Legal Profession Regulation 2007

This regulation is the Legal Profession Regulation 2007.

The dictionary at the end of this regulation is part of this regulation.

Note 1 The dictionary at the end of this regulation defines certain terms used in this regulation, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘in-house lawyer—see the Act, section 33 (3).’ means that the term ‘in-house lawyer’ is defined in that section and the definition applies to this regulation.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire regulation unless the definition, or another provision of the regulation, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this regulation is explanatory and is not part of this regulation.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Part 2 Important terms

This section applies to an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer, if—

the Act, section 10 (4) (b) (What is the home jurisdiction?) applies to the associate; and

the home jurisdiction for the associate can be decided under neither the Act, section 10 (4) (b) (i) nor section 10 (4) (b) (ii).

The home jurisdiction for the associate must be decided in accordance with the following criteria:

the jurisdiction of the associate’s place of residence in Australia;

if the associate does not have a place of residence in Australia—the jurisdiction of the associate’s last place of residence in Australia.

Part 3 Reservation of legal work and legal titles

This section applies to a person who—

is an employee of an ActewAGL-linked corporation; and

engages in legal practice; and

is supervised by another employee who holds an unrestricted practising certificate.

The Act, section 16 does not apply to the person if the person is engaged in legal practice for the purpose of giving legal advice or legal services to an ActewAGL-linked corporation (or a related body corporate of an ActewAGL-linked corporation) in relation to the corporation’s functions.

In this section:

ActewAGL-linked corporation means any of the following:

Icon Distribution Investments Limited (ACN 073 025 224);

AGL ACT Retail Investments Pty Ltd (ACN 093 631 586);

Jemena Networks (ACT) Pty Ltd (ACN 008 552 663).

This section applies to a person who—

is a member of an organisation representing veterans; and

engages in legal practice; and

represents a member or former member of the defence force.

The Act, section 16 does not apply to the person if—

the person provides legal services without fee, gain or reward to a member or former member of the defence force—

for the purpose of assisting the member or former member in relation to a claim or application for a benefit under veterans’ entitlement legislation; or

by acting as an advocate for the member or former member in a proceeding in a court or tribunal relating to an action, or a claim or application for a benefit, under veterans’ entitlement legislation; and

the person is indemnified against any loss the member or former member suffers as a result of the provision of the legal services.

In this section:

defence force—see the Defence Act 1903 (Cwlth), section 30.

member, of the defence force—see the Defence Act 1903 (Cwlth), section 4 (1).

organisation representing veterans—see the Veterans’ Entitlements Act 1986 (Cwlth), section 5Q (1).

veterans’ entitlement legislation means the following:

Defence Act 1903 (Cwlth);

Military Rehabilitation and Compensation Act 2004 (Cwlth);

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cwlth);

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cwlth), part 11 (except section 144 (4) and section 149);

Veterans’ Entitlements Act 1986 (Cwlth);

Veterans’ Entitlements (Clarke Review) Act 2004 (Cwlth).

The kind of person mentioned in an item in table 8, column 3 is entitled, in the circumstances mentioned in column 4 of the item to take or use a name, title or description mentioned in column 2 of the item.

In this section:

Australian law means a law of the Commonwealth or a State or Territory.

employee, of an entity, means a person who is employed or engaged under a contract of service or contract for services in or by the entity, whether or not—

the person works full-time, part-time, or on a temporary or casual basis; or

the person is employed as a law clerk.

Table 8

column 1

item

column 2

name, title or description

column 3

kind of person

column 4

circumstances

1

lawyer

Australian lawyer

all (no restriction)

2

lawyer

Australian-registered foreign lawyer

all (no restriction)

3

legal practitioner

Australian legal practitioner

all (no restriction)

4

legal practitioner

Australian lawyer

when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate

5

 barrister and solicitor

 solicitor and barrister

 solicitor

 attorney

Australian legal practitioner

when the Australian legal practitioner holds an Australian practising certificate and engages in legal practice in the manner of a solicitor

6

 barrister and solicitor

 solicitor and barrister

 solicitor

 attorney

Australian lawyer

when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice in the manner of a solicitor as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate

7

barrister

local legal practitioner

when the local legal practitioner holds a local practising certificate that restricts the practitioner to legal practice in the manner of a barrister

8

barrister

interstate legal practitioner

when the interstate legal practitioner holds an Australian practising certificate and engages in legal practice in the manner of a barrister

9

barrister

Australian lawyer

when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice in the manner of a barrister as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate

10

counsel

Australian legal practitioner

all (no restriction)

11

counsel

Australian lawyer

when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate

12

counsel

Australian lawyer

when the Australian lawyer, not holding an Australian practising certificate, provides legal services to their employer, or to a related entity, in the ordinary course of their employment and for no fee, gain or reward other than their ordinary remuneration as an employee

13

Senior Counsel or SC

Australian lawyer

when the Australian lawyer holds the status of Senior Counsel, as recognised by the High Court or a Supreme Court of any jurisdiction

14

 Queen’s Counsel or QC

 King's Counsel or KC

 Her Majesty’s Counsel

 His Majesty’s Counsel

Australian lawyer

when the Australian lawyer holds the appropriate status as given by the Crown in any capacity or as recognised by the High Court or the Supreme Court of a jurisdiction

15

attorney

Australian-registered foreign lawyer

when entitled to use the name, title or description under the Act, section 160 (Designation of Australian-registered foreign lawyers)

16

attorney

patent attorney

when using the expression ‘patent attorney’

17

attorney

donee of a power of attorney

when indicating that the donee holds or is acting under a power of attorney

18

attorney

Attorney-General of a jurisdiction or a foreign country

all (no restriction)

19

solicitor

Solicitor-General of a jurisdiction or a foreign country

all (no restriction)

Part 4 Legal practice—Australian legal practitioners

The Act, section 50 (Statutory condition about practice as a solicitor) does not apply to an in-house lawyer in relation to the provision of in-house legal services for a corporation (other than an incorporated legal practice) by which the lawyer is employed.

The Act, section 50 does not apply to a government lawyer in relation to the exercise of the lawyer’s official functions as a government lawyer.

An applicant for the grant or renewal of an unrestricted practising certificate must be a person qualified as set out in table 10.

Table 10

column 1

item

column 2

qualification

1

A person who holds an unrestricted practising certificate in relation to a period ending on 30 June in the year in which the person applies for renewal of the certificate.

2

A person who—

held an unrestricted practising certificate during the relevant 5-year period; and

has retained such a level of professional skill that it is appropriate that a further unrestricted practising certificate be issued to the person.

3

A person who—

has not previously held an unrestricted practising certificate; and

during the relevant 5-year period, has, for a period of not less than 2 years or for periods that total not less than 2 years—

been employed in a jurisdiction under articles of clerkship; or

been engaging in legal practice in a jurisdiction as an employee of a solicitor who holds an unrestricted practising certificate in a law firm, incorporated legal practice or multidisciplinary partnership; or

been engaging in legal practice as a government lawyer; or

been engaging in legal practice as an in-house lawyer; or

practised in a jurisdiction as a solicitor, either on the person’s own account or in partnership with another legal practitioner; or

been employed, or engaged in legal practice in any 2 or more of the capacities mentioned in subparagraphs (i), (ii), (iii) and (v); and

has attained such a level of professional skill, and gained such professional experience, that it is appropriate that an unrestricted practising certificate be issued to the person.

4

A person who—

has during the relevant 5-year period—

practised in a jurisdiction as a barrister for a period of not less than 2 years; or

practised in a jurisdiction as a barrister for a period of not less than 1 year and been employed, performed work or practised in any 1 or more of the capacities mentioned in item 3, column 2, paragraph (b) for a period of not less than 1 year or for periods that total not less than 1 year; and

has attained such a level of professional skill, and gained such professional experience, that it is appropriate that an unrestricted practising certificate be issued to the person.

5

A person who—

has previously held a practising certificate; and

has attained such a level of professional skill, and gained such professional experience, that it is appropriate that an unrestricted practising certificate be issued to the person.

6

A person who—

is a New Zealand barrister and solicitor; and

has for a continuous period of not less than 6 months after the person’s admission in the ACT been employed in the ACT by a legal practitioner; and

has attained such a level of professional skill, and gained such professional experience, that it is appropriate that an unrestricted practising certificate be issued to the person.

In this section:

relevant 5-year period, in relation to an applicant for an unrestricted practising certificate, means the period of 5 years immediately before the day the person makes the application.

The period for making an application for renewal of a local practising certificate is the period beginning on 1 April and ending—

on 31 May before the certificate ends; or

if the relevant council is satisfied there are exceptional circumstances—after 31 May but before the certificate ends.

For the Act, section 50 (Statutory condition about practice as a solicitor), the period of supervised legal practice is—

if the practitioner completed practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in the ACT or another jurisdiction—a period or periods equivalent to 18 months, worked out under this section, after the day the practitioner’s first practising certificate was granted; or

if the practitioner completed other practical legal training to qualify for admission to the legal profession in the ACT or another jurisdiction—a period or periods equivalent to 2 years, worked out under this section, after the day the practitioner’s first practising certificate was granted.

For subsection (1) and the Act, section 75 (Special provisions about interstate legal practitioner engaging in unsupervised legal practice in ACT), completion by a person of a period or periods of supervised legal practice equivalent to the required period of 18 months or 2 years must be worked out by satisfying the requirements of this section.

To satisfy the requirements of this section, a person must complete—

1 period of supervised legal practice, worked on a full-time basis, that is equal to the required period; or

1 period of supervised legal practice, worked on a part-time basis, that is equivalent to the required period; or

2 or more periods of supervised legal practice, worked on either or both of those bases, that together are equal or equivalent to the required period.

In working out a period of supervised legal practice for a person for this section—

a public holiday in the period is included as a day of supervised legal practice whether or not the person engaged in legal practice on the day; and

normal periods of leave taken in the period by the person are included as periods of supervised legal practice.

Each of the following is a ground for suspending a local practising certificate:

the holder fails to pay any fine, or any costs, fees or expenses, payable by the holder under the Act;

if requested, in writing, by the relevant council to explain stated conduct by the holder as a legal practitioner, the holder fails, without reasonable excuse, to give a reasonable written explanation to the council about the conduct;

for the holder of an unrestricted practising certificate—a report under the Act, section 237 (Investigator’s report) or the Act, section 247 (External examiner’s report) discloses a deficiency in any trust money of a law practice of which the practitioner is an associate and for which the practitioner did not have a reasonable excuse;

the holder fails to comply with a direction of the relevant council under the Act, section 413 (2) (d) (Summary conclusion of complaint procedure by fine etc);

the holder fails to comply with an order of the ACAT under the Act, section 425 (5) (b), (c), (d), (e) or (h) (ACAT orders—Australian legal practitioners);

the holder fails to comply with an order of the ACAT under the Act, section 429 (a) or (b) (ACAT orders—employees of solicitors).

Each of the following is a ground for cancellation of a local practising certificate:

the holder is sentenced to a term of imprisonment;

for the holder of an unrestricted practising certificate—the holder becomes bankrupt or executes a personal insolvency agreement.