Section 26 of the Legal Profession Act 2007 ("the Act") provides that a law practice must not have a lay associate whom any principal or legal practitioner associate of the practice knows to be a disqualified person, or a person who has been convicted of a serious offence ("convicted person"), unless the person is approved by the Law Society under subsection 26(2) of the Act.
The term "lay associate" is defined in Section 7(3) to mean an associate of the practice who is not an Australian legal practitioner.
The term "associate" is defined in Section 7(1) to include:
- an agent of the law practice who is not an Australian legal practitioner; or
- an employee of the law practice who is not an Australian legal practitioner.
Accordingly, any employee of a law practice (including a cleaner) or agent of a law practice (including a searching agent) is an associate for the purposes of the Act. The word 'employee' has a very broad definition in the Act (see the Schedule to the Act).
The term "disqualified person" is defined in Schedule 2 to the Act to mean:—
- a person whose name has been removed from an Australian Roll and who has not subsequently been admitted or re-admitted to the legal profession under this Act, a previous Act or a corresponding law;
- a person whose Australian Practising Certificate has been suspended or cancelled under this Act or a corresponding law and who, because of the cancellation or suspension, is not presently entitled to practise as a legal practitioner;
- a person who has been refused a renewal of an Australian practising certificate under this Act or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time;
- a person who is the subject of an order under this Act or a corresponding law prohibiting a law practice from employing or paying the person in connection with a law practice;
- a person who is the subject of an order under this Act or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a law practice;
- a person who has been disqualified by the Supreme Court from managing an incorporated legal practice, or being a partner in a multi disciplinary practice.
The term "serious offence" means an offence whether committed in or outside this jurisdiction that is:
- an indictable offence against a law of the Commonwealth or any jurisdiction, whether or not the offence is or may be dealt with summarily; or
- an offence against a law of another jurisdiction that would be an indictable offence against a law of this jurisdiction if committed in this jurisdiction, whether or not the offence could be dealt with summarily if committed in this jurisdiction; or
- an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction, whether or not the offence could be dealt with summarily if committed in this jurisdiction.
The Society considers that section 26 requires the disclosure of convictions in respect of which the rehabilitation period as defined in the Criminal Law (Rehabilitation of Offenders) Act 1986 has expired (see ss 4(1) and 9 (2) of that Act).
It is an offence against section 26 of the Act for a disqualified or convicted person to seek to become a lay associate of a law practice unless they advise the law practice of their disqualification or conviction. That offence carries a maximum penalty of 200 penalty units ($15,000.00).
A disqualified or convicted person or a law practice can apply to the Law Society pursuant to subsection 26(2) to be approved to be engaged as a lay associate of a law practice. The Society's policy document is available below.
For more information contact the General Manager, Regulation.