I’m heading overseas for work. Do I need an Australian practising certificate?

Whether an Australian legal practitioner needs to hold a current Australian practising certificate while working overseas depends on a number of factors, including requirements of the relevant overseas regulatory authority. Ultimately, practitioners need to consider the type of role they will be undertaking, where they will be providing legal services and any specific requirements of the overseas legal regulatory authority.

In this article, we take a look at common working arrangements of Australian legal practitioners practising abroad and discuss relevant provisions of the Legal Profession Uniform Law (NSW) (Uniform Law) and Legal Profession Uniform General Rules 2015 (General Rules).

Authority to issue Australian practising certificates to practitioners abroad

Under section 44(5) of the Uniform Law and rule 18 of the General Rules, a person who applies for an Australian practising certificate, but who does not reasonably intend to engage in legal practice in Australia during the currency of the certificate or renewal applied for, may still apply for a practising certificate from the Law Society of NSW. However, an application under rule 18 of the General Rules can only be made if the person reasonably intends to practise exclusively overseas.

In the case of a person who practises both within and outside Australia, the application should be made by reference to the person’s practice in Australia. The person’s overseas practice is to be disregarded (even if it forms the principal portion of the person’s overall practice), so that eligibility is determined by reference to the person’s practice in Australia.[1]

Scenario 1: Providing legal advice to Australian clients from overseas

Michelle works in the corporate and commercial practice of a large international law firm in Sydney. She has been offered a secondment opportunity to the firm’s Singapore office. Michelle will be working on transactions with the Singaporean team but only advising on issues pertaining to Australian law. While in Singapore, Michelle will continue working with her team in Sydney, servicing clients in Sydney.

Will Michelle need to maintain her Australian practising certificate?

Given that Michelle continues to advise on Australian law, particularly in circumstances where she will continue to advise clients through her firm’s Sydney office, she will need to maintain her Australian practising certificate.

Notwithstanding that Michelle is located outside Australia, because she engages in legal practice in NSW, she will need to maintain an Australian practising certificate, practise through a qualified entity within the meaning of the Uniform Law and be covered under an approved professional indemnity insurance policy.[2]

If Michelle’s practising certificate is subject to the condition of supervised legal practice (Condition 2), she must only engage in supervised legal practice within the meaning of the Uniform Law.[3] Supervision must be carried out by an Australian legal practitioner who is authorised by his or her Australian practising certificate to supervise legal practice by others.

If Michelle is supervised remotely, she would need to consider her circumstances and ensure that her legal practice meets the requirements of supervised legal practice as defined under section 6 of the Uniform Law.  Please refer to the Law Society of NSW’s guidelines on remote supervision.

Michelle should also contact the relevant regulatory authority in Singapore to ascertain any compliance obligations she may have in practising foreign law in Singapore.

Scenario 2: Practising foreign law overseas

David is a lawyer qualified to practise law in NSW and Hong Kong.

David currently lives in Hong Kong and works as a property lawyer in a local law practice. David’s clients are based in Hong Kong, and his practice does not require him to advise on Australian law.

Does David need to hold an Australian practising certificate?

Generally, no, as David is not engaging in legal practice in NSW nor advising on Australian law.

Any solicitor in NSW who is considering practising foreign law overseas should contact the relevant regulatory authority to ascertain the steps they need to take to qualify to practise law in the relevant overseas jurisdiction.

Although there may not be a requirement for David to hold an Australian practising certificate, he is still entitled to apply for one under section 44(5) of the Uniform Law and rule 18 of the General Rules. If David chooses to maintain an Australian practising certificate, like any other solicitor practising law in NSW, he would be subject to all compliance requirements under the Uniform Law. This includes the obligation to undertake Continuing Professional Development under the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015, and the obligation to notify the Law Society of NSW of certain events.[4]

Scenario 3: Advising foreign clients on Australian law from overseas

Tanya is qualified to practise law in NSW. She recently relocated to London and practises with a local boutique corporate law firm, advising clients on Australian taxation laws. Tanya is not qualified to practise law in England.

Does Tanya need to hold an Australian practising certificate?

She may. Tanya should contact the relevant regulatory authority to ascertain what compliance obligations she may have in providing legal advice on Australian law in England.

If Tanya is required to hold an Australian practising certificate, like David, she would be subject to all compliance requirements under the Uniform Law.

Need further help understanding your practising entitlements and obligations?

If you are considering a legal stint overseas and would like to understand whether your prospective role will attract compliance obligations in NSW, contact PSU’s regulatory compliance team.

PSU provides free and confidential guidance to all solicitors regarding their obligations under the Uniform Law in the areas of costs, ethics and regulatory compliance, and regarding the recent reforms in AML/CTF legislation.

Enquiries can be made to PSU by telephone, email, or in person.

Regulatory Compliance: regulatory.compliance@lawsociety.com.au or (02) 9926 0115

Costs: costs@lawsociety.com.au or (02) 9926 0116

Ethics: ethics@lawsociety.com.au or (02) 9926 0114

AML: aml@lawsociety.com.au or (02) 9926 0249

Dora is a Professional Support Solicitor with the Law Society of NSW. Dora assists members of the legal profession in relation to practising certificate conditions, regulatory obligations in legal practice management and legal costs

[1] Legal Profession Uniform General Rules 2015, section 18.

[2] Legal Profession Uniform Law (NSW), sections 10 and 211.

[3] Ibid, section 6.

[4] Ibid, sections 51 and 86; and Legal Profession Uniform General Rules 2015, sections 12 and 13.