Legal Profession Act 2004 No 112
Historical version for 19 May 2010 to 27 June 2010 (accessed 21 December 2014 at 08:35) Current version
Chapter 2Part 2.2

Part 2.2 Reservation of legal work and legal titles

Division 1 Preliminary

13   Purposes

The purposes of this Part are as follows:
(a)  to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so,
(b)  to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.

Division 2 General prohibitions on unqualified practice

14   Prohibition on engaging in legal practice when not entitled

(1)  A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.

Maximum penalty: 200 penalty units.

(2)  Subsection (1) does not apply to engaging in legal practice of the following kinds:
(a)  legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth,
(b)  legal practice engaged in by an incorporated legal practice in accordance with Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships),
(c)  the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7 (Legal practice by foreign lawyers),
(d)  legal practice engaged in by a complying community legal centre,
(e)  conveyancing work carried out in accordance with a licence in force under the Conveyancers Licensing Act 2003,
(f)  (Repealed)
(g)  the drawing of instruments by an officer or employee in the service of the Crown (including the Public Service) in the course of his or her duty,
(h)  legal practice of a kind prescribed by the regulations.
(3)  Subsection (1) does not apply to:
(a)  a person who as an employee provides legal services to his or her employer or a related entity if he or she:
(i)  so acts in the ordinary course of his or her employment, and
(ii)  receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee, or
(b)  a person or class of persons declared by the regulations to be exempt from the operation of subsection (1).
(4)  A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (1) and must repay any amount so received to the person from whom it was received.
(5)  A person may recover from another person, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (1).
(6)  The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to persons engaged in legal practice of a kind referred to in subsection (2) (other than subsection (2) (b)–(f)) or persons referred to in subsection (3).

15   Prohibition on representing or advertising entitlement to engage in legal practice when not entitled

(1)  A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.

Maximum penalty: 100 penalty units.

(2)  A director, officer, employee or agent of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice or a complying community legal centre.

Maximum penalty: 100 penalty units.

(3)  Subsections (1) and (2) do not apply to a representation or advertisement about being entitled to engage in legal practice of a kind referred to in section 14 (2) (Prohibition on engaging in legal practice when not entitled) by a person so entitled.
(4)  A reference in this section to a person:
(a)  representing or advertising that the person is entitled to engage in legal practice, or
(b)  representing or advertising that a body corporate is entitled to engage in legal practice,
includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice.

16   Presumptions about taking or using certain names, titles or descriptions specified in regulations

(1)  This section applies to the following names, titles and descriptions:

lawyer, legal practitioner, barrister, solicitor, attorney, counsel, Queen’s Counsel, King’s Counsel, Her Majesty’s Counsel, His Majesty’s Counsel, Senior Counsel

(2)  The regulations may specify the kind of persons who are entitled, and the circumstances in which they are entitled, to take or use a name, title or description to which this section applies.
(3)  For the purposes of section 15 (1) (Prohibition on representing or advertising entitlement to engage in legal practice when not entitled), the taking or using of a name, title or description to which this section applies by a person who is not entitled to take or use that name, title or description gives rise to a rebuttable presumption that the person represented that they are entitled to engage in legal practice.
(4)  For the purposes of section 15 (2), the taking or using of a name, title or description to which this section applies by a person in relation to a body corporate, of which the person is a director, officer, employee or agent, gives rise to a rebuttable presumption that the person represented that the body corporate is entitled to engage in legal practice.

Division 3 Prohibitions regarding associates, clerks and non-legal partners

17   Associates who are disqualified or convicted persons

(1)  A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be:
(a)  a disqualified person, or
(b)  a person who has been convicted of a serious offence,
unless the associate is approved by the relevant authority under subsection (3).
(2)  A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention.
(3)  The relevant authority to approve a person for the purposes of subsection (1) is:
(a)  in the case of a disqualified person who is an associate of a barrister—the Bar Council, or
(b)  in the case of a disqualified person who is an associate of a solicitor—the Law Society Council, or
(c)  in the case of a person who has been convicted of a serious offence—the Tribunal.
(4)  If a Council decides to refuse an application by a person for approval under subsection (3) (a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for a review of the decision.
Note. Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.
(5)  An approval under this section may be subject to specified conditions.
(6)  A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction.

Maximum penalty: 100 penalty units.

(7)  Proceedings for an offence under subsection (6) may only be brought within 6 months after discovery of the offence by the law practice.
(8)  This section does not apply in circumstances prescribed by the regulations.
(9)  In this section:

lay associate of a law practice has the same meaning as in section 7 (Terms relating to associates and principals of law practices), and includes a consultant to the law practice (however described) who:

(a)  is not an Australian legal practitioner, and
(b)  provides legal or related services to the law practice, other than services of a kind prescribed by the regulations.

18   Prohibition on employment of certain lay associates

(1)  This section applies to a person who is not an Australian legal practitioner and who is or was a lay associate of a law practice that:
(a)  engages in legal practice principally in this jurisdiction, or
(b)  employs or employed the person to work principally in this jurisdiction,
and so applies whether or not the law practice subsequently ceased to exist or engage in legal practice principally in this jurisdiction and whether or not any person ceases, by death or otherwise, to be a legal practitioner associate of the law practice.
(2)  On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any law practice from employing or paying in connection with the legal practice engaged in by the law practice a specified person to whom this section applies, if:
(a)  the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with that legal practice, or
(b)  the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.
(3)  An order under this section may apply to a specified law practice or specified class of law practices or may apply to law practices generally.
(4)  An order under this section may be revoked by the Tribunal on application by a Council or the person against whom the order was made.

19   Prohibition on partnerships with certain non-legal partners

(1)  This section applies to a person who is not an Australian legal practitioner and who:
(a)  is or was a partner of a local legal practitioner, or
(b)  is or was a partner of an Australian legal practitioner and engaged in a business conducted by the partnership principally in this jurisdiction.
(2)  On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any Australian legal practitioner from being a partner, in a business that includes the practitioner’s practice, of a specified person to whom this section applies if:
(a)  the Tribunal is satisfied that the person is not a fit and proper person to be such a partner, or
(b)  the Tribunal is satisfied that the person has been guilty of conduct which, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.
(3)  An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made.
(4)  The death of an Australian legal practitioner does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the practitioner.

20   Proceedings on prohibition orders

(1)  The parties to an application to the Tribunal under this Division may be represented by an Australian legal practitioner at the hearing of the application.
(2)  On making an order under this Division, or on determining an application for approval under section 17 (Associates who are disqualified or convicted persons), the Tribunal may make orders for costs.
(3)  An order for costs:
(a)  may be for a specified amount or an unspecified amount, and
(b)  if for an unspecified amount, may specify the basis on which the amount is to be determined, and
(c)  may specify the terms on which costs must be paid.
(4)  A Council must:
(a)  retain in its office a register of orders made under section 18 or 19 on its application or approvals given by it under section 17, and
(b)  permit the register to be inspected during office hours and without charge, but only if the inspection is made by an Australian legal practitioner.
(5)  In any proceedings under this Act, a document that purports:
(a)  to be an order under section 18 or 19, and
(b)  to be signed by the member constituting, or presiding at the sitting of, the Tribunal when the order was made,
is, without further proof, evidence of the order it purports to be.

Division 4 General

21   Professional discipline

(1)  A contravention of this Part by an Australian lawyer who is not an Australian legal practitioner is capable of being professional misconduct.
(2)  Nothing in this Part affects any liability that a person who is an Australian lawyer but not an Australian legal practitioner may have under Chapter 4 (Complaints and discipline), and the person may be punished for an offence under this Part as well as being dealt with under Chapter 4 in relation to the same matter.
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