Supervised Legal Practice

The Legal Profession Act 2004 (VIC) (the Act) imposes a condition on each local practising certificate that the holder must engage in supervised legal practice for a specified period after receiving his or her first practising certificate. Supervised legal practice also applies to interstate and international (including New Zealand) legal practitioners who engage in legal practice in Victoria. It does not apply to foreign lawyers solely practising foreign law in Victoria.

The supervised legal practice condition does not apply to:

• barristers; or
• a person who held an Australian practising certificate at any time before 12 December 2005.

What is considered to be legal practice?

Supervised legal practice is defined in section 1.2.1 of the Act. There is no further legislative guidance on the meaning of supervised legal practice. However further guidance is provided by case law. The leading recent case is Law Institute of Victoria Ltd v Maric & Anor [2008] VSCA 46 (19 March 2008).

Based on the Board’s experience the Board considers the following types of work to be legal practice:

• Giving legal advice
• Interpreting legislation or case law
• Drafting contracts

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

Although the above professions work extensively with legislation, and often provide advice, they have previously not been considered as engaging in legal practice. 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 normally done by a solicitor?
• Does the work require necessary training or expertise in the law (e.g. to give legal advice)?
• Do you have a client?

What supervision is required?

For employees of law practices and partners in law firms, supervised legal practice is defined by s 1.2.1 of the Act. In respect of Australian legal practitioners who are not in these two categories, the Supervised Legal Practice Rules 2006 provide guidance (at rule 4.1).

Download the Supervised Legal Practice Rules (2006).

Employee solicitors working in law practices and partners of law firms

Supervised legal practice is legal practice under the supervision of:

1. in the case of an employee of a law practice -  at least one partner, legal practitioner director or other employee of the law practice who holds a principal practising certificate not subject to the supervised legal practice condition;
2. in the case of a partner in a law firm – at least one other partner who holds a principal practising certificate not subject to the supervised legal practice condition.

Lawyers who do not work in a law firm or law practice

If you are undertaking legal practice in a corporate or government environment, or any other capacity (other than as an employee or partner in a law firm), then you must be supervised by an eligible Australian lawyer. Eligible Australian lawyers are those practitioners who do not have a supervised legal practice condition placed on their own practising certificate or would be entitled to hold such a practising certificate, as provided in the Supervised Legal Practice Rules 2006 (see link above). However, you should bear in mind that any alternative arrangements must still be within practising arrangements provided for in the Act.

For example:

• Supervision may be provided by a person who has a corporate practising certificate as this is recognised by the Act.
• Supervision may be provided by an Australian government lawyer who is eligible to hold a practising certificate but does not hold one. In this case, eligibility will be determined by whether or not the supervisor is able to obtain a practising certificate without the supervised legal practice condition. If not, then the supervisor will first need to obtain an exemption from the supervised legal practice condition, whether or not they later apply for a practising certificate. Please see the section below entitled the Exemptions from supervised legal practice.

The Act does not define “supervision”. 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 from the Policies and Guidelines page.

Who can be your supervisor?

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

1. Not be subject to supervised legal practice restrictions;
2. Be appropriately experienced;
3. Provide regular support and feedback sessions;
4. 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 will apply. Supervised legal practice arrangements should not make it more difficult for the supervisee or supervisor to meet the wider legal obligations related to practising, including legal professional privilege and privacy. For example:

• It is generally not appropriate for a restricted practitioner 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 practitioner to supervise a restricted practitioner employed by a different entity. 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 a practitioner can demonstrate that they are adequately supervised.
• There is potential for a practitioner 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 (eg by another partner within a law practice), 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 or section 2.4.2 of the Act 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 in the beginning as well as throughout the supervised period.

Required period of supervised legal practice

An Australian legal practitioner is subject to supervised legal practice for specific period after the first practising certificate is granted to him or her. The period of supervised legal practice is post-admission and the duration calculated in accordance with the Legal Profession Regulations 2005 (Vic) (the Regulations).

1. For practitioners who completed practical legal training under the supervision of an Australian legal practitioner or involving articles of clerkship principally under the supervision of a person other than an Australian legal practitioner – 18 months.
2. For practitioners who complete other practical training to qualify admission such as the courses provided by the Leo Cussen Institute and the College of Law – 2 years.

These periods are calculated on a full-time basis. If you have undertaken supervised legal practice on a part-time basis, an equivalent period can be calculated with reference to the Regulations.

Completing supervised legal practice

Once you have completed the required period of supervised legal practice, you must apply to the Board’s delegate, the Law Institute of Victoria, to have the statutory condition removed. When you apply to have the supervised legal practice condition removed, you must supply a statutory declaration with your application. Your statutory declaration should set out:

1. the relevant place(s) of practice, position(s) held and type of practice;
2. the name of the supervising practitioner including qualifications (i.e. practising certificate held or, if not required to hold a practising certificate, eligibility for a practising certificate not subject to supervised legal practice); and
3. the relevant period or periods of practice including relevant dates and ordinary hours of work, demonstrating how the period is equal or equivalent to the required period.

The statutory declaration should be attached to a confirming letter on relevant letterhead from the applicant’s supervisor. If you have any questions regarding the removal of your supervised legal practice condition, you should contact the Law Institute of Victoria.

Exemptions from supervised legal practice

Some practitioners who take out their first Victorian practising certificate may have previously engaged in legal practice. This may occur where, for example, they have practised in another jurisdiction, or have been employed by the Crown. Practitioners can have their prior legal practice recognised by applying to the Board for an exemption from the supervised legal practice condition. The section above entitled What is considered to be legal practice? provides some guidance as to the types of work experience that may or may not be indicative of engaging in legal practice.

• Download information about the application process.
• Download the statutory declaration application template.

You application will be considered with regard to the Board’s Supervised Legal Practice policy.

Failure to comply with supervised legal practice obligations

It is a breach of a statutory condition of his or her practising certificate for a practitioner to engage in legal practice without supervision while on a supervised legal practice restricted practising certificate. This may result in disciplinary or other regulatory action, for example suspension, cancellation or non-renewal of the practising certificate.