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Disqualified lay associates

The Legal Profession Act 2004 imposes legislative restraints on employing certain persons. Section 17 provides that a law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be ‘a disqualified person’ or ‘a person who has been convicted of a serious offence’, unless the associate is approved by the ‘relevant authority’.

Who is a lay associate?

A lay associate is any associate who is not a legal practitioner and includes:

• agents
• employees
• persons who share receipts, revenue or other income arising from the law practice, and
• consultants, however described, who provide legal or related services to the law practice.

Who is a disqualified person?

A person is considered to be a ‘disqualified person’ under the Legal Profession Act 2004 if:

• their name has been removed from the Australian Roll of Lawyers
• their Practising Certificate has been suspended or cancelled , or its renewal has been refused
• they are the subject of an order prohibiting them from working for, or in, a law practice, managing an incorporated legal practice, or being a partner in a multi-disciplinary partnership.

What constitutes a serious offence?

A serious offence is defined in s.4 to include a finding of guilt, whether a conviction is recorded or not, in respect to any indictable offence.

I am a disqualified lay associate. Can I still work?

A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate unless the person first informs the law practice of the disqualification or conviction.

What are the penalties?

To employ a person in breach of section 17 is capable of being professional misconduct or unsatisfactory professional conduct on the part of a principal or practitioner involved in the contravention. Failure to inform a law practice of your disqualification or conviction can lead to a fine being imposed. Other penalties apply to incorporated legal practices and multi-disciplinary partnerships.

Who are the relevant authorities?

In the case of a disqualified person who is an associate of a solicitor, the Law Society Council can give approval. In the case of a person who has been convicted of a serious offence, the Administrative Decisions Tribunal is the relevant authority.

How can my firm avoid the penalties?

As part of your management processes there should be in place a procedure for obtaining relevant information and authorities from future associates of your practice and a requirement for staff to advise should the requirement for disclosure of a serious offence or disqualification arise.

How can I find out who is a disqualified lay person?

The Law Society of NSW is bound by the Legal Profession Act 2004 to retain a register of persons who have been disqualified from being employed by a legal practice. You can access this list at Register of Disqualified Persons or by looking at a hard copy of the list held by the Law Society of NSW Library