Supervised Legal Practice Guidelines (Legal Profession Act 2008)

Transcription

1 Supervised Legal Practice Guidelines (Legal Prfessin Act 2008) It is a legislative requirement that fllwing admissin and the btaining f a practising certificate, a lcal legal practitiner can nly engage in the practice f law if supervised by a legal practitiner hlding an unrestricted practising certificate, in a capacity prescribed in s.50 f the Legal Prfessin Act 2008 (Act). This is t enable the newly admitted practitiner t btain relevant experience in the practice f law befre he r she is able t practice unsupervised r n their wn accunt. Sectin 50(4) f the Act requires a lcal legal practitiner wh des nt have the required experience t engage in restricted legal practice nly. Refer t s.50 f the Act fr the definitin f restricted legal practice. A practitiner may apply fr the remval f this statutry cnditin frm his r her practising certificate when the practitiner has cmpleted the required experience. It is the respnsibility f the practitiner t ensure cmpliance with the restricted practice requirements f s.50 f the Act and t prvide evidence f cmpletin f the required perid f supervised legal practice. Hwever, the Legal Practice Bard f WA ( Bard) prvides the fllwing guidance. What is required experience? Required experience is defined in s.50(1) f the Act. The practical interpretatin f this prvisin is: The required experience fr a lawyer wh cmpleted frmal articles f clerkship registered with the Bard (r a similar arrangement, such as the 12 mnth supervised wrkplace training cntracts available in ther Australian jurisdictins) will be 18 mnths. The default psitin fr all ther lawyers is that the required experience will be 2 years. This includes all lawyers wh cmpleted an apprved practical legal training (PLT) curse prir t admissin. This is the case, even if the persn was emplyed as a law graduate, ding legal wrk under the supervisin f an Australian legal practitiner, fr 12 mnths r mre while cmpleting the PLT curse. Lcal legal practitiners wh have cmpleted perids f pst-admissin legal practice under supervisin in ther Australian jurisdictins r verseas may, in sme circumstances, be able t apply under s.50(7) f the Act, fr a reductin in, r exemptin frm, restricted practice requirements. Please cntact the Bard fr further infrmatin. P O B O X , S T G E O R G E S T E R R A C E, P E R T H W A T H F L O O R, K I N G S B U I L D I N G, H A Y S T R E E T P E R T H W A T E L ( 0 8) / F A X ( 0 8) G E N E R A L P B W A. C O M / W W W. L P B W A. O R G. A U

2 What perids f supervised legal practice can be cunted twards the required experience? Regulatin 7 f the Legal Prfessin Regulatins 2009 (Regulatins) prvides fr the perids f supervised legal practice that can be taken int accunt. In additin: Nrmal perids f leave are interpreted by the Bard as 20 days annual leave and up t 10 days sick leave in any 12 mnth perid f full-time emplyment. The Bard calculates full-time emplyment n the basis f 37.5 hurs per week. Supervised legal practice undertaken in excess f 37.5 hurs per week, r undertaken utside f nrmal business hurs/and r n weekends, is nt taken int accunt. Can the required experience be cmpleted n a part-time basis? Supervised legal practice wrked n a part-time basis may cunt twards yur perid f supervised legal practice if: it is apprved by the Bard; and it is equivalent t the required experience wrked n a full-time basis: Refer t Reg 7 f the Regulatins. Please nte that practitiners are expected t seek prir apprval fr part-time emplyment t cunt twards the required perid f supervised legal practice. Applicatins t the Bard fr apprval can be made by letter r . The Bard s plicy regarding part-time supervised legal practice is: Supervised legal practice may be undertaken n a part-time basis if a practitiner attends at the ffice f their emplyer n at least 3 separate days per week, fr a perid f nt less than 20 hurs in ttal. Up t 4 hurs f the required 20 hurs can be wrked remtely in a virtual ffice setting and thse maximum 4 remte hurs can amunt t the required third day at the ffice if wrked n a separate day. Absent exceptinal circumstances, this plicy will be strictly adhered t. If any variatin is prpsed, a practitiner and/r prspective emplyer will be required t demnstrate why the plicy ught nt t apply. The abve plicy des nt prevent a restricted practitiner frm wrking as a legal practitiner fr perids less than thse apprved by the Bard. Rather, it means that time 2

3 wrked as a lawyer that has nt been apprved by the Bard will nt usually cunt twards the practitiner s required perid f supervised legal practice. What is the definitin f supervised legal practice pursuant t the Act? Supervised legal practice is defined at sectin 3 f the Act t mean legal practice by a persn wh is an Australian legal practitiner: As an emplyee f a law practice if at least ne partner, legal practitiner directr r ther emplyee f the law practice is an Australian legal practitiner wh hlds an unrestricted practising certificate; and the persn engages in legal practice under the supervisin f this Australian legal practitiner; r As a partner in a law firm if at least ne ther partner is an Australian legal practitiner wh hlds an unrestricted practising certificate; and the persn engages in legal practice under the supervisin f this Australian legal practitiner; r As a WA gvernment lawyer if the persn engages in legal practice under the supervisin f the State Slicitr, the Directr f Legal Aid, the Directr f Public Prsecutins r the hlder f an ffice prescribed fr such purpse in the regulatins; r As an interstate gvernment lawyer if the persn engages in legal practice under the supervisin f a persn acting as a Directr f the Australian Gvernment Slicitr, a General Cunsel f the Australian Securities and Investments Cmmissin r the hlder f an ffice prescribed fr such purpse in the regulatins; r As an emplyee f a bdy that carries n a business ther than the practice f a law (cmmnly referred t as an in-huse lawyer) if the persn engages in legal practice under the supervisin f an Australian legal practitiner wh hlds an unrestricted practising certificate. In a capacity apprved the purpse under rule 3A f the Legal Prfessin Rules 2009 (Rules), as affected by rule 19 f the Rules. 3

4 Special Circumstances: Pr Bn and Vlunteer legal wrk: wrk n a vlunteer r pr bn basis fr: A restricted practitiner can nly engage in legal a) a cmmunity legal centre within the meaning f s.388(1) f the Act; b) the Abriginal Legal Service f Western Australia (Inc.); c) the Legal Aid Cmmissin f Western Australia; r d) a lcal charitable r nt-fr-prfit bdy, if apprved by the Bard t d s (refer s.50 f the Act and rule 19 f the Rules). Secndment f restricted practitiners: If a law practice intends t secnd a restricted practitiner emplyed by the law practice t the ffices f an in-huse crpratin, the restricted practitiner may be supervised by: - an unrestricted Australian legal practitiner wh is a partner, legal practitiner directr r emplyee f the law practice, r - an unrestricted Australian legal practitiner wh is an emplyee f the in-huse crpratin (refer s.50 f the Act and rule 19 f the Rules). The restricted practitiner shuld ntify the Bard by f any perids f secndment, and include in the details f the supervisin arrangements that will be in place during the secndment. Restricted practitiners emplyed by sle practitiners r incrprated legal practices with nly ne legal practitiner directr: A restricted practitiner emplyed by a law practice at which there is nly ne unrestricted Australian legal practitiner (the sle practitiner), may be supervised during perids f the sle practitiner s absence, by anther unrestricted Australian legal practitiner. The supervisin arrangements must be apprved by the Bard. Requests fr apprval shuld describe the prpsed supervisin arrangements and be signed by bth the sle practitiner and the ther unrestricted Australian legal practitiner (refer s.50 f the Act and rule 19 f the Rules). WA Gvernment Lawyers and Interstate Gvernment Lawyers: Legal practice as a WA gvernment lawyer r interstate gvernment lawyer (including a Cmmnwealth gvernment lawyer) is included in the meaning f restricted legal practice in s.50 f the Act. Hwever, nly specified gvernment lawyers are included in the definitin f supervised legal practice in s.3 f the Act, being Australian legal practitiners engaging in legal practice under the supervisin f: a) the State Slicitr; b) Directr f Legal Aid; c) Directr f Public Prsecutins; d) a Directr f the Australian Gvernment Slicitr; e) the Reginal Cmmissiner, a General Cunsel r Reginal Cunsel f the 4

5 Australian Securities and Investment Cmmissin in Western Australia; r f) the Deputy Directr, Perth Office f the Directr f Public Prsecutins (Cwlth). There is n mechanism under the Act fr the Bard t recgnise ther legal practice by WA gvernment lawyers r interstate gvernment lawyers as cunting twards the required perid f supervised legal practice. Hwever, it may be pssible in sme circumstances fr a WA gvernment lawyer wh has been engaging in legal practice under supervisin t make an applicatin under s.50(7) f the Act, fr an exemptin frm the requirement t engage in restricted legal practice nly. See belw fr infrmatin abut making an applicatin under s.50(7) f the Act. An interstate gvernment lawyer may nly make an applicatin fr an exemptin if and when they apply fr the grant f a lcal practising certificate. Can I apply fr an exemptin frm, r a reductin in, the required perid f supervised legal practice? Where legal practice des nt fall within the definitin f supervised legal practice as defined in s.3 f the Act, it may be pssible t seek an exemptin frm the requirement t engage in restricted legal practice nly, r a reductin in the required perid, under s.50(7) f the Act. Fr example, sme WA gvernment lawyers, r Cmmnwealth gvernment lawyers wh hld a lcal practising certificate, may be able t apply fr an exemptin. Similarly, a lawyer with tw years r mre recent legal experience in New Zealand may apply fr an exemptin, r an verseas lawyer with tw r mre years recent legal experience in specified cuntries such as the United Kingdm, Suth Africa, Canada r Malaysia, may apply fr a reductin in the required perid t 12 mnths. A submissin under s.50(7) shuld be in the frm f a statutry declaratin including: The dates the applicant has engaged in legal practice and whether the legal practice was n a full-time r part-time basis; The name f the law practice r rganisatin, the capacity in which emplyed and the nature f the legal practice previusly engaged in; Details f any supervisin arrangements, including the name and qualificatins f the supervisr, and the nature f the supervisin. The applicatin shuld include a letter r ther certificatin frm the relevant supervising/practitiners. Applicatins under s.50(7) f the Act are cnsidered n a case-by-case basis n their merits. Wrk that is quasi-legal in nature will nt usually be cnsidered as legal practice, e.g.: Paralegal wrk; Wrking as a judge s assciate; Plicy wrk; 5

6 Wrking as a settlement agent; Wrking as a migratin agent; Wrking as a tax agent. What des engage in legal practice under the supervisin f mean? The Act des nt define r prvide guidance as t the meaning f the phrase engage in legal practice under the supervisin f. The bjectives f the supervisin requirements include the fllwing. At least ne persn (i.e. the supervisr) must accept respnsibility fr the supervisin f the restricted practitiner during the perid f supervised legal practice. The perid f supervised legal practice can be verseen by mre than ne supervisr, cnsecutively, prvided that there is cntinuity f direct supervisin ver the entire perid f supervised legal practice. The supervisin requirement des nt preclude any ther Australian legal practitiner emplyed within the same rganisatin frm settling r supervising wrk f the restricted practitiner. Similarly, ther Australian legal practitiners are nt precluded frm assisting with the supervisin and instructin f the restricted practitiner. The Bard s plicy in relatin t supervised legal practice is that the fllwing minimum arrangements be put in place: That there be daily cntact between the supervising practitiner and the restricted practitiner fr the purpse f review, guidance and instructin; That any legal advice r assistance prvided by the restricted practitiner (verbal r written) t a client has been apprved by the supervising practitiner befre it is prvided t the client; and That the supervising practitiner scrutinises and signs-ff n crrespndence and ther dcuments prepared by the restricted practitiner. T prevent an inadvertent breach f the Act, a restricted practitiner shuld seek prir apprval frm the Bard if it is prpsed that the supervising practitiner will nt be physically lcated at the same ffice as the restricted practitiner; r if any ther unusual circumstances apply. Applicatins t the Bard fr cnfirmatin that prpsed supervisin arrangements meet restricted practice requirements shuld be made by the supervising practitiner. 6

7 Hw des an Australian legal practitiner remve the cnditin f restricted practice frm their practising certificate nce the perid f supervised legal practice is cmplete? Except in cases where a practitiner is making an applicatin under s.50(7) f the Act fr an exemptin frm restricted practice requirements (refer abve), a practitiner wh has cmpleted the required perid f supervised legal practice is required t ldge a Frm 5: Applicatin t Remve Supervised Legal Practice Statutry Cnditin frm Practising Certificate, which can be fund n the Bard s website: Frm 5 requires the supervising practitiner t certify that the restricted practitiner was supervised in accrdance with the Bard s Supervised Legal Practice Guidelines. Alternatively, a letter frm the supervising practitiner/s can be attached t the Frm 5. The practitiner s riginal practising certificate shuld be returned t the Bard with the Frm 5. Legal Practice Bard s Cntact Details The Bard s cntact details are: Legal Practice Bard f Western Australia Kings Building Level 5, 533 Hay Street PERTH WA 6000 Pstal address: PO Bx 5720 St Gerges Terrace PERTH WA 6831 Telephne: (08) Facsimile: (08) general@lpbwa.cm Shuld yu require further assistance please direct yur enquiry t the Bard s Admissins and Registratins Crdinatr, Ms Deb MacDnald dmacdnald@lpbwa.cm. These Guidelines were apprved by the Admissins and Registratin Cmmittee f the Legal Practice Bard n 5 August