By Paul Gregoire and Ugur Nedim
Both coming into effect on 1 July 2015, the Legal Profession Uniform Law (NSW) (the Uniform Law) and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the Conduct Rules), establish the rules that regulate the conduct of lawyers in New South Wales, over and above the responsibilities imposed on individuals by the general law.
The Uniform Law establishes a common marketplace for legal services across the jurisdictions of NSW and Victoria, while, as the Conduct Rules suggest, they set out the type of powers and restrictions that lawyers in NSW possess and must abide by.
A key requirement to working as a lawyer in the state of NSW is the possession of a current practising certificate, which is a document that must be renewed annually, is obtained post-law degree via extra coursework and training, and this must be updated throughout one’s career.
Practising certificates vary with five different categories existing. And these include principal of a law practice, employee of a law practice, corporate legal practitioner, government legal practitioner and volunteer.
And the five levels of certificate have different conditions imposed upon them.
The Law Society of NSW is a professional association representing this state’s lawyers, formerly known as solicitors. In June last year, it published the ‘What a Lawyer Can and Cannot Do at Each Stage of Their Career graph’ which contains a ‘Legal Practice Matrix’ aimed at helping law students, law graduates, Australian and foreign lawyers, retied lawyers and the general public ‘understand the types of legal work you can perform depending on your legal qualification and practising entitlements’.
The Matrix sets out these rules that apply to holders of the five practising certificates, being:
- Employee of a law practice with supervision required,
- Employee of a law practice no supervision required,
- Principal of a law practice,
- Corporate legal practitioner, and
- Government legal practitioner.
In addition to this, the Matrix explains the rules that apply to those who have completed the study of law but do not hold current Australian practising certificates, being:
- Law graduates who yet to be admitted to the roll of lawyers,
- Law graduates who have been admitted to the roll of lawyers,
- Australian-registered foreign lawyers,
- Consultants / contractors, and
- Retired lawyers.
This article sets out the rules that apply to various categories of practising law in our state.
Entitlement to practise
But first, it should be made clear that section 10 of the Uniform Law prohibits unqualified entities from practising as a legal professional in New South Wales, with those breaching this rule facing up to 2 years imprisonment and/or a fine of $27,500. The prohibition further stipulates that unqualified practitioners can’t collect payment and must refund any money received under false pretences.
A qualified entity, section 10 of the Uniform Law defines, as an Australian legal practitioner, a law practice, an Australian-registered foreign lawyer, a nonregistered foreign lawyer limited to practising their foreign law, a practitioner engaged in practice with the authority of the Commonwealth or some other jurisdiction, or someone engaged in legal practice as determined by the legislation, who remains a qualified entity only during that specific engagement.
Section 6 also adds that engaging in legal practice means practising law or the provision of legal services, but it does not involve any policy work a lawyer might be involved in, while “legal services means work done, or business transacted, in the ordinary course of legal practice”.
The legislation then bestows an entitlement to practise under section 43 of the Uniform Law to Australian legal practitioners, although this entitlement is subject to any requirements that are listed under the law or the rules or apply to their practising certificate.
Categories of practice
“An Australian practising certificate granted in this jurisdiction is subject to the condition, as determined by the designated local regulatory authority, that the holder is authorised to engage in legal practice, states section 47 of the Uniform Law.
This section then lists four categories of practising certificate – principal of a law practice, employee of a law practice, corporate legal practitioner, government legal practitioner – and adds that a barrister also qualifies, as well as volunteers at community legal centres or on a pro bono basis.
Practising certificates stipulate whether a practitioner is authorised to hold trust money, which is money being held on behalf of a client in connection with the provision of legal services.
Those holding a principal certificate can also engage in legal work as an employee, corporate or government legal practitioner. And those holding an employee certificate can engage in corporate or government legal practice.
The possessor of a corporate practising certificate can engage in government work, whilst a government practising certificate permits a practitioner to work in the corporate sector as a lawyer.
The holders of principal, employee, corporate, government or a barrister’s practicing certificate are all permitted to work as a volunteer at a community legal centre or on a pro bono basis.
An Australian practising certificate further authorises the holder to supervise a legal practice, unless the specific document limits the practitioner to “supervised legal practice only” or to the extent that the possessor of the certificate is not permitted to supervise others.
The NSW Law Society document also cites five basic ethical duties of a legal practitioner, which are contained under section 4 of the Conduct Rules and include acting in the best interests of clients, being honest and courteous, delivering “legal services competently, diligently and as promptly as reasonably possible”, avoiding “any compromise to… integrity and professional independence” and to comply with the rules and the law.
The legal practice matrix
The Law Society then sets out which types of legal work a specific type of legal practitioner can engage in within the jurisdiction of NSW, depending on their legal qualifications and practising entitlements.
In terms of drafting legal correspondence, a law graduate can if approved by a principal, an employee is permitted to, but if that employee is required to be supervised by the principal, that needs to be provided.
Legal correspondence can also be actioned by principals, corporate or government practitioners, as can an admitted Australian lawyer without a practising certificate, an Australian-registered foreign lawyer, a consultant or a contractor, as well as a retired lawyer.
Certifying documents, witnessing an affidavit and the provision of legal advice can be performed by all aforementioned legal professionals except in terms a law graduate, an admitted Australian lawyer without a current practising certificate or retired lawyers.
All practitioners are permitted to engage in drafting court documents, and that includes law graduates.
However, law graduates are barred from appearing in directions hearings, which are preliminary hearings that occur pretrial, as well as being prohibited from acting as the lawyer on the record, or the legal professional registered as acting on behalf of a client in a case, and graduates can’t sign a costs bill, which is a receipt that lists the court costs of the prevailing party in a case, of which the losing party has been ordered to pay.
Those with an employee practising certificate that continue to be supervised can appear in directions hearings, but they’re barred from being the lawyer on the record or signing cost bills, while unsupervised employees can’t sign cost bills, but they can be cited on the record.
The prohibition on signing cost bills further applies to practitioners with government or corporate practising certificates, as well as to admitted Australian lawyers without a current practising certificate and retired lawyers.
And all the aforementioned types of legal practitioners can withdraw trust funds, except for those with corporate or government practising certificates, and when it comes to the provision of pro bono services, all practitioners can engage in this, besides a law graduate or those admitted but not in possession of a current certificate, as well as lawyers that have retired.
