Part 3B Interstate legal practitioners
In this Act:conditions means conditions, limitations, restrictions or prohibitions.
corresponding law means a law of another State or a Territory relating to regulation of legal practice.
interstate legal practitioner means a natural person:
(a) who has been admitted to legal practice in another State or a Territory, and(b) who holds an interstate practising certificate issued or given by a regulatory authority in that State or Territory, and(c) whose sole or principal place of legal practice is that State or Territory.interstate practising certificate means a certificate or other form of authorisation that confers an authority to practise that corresponds to the authority conferred by a practising certificate issued under Part 3 by the Bar Council or the Law Society Council.
local legal practitioner means a legal practitioner:
(a) who holds a current practising certificate, and(b) whose sole or principal place of legal practice is this State,and includes a person who is registered to practise law in this State in accordance with the Mutual Recognition Act 1992 of the Commonwealth.regulatory authority:
(a) of this State, means the Supreme Court, the Bar Council, the Law Society Council, the Tribunal or the Commissioner, and(b) of another State or a Territory, means a person or body in that State or Territory having a function conferred by legislation relating to regulation of legal practice that corresponds to such a function exercised by a regulatory authority of this State.
Division 2 Entitlement of interstate practitioners to practise in this State
The object of this Division is to enable any individual who is authorised to practise law in another State or a Territory and who holds an interstate practising certificate to practise law in an equivalent way in this State.
48Q Entitlement of interstate legal practitioners to practise in this State
(1) A person who holds a current interstate practising certificate issued or given by a regulatory authority in any other State or a Territory is, by and subject to this Act, entitled to practise law in this State:(a) as if the interstate practising certificate were a practising certificate issued under Part 3 by the Bar Council or the Law Society Council, and(b) as if any conditions to which his or her practice of law in the other State or the Territory is subject under the interstate practising certificate were conditions attached to the practice of law in this State by a practising certificate issued under Part 3.(2) Without limiting anything in this Part, a person is entitled to practise law in this State only if the person does so:(a) in compliance with any applicable requirements of this and any other Act relating to the practice of law that would apply to a local legal practitioner holding a practising certificate to which conditions corresponding to those attached to the interstate practising certificate were attached, andNote. Interstate legal practitioners are, for example, officers of the Supreme Court (see section 5) and are subject to the barristers rules, solicitors rules and joint rules and to requirements relating to matters such as advertising and specialisation (see sections 38G–38O) and the disciplinary processes set out in Part 10. Those who establish offices are also subject to other requirements. See sections 48T and 48U.(b) subject to any conditions imposed on the person by a regulatory authority in this State or any other State or a Territory as a result of disciplinary action or that are of a kind referred to in section 33 (1) (a) or (b).(3) A contravention of this section does not of itself amount to a breach of this Act. However, failure to comply with this section is capable of being professional misconduct or unsatisfactory professional conduct.(4) A condition imposed on a person by a regulatory authority in this State or any other State or a Territory has no effect for the purposes of this section to the extent (if any) to which it is inconsistent with a more onerous condition imposed on the person by another regulatory authority.
48R Additional conditions on practice of interstate legal practitioners
(1) A regulatory authority of this State may, by notice in writing, at any time impose any condition on the practice of law by an interstate legal practitioner in this State that it might impose by attaching a condition to the practising certificate of a local legal practitioner:(a) under Division 1 of Part 3 as a result of disciplinary action, or(b) under section 33 (1) (a) or (b),and may at any time vary or revoke any such condition.(2) A regulatory authority of this State must not impose a condition that is more onerous than it would attach to the practising certificate of a local legal practitioner in the same or similar circumstances.
Division 3 Provisions applying to interstate legal practitioners who establish offices in this State
48S When does an interstate legal practitioner establish an office?
For the purposes of this Act, an interstate legal practitioner establishes an office in this State when the practitioner offers and provides legal services to the public in this State from an office maintained by the practitioner, or by the employer or a partner in legal practice of the practitioner, for that purpose in this State.
48T Notification of establishment of office required
(1) An interstate legal practitioner who establishes an office in this State must, within the period after establishing the office prescribed by the regulations, give written notice:(a) if he or she proposes to practise as a barrister—to the Bar Council, or(b) if he or she proposes to practise as a solicitor and barrister—to the Law Society Council.Maximum penalty: 20 penalty units.
(2) A notice under this section is to contain the particulars prescribed by the regulations.Note. Interstate legal practitioners who establish an office in New South Wales have additional obligations relating to trust money, fidelity fund contributions and professional indemnity insurance under this Act to those interstate legal practitioners who have not established an office. See sections 48U, 60 and 76.
48U Professional indemnity insurance required if office established
(1) This section applies to an interstate legal practitioner:(a) who establishes an office in this State, and(b) who, if he or she were a local legal practitioner, would be an insurable barrister or insurable solicitor (within the meaning of section 38R or 39, respectively).(2) An interstate legal practitioner to whom this section applies must not practise as a barrister or solicitor and barrister in this State unless he or she has appropriate indemnity insurance in respect of his or her practice in this State.Maximum penalty: 20 penalty units.
(3) An interstate legal practitioner to whom this section applies who practises in this State as a barrister has appropriate indemnity insurance if there is in force in respect of the interstate legal practitioner a policy of indemnity insurance that provides a level of insurance in respect of his or her practice in this State that is the same as (or higher than) that approved by the Attorney General in respect of insurable barristers under section 38R (2) (b).(4) An interstate legal practitioner to whom this section applies who practises in this State as a solicitor and barrister has appropriate indemnity insurance if there is in force in respect of the interstate legal practitioner a policy of insurance that provides the same (or a higher) minimum level of indemnity in respect of his or her practice in this State, and the terms of which are broadly equivalent to, that provided by an approved insurance policy required by section 41.Note. Section 48ZD imposes requirements concerning professional indemnity insurance on interstate legal practitioners who do not establish an office in this State.
Division 4 Disputes, complaints and discipline
Note. The provisions applicable generally to disputes, complaints and discipline of local legal practitioners also apply to interstate legal practitioners. See Part 10. Section 80 (1A) sets out the circumstances in which a claim may be made against the Fidelity Fund for pecuniary loss caused by the failure to account or a dishonest default of legal practitioners practising under the scheme.
48V Disputes about the practice of local legal practitioners in other States or Territories
(1) A dispute between a person and a local legal practitioner in connection with the practitioner’s legal practice in another State or a Territory may be resolved under Part 10 or in the other State or the Territory in accordance with the law of that State or Territory.(2) A complaint may be made about the conduct of a local legal practitioner in respect of his or her legal practice in another State or a Territory under Part 10 or in the other State or the Territory in accordance with the law of that State or Territory.(3) An investigation may be undertaken of the conduct of a local legal practitioner in respect of his or her legal practice in another State or a Territory under section 55 or Part 10 or in the other State or the Territory in accordance with the law of that State or Territory.(4) If a dispute or complaint of the kind referred to in this section has been dealt with and finally determined in another State or a Territory, no further action relating to the subject-matter of the dispute or complaint is to be taken under Part 10.
48W Referral of disputes and disciplinary matters to other regulatory authorities
(1) If it considers it appropriate to do so, a regulatory authority in this State may refer a dispute lodged with it in relation to a local legal practitioner or an interstate legal practitioner to a regulatory authority in another State or a Territory, to be dealt with according to the law of that State or Territory.(2) If it considers it appropriate to do so, a regulatory authority in this State may refer a complaint made to it in relation to a local legal practitioner or an interstate legal practitioner to a regulatory authority in another State or a Territory, to be dealt with according to the law of that State or Territory.(3) If it considers it appropriate to do so, a regulatory authority in this State may request a regulatory authority in another State or a Territory to investigate the conduct of a local legal practitioner or an interstate legal practitioner, in accordance with the law of that State or Territory.(4) After a referral under subsection (1) or (2) or a request under subsection (3) has been made, no further action may be taken by any regulatory authority in this State in relation to the subject-matter of the referral or request, other than action required to comply with section 48Y.
48X Dealing with matters referred by other regulatory authorities
(1) A regulatory authority in this State may resolve a dispute between a person and a local legal practitioner or interstate legal practitioner referred to it by a regulatory authority in another State or a Territory whether or not the subject-matter of the dispute arose in or outside this State.(2) A regulatory authority in this State may investigate a complaint against a local legal practitioner or interstate legal practitioner referred to it by a regulatory authority in another State or a Territory whether or not the subject-matter of the complaint allegedly occurred in or outside this State.(3) If a regulatory authority in another State or a Territory requests a regulatory authority in this State to investigate the conduct of a local legal practitioner or interstate legal practitioner, the regulatory authority may investigate that conduct whether or not the conduct allegedly occurred in or outside this State.
(1) A regulatory authority in this State must furnish without delay any information about a local legal practitioner or interstate legal practitioner reasonably required by a regulatory authority in another State or a Territory in connection with actual or possible disciplinary action against the practitioner.(2) A regulatory authority may provide the information despite any law relating to secrecy or confidentiality.(3) Nothing in this section affects any obligation or power to provide information apart from this section.
48Z Local legal practitioners are subject to interstate regulatory authorities
(1) A local legal practitioner practising in this State must comply with any condition in respect of his or her practice imposed by a regulatory authority in another State or a Territory as a result of disciplinary action against the practitioner.(2) A contravention of subsection (1) does not of itself amount to a breach of this Act. However, failure to comply with subsection (1) is capable of being professional misconduct or unsatisfactory professional conduct.(3) A regulatory authority in another State or a Territory:(a) that has jurisdiction to suspend, cancel, vary the conditions of or impose further conditions on, or order the suspension, cancellation, variation of the conditions of or imposition of further conditions on, an interstate practising certificate issued to an interstate legal practitioner in that State or Territory as a result of disciplinary action against the practitioner, and(b) to which a local legal practitioner is subject in that State or Territory,may suspend, cancel, vary the conditions of or impose further conditions on, or order the suspension, cancellation, variation of the conditions of or imposition of further conditions on, the local legal practitioner’s practising certificate as a result of disciplinary action against the practitioner.(4) A regulatory authority in this State must comply with an order of a regulatory authority in another State or a Territory under subsection (3).(5) A regulatory authority in another State or a Territory that has jurisdiction to order the removal of the name of a person from the roll kept in that State or Territory that corresponds to the roll of practitioners in the Supreme Court in this State may order that the name of the local legal practitioner be removed from the roll. If such an order is made the local legal practitioner’s name is to be removed from the roll in this State.
48ZA Local legal practitioner receiving trust money interstate
A local legal practitioner must deal with trust money received in the course of practising outside this State (other than trust money received in the course of practising in another State or a Territory in which the practitioner has established an office) in accordance with Part 6 as if the trust money had been received in the course of practising in this State.
48ZB Regulatory authority may exercise powers conferred by corresponding law
A regulatory authority in this State may exercise in respect of a local legal practitioner or an interstate legal practitioner any function under a corresponding law conferred on it by the corresponding law.
48ZC Agreements and arrangements with other regulatory authorities
A regulatory authority of this State may make agreements or arrangements with a regulatory authority of another State or a Territory for or with respect to:(a) the investigation of complaints,(b) professional indemnity insurance,(c) fidelity fund contributions and payments,(d) trust account inspections,(e) the appointment of managers and receivers,(f) the exchange of information under section 48Y.
48ZD Professional indemnity insurance where no office established in this State
(1) If the indemnity under a policy of indemnity insurance in force in respect of an interstate legal practitioner who has not established an office in this State is less than that required to be maintained by an interstate legal practitioner to whom section 48U applies, the interstate legal practitioner must disclose the difference to a client before he or she is retained by the client.(2) A contravention of this section does not of itself amount to a breach of this Act. However, failure to comply with this section is capable of being professional misconduct or unsatisfactory professional conduct.