categories of disclosure:

a.       No formal notification of costs is required where the estimate is less than $750;

b.      “Short disclosure” is required where estimate of costs is between $750 and $3,000;

c.       “Full disclosure” is required where estimated costs exceed $3,000.

The system is still based on estimates, and law firms will not be required to provide a binding fixed fee at the beginning of the matter.

2.       Changes to complaint time limits

There is a reduction in the time limits for complaints processes. Clients must make the complaint within 60 days after the costs become payable or 30 days after receipt of the itemised bill (itemised bills must be requested within 30 days of the costs becoming payable). The time period can be extended by an additional 4 months.  The purpose of these changes is to encourage the quick resolution of matters at a lower cost to the client and the lawyer.

3.       New costs complaints vetting procedure

The relevant Regulator must conduct a preliminary assessment of the complaint and has powers to close the complaint if it is vexatious, misconceived, or lacking substance.

4.       Firms can now advertise their personal injury services

In NSW, legislation was introduced in 2005 prohibiting the advertising of personal injury services. This prohibition is not present in the Uniform Law. However, restrictions on false and misleading advertising still apply.

5.       Liability of principals

There has been a subtle but important change in the liability of principals. Under the current system a principal is deemed liable unless they can prove otherwise under a legislative exception. The Uniform Law has changed the onus of proof. Under the Uniform Law a principal will only be liable for contravention by their law practice if:

·         The principal knowingly authorised/per mitted the contravention; or

·         The principal was in or reasonably ought to have been in a position to influence the conduct of the law practice relevant to the contravention and failed to take reasonable steps to prevent it.

6.       Exemptions for government and corporate (in-house lawyers)

Under the Uniform Law, government and corporate lawyers will not have to contribute to the fidelity fund. This makes sense, as they do not handle trust money. Government and corporate lawyers will also be exempt from professional indemnity insurance requirements. These lawyers may need professional indemnity insurance however if they participate in pro-bono work or volunteer legal work.

This blog post is a short overview of the new Uniform Law. The changes are substantial. For further information, the Law Society of NSW website is a great starting point.