This article contains general information and should not be construed as specific advice. Legal Practitioners should always consult their regulator and in the event of concerns, take appropriate advice rather than relying on the information in this article. There are also exceptions dependent on specific legislation (for example legislation governing Legal Aid Commissions) so this content does not cover the field. The views expressed are mine and should not be taken as indicative of the views of any legal profession regulator or any of my past employers. All legislative references are to the Legal Profession Uniform Law (Vic) 2014.
The PC and the Law Practice - A Symbiotic Relationship
Let’s start with the law practices that can provide services to any the public at large – in general parlance, those in private practice.
A ‘law practice’ includes a sole practitioner, a law firm (that is, a partnership of legal practitioners), a community legal service, an incorporated legal practice (ILP), and an unincorporated legal practice (a multi-disciplinary partnership – ULP) (s.6).
A law practice must have a principal, and a principal must be attached to a law practice in the capacity of a principal – that is, to be the principal for the purposes of the Uniform Law, you must not only hold a Principal PC but actually be a partner in the law firm or ULP or a director of the corporate ILP entity.
Similarly, a person who holds a principal PC or an employee PC must have it registered to a law practice. You can be registered to more than one law practice or entity, but your PC must empower you to do the work you do for that law practice or entity. You also need to abide by the conditions of your PC.
In corporate or government practice, you need to be attached to your employer (an entity that cannot provide legal services), and your employer should be notified or registered to the regulator in order for you to attach yourself to it. Holding one of these PCs means that you can only provide legal services to your employer or one of their related entities and not to anyone else (with the caveat of being a volunteer registered with a CLC – not covered here!).
Here's where it gets fun ...
This will all be very ho-hum if you only have one job, but for some members of the profession it can cause all kinds of bamboozlement.
What's in a name?
If you are a senior lawyer in a law practice who supervises others and undertakes some management responsibilities, you’re a principal, right? Wrong. If you hold an employee PC, you’re a senior employee. Attitudes to the naming question vary between jurisdictions, but for many this means you can’t call yourself a ‘principal’ of the law practice. The upside is that you don’t assume all the additional responsibilities of the actual principal (see Uniform Law, Part 3.2). Maybe you can’t call yourself principal, partner, director and so on – but you can get creative: How about ‘Supervising Counsel’ or ‘Practice Leader’ or ‘Lead Lawyer’? Any suggestions or examples welcome!
Principal of more than one practice
If you are a principal of more than one practice, particularly if you are supervising a lawyer who is a principal but still subject to supervised legal practice, be very careful. You are generally expected to actually supervise the practice, and as a principal of that law practice, you are just as responsible for this person as you are for the behaviour of your employees within your own firm. Again, see Uniform Law, Part 3.2.
A change of role
Let’s say you have been a principal in your own firm but you want to cease that practice and instead be employed by another practice. If your own practice ceases, you need to change over to an employee solicitor PC registered with your employer’s practice.
Similarly, if you change from being a principal in your own firm to an in-house role, unless your firm stays open (which means you continue to pay insurance and for a principal PC), you would change over to a corporate PC (and a PII exemption, hooray!)
More than one job
Let’s say you have a job with a corporation and your own practice on the side. In this case, you can keep your Principal PC and that will also enable you to practice as a corporate practitioner (Uniform Law s.47(3)) – you will be registered with two entities, your practice and the corporate entity. You would need to keep the two roles carefully separated, and of course pay the higher renewal fees and PII that goes with your law practice.
Contractor
A lawyer who takes contract roles has a number of choices, some of which will require careful navigation. A lawyer who takes a sequence of short-term employment roles can simply move their PC around from employer to employer, noting of course that they may need to change the nature of their PC if they switch say between corporate and private practice (although see s.47(4)).
Similarly, they could maintain their law practice with a principal PC and take corporate employment roles, or simply take on the corporation as a client and do a series of matters or retainers for the corporation. There are all kinds of wrinkles here that turn on whether you would be an employee or not, and the difference will impact your insurance requirements: it can be a tricky area on which you may need to get some advice.
Consequences of practising under the wrong PC
The consequences of getting some of these issues wrong can be serious, as they may potentially involve unqualified practice, practising in breach of the conditions of your PC, or practising without appropriate Professional Indemnity Insurance – so it’s an important issue on which you will want to be confident and compliant.
Have you had any complexities with your Practising Certificate? Any tips or stories to share? Would love to hear your comments!
