By Paul Gregoire and Ugur Nedim
A Queensland magistrate sentenced a 33-year-old man to three months in prison for pretending to be a lawyer. Nicolas Braid was also ordered to pay back the money he charged an unsuspecting client for legal services, when he appeared in court last month.
A former industrial relations advisor, Mr Braid holds a law degree, but has never been admitted as a lawyer. He lied about his credentials to a criminal lawyer, who then referred a client with an industrial relations issue to him. He even went so far as to set up a website spruiking his own fake law firm called “NB Associates.”
But Braid is not the only person in Queensland who pretended to be a lawyer. In 2014, second year law student Jacob Reichman pleaded guilty in Brisbane Magistrates Court to falsely representing himself as a lawyer. He acted as a lawyer six times before finally being pulled up.
The law student was parading as a Gold Coast lawyer when he fronted three magistrates in a criminal matter in 2013. Reichman’s story came undone when the barrister he worked for advised a magistrate that his protégé was not an Australian legal practitioner, but a law clerk.
Getting admitted, not convicted
If you want to represent clients in the courtroom without having to ask the court for leave (permission) every time, you must obtain a practising certificate. Otherwise, you may find yourself looking for someone else to defend you.
As we’ve discussed in a previous blog, there’s a lot more to getting a practising certificate than just completing a law degree. After those years of university study, there are a few more steps that need to be taken before a law graduate can practise as a lawyer.
The first requirement is undertaking a course of practical legal training, such as a Graduate Diploma in Legal Practice, which can be completed at a range of institutions around the country, including the College of Law in St Leonards.
You’re also expected to carry out 75 days of practical legal training at a law firm, community legal centre or a barrister’s chambers. It’s best to keep a journal while undertake this work experience.
The next step is applying to be admitted as a lawyer on the Supreme Court roll. This requires you to submit proof that you’ve completed your educational components, along with references and a declaration that you’re a “fit and proper person.”
If you get the nod, you’ll need to attend the NSW Supreme Court, have an admitted lawyer ‘move’ your admission, take an oath and sign the roll of Australian lawyers.
But there’s one last thing you need before you can legally practise as a lawyer, and that’s your practising certificate.
What is a practising certificate?
An Australian practising certificate is a license that allows a person to provide legal services. All lawyers who practise in NSW must hold one. The certificates are issued by the Council of the Law Society of NSW.
Practising certificates certify that a lawyer has satisfied their academic and practical legal training requirements, has been admitted to the legal profession and has formally agreed to abide by the profession’s strict rules and codes of conduct – including constantly updating their legal knowledge by undertaking the prescribed amount of mandatory continuing legal education (MCLE) every year.
Practising certificates need to be renewed annually and those who fail to comply with the profession’s strict rules can have their certificates suspended or cancelled.
The completed application form must be forwarded to the Law Society along with the prescribed fee.
To practise as a barrister in NSW, you must apply to the NSW Bar Association.
Practising certificate conditions
There are different types of practising certificates, such as a “principal of a law practice,” an “employee of a law practice,” or a “volunteer.” Each of these certificates authorises the holder to engage in legal practice in different capacities.
Section 49 of the Uniform Law requires a holder of a practising certificate to engage in supervised legal practice for a period of time until they are eligible for a certificate as the principal of a law firm.
If the certificate holder undertook their practical legal training under the supervision of an Australian lawyer, then they need to work for 18 months under another legal practitioner before they are able to set up shop on their own. If the holder completed other practical legal training, their period of supervision is two years.
Section 52 provides that a holder of a practising certificate must engage in continuing professional development, or MCLE, which normally requires lawyers to accrue ten points of legal studies every year.
And under section 53, the holder must complete a practice management course, before being authorised to engage in legal practice as a principal of a law firm.
Under the National Practising Certificate scheme, NSW lawyers who hold a current practising certificate can practise in all other Australian states and territories, provided that their primary place of practise remains NSW.
If a lawyer principally practises in another state, they are required to surrender their NSW certificate and obtain one from the new jurisdiction.
Representing clients in court
If an admitted lawyer does not have a practising certificate, they will normally be required to seek leave from the presiding registrar, magistrate or judge.
Muddying the waters somewhat, a spokesperson from the Law Society of NSW told Sydney Criminal Lawyers this week:
“An admitted solicitor can appear before the court without leave… However, anyone can appear before the court when leave is sought and granted by the court.”
We would advise all law students and admitted lawyers who don’t have practising certificates to seek leave before representing clients in court.
The spokesperson added that it’s a different arrangement when it comes to appearing in a federal court, where a lawyer must be entitled to practise in the Supreme Court of their state or territory and have their name entered in the High Court Register of Practitioners.