Legal Practice Board of Western Australia

A PDF version of this document is available here.

Some time ago the Supreme Court of Western Australia indicated to the Legal Practice Board (Board) and the Western Australian Bar Association that it intended to discontinue the practice of accepting undertakings from local legal practitioners who intend to practise solely in the manner of a barrister. Following discussions between representatives of the Western Australian Bar Association, the Law Society of Western Australia, the Legal Aid Commission and the Criminal Lawyers’ Association, it has been agreed that the Board will make available a ‘Barrister only’ condition for imposition on a barrister’s local practising certificate issued on and from 1 July 2012.

The wording of the ‘Barrister only’ condition states:

The holder requests and agrees pursuant to section 47(3)(i) of the Legal Profession Act 2008 that the following conditions be imposed upon this practising certificate, namely:

1. The holder will work solely as an independent barrister, which comprises:

(a)         appearing as an advocate;

(b)         preparing to appear as an advocate;

(c)         negotiating for a client with an opponent to compromise a case;

(d)         representing a client in a mediation or arbitration or other method of alternative dispute resolution;

(e)         giving legal advice;

(f)           preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs;

(g)         carrying out work properly incidental to the kinds of work referred to in (a)-(f); and

(h)         such other work as is from time to time commonly carried out by barristers.

2. The holder must be a sole practitioner, and must not:

(a)         practise in partnership with any person;

(b)         practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment;

(c)         practise as the employee of any person;

(d)         be a legal practitioner director of an incorporated legal practice; or

(e)         be a member of a multi-disciplinary partnership.

The condition will be set out in its entirety in an annexure attached to a barrister’s local practising certificate. The following will be displayed on the face of the certificate:

‘Barrister only’ condition - see details in Annexure A

Once imposed, the condition will remain on a barrister’s local practising certificate until the Board removes the condition after accepting the barrister’s application to the Board for its removal.

Barristers with the ‘Barrister only’ condition imposed on their practising certificates will still have to comply with professional indemnity insurance and continuing professional development requirements.

The ‘Barrister only’ condition will only be imposed by the Board on a barrister’s local practising certificate with the agreement of the holder, pursuant to section 47(3)(i) of the Legal Profession Act 2008.  The arrangement is voluntary, but someone who does not agree to the ‘Barrister only’ condition will not be a barrister in terms of item 7 in reg 5(2) of the Legal Profession Regulations 2009.

If practitioners intend to practise solely in the manner of a barrister from 1 July 2012, they should provide a written request to the Board to impose the ‘Barrister only’ condition on their local practising certificate.

• Practitioners who already practise and intend to continue to practise solely as a barrister should make this request in writing to the Board when they apply for their 2012/2013 practising certificate.
• Practitioners who are not presently practising solely as barristers but who intend to practise solely as a barrister from 1 July 2012 should also make the request in writing to the Board when they apply for their 2012/2013 practising certificate.
• Practitioners who intend to begin practice solely as a barrister at some point after 1 July 2012, or who reach a decision after 1 July 2012 that they wish to practise solely as a barrister, should make a request in writing to the Board to impose the 'Barrister only' condition prior to their commencing to practise solely as a barrister.

There is no prescribed form for the written request. The request should state that the applicant requests and agrees to the Board imposing the ‘Barrister only’ condition, pursuant to section 47(3)(i) of the Legal Profession Act 2008, on the local practising certificate issued to the applicant.  It is envisaged that in the future the Board's online renewal process will also contain provision for the request to be made. Until those arrangements can be made, the Board will accept requests via email, facsimile and ordinary post.

In light of the availability of the ‘Barrister only’ condition to replace the Supreme Court undertaking, the Board and the Western Australian Bar Association  have requested the Solicitor General to amend regulation 5 of the Legal Profession Regulations 2009 to include a reference to the condition.

If you have any queries, please contact either the Board’s Legal Officer, Ms Libby Fulham, or the Board’s Administrative Officer, MrTony Mylotte, on (08) 6211 3600.