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

  ‘Barrister only’ condition - see details in Annexure A

The wording of the ‘Barrister only’ condition has been reconsidered by the Board’s Professional Affairs Committee. To avoid any suggestion that ‘work’ tasks other than work as an independent Barrister are forbidden, the Committee resolved to reword the condition to insert the words ‘while engaging in legal practice’ after the word ‘will’ in paragraph 1 and ‘must’ in paragraph 2. There were no omissions from the wording of the condition. The new wording of the condition, with the insertions referred to above underlined, is as follows:

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 while engaging in legal practice 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 while engaging in legal practice 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.

All valid local practising certificates with the ‘Barrister only’ condition imposed reflect the above wording of the condition.

All other aspects of the ‘Barrister only’ condition remain unchanged. Once imposed, the condition remains 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 local practising certificates must still comply with professional indemnity insurance and continuing professional development requirements.

The ‘Barrister only’ condition can 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 a person 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.

There is no prescribed form for the written request. The request should be in writing to the Board and 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. The Board accepts requests made by email, facsimile and ordinary post.

If you have any queries, please contact the Board’s Executive Director, Ms Libby Fulham,  on (08) 6211 3600.