Newly admitted practitioners are reminded that an admission certificate (from the Supreme Court of any Australian jurisdiction or the High Court) is not a practising certificate.
Principals are reminded to verify that newly admitted practitioners hold a practising certificate before engaging in legal practice.
While an admitted lawyer may refer to themselves as an ‘Australian lawyer’, they are not automatically entitled to engage in legal practice nor refer to themselves as a ‘solicitor’.
Section 24(1) of the Legal Profession Act 2007 (Qld) (the Act) provides only an ‘Australian legal practitioner’ may engage in legal practice. Section 6(1) of the Act defines an Australian legal practitioner as an ‘Australian lawyer who holds a current practising certificate’.
‘Solicitor’ is defined in Schedule 2 of the Act, to effectively mean the holder of a practising certificate issued by Queensland Law Society or the holder of an interstate practising certificate that does not limit the holder to practising as a barrister only.
It follows, in Queensland, to engage in legal practice and be permitted to hold the position title ‘solicitor’, an application must be made to Queensland Law Society for a practising certificate. You can locate the practising certificate application here.
What is ‘engaging in legal practice’?
The Act defines ‘engage in legal practice’ as ‘includes practise law’ (emphasis added). In Legal Services Commissioner v Walter [2011] QSC 132, Daubney J held the term ‘practise law’ invokes the notion of carrying on or exercising the profession of law (as opposed to the ‘business’ of law).
His Honour referred to Cornall v Nagle [1995] 2 VR 188, wherein JD Phillips J referred to the ways in which a person may be regarded as acting or practising as a solicitor:
- By doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor.
- By doing something that is positively proscribed by legislation or rules of court unless done by a duly qualified legal practitioner.
- By doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law.
For example, an Australian lawyer may be found to be engaging in legal practice if:
(a) they provide legal advice to a client – either via phone or via correspondence, only signed by them
(b) their position title is ‘solicitor’
(c) they appear in court on behalf of a client and fail to inform the court they are not a solicitor
(d) they undertake any action that only a solicitor may undertake (for example, execution of a document where there is a legislative requirement that document be executed by a solicitor).
What are the consequences of engaging in legal practice without a practising certificate?
Engaging in legal practice without holding a current practising certificate is a breach of s24(1) of the Act. A breach of s24(1) may result in:
(a) an investigation by the Legal Services Commissioner
(b) refusal of a practising certificate upon application – practising without a practising certificate being a suitability matter (see s9(1)(f)(i) of the Act)
(c) any work undertaken not being billable or insured
(d) the time engaged in legal practice prior to a practising certificate being granted, not counting towards the required two-year period of supervised legal practice before being eligible for an unrestricted practising certificate.
Are there exceptions to engaging in legal practice without a practising certificate?
There are exceptions to the prohibition against engaging in legal practice without a practising certificate. The most common exceptions include:
(a) legal practice engaged in by a government legal officer – (see s12(1) of the Act)
(b) if an Australian lawyer has applied for a practising certificate and informs their employer they have applied for but not yet been granted a practising certificate, they may engage in legal practice until a decision in respect of that application is made (see s24(3) of the Act). This only applies to employees of law practices (not principals) and only until a decision is made and notified to the applicant – if the application is refused or the Society advises the application will not be considered, the exception does not apply.
What if I have been engaging in legal practice without a current practising certificate?
If you have been engaging in legal practice without a current practising certificate, as a matter of urgency you should:
- apply for a practising certificate immediately (presuming you intend to continue to engage in legal practice)
- ensure you disclose on your application that you have been subject to a suitability matter which may affect your fitness to hold a practising certificate – being the suitability matter cited at s9(1)(f)(i) of the Act
- inform your employer and advise any work you have undertaken to date may not be billable or insured
- include in your application a statutory declaration, which should provide the following information:
(a) whether you engaged in legal practice prior to applying for a practising certificate
(b) your relevant employment history (that is, employment with any law practice) from the date of your admission up until the current date), including the following details with respect to each employer:
i. the date employed and the date employment was terminated
ii. position title (as per employment contract and as advertised to members of the public)
iii. position description (as per employment contract)
iv. type of work engaged in – for example, drafting legally binding agreements, provision of legal advice, attending court, et cetera
v. how the work you performed was charged in reference to the law practice’s cost agreement (for example, law clerk, solicitor, lawyer).
(c) whether you have ever advertised or held yourself out as being entitled to engage in legal practice
(d) whether you have ever advised an employer you hold a practising certificate
(e) an explanation for failing to apply for your practising certificate prior to the current date, despite being employed by a law practice to engage in legal practice prior to the current date.
If you have any questions on the above, you may contact the Society’s Records and Member Services team on 1300 367 757.
Alexandra Blake is a Queensland Law Society Solicitor.
Share this article