Legal Profession Act 1987 No 109
Historical version for 22 November 2002 to 5 December 2002 (accessed 23 November 2014 at 15:16) Repealed version
Part 3A

Part 3A Unqualified practitioners

48B   Unqualified person acting as barrister or solicitor and barrister

(1)  A natural person must not act as a barrister or solicitor and barrister unless the person holds a current practising certificate.

Maximum penalty: 20 penalty units.

(2)  This section does not prevent a licensed conveyancer from carrying out conveyancing work in accordance with a licence in force under the Conveyancers Licensing Act 1995.
(3)  A person who contravenes this section is, whether or not prosecuted or convicted for the contravention, guilty of contempt of any court in relation to which the contravention takes place.
(4)  If a person contravenes this section:
(a)  no action lies for the recovery of costs in respect of anything done in the course of the contravention, and
(b)  if any such costs have been paid, the amount paid may be recovered as a debt owed by the person to the other person who paid them.
(5)  (Repealed)
(6)  A person who is an interstate legal practitioner does not contravene this section if the person is the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.

48C   Unqualified person making false representation to be a barrister or solicitor and barrister

(1)  A natural person must not falsely pretend to be qualified to act as a barrister or solicitor and barrister.
(2)  A natural person who does not hold a current practising certificate must not:
(a)  take or use a name, title, addition or description implying that the person is qualified to act as a barrister or solicitor and barrister, or
(b)  do anything, or permit anything to be done, that holds out, advertises or represents that the person is so qualified.

Maximum penalty: 20 penalty units.

48D   Offence by corporation or officers

(1)  A corporation must not do anything of a kind, or do anything in a manner, that is calculated to imply that the corporation is qualified to act as a barrister or solicitor and barrister.

Maximum penalty: 500 penalty units.

(2)  A director, officer or employee of a corporation must not:
(a)  do anything of a kind, or do anything in a manner, or
(b)  cause the corporation to do anything of a kind, or do anything in a manner,
that is calculated to imply that the corporation is qualified to act as a barrister or solicitor and barrister.

Maximum penalty: 20 penalty units.

(3)  This section does not apply to or in respect of an incorporated legal practice that has at least one solicitor director (within the meaning of Division 2A of Part 3). Any such practice does not contravene this section because it ceases to have such a solicitor director if a new solicitor director is appointed within the time prescribed by the regulations or, if no such time has been prescribed, within a reasonable time.
(4)  If a person contravenes this section:
(a)  no action lies for the recovery of costs in respect of anything done in the course of the contravention, and
(b)  if any such costs have been paid, the amount paid may be recovered as a debt owed by the person to whom they were paid to the other person who paid them.

48E   Limitation on general legal work and probate work

(1)  In this section:

fee includes any form of, and any expectation of, a fee, gain or reward.

general legal work means the work involved in drawing, filling up or preparing an instrument or other document that:

(a)  is a will or other testamentary instrument, or
(b)  creates, regulates or affects rights between parties (or purports to do so), or
(c)  affects real or personal property, or
(d)  relates to a legal proceeding.

probate work means the work involved in:

(a)  taking instructions for a grant of probate or letters of administration, or
(b)  drawing or preparing papers on which to found or oppose a grant of probate or letters of administration.

(2)  A person must not directly or indirectly do any general legal work, or any probate work, for a fee unless the person is a barrister or solicitor or unless the person is an incorporated legal practice and the work is done on its behalf by a barrister or solicitor.

Maximum penalty: 20 penalty units.

(3)  Any general legal work or probate work is taken to have been done for a fee if it relates to, or is done in conjunction with, other work done by the same person for a fee, unless it is proved that the general legal work or probate work:
(a)  was done without the person who did it receiving any advantage or benefit, and
(b)  was not offered as an inducement to do the other work.
(4)  This section does not apply to:
(a)  a public officer drawing instruments in the course of his or her duty, or
(b)  a person employed merely to engross an instrument, or
(c)  a land agent in respect of an instrument he or she is entitled to draw, fill up or prepare, and to charge for, under the Land Agents Act 1927, or
(d)  a licensed conveyancer acting in accordance with a licence in force under the Conveyancers Licensing Act 1995.
(5)  This section does not apply to a person acting as an employee if the person:
(a)  so acts in the ordinary course of his or her employment, and
(b)  receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee.
(6)  This section does not apply to a person or work, or a class of persons or work, declared by the regulations as being exempt from the operation of this section.
(7)  (Repealed)
(8)  A foreign lawyer does not contravene this section if he or she is a locally registered foreign lawyer and the work done is work the foreign lawyer is permitted to do under Part 3C.

48F   Sharing receipts

(1)  A barrister or solicitor may share with any other person the receipts of a business of the kind ordinarily conducted by a barrister or solicitor, except to the extent (if any) that the regulations, barristers rules, solicitors rules or joint rules otherwise provide.
(2)  This section does not authorise a barrister or solicitor who is employed under a contract of service by a person who is not a barrister or solicitor to share with the employer the receipts of any business conducted by the barrister or solicitor on behalf of the employer.
(3)  However, this section does not affect any business conducted by barristers or solicitors on behalf of their employer if the business:
(a)  concerns a proceeding or transaction to which the employer or a related body is a party, or
(b)  is of a kind prescribed by the regulations or is carried out in circumstances of a kind prescribed by the regulations.
(4)  For the purposes of this section, a body is related to an employer if the body and the employer are related to each other in terms of section 50 of the Corporations Act 2001 of the Commonwealth.
(5)  Despite anything to the contrary in this section, a solicitor may share with an incorporated legal practice the receipts of the business of the practice. The regulations, solicitors rules or joint rules may not prevent or restrict the solicitor from doing so.

48G   Multidisciplinary partnerships

(1)  A barrister or solicitor (other than a barrister or solicitor who is an interstate legal practitioner) may be in partnership with a person who is not a barrister or solicitor.
(2)  This section applies only if the business of the partnership concerned includes business of a kind ordinarily conducted by a barrister or solicitor.
(3)  The following provisions apply in respect of a partnership in which a barrister or solicitor is authorised by this section to be a member:
(a)  A partner who is not a barrister or solicitor does not contravene this Part merely because the partner conducts business of the partnership that is the business of a barrister or solicitor.
(b)  A partner who is not a barrister or solicitor does not contravene this Part merely because the partner receives any fee, gain or reward for business of the partnership that is the business of a barrister or solicitor.
(c)  A partner who is not a barrister or solicitor does not contravene this Part merely because the partner holds out, advertises or represents himself or herself as a member of a partnership conducting the business of a barrister or solicitor.
(d)  A partner who is a barrister or solicitor does not contravene this Part merely because the partner shares with any other partner the receipts of business of the partnership that is the business of a barrister or solicitor.
(e)  Part 6 (Trust Accounts), Part 7 (Solicitors’ Fidelity Fund), Part 8 (Receivers) and Part 8A (Managers) apply, subject to the regulations, as if each partner who is not a solicitor were a solicitor. Those provisions so apply in connection with any business of the partnership (whether or not it is the business of a barrister or solicitor).
(4)  This section has effect despite anything to the contrary in this Part (except sections 48J and 48K) or anything to the contrary in the solicitors rules.
(5)  However, in the case of barristers, this section has effect except to the extent (if any) that the barristers rules otherwise provide.
(6)  The regulations may make provision for or with respect to the business of a partnership in which a barrister or solicitor is authorised by this section to be a member.

48H   Community legal centres

(1)  An organisation, whether incorporated or not, is a community legal centre which complies with this section if:
(a)  it is held out or holds itself out as being a community legal centre (or a centre or establishment of a similar description), and
(b)  it provides legal services:
(i)  which are directed generally to persons or organisations who or which lack the financial means to obtain privately funded legal services or whose cases are expected to raise issues of public interest or of general concern to disadvantaged groups in the community, and
(ii)  which are made available to persons or organisations who or which have a special need arising from their location or the nature of the legal matter to be addressed or have a significant physical or social disability, and
(iii)  which are not intended, or likely, to be provided at a profit to the community legal centre and the income (if any) from which cannot or will not be distributed to any member or employee of the centre otherwise than by way of reasonable remuneration under a contract of service or for services, and
(iv)  which are funded or expected to be funded to a significant level by donations or by grants from government, charitable or other organisations, and
(c)  at least one of the persons who is employed or otherwise used by it to provide those legal services is a barrister or solicitor (other than a barrister or solicitor who is an interstate legal practitioner) with a current practising certificate and is generally responsible for the provision of those legal services (whether or not the person has an unrestricted practising certificate).
(2)  A community legal centre which complies with this section does not contravene this Part merely because:
(a)  it employs, or otherwise uses the services of, solicitors or barristers (or both) to provide legal services to members of the public, or
(b)  it has a contractual relationship with a member of the public to whom those legal services are provided or receives any fee, gain or reward for providing those legal services, or
(c)  it shares with a solicitor or barrister employed or otherwise used by it to provide those legal services receipts from the business of the centre, being business of a kind usually conducted by a solicitor or barrister, or
(d)  it adopts or uses the word “legal” (or some related term) in its name or any registered business name under which it provides legal services to members of the public.
(3)  This section has effect despite anything to the contrary in this Part.

48I   Prohibition on employment of certain non-legal clerks

(1)  This section applies to a person who:
(a)  is not a legal practitioner or interstate legal practitioner, and
(b)  is or was a clerk to a barrister or solicitor.
(2)  On application by a Council, the Tribunal may make an order prohibiting (without approval under section 48K) any barrister or solicitor from employing or paying in connection with his or her 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 a barrister’s or solicitor’s practice, or
(b)  the Tribunal is satisfied that the person has been guilty of conduct which, if the person were a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10.
(2A)  The prohibition imposed by an order made under this section extends to a prohibition on the employment or payment of the person against whom the order was made in connection with the legal services provided by an incorporated legal practice.
(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)  (Repealed)
(5)  The death of a barrister or solicitor 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 clerk to the barrister or solicitor.

48J   Prohibition on partnerships with certain non-legal partners

(1)  This section applies to a person who:
(a)  is not a legal practitioner or interstate legal practitioner, and
(b)  is or was a partner of a barrister or solicitor.
(2)  On application by a Council, the Tribunal may make an order prohibiting (without approval under section 48K) any barrister or solicitor from being a partner, in a business that includes the barrister’s or solicitor’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 a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10.
(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)  (Repealed)
(5)  The death of a barrister or solicitor 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 barrister or solicitor.

48K   Associates who are disqualified or convicted persons

(1)  It is professional misconduct if a barrister or solicitor has an associate whom the barrister or solicitor knows to be:
(a)  a disqualified person, or
(b)  a person who has been convicted of an indictable offence and does not hold a current practising certificate.
(2)  Subsection (1) does not apply to an associate approved by:
(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,
(c)  in the case of a person who has been convicted of an indictable offence—the Tribunal, or
(d)  in any case—an Appeal Panel of the Tribunal on an appeal under subsection (3).
(3)  If a Council or the Tribunal decides to refuse an application by a person for approval under this section, the person may appeal against the decision to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997. On any such appeal, the Appeal Panel may:
(a)  confirm the decision appealed against, or
(b)  approve of the associate.
(4)  An approval under this section may be subject to specified limitations or conditions.
(5)  A disqualified person, or a person convicted of an indictable offence, must not seek to become an associate of a barrister or solicitor unless the person first informs the barrister or solicitor of the disqualification or conviction.

Maximum penalty: 10 penalty units.

(6)  Proceedings for an offence under subsection (5) may be brought at any time within 6 months after discovery of the offence by the barrister or solicitor concerned.
(7)  In this section:

associate of a solicitor or barrister means:

(a)  a person (not being a legal practitioner or interstate legal practitioner) who is a partner of the solicitor or barrister in a business that includes the barrister’s or solicitor’s practice, or
(b)  a person (not being a legal practitioner or interstate legal practitioner) who shares the receipts of the barrister’s or solicitor’s practice, or
(c)  a person who is employed or paid in connection with the barrister’s or solicitor’s practice.

disqualified person means a person (other than a person who has been convicted of an indictable offence):

(a)  whose name has, otherwise than at his or her own request, been removed from the roll of legal practitioners in the Supreme Court, or
(b)  whose name has been removed from a roll kept outside the State that corresponds to the roll of legal practitioners in the Supreme Court, or
(c)  who is suspended from practising as a barrister or solicitor in New South Wales or another State or Territory, or
(d)  who is the subject of an order in force under section 48I or 48J, or
(e)  who is disqualified from holding a licence under the Conveyancers Licensing Act 1995 by virtue of an order in force under Part 10 of this Act (as applying under Part 6 of that Act).

(8)  This section extends to solicitor directors of an incorporated legal practice. Accordingly, a solicitor director is guilty of professional misconduct if the solicitor director would be guilty of professional misconduct under this section:
(a)  if persons employed or paid by the incorporated legal practice in connection with the provision of legal services were taken to be employed or paid by the solicitor director, or
(b)  if prescribed shareholders in the incorporated legal practice were taken to be sharing the receipts of the solicitor director’s practice.

48L   Miscellaneous provisions—secs 48I–48K

(1)  The parties to an application to the Tribunal under sections 48I–48K may be represented by a barrister or solicitor at the hearing of the application.
(2)  On making an order under section 48I or 48J, or on determining an application for approval under section 48K, the Tribunal may make orders for costs.
(2A)  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.
(3)  A Council must:
(a)  retain in its office an order made under section 48I or 48J on its application, and
(b)  permit any such order to be inspected during office hours and without charge, but only if the inspection is made by a barrister or solicitor.
(4)  In any proceedings under this Act, a document that purports:
(a)  to be an order under section 48I or 48J, 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.
(5)  (Repealed)

48M   Injunctions

The Supreme Court may, on the application of any person, grant an injunction, in such terms as the Supreme Court considers to be appropriate, restraining a person from contravening this Part.
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