Supervised Legal Practice – breaking down the border walls of interstate supervision

In NSW, a solicitor who holds a practising certificate subject to condition 2 (supervised legal practice) must only engage in supervised legal practice until they have completed the prescribed mandatory period of supervised legal practice and successfully removed condition 2 from their practising certificate.

Modern information and communication technologies have drastically changed how solicitors engage in legal practice, especially since the pandemic. This has translated into job opportunities for early-career lawyers that do not fit the traditional mould of legal practice. For example, a newly admitted solicitor who lives in Sydney receives a job offer to work as legal counsel for a company headquartered in NSW, but whose General Counsel works in Queensland.

If you are a solicitor considering cross-jurisdictional supervision, reading this may have already triggered an array of questions about how you will undertake effective supervised legal practice and whether you will be able to successfully remove condition 2 (the statutory period of supervised legal practice) from your practicing certificate. Believe it or not, the Regulatory Compliance team of the NSW Law Society’s Professional Support Unit (PSU) often deals with these cross-border conundrums. This article is intended to help solicitors understand the requirements of supervised legal practice under the Legal Profession Uniform Law (NSW) (Uniform Law) and associated Rules.

Supervised Legal Practice

Supervised legal practice (SLP) is a statutory condition (known as condition 2) imposed on every first Australian practising certificate (PC) issued to a solicitor under the Uniform Law.^[1] Until a practitioner has completed the mandatory period of SLP and removed condition 2 from their PC, they can only engage in supervised legal practice and cannot supervise others. The statutory period is generally 24 months of full-time practice or the equivalent in part-time hours/days. Critically, a supervising solicitor cannot have condition 2 on their PC or any other condition precluding the solicitor from supervising legal practice by others.

SLP is defined under section 6 of the Uniform Law as follows:

supervised legal practice means legal practice by a person who is an Australian legal practitioner—

(a)  as an employee of, or other person working under supervision in, a law practice, where—

(i)  at least one legal practitioner associate of the law practice is an authorised principal; and

(ii)  the person engages in legal practice under the supervision of an authorised principal referred to in subparagraph (i); or

(b)  as a principal of a law practice (other than a community legal service), where the person engages in legal practice under the supervision of an authorised principal of the law practice; or

(c)  as a corporate legal practitioner or government legal practitioner, where the person engages in legal practice under the supervision of a person who holds, or is eligible to hold but is exempted from holding, an Australian practising certificate authorising the holder to supervise legal practice by others; or

(d)  in a capacity or in circumstances specified in the Uniform Rules for the purposes of this definition.

For the purposes of limb (d) of the definition, section 7 of the Legal Profession Uniform General Rules 2015(General Rules) stipulates the requirements of supervised legal practice for solicitors undertaking other arrangements.

Who is authorised to supervise?

Provided a solicitor’s PC does not include the SLP condition nor any other condition precluding him or her from supervising others, the solicitor can supervise legal practice by others.^[2] Relevantly, a PC is defined under the Uniform Law as one that is granted under the Uniform Law (Victoria, Western Australia and NSW) or under the law of non-participating jurisdictions, such as Queensland or the Australian Capital Territory.

There is no provision under the Uniform Law and General Rules that mandates a supervisor and supervisee to be in the same jurisdiction, nor to work in the same physical office. This means that it is open for a solicitor whose PC is subject to the condition of SLP to work and be supervised by an authorised solicitor holding an Australian PC issued in a different state or territory.

Beware, however, that a supervisor’s PC must authorise him or her to supervise legal practice by others. In NSW, this means that the supervisor’s PC is not subject to condition 2 (SLP) nor any other discretionary condition precluding him or her from supervising others. Non-participating jurisdictions have different rules regarding the types of PCs which authorise its holder to supervise legal practice others. If you hold a PC issued by the Law Society of NSW and are being supervised by a solicitor whose PC was issued in a non-participating jurisdiction, ensure that your supervisor is indeed authorised to supervise your legal practice. We note that any future application for the removal of condition 2 from your PC will need to be supported by certification from an authorised supervisor.

You may wish to discuss with your proposed supervisor or contact the relevant designated local regulatory authority to confirm this. Remember, it is ultimately your responsibility to ensure that any legal practice that you engage in is in compliance with all conditions of your PC.

Standard of supervision

Under the Uniform Law, whether you are the supervisor or supervisee, you must be aware of the standard of supervision required for SLP. Rule 37 of the Australian Solicitors’ Conduct Rules provides that a solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors engaged in the provision of the legal services for that matter. The Uniform Law and Rules do not provide a definition of “reasonable supervision”, but case law provides that the supervision required “varies according to the employee’s experience, qualifications and role, and with the type and complexity of the work.”^[3]

The Law Society of NSW has developed helpful guidelines regarding what is considered best practice when supervising others or being supervised.

Remote supervision

A further layer applies where supervision is provided remotely across jurisdictional borders.

For any NSW PC holder contemplating remote supervision, the Law Society of NSW encourages you to establish and implement a remote supervision plan and that you keep a copy for your records. While the Law Society of NSW does not endorse nor approve such plans, it may require a copy in any future application for the removal of condition 2. The L. Practitioners must satisfy themselves that they are complying with the requirements of supervision discussed above.

The Law Society of NSW considers remote supervision plans should address the following issues at a minimum:

• Details of the relationship, experience and role of the supervisor and supervisee,
• Risk management strategies in the face of the remote work model, particularly confidentiality, conflicts of interest, complaint procedures, onboarding of clients, file opening and closing,
• Regular supervision meetings and file reviews, despite the remoteness, such as via online methods,
• Ensuring the supervisor is available to contact at all times, and by which method,
• Management by the supervisor of workflow,
• Awareness by supervisor of all legal work and critical dates via shared calendars and copied emails,
• Settling of all legal work, including verbal advice to clients, and providing timely feedback to supervisee, and
• Document sharing logistics, such as an online file management and email systems.

Refer to the NSW Law Society’s Remote Supervision Guidelines for further information.

Further guidance

Solicitors who would like further guidance on the conditions of legal practice in NSW are encouraged to contact the Professional Support Unit’s (PSU) regulatory compliance team for support.

PSU provides free and confidential guidance to solicitors in NSW who require assistance understanding their regulatory, ethical and professional obligations in legal practice.

Mehzabin Farazi is a Professional Support Solicitor with the Law Society of NSW, providing guidance to solicitors in the area of regulatory compliance in legal practice. Mez is an experienced family law practitioner and has worked both in private and community legal practice.

End notes

[1] Legal Profession Uniform Law (NSW) section 49.

[2] Ibid section 47(6).

[3] Legal Services Commissioner v Michael Vincent Baker [2005] LPT 002 at 008.