Interstate Practitioners practising in Victoria

The following information is a summary of the manner in which Victoria has implemented the concept of the "Australian practising certificate" particularly as it relates to barristers.

Interstate practitioners wishing to practise in Victoria must satisfy themselves as to their specific responsibilities and obligations by referring to the Legal Profession Act 2004 (Vic) ("the Act") and to their own home State legislation.

Entitlement to practise

An interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate granted under a corresponding law, but not a local practising certificate (s1.2.3). Under the Act, an interstate legal practitioner may engage in legal practice in Victoria without being admitted in Victoria or obtaining a local practising certificate (s2.4.32).

An interstate legal practitioner who engages in legal practice in Victoria is an officer of the Supreme Court of Victoria and is subject to the Courts jurisdiction.

The interstate legal practitioner has the same rights, privileges and duties as conferred and imposed on a Victorian officer of the Supreme Court (s2.4.36). An interstate legal practitioner is entitled to engage in legal practice in Victoria in accordance with the terms of the practitioners entitlement to practise in his/her home State. In doing so the practitioner -

1. must comply with the Act and the Regulations and with any other Act that relates to legal practice; and
2. must comply with the practice rules of The Victorian Bar Inc.; and
3. is subject to any condition, limitation or restriction imposed by a Victorian or interstate regulatory authority as a result of disciplinary action against the practitioner (s2.4.33).

Professional indemnity insurance for interstate barristers

Section 3.5.2 of the Legal Profession Act 2004 (the Act) requires all law practices (including interstate barristers) who engage in legal practice in Victoria to maintain professional indemnity insurance with the Victorian Legal Practitioner’s Liability Committee.

The Legal Services Board (the Board) may exempt a class of law practices from these requirements (pursuant to s.3.5.7(2) of the Act) if it is satisfied that they do not have an office in Victoria.  The Board has been asked to consider granting a class exemption for interstate barristers.

In the meantime, interstate barristers must apply in writing for an individual exemption, in accordance with the Board’s Exemptions Policy.

The Board will grant an exemption to interstate barristers who meet the requirements of s.3.5.7(3) of the Act, which are:

• the barrister has an office located in another state
• the barrister, whose home jurisdiction is that other state, engages in legal practice at that office
• the barrister has professional indemnity insurance in accordance with the requirements of a law of that other state that corresponds with the relevant provisions of the Act
• the insurance covers civil liability in connection with legal practice by the barrister in Victoria.

Exemption may be sought using the pro-forma letter attached. Please note, double clicking on the grey areas brings up automatic information fields (eg. ‘add name’ or ‘select state’).

Notification by interstate practitioner

An interstate legal practitioner must give written notice to the Legal Service Board within 28 days of first establishing an office in Victoria. Failure to do so may incur a penalty. The prescribed Notification by Interstate Practitioner and explanatory notes can be obtained from the Legal Services Board's office or website or the Victorian Bar office.

Evidence must be provided that the applicant has satisfactory professional indemnity insurance as required by the Act and has made the required contribution to the Fidelity Fund (if any) (s2.4.34(3)). The evidence required is a copy of the policy, confirmation from the insurer that the policy extends to the practitioners practice in Victoria and a receipt or other evidence of the current premium payment and if relevant the required contribution to the Fidelity Fund. In future years, evidence of renewal of insurance must be provided. The limit of indemnity in Victoria is currently not less than $1.5 million.

With the consent of the interstate practitioner, The Legal Service Board will make inquiries with regulatory authorities in other jurisdictions regarding the practitioners activities as a legal practitioner.

Complaints

The Commissioner or the Victorian Bar Inc., as a prescribed investigatory body, to whom the disciplinary complaint has been referred may consider a dispute or complaint in relation to an interstate legal practitioner or, if it considers it appropriate to do so, may refer the matter to the practitioners home State regulatory authority to be dealt with in accordance with the law of the practitioners home State. The Victorian regulatory authority may investigate the conduct of an interstate legal practitioner or request the practitioners home State regulatory authority to investigate in accordance with the law of the practitioners home State (s4.4.9).

Trust moneys

An interstate legal practitioner will be subject to the trust account requirements set out in Part 3.3 of the Act. An interstate legal practitioner must not receive trust money in Victoria unless the practitioner is authorised to receive trust money in the practitioners home state and has made the required contribution (if any) to the Victorian Fidelity Fund. In Victoria, money received in advance of the legal service to which it relates being provided, is defined as trust money.

Further Information

Barristers seeking to practise in Victoria are advised to obtain a copy of the Legal Profession Act 2004 (Vic) and to contact:

Victorian Bar Inc.’s Compliance Manager or General Manager
Ph: (03) 9225 7111
Fax: (03) 9225 6068

See further Contact.

Victorian practitioners practising interstate: please see the Members Section for further information.