Should restricted practitioners be engaged as contractors?
No. It has come to the Society’s attention that solicitors holding restricted practising certificates (i.e. entitled to engage only in supervised legal practice) are being asked to enter into contracts for services instead of employment agreements. They are asked to obtain an ARBN, to operate as a contractor to the law practice (rather than an employee) and are paid a lump sum for salary, tax and superannuation on the expectation that they will make their own arrangements to pay contributions to the ATO and their superannuation fund.
A solicitor acting as a contractor to a law practice will generally be required to hold an unrestricted principal practising certificate. It is most unlikely that any person in the first 24 months of practice will hold an unrestricted principal practising certificate. Such a person is very likely to not be entitled to engage in unsupervised legal practice.
Solicitors owe professional obligations to each other. Solicitors must practice within the entitlement to practise conferred by their practising certificate. Solicitors should not be party to an arrangement whereby a solicitor exceeds that entitlement.
Mutual professional obligation requires that new solicitors must be treated fairly and should not be put in a position, either deliberately or inadvertently, where the terms of employment or contract for services cause them to be in breach their entitlement to practise. Upon entering into an employment relationship or a contract for services, all solicitors must be satisfied that the arrangement does not place any party in breach of their entitlement to practise.