Legal Profession Act 1987 No 109
Repealed version for 15 August 2005 to 30 September 2005 (accessed 27 November 2014 at 03:09)
Part 3Division 1

Division 1 Practising certificates

25   Requirement for practising certificate

(1)  A legal practitioner whose sole or principal place of legal practice is this State must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate.
(2)  A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister.
(3)  A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a solicitor without being the holder of a current practising certificate as a solicitor and barrister.
(3A)  An interstate legal practitioner must not practise as a barrister or solicitor in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.
(3B)  An interstate legal practitioner must not hold himself or herself out to be a barrister in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.
(3C)  An interstate legal practitioner must not hold himself or herself out to be a solicitor in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.
(4)  A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct.

26   Election to practise as barrister or solicitor and barrister

(1)  A legal practitioner may, subject to this Act, elect to practise as a barrister or as a solicitor and barrister.
(2)  A legal practitioner is, subject to this Act, entitled to be issued with a practising certificate as a barrister or solicitor and barrister.
(3)  An interstate legal practitioner may, subject to this Act, elect to practise in this State as a barrister or as a solicitor and barrister.
Note. A person may not hold current practising certificates at the same time as a barrister and as a solicitor and barrister, see section 38D.

27   Barristers

(1)  The Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a barrister.
(2)  A legal practitioner who does not hold a current practising certificate as a barrister may at any time apply to the Bar Council for a practising certificate unless there is in force an order of the Tribunal preventing the issue of the certificate.
(3)  A legal practitioner who holds a current practising certificate as a barrister may, during the prescribed period before the certificate expires, apply to the Bar Council for a new practising certificate.
(4)  Subsection (3) does not prevent the Bar Council from accepting an application made after the prescribed period and before the next 1 July.

28   Solicitors and barristers

(1)  The Law Society Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a solicitor and barrister.
(2)  A legal practitioner who does not hold a current practising certificate as a solicitor and barrister may at any time apply to the Law Society Council for a practising certificate unless there is in force an order of the Tribunal preventing the issue of the certificate.
(3)  A legal practitioner who holds a current practising certificate as a solicitor and barrister may, during the prescribed period before the certificate expires, apply to the Law Society Council for a new practising certificate.
(4)  Subsection (3) does not prevent the Law Society Council from accepting an application made after the prescribed period and before the next 1 July.
(5)  (Repealed)

29   (Repealed)

29A   Fee for practising certificate—barristers

(1)  A fee is payable for the issue of a practising certificate authorising a legal practitioner to practise as a barrister of such amount as is determined by the Bar Council and approved by the Attorney General.
(2)  The Bar Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.
(3)  The Bar Council may waive payment of the practising certificate fee or any part of the fee.
(4)  Subject to the regulations (if any), the Bar Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Bar Council or Bar Association.
(5)  The regulatory functions of the Bar Council or Bar Association are the functions of the Bar Council or Bar Association under this Act, and any other functions the Bar Council or Bar Association exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice.
(6)  The practising certificate fee is not to include any charge for membership of the Bar Association and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which barristers become entitled as members of the Bar Association.
Note. Section 57M provides for membership of the Bar Association. It is not compulsory for barristers to be members of the Bar Association.
(7)  In addition, in determining the practising certificate fee, the Bar Council must exclude costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under Division 2 of Part 6).
(8)  The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.
(9)  In this section, costs includes expenses.

29B   Fee for practising certificate—solicitors

(1)  A fee is payable for the issue of a practising certificate authorising a legal practitioner to practise as a solicitor of such amount as is determined by the Law Society Council and approved by the Attorney General.
(2)  The Law Society Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.
(3)  The Law Society Council may waive payment of the practising certificate fee or any part of the fee.
(4)  Subject to the regulations (if any), the Law Society Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Law Society Council or Law Society.
(5)  The regulatory functions of the Law Society Council or Law Society are the functions of the Law Society Council or Law Society under this Act, and any other functions the Law Society Council or Law Society exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice.
(6)  The practising certificate fee is not to include any charge for membership of the Law Society and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which solicitors become entitled as members of the Law Society.
Note. Section 57MA provides for membership of the Law Society. It is not compulsory for solicitors to be members of the Law Society.
(7)  In addition, in determining the practising certificate fee, the Law Society Council must exclude any costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under Division 2 of Part 6).
(8)  The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.
(9)  In this section, costs includes expenses.

29C   Late fee

If an application for a practising certificate is accepted by a Council after the end of the period prescribed by the regulations during which the application is authorised to be made, payment of a late fee prescribed by the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application.

29D   Submission of budget to Attorney General

(1)  The Attorney General may from time to time require a Council to prepare and submit a budget to the Attorney General, in respect of such period as the Attorney General directs, relating to any costs (or projected costs) that are recoverable (or are proposed to be recovered) by the charging of a practising certificate fee.
(2)  The budget is to include such information as the Attorney General directs. In particular, the Attorney General may require the provision of information about the administration of the Council (including the Bar Association and the Law Society).
(3)  The Attorney General may refuse to approve the amount of a practising certificate fee under section 29A or 29B if the relevant Council has failed to submit a budget as required under this section.
(4)  In this section:

costs includes expenses.

29E   Audit of Council activities

(1)  The Attorney General may appoint an appropriately qualified person to conduct an audit of all or any particular activities of a Council for the purpose of determining the following:
(a)  whether any activities the costs of which are recoverable, or are proposed to be recovered, by the charging of a practising certificate fee are being carried out economically and efficiently and in accordance with the relevant laws,
(b)  whether practising certificate fees are being expended for the purpose of defraying the costs in respect of which the fees are charged.
(2)  A Council is to provide all reasonable assistance to the person appointed to conduct the audit.
(3)  The person appointed to conduct the audit is to report to the Attorney General on the result of the audit.
(4)  An audit may be conducted under this section whenever the Attorney General considers it appropriate.
(5)  In this section:

audit includes an examination and inspection.

costs includes expenses.

Council includes the Bar Association and the Law Society.

30   Refusal of application for practising certificate as barrister or solicitor

(1)  A Council must refuse to issue a practising certificate if the application for it:
(a)  is not accompanied by the appropriate fee (unless payment of the fee has been waived by the Council), or
(b)  is not accompanied by, or does not contain, such information as may be prescribed by the regulations.
(2)  A Council may refuse to issue a practising certificate applied for by the holder of a suspended practising certificate.
(3)  A Council may refuse to issue a practising certificate if a finding of unsatisfactory professional conduct or professional misconduct has been made in respect of the applicant and:
(a)  a fine imposed because of the finding has not been paid, or
(b)  costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement, or
(c)  any costs of an inspection or investigation payable under section 55 by the applicant have not been paid, or
(d)  any expenses of receivership payable under section 110 by the applicant have not been paid.
(4)  Other sections of this Act also provide for the refusal of applications for the issue of practising certificates.
(5)  Without limiting subsection (1) (b), information prescribed by the regulations may include details of, or details of the nature of, pre-admission events, whether occurring before or after the commencement of this subsection.

31   Non-payment of contributions and levies by solicitors in respect of Indemnity Fund or Fidelity Fund

The Law Society Council may refuse to issue a practising certificate if:
(a)  the applicant is required by section 45 to contribute to the Indemnity Fund and the application is not accompanied by the contribution payable under that section, or
(b)  the applicant is required by section 76 to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable under that section, or
(c)  any levy payable by the applicant under section 46, 46A or 77 is unpaid.
Note. Part 9 sets out further grounds on which the Law Society Council must refuse to issue a practising certificate to a solicitor or suspend a solicitor’s practising certificate. These grounds relate to a failure by the solicitor to obtain fidelity insurance in respect of a regulated mortgage.

32   Conditions may be imposed on practising certificates

(1)  A practising certificate may be issued unconditionally or subject to conditions.
(2)  A Council may attach a condition to a practising certificate when it is issued or at any time after it is issued, and may at any time vary or revoke any such condition.
(3)  A condition cannot be attached to a practising certificate unless it is of a kind authorised by this Act to be attached.
(4)  (Repealed)
(5)  A legal practitioner who is the holder of a current practising certificate must not fail to comply with a condition to which the certificate is subject.

33   Conditions on practising certificates generally

(1)  Conditions of the following kinds can be attached to the practising certificate of a barrister or solicitor:
(a)  a condition requiring the holder to undertake and complete one or more courses of continuing legal education,
(b)  a condition requiring the holder to undertake additional academic or training courses,
(c)  a condition, of a kind authorised by the regulations, limiting the practising rights of the holder as determined by the Bar Council or the Law Society Council,
(d)  any other condition agreed to by the holder.
(2)  Other sections of this Act also provide for conditions that may be attached to practising certificates.

34   Additional conditions on practising certificates of barristers

(1)  Conditions of the following kinds can be attached to the practising certificate of a barrister:
(a)  a condition requiring the holder to undertake and complete to the satisfaction of the Bar Council a full-time component or other component of a reading program applicable to the holder and determined or approved by the Bar Council,
(b)  a condition requiring the holder to sit for and pass any examination set by the Bar Council as part of a reading program,
(c)  a condition requiring the holder to read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Bar Council for the purpose) for a specified period and to comply with such requirements as will enable the barrister, at the end of the specified period, to certify to the Bar Council that the holder is fit to practise as a barrister without restriction.
(2)  A condition of a kind referred to in subsection (1) which is attached to the practising certificate of a barrister may limit the practising rights of the barrister until the condition is complied with.
(3)  The following conditions may also be attached to the practising certificate of a barrister:
(a)  a condition limiting the holder to practising as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right),
(b)  a condition limiting the holder to practising as a barrister in any other office under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right),
(c)  a condition limiting the holder to practising as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).

35   Additional conditions on practising certificates of solicitors and barristers

Conditions of the following kinds can be attached to the practising certificate of a solicitor:
(a)  a condition requiring the holder to complete a period of supervised practice,
(b)  a condition restricting the solicitor to acting as a solicitor and barrister under particular conditions as to employment.

36   Duration of practising certificates

(1)  A practising certificate issued on application by the holder of a current practising certificate takes effect on the relevant date next following the making of the application, and remains in force for 12 months or for such other period as may be specified by the regulations.
(2)  Any other practising certificate takes effect on the date it bears, and remains in force until immediately before the next relevant date.
(3)  If an application referred to in subsection (1) is not determined before the relevant date next following the making of the application, the practising certificate already held continues in force until a new practising certificate is issued or the application is refused.
(4)  In this section, relevant date means:
(a)  subject to paragraph (b)—1 July, or
(b)  another date specified by the regulations as the common date for the duration of practising certificates.
(5)  The regulations may contain savings and transitional provisions consequent on a change in the relevant date. In particular, the regulations may:
(a)  specify the period for which practising certificates in force when the change is made are to remain in force, and
(b)  specify the period for which practising certificates that take effect on the new relevant date are to remain in force, and
(c)  modify the application of section 45 in respect of contributions payable in respect of any such certificates.
(6)  (Repealed)

37   Refusal, suspension or cancellation of practising certificate generally

(1)  A Council may refuse to issue, may cancel or may suspend a practising certificate if the applicant or holder:
(a)  is required by the Council to explain specified conduct (whether or not related to practice as a barrister or solicitor) that the Council considers may indicate that the applicant or holder is not a fit and proper person to hold a practising certificate and fails, within the period specified by the Council, to give an explanation satisfactory to the Council, or
(b)  has, in the opinion of the Council, failed to comply with a condition attached to the certificate, or
(c)  has contravened an order made in respect of the applicant or holder by the Tribunal, or
(d)  is a disqualified person within the meaning of section 48K, or
(e)  has had the applicant’s or holder’s right to practise as a solicitor and barrister, barrister or legal practitioner in another State or a Territory suspended or cancelled, or
(f)  has contravened a provision of this Act, or
(g)  is in prison.
(1A)  Subsection (1) (a) extends to pre-admission events occurring in relation to an applicant for or holder of a practising certificate, whether the events occurred before or after the commencement of this subsection.
(1B)  Without limiting subsection (1), a Council may decide to take no action or no further action in connection with a pre-admission event occurring in relation to an applicant for or holder of a practising certificate, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.
(2)  If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.

38   Refusal, suspension or cancellation of practising certificate as solicitor and barrister—trust accounts etc

The Law Society Council may refuse to issue, may cancel or may suspend a practising certificate as a solicitor and barrister if the applicant or holder fails, and continues to fail, to comply with section 61 or any other law relating to money received on behalf of another by the solicitor or by a partnership of which, at the time of the failure, the solicitor is or was a member.

38A   Refusal, suspension or cancellation of practising certificate—infirmity

(1)  A Council may refuse to issue, may cancel or may suspend a practising certificate if the Council is satisfied, on such evidence as to it seems proper:
(a)  that the applicant or holder is, because of infirmity, injury or mental or physical illness, unfit to practise as a barrister or solicitor and barrister, and
(b)  that it is in the public interest or the interest of the barrister’s or solicitor’s clients that the practising certificate should not be issued or should be cancelled or suspended.
(1A)  For the purposes of this section, an applicant or holder is unfit to practise as a barrister or solicitor and barrister only if the applicant or holder, because of his or her infirmity, injury or mental or physical illness, would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister.
(1B)  The following are to be taken into account in determining whether an applicant or holder would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister:
(a)  the applicant’s or holder’s past training, qualifications and experience relevant to such practice,
(b)  if the applicant or holder is already practising as a barrister or solicitor and barrister, the applicant’s or holder’s performance in such practice,
(c)  all other relevant factors that it is reasonable to take into account.
(2)  Before acting under subsection (1), a Council:
(a)  may require the applicant or holder to be medically examined by a medical practitioner nominated by the Council, and
(b)  may hold an inquiry.
(3)  A refusal or failure by a person to comply with a requirement for medical examination may be accepted by a Council as evidence of the unfitness of the person to practise as a barrister or solicitor and barrister.

38B   Appeals relating to practising certificates

(1)  If a Council:
(a)  refuses to issue a practising certificate, or
(b)  refuses to issue a practising certificate of the kind applied for, or
(c)  attaches a condition to a practising certificate or varies a condition attached to a practising certificate, or
(d)  cancels or suspends a practising certificate,
the applicant for, or holder of, the practising certificate may appeal to the Supreme Court.
(1A)  If the Commissioner:
(a)  directs a Council to refuse to issue a practising certificate, or
(b)  cancels or suspends a practising certificate,
the applicant for, or holder of, the practising certificate may appeal to the Supreme Court against the decision of the Commissioner to make the direction or to cancel or suspend the practising certificate.
(1B)  An appeal may not be made under subsection (1) against the refusal of a Council to issue a practising certificate if the refusal was at the direction of the Commissioner.
(2)  The Supreme Court may make such order in the matter as it thinks fit.
(3)  Except to the extent (if any) that may be ordered by the Supreme Court, the lodging of an appeal does not stay the effect of the refusal, cancellation or suspension, or the attaching or variation of a condition, appealed against.
(4)  This section does not apply if a Council acts in conformity with a decision of the Tribunal that is in force.

38C   Registers of barristers and solicitors

(1)  A Council is required to keep, in such form as it thinks fit, a register of the legal practitioners to whom it has issued current practising certificates.
(2)  A Council is required to keep, in such form as it thinks fit, a register of the interstate legal practitioners who have given notice under section 48T that they have established an office in this State.

38D   Dual certificates

(1)  A legal practitioner may not at the same time hold current practising certificates as barrister and solicitor and barrister.
(2)  A practising certificate may be issued to a person on the condition that it does not have effect while another practising certificate is in force in relation to the person.

38E   Injunctions

(1)  The Supreme Court may, on the application of a Council, grant an injunction, in such terms as the Supreme Court considers to be appropriate, restraining a legal practitioner from contravening section 25 or 32.
(2)  No undertaking as to damages or costs is required.

38F   Application of provisions of Division

(1)  The Attorney General, while admitted as a legal practitioner, is entitled to an unconditional practising certificate. The Attorney General may elect to hold a practising certificate as a barrister or as a solicitor and barrister.
(2)  Section 33 (1) (b) and (c) and section 34 (1) do not apply to:
(a)  a legal practitioner who is the holder of a statutory position under the Crown (whether in right of New South Wales or in another right), or
(b)  a legal practitioner who acts as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right), or
(c)  a legal practitioner who is, or is a member of a class or description of legal practitioners, specified by the Bar Council or the Law Society Council for the purposes of this subsection, or
(d)  a legal practitioner who is, or is a member of a class or description of legal practitioners, prescribed by the regulations for the purposes of this subsection.
(3)  Subsection (2) applies only while the person is a legal practitioner to whom at least one of the paragraphs of that subsection applies.
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