Supervised legal practice - Victorian Legal Services Board + Commissioner

Supervised legal practice

Section 49(1) of the Legal Profession Uniform Law (Victoria) imposes a statutory supervision condition on each Australian practising certificate issued in this jurisdiction. The supervision condition will be applied to the first practising certificate issued to all practitioners in this jurisdiction.

A practitioner who is subject to the supervision condition may only engage in legal practice if they are supervised by a properly qualified supervisor. The supervision condition will remain on a practitioner’s practising certificate until they apply to have it removed. The supervision condition also applies to interstate and international (including New Zealand) legal practitioners who engage in legal practice in Victoria.

The supervised legal practice condition does not apply to:

  • Foreign lawyers that only practice foreign law in Victoria; or
  • barristers.

What is legal practice and supervised legal practice?

The terms ‘Engage in legal practice’, ‘legal services’ and ‘supervised legal practice’ are defined in the Uniform Law. The definition of supervised legal practice is expanded by rule 7 of the Legal Profession Uniform General Rules 2015. While there is no legislative guidance on the meaning of legal practice, further guidance is provided by case law, such as Cornell v Nagle [1995] 2 VR 188.

The Board considers the following types of work to be legal practice, including but not limited to:

  • Giving legal advice; or
  • Interpreting and applying legislation or case law for use of a client, whether or not for fee; or
  • Drafting legal documents

The following types of work are not generally indicative of legal practice:

  • Paralegal work
  • Working as a judge’s associate
  • Policy work
  • Working as a conveyancer
  • Working as a migration agent
  • Working as a tax agent
  • Working as a patent attorney.

Although the above professions work extensively with legislation, and often provide advice, they are not considered as engaging in legal practice or are otherwise exempted by legislation. Policy work is expressly excluded from the definition of engage in legal practice under the Uniform Law. Legal practice will generally involve consideration and application of broader areas of law, the obligations of legal practitioners and regard to risk and fiduciary duties in the context of providing advice.

If you are unsure whether the work you are doing is legal practice, ask yourself:

  • Is the work required by an act or rules of a court to be done by a legal practitioner?
  • Is the work normally done by a legal practitioner?
  • Does the work require training or expertise in the law?
  • Who is the client?

What supervision is required?

The duration of the supervision period is provided by section 49 of the Uniform Law and Rule 14 of the Rules. Supervisor qualifications are set out in:

  • the definition of supervised legal practice at section 6(1) of the Uniform Law;
  • section 47(6) of the Uniform Law;
  • Rule 7 of the Rules.

Section 169(4) of the Legal Profession Uniform Law Application Act 2014 (Vic), provides for a reduction of the supervision period for practitioners who had engaged in legal practice pursuant to section 2.2.2(2) (g) of the Legal Profession Act 2004 (Vic) (Government lawyers).

For more information on arrangements that the Board regards to be compliant with the supervised legal practice requirements of the Act, download the Supervised Legal Practice Policy (159KB PDF).

 

Legal practitioner supervision in law practices

The supervisee must hold an Australian practising certificate. Supervision must be provided by another practitioner who works at the same law practice and holds an Australian practising certificate that is not subject to the statutory supervision condition or a discretionary condition that prohibits the supervision of others.

Supervisors are not required to be employed by the same law practice as the supervisee, but must be an authorised legal practitioner principal of the law practice where the supervisee is engaging in legal practice.

Principals working in law practices

A supervisor must hold an Australian practising certificate. Supervised legal practice is legal practice under the supervision of an authorised principal of the law practice (as defined in section 6(1) of the Uniform Law).

Lawyers who do not work in a law practice

If you are undertaking legal practice as a corporate or government practitioner, you must be supervised by a person who either holds, or is eligible to hold but exempted from holding, an Australian practising certificate authorising them to supervise others.

The transitional provision at section 169(4) of the Legal Profession Uniform Law Application Act 2014 (Vic) applies to Government lawyers for any period of legal practice during which section 2.2.2(2) of the Legal Profession Act 2004 (Vic) exempted them from the requirement to hold a practicing certificate. This legal practice will be deemed to be supervised legal practice. When applying for removal of the supervision condition, a person to which this transitional provision applies should use the same template statutory declaration provided under the heading Completing Supervised Legal Practice (below). For the periods to which the transitional provision applies, the statutory declaration need only provide particulars of legal practice (not supervision) and supporting letter(s) from their employer, confirming the period they engaged in legal practice.

Who can be your supervisor?

When making supervised legal practice arrangements it is important to consider the position, qualification and experience of potential supervisors. An appropriate supervisor will:

  • not be subject to supervised legal practice restrictions;
  • be appropriately experienced;
  • provide regular support and feedback sessions;
  • have authority in respect of the legal work performed by the supervised practitioner and be able to direct, amend, override or intervene in relation to the legal work performed in appropriate circumstances.

It is important to remember that during a period of supervision, wider legal profession obligations still apply. Supervised legal practice arrangements should not prejudice wider legal obligations related to legal practice, including legal professional privilege and privacy.

For example:

  • It is generally not appropriate for a restricted lawyer to be supervised by a consultant who is not an employee or partner of the law practice that employs the supervisee.
  • It is generally not appropriate for a lawyer to supervise a restricted lawyer employed by a different entity, unless the supervisee is seconded to that practitioner’s law practice. Appropriate supervision will include discussion of clients and matters which will generally only be undertaken within the one entity and under legal professional privilege.
  • It may be possible to be supervised from another location, but only if the supervised lawyer can demonstrate that they are adequately supervised.
  • There is potential for a lawyer to be employed and supervised by a law practice and seconded to another firm/client site if there are adequate supervision arrangements in place. The onus is on the practitioner to ensure that he or she is adequately supervised.

Termination of supervision arrangements

If a practitioner is engaging in supervised legal practice but supervision is terminated or cannot be provided, and the practitioner is unable to arrange alternative supervision, the practitioner should cease to engage in legal practice.

Penalties may apply if a practitioner engages in legal practice outside the terms of their practising certificate. See Failure to comply with supervised legal practice obligations below and sections 54, 77, 82 and 90 of the Uniform Law for more information.

If you are unsure whether your workplace arrangements satisfy the supervision requirement please contact the Board. The Board may be able to assist you to understand your obligations at the commencement as well as throughout the supervised period.

Required period of supervised legal practice

An Australian legal practitioner is subject to supervised legal practice for a prescribed period after their first practising certificate is granted. The period of supervised legal practice is post-admission and the duration calculated in accordance with section 49 of the Uniform Law and rule 14 of the General Rules.

Australian legal practitioners who qualified for admission by undertaking Practical legal training under the supervision of an Australian lawyer (including articles of clerkship) must complete the equivalent of 18 months full-time supervised legal practice;

Australian legal practitioners who qualified for admission by undertaking other practical training, such as the courses provided by the Leo Cussen Institute and the College of Law, must complete the equivalent of 2 years full-time, supervised legal practice.

If you have undertaken supervised legal practice on a part-time basis, an equivalent period can be calculated with reference to rule 14 of the General Rules.

Completing supervised legal practice

Once the prescribed period of supervised legal practice has been completed, the condition is not automatically removed. An application must be made to the Board to have the statutory condition removed. An application should be made by statutory declaration and accompanied by supporting letters from the relevant supervisor(s). Download the template statutory declaration and template supervisor’s letter (41KB DOC) to apply for the removal of a supervised legal practice condition.

Note: The letter from an applicant’s supervisor should be printed on the law practice’s letterhead, and then attached to the signed statutory declaration. If you have any questions regarding the removal of a supervised legal practice condition, please contact the Board.

Exemptions from supervised legal practice

The Board has the discretion to grant lawyers an exemption from complying with the statutory supervision condition on the basis of their prior legal practice or to reduce the period of supervised legal practice. Such persons may apply to have previous legal practice considered for exemption or reduction in the requirement. The Board may impose conditions it considers appropriate if it grants an exemption.

The section above entitled ’What is legal practice and supervised legal practice?’ provides some guidance as to the types of work experience that may or may not be indicative of engaging in legal practice.

For further information and to apply for an exemption, download the fact sheet and template statutory declaration for exemption from supervised legal practice (138KB PDF).

Your application will be considered with regard to the Board’s Supervised Legal Practice Policy (159KB PDF).

Failure to comply with supervised legal practice obligations

Breaching the supervision statutory condition may result in fines, disciplinary sanctions or other regulatory action including the variation, suspension, or cancellation of the practising certificate, pursuant to Parts 3.3 and 3.5, and Chapter 5 of the Uniform Law.

Last modified November 25, 2016.