Practitioners who step away from legal practice, whether temporarily or permanently, may consider surrendering or cancelling their practising certificate. However, under the Legal Profession Act 2007 (Qld) (LPA), cancelling or surrendering a practising certificate has significant consequences that do not arise if a certificate is simply allowed to lapse.
Understanding these differences is important before taking action.
Allowing a Practising Certificate to Lapse
A practising certificate lapses if it is not renewed by the end of the practising year.
A lapse:
- Occurs automatically;
- Does not involve any decision by the Queensland Law Society (Society); and
- Is not a cancellation or surrender under the LPA.
Importantly, where a practising certificate lapses:
- The practitioner does not become a disqualified person; and
- No suitability matter arises for future practising certificate applications.
For practitioners taking a break from practice, allowing the certificate to lapse will often be the preferred option.
Cancellation of a Practising Certificate (s 65 LPA)
A practitioner may apply to the Society to cancel their practising certificate under s 65 of the LPA.
Cancellation:
- Requires an application by the practitioner;
- Takes effect only when the Society gives written notice cancelling the certificate; and
- Does not involve an inquiry into fitness or suitability.
Once a practising certificate is cancelled:
- The practitioner becomes a disqualified person, in accordance with the definition contained at Schedule 2, Dictionary of the LPA;
- The cancellation becomes a suitability matter that must be disclosed upon a future application for a grant of a practising certificate.
Importantly, these consequences apply even where cancellation is sought for benign reasons such as parental leave, illness, or sabbatical.
Surrender of a Practising Certificate (s 72 LPA)
A practitioner may also surrender their practising certificate under s 72.
A surrender:
- Is a unilateral act by the practitioner; and
- Is not effective on its own.
The practising certificate continues until the Society accepts the surrender by cancelling the certificate. Once cancelled, the same consequences follow as for cancellation under s 65:
- The practitioner becomes a disqualified person; and
- The cancellation is a suitability matter for future applications.
What Does “Disqualified Person” Mean?
A practitioner whose practising certificate is cancelled (including following a surrender (s 72) or application to cancel (s 65)) becomes a disqualified person under the LPA.
This means that if the person later wishes to work as a lay associate in a law practice, they must first obtain approval from the Society under s 26 of the LPA before commencing that work.
This requirement does not apply where a practising certificate has merely lapsed.
Unless there is good reason not to do so (for example, regulatory action is in progress), the Society will generally accept applications to cancel and surrenders of practising certificates.
Key Takeaways
While surrendering and applying for cancellation of a practising certificate may appear administrative, doing so carries important consequences. Practitioners should carefully consider whether surrender or cancellation is necessary, or whether simply allowing a practising certificate to lapse will better reflect their intentions and avoid unintended effects.
For further guidance, practitioners should consult the LPA or contact the Society’s Licensing team.