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Any associate of, consultant to, or person who shares the receipts, revenue or other income arising from, a law practice who is not an Australian legal practitioner (lawyer with a current practising certificate) is a lay associate.
A law practice is
- a sole practitioner;
- a law firm;
- an unincorporated legal practice;
- an incorporated legal practice; or
- a community legal service.
A prohibited lay associate is
- a disqualified person; or
- a person convicted of a “serious offence”.
A disqualified person is a lawyer who has had their practising certificate suspended, cancelled or not renewed, whose name has been removed from the roll of legal practitioners, or who is the subject of a disqualification order.
The Victorian Legal Services Board maintains a register of disciplinary action taken against lawyers. It can be used to check the status of lawyers or ex-lawyers.
The Board also maintain a list of non-lawyers who have been listed as disqualified persons by order of the Victorian Civil Administrative Tribunal or a court. These persons are prohibited from working in a law practice without the prior approval of the Board.
A serious offence is an indictable offence against Commonwealth, State or Territory law or an offence against a foreign law that would be an indictable offence if committed in Australia.
Yes. Any person who does not hold a current practising certificate and is paid by or in connection with a law practice is a lay associate.
Yes. A trainee lawyer or an intern who does not hold a practising certificate and is paid by or in connection with a law practice is a lay associate.
No. A lawyer with a current practising certificate is not a lay associate and is therefore not covered by the prohibitions regarding lay associates.
The Legal Profession Uniform Law provides an inclusive definition of lay associate and expressly includes “a consultant to the law practice”. This means that temporary and agency staff or consultants are likely to be covered by the law regarding prohibited lay associates.
Yes. Given that there is a specific legal requirement for lay associates to disclose their status as a disqualified person or person convicted of a serious offence, it would seem only fair to do so. An easy way to do this is to provide or direct the person to a copy of the Board’s Prohibited Lay Associate Guidelines.
The way in which the law practice requests this disclosure and is satisfied of the response it receives is up to the law practice. It may be that a verbal statement is sufficient in some low risk circumstances but insufficient in other high risk circumstances (e.g. staff dealing with trust money).
Generally it will be sufficient for a law practice to rely on a person’s statement that they are not a disqualified person and have not been convicted of a serious offence without further investigation.
No. There is no legal obligation on recruitment agencies to ask candidates about such matters. However, it would assist law practices to achieve and demonstrate compliance with the legal obligations regarding prohibited lay associates if they did ask.
While the Board is required to make a decision within 90 days, the Board is aware of the restricted time requirements in relation to employing new staff and will therefore consider applications as fast as possible.
The Board will require background information about the reasons why the person is considered to be a prohibited lay associate (e.g. what offence has been committed or how the person falls within the definition of a disqualified person). Information about the role the person is to occupy within the law practice, the work they will undertake, and how they will be supervised should also be included with an application. A position description would also assist the Board to understand the prospective role, and determine if any conditions should be imposed on his/her employment.
No. The Uniform Law provides that a law practice must not have a prohibited lay associate unless he/she is approved by the Board.
No. The Uniform Law specifically authorises the Board to make such a decision.
No. These are not serious offences in and of themselves but rather penalties for an offence. Unless the underlying offence is a “serious offence” for which the person has been convicted, there is no obligation on an employee to disclose the offence/penalty to the law practice.