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It is common practice that following admission and the obtaining of a practising certificate, a local legal practitioner will undertake a period of restricted legal practice during which the practitioner cannot engage in the practice of law unless supervised by a legal practitioner holding an unrestricted practising certificate. This is so as to enable the newly admitted practitioner to obtain relevant experience in the practice of law and the operations of a legal practice – referred to as the “required experience” in the Legal Profession Act 2008 (LPA).
A local legal practitioner who does not have the “required experience” must engage in restricted legal practice only: s 50(4) of the LPA.
“Required experience” means 18 months or 2 years of “supervised legal practice”, depending on the circumstance of admission: s 50(1) of the LPA.
Although it is ultimately the responsibility of the practitioner seeking to complete their restricted practice to ensure compliance and provide evidence of that compliance with the requirements for “supervised legal practice”, the Legal Practice Board of WA (Board) provides the following guidance.
What is the definition of “supervised legal practice” pursuant to the LPA?
“Supervised legal practice” is defined at section 3 of the LPA to mean legal practice by a person who is an Australian legal practitioner:
- as an employee of a law practice if –
- at least one partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate; and
- the person engages in legal practice under the supervision of this Australian legal practitioner; or
- as a partner in a law firm if
- at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate; and
- the person engages in legal practice under the supervision of this Australian legal practitioner; or
- as a WA government lawyer if the person engages in legal practice under the supervision of the State Solicitor, the Director of Legal Aid, the Director of Public Prosecutions or the holder of an office prescribed for such purpose in the regulations; or
- as an interstate government lawyer if the person engages in legal practice under the supervision of a person acting as a Director of the Australian Government Solicitor, a General Counsel of the Australian Securities and Investments Commission or the holder of an office prescribed for such purpose in the regulations; or
- as an employee of a body that carries on a business other than the practice of a law (commonly referred to as an in-house lawyer) if the person engages in legal practice under the supervision of an Australian legal practitioner who holds an unrestricted practising certificate.
Can my supervised legal practice be part-time work?
Supervised legal practice worked on a part-time basis may count towards your period of supervised legal practice if:
- it is approved by the Board; and
- if it is equivalent to the required experience worked on a full-time basis: s 7 of the Legal Profession Regulations 2009.
Application for approval can be sent by way of letter to the Board at the address provided below.
The Board‟s policy regarding part-time supervised legal practice is:
- supervised legal practice may be undertaken on a part-time basis if a practitioner attends at the office of their employer on at least 3 separate days per week, for a period of not less than 20 hours in total1;
- absent exceptional circumstances, this policy will be strictly adhered to; and
- if any variation is proposed, a practitioner and/or prospective employer will be required to demonstrate why the policy ought not to apply. The above policy does not prevent a practitioner from working as a lawyer for periods less than those imposed by the Board. Rather, it means that time worked as a lawyer that is not approved by the Board will not count towards the practitioner‟s required period of supervised legal practice.
What does “engage in legal practice under the supervision of” mean?
The LPA does not define or provide guidance as to the meaning of the phrase “engage in legal practice under the supervision of”.
The objectives of the supervision requirements include the following.
- At least one person (ie the supervisor) must accept responsibility for the supervision of the restricted practitioner during the period of supervised legal practice.
- The period of supervised legal practice can be overseen by more than one supervisor, consecutively, provided that there is continuity of direct supervision over the entire period of supervised legal practice.
- The supervision requirement does not preclude any other Australian legal practitioner employed within the same organisation from settling or supervising work of the restricted practitioner.
- Similarly, other Australian legal practitioners are not precluded from assisting with the supervision and instruction of the restricted practitioner.
The Board‟s policy in relation to supervised legal practice is that the following minimum arrangements be put in place:
- that there be daily contact between the supervising practitioner and the restricted practitioner for the purpose of review, guidance and instruction;
- that any legal advice or assistance provided by the restricted practitioner (verbal or written) to a client has been approved by the supervising practitioner before it is provided to the client; and
- that the supervising practitioner scrutinises and signs-off on correspondence and other documents prepared by the restricted practitioner.
The Board is willing to consider circumstances that vary from the above policy. For example, if it is proposed that supervision be provided by a practitioner who is not physically located at the same office as the restricted practitioner, then face to face contact may not be required if the Board is satisfied that alternative arrangements have been put in place to ensure that the supervising practitioner is fully aware of the work being undertaken by the restricted practitioner and is providing the necessary supervision, guidance and instruction.
Generally speaking, the Board will not approve supervision arrangements that involve a legal practitioner supervising an employee of a client.
Applications for approval of these circumstances should be sent by way of letter to the Board at the address provided below.
How does an Australian legal practitioner remove the condition of restricted practice from their practising certificate once the period of supervised legal practice is complete?
When you have completed the period of supervised legal practice you should download “Form 5: Application to Remove Supervised Legal Practice Statutory Condition from Practising Certificate”, which can be found on the Board‟s website: http://www.lpbwa.org.au/. Form 5 should then be completed and mailed to the Board at the address provided below.
Legal Practice Board’s Contact Details
The Board‟s contact details are:
Legal Practice Board of Western Australia
Kings Building
Level 5, 533 Hay Street
PERTH WA 6000
Telephone: (08) 6211 3600
Facsimile: (08) 9325 2743
E-mail: general@lpbwa.com
Should you require further assistance please contact the Board.
1 Up to 4 hours of the required 20 hours can be worked remotely in a „virtual office‟ setting and those maximum 4 remote hours can amount to the required third day „at the office‟ if worked on a separate day. 8 April 2010.