Who can practise law?
Subject to limited exceptions (see below), section 10(1) of the Legal Profession Uniform Law prohibits an entity from engaging in legal practice in Victoria unless it is a qualified entity.
An entity includes:
(a) an individual, an incorporated body and an unincorporated body or other organisation; and
(b) in the case of a partnership—
(i) the partnership as currently constituted from time to time; or
(ii) the assignee or receiver of the partnership;
A qualified entity includes:
(a) an Australian legal practitioner; or
(b) a law practice; or
(i) an Australian-registered foreign lawyer; or
(ii) a foreign lawyer who is not an Australian-registered foreign lawyer but only to the extent that the foreign lawyer’s legal practice is limited to the practice of foreign law and is carried out in accordance with the applicable requirements of Part 3.4 of the Uniform Law; or
(d) an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction, other than this Law or the Uniform Rules; or
(e) an entity engaged in legal practice of a kind specified in the Uniform Rules for the purposes of this definition, but only while the entity engages in the legal practice in accordance with any applicable requirements of the Uniform Rules.
An entity that breaches section 10(1) commits an offence and is liable to a maximum penalty of 250 penalty units or two years’ imprisonment or both. For further information on applying for an Australian practising certificate, see Applying for a Australian practising certificate.
Rule 10 of the Uniform Rules declare the following to be exempt from the operation of section 10(1) of the Uniform Law:
(a) a person carrying out conveyancing work in accordance with a licence in force under relevant jurisdictional legislation;
(b) a land agent performing work in respect of instruments the person is entitled to draw, fill up or prepare and to charge for, under a law of a jurisdiction or of the Commonwealth;
(c) an officer or employee of a government authority drawing instruments in the course of the person’s duty, otherwise than as parliamentary counsel, legislative counsel or legislative drafter (however described);
(d) an officer or employee of a government authority undertaking appearance work in courts or tribunals under the authority of a law of a jurisdiction or of the Commonwealth;
(e) any of the following:
(i) a public trustee (however named) of a jurisdiction;
(ii) a company that performs the functions of a public trustee of a jurisdiction;
(iii) a company performing trustee work on behalf of the government of a jurisdiction or the Commonwealth;
(iv) an officer, employee or member of staff of an entity referred to in subparagraph (i)–(iii);
to the extent that the person is performing work in the course of preparing a will or providing a related service or in the course of carrying out any other work involving or in connection with the administration of trusts, the estates of living or deceased persons or the affairs of living persons;
(f) an industrial organisation providing legal services, but only to the extent that:
(i) the legal services concerned are provided to members of the organisation; and
(ii) the legal services are not provided for fee, gain or reward to the organisation (other than standard membership fees); and
(iii) the legal services are provided by Australian legal practitioners; and
(iv) if any of the legal services are provided by an Australian legal practitioner whose Australian practising certificate is subject to a condition requiring the holder to engage in supervised legal practice only—those legal services are provided under the supervision of an Australian legal practitioner who is authorised to supervise legal practice by others.
The term ‘foreign lawyer’ refers to a person who is registered and entitled to engage in legal practice in a foreign country, who practices the law of that foreign country in Australia.
Under the Uniform Law, foreign lawyers are not permitted to practise Australian law in Victoria.
The practice of foreign law in Victoria is regulated by Part 3.4 of the Legal Profession Uniform Law (Victoria).
For further information on foreign lawyers, see the Foreign Lawyers page.
Representing or advertising an entitlement to engage in legal practice
An entity (including an individual, an incorporated body and an unincorporated body or other organisation etc) must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity. A maximum penalty of 250 penalty units applies to a contravention of this provision.
Further, taking or using a name or title specified in section 12(2) of the Uniform Law (eg. lawyer, legal practitioner, barrister, solicitor, attorney, counsel or proctor) by a person who is not entitled to take or use that name gives rise to a rebuttable presumption that the person represented that they are entitled to engage in legal practice.
Persons who are entitled, and the circumstances in which they are entitled, to take or use a name or title are specified in rule 9 of the Uniform Rules.
Ensuring compliance with the Act
Australian legal practitioners and law practices should ensure that their employee legal practitioners, whether local, interstate or overseas-qualified, are adequately qualified, registered and supervised.
Practitioners are also required to:
- maintain an approved insurance policy
- contribute to the Fidelity Fund if required to do so
- comply with the Uniform Law, the Uniform Rules and any applicable legal profession rules.