Must government lawyers possess practising certificates?
There are at present different approaches to whether government lawyers require practising certificates in different jurisdictions. This will change as jurisdictions align themselves with the National Legal Profession Model Bill.
Part 4, Division 10, section 444 of the Model Bill provides, in essence, that a government employee is not subject to conditions imposed on a local practising certificate, requirements of legal professional rules, or professional discipline in respect of their performance of official duties and functions as a government employee. The full text of section 444 of the Model Bill is extracted below.
Each jurisdiction is to enact provisions to the same substantive effect as section 444 of the Model Bill. Textual uniformity is not required.
As not all States and Territories have yet implemented corresponding legislation, please check the legislative requirements in your jurisdiction for whether government lawyers require practising certificates.
Under section 55E of the Commonwealth Judiciary Act 1903 government lawyers working for the Attorney-General, whilst acting in that capacity, are entitled to do everything necessary or convenient for that purpose, to practise as a barrister, solicitor or barrister and solicitor in any court and in any State or Territory, and to all the rights and privileges of so practising.
An Attorney-General's lawyer acting in that capacity in a State or Territory is not subject to a law of the State or Territory that relates to legal practitioners except to the extent that such laws impose rights, duties or obligations on legal practitioners in relation to their clients or courts, or provide for disciplinary proceedings in relation to the misconduct of legal practitioners. The full text of section 55E of the Judiciary Act 1903 is extracted below.
There are also specific statutory practising requirements for lawyers working for the Australian Government Solicitor, the Commonwealth Director of Public Prosecutions and for the Solicitor General. These are found in Division 3 of the Judiciary Act 1903, section 16 of the Director of Public Prosecutions Act 1983, and section 13 of the Law Officers Act 1964 respectively.
Lawyers engaged in legal work on behalf of the Commonwealth are also required to act in accordance with the Legal Services Directions issued under section 55ZF of the Judiciary Act 1903.
National Legal Profession Model Bill
444 Government lawyers [CNU]
Note 1. There are at present considerably different approaches to this issue in different jurisdictions. Each jurisdiction will need to determine how government lawyers are to be dealt with as regards the need for practising certificates and other matters, including professional discipline.
Some jurisdictions may make their own arrangements for the application to government lawyers of legal profession rules and disciplinary processes. Attention is specifically drawn to section 9 of the Legal Profession Act 2003 (Qld) and related provisions. The draft set out below is given merely as one approach.
Note 2. Jurisdictions that do not exempt government lawyers should recognise the exemptions by jurisdictions that do exempt.
(1) In this section:
government agency means a government department of this or any other jurisdiction or of the Commonwealth, and includes a body or organisation (or a class of bodies or organisations) prescribed by the regulations.
government employee means a person employed in a government agency.
(2) A government employee is not subject to:
(a) any prohibition under this Act about:
(i) engaging in legal practice in this jurisdiction; or
(ii) making representations about engaging in legal practice in this jurisdiction; or
(b) conditions imposed on a local practising certificate; or
(c) requirements of legal profession rules; or
(d) professional discipline;
in respect of the performance of his or her official duties or functions as a government employee.
Note. Some jurisdictions may not wish to exclude government lawyers from legal profession rules and professional discipline but may apply other processes in connection with them.
(3) Contributions and levies are not payable to the Fidelity Fund by or in respect of a government employee in his or her capacity as a government employee.
(4) Without affecting subsections (2) and (3), nothing in this section prevents a government employee from being granted or holding a local practising certificate.
Judiciary Act 1903 (Commonwealth)
55E Attorney-General’s lawyers
(1) In this section and in sections 55F and 55G:
Attorney-General’s lawyer means a person:
(a) whose name is on a roll referred to in subsection 55D(1); and
(b) who is either:
(i) the Secretary to the Attorney-General’s Department; or
(ii) a person in the Attorney-General’s Department who is engaged under the Public Service Act 1999.
(2) An Attorney-General’s lawyer acting in that capacity is entitled:
(a) to do everything necessary or convenient for that purpose;
and
(b) to practise as a barrister, solicitor, or barrister and solicitor in any court and in any State or Territory; and
(c) to all the rights and privileges of so practising;
whether or not he or she is so entitled apart from this subsection.
(3) An Attorney-General’s lawyer acting in that capacity in a State or Territory is not subject to a law of a State or Territory that relates to legal practitioners except to the extent that such laws:
(a) impose rights, duties or obligations on legal practitioners in relation to their clients or to the courts; or
(b) provide for disciplinary proceedings in relation to the misconduct of legal practitioners.
(4) Subsection (3) is subject to subsection (6) and to section 55F
(Attorney-General’s lawyer may act for more than one party).
(5) In considering the nature of the rights, duties and obligations of an Attorney-General’s lawyer in relation to a client, regard must be had to the lawyer’s position as a person in the Attorney-General’s Department engaged under the Public Service Act 1999.
(6) An Attorney-General’s lawyer acting in that capacity is not subject to a law of a State or Territory that is prescribed for the purposes of this section.