Legal Services Commissioner V Nguyen (Legal Practice) 2013 Vcat 345

The role of an in-house lawyer naturally includes legal advice. It would also generally involve the preparation of legal documents and the provision of other services that affect important rights under the law and require skills and knowledge beyond those of the average person. This is consistent with the definition of “in-house legal services” under the AHR Act (discussed in more detail below) and the position taken for in-house counsel in other Australian jurisdictions. In-house counsel must ensure that their certificate of practice is renewed in a timely manner (online renewal is available at www.qls.com.au/renewal-guide until May 31, 2014). As part of this process, careful consideration should be given to the identification of the employing company, which is the primary entity for which the lawyer is authorized to provide legal services. The case notes that if an in-house counsel “practises as a lawyer” outside the limits of his articling certificate, he will do so without the required professional indemnity insurance. This could be the case if their conduct gives rise to potential personal liability to an injured person. The combined effect of these provisions implies that it is quite possible that not all enterprises in the enterprise group of enterprises are “related entities” empowering the in-house lawyer to provide legal services. More on this below. It is not uncommon for in-house lawyers to be approached by people they work with for help in personal legal matters.

This occurred in Legal Service Commissioner v Kellahan [2012] QCAT 263. In that case, the defendant held a probationary certificate in Queensland, which allowed him to provide in-house legal services only to his employer. The respondent`s employer provided business services to a specific individual. The respondent had a “friendly relationship” with the individual and attempted to assist him in a family law matter. Notably, the respondent wrote to lawyers representing the person`s wife, stating that he was acting on her behalf, filing a document with the family court stating that he was the person`s lawyer, and receiving funds on behalf of the person. The court found that the defendant had carried on a lawful activity outside the restrictions contained in his lawyer`s certificate in the absence of the necessary professional indemnity insurance. Although this was done under a false but sincere belief, the behavior was always classified as professional misconduct. The Legal Profession Act follows the definition of “related legal entity” in the Companies Act 2001 (Cth) (Companies Act) to define the group of companies to which in-house counsel may provide legal services. The above advice allows an in-house legal counsel to volunteer as part of a municipal legal department or pro bono project approved by Australia`s Pro Bono Centre.

The above pro bono services were approved because they provide access to the professional liability insurance required under LPA28, which would otherwise not be available to an in-house lawyer.29 The Australian Pro Bono Centre established the National Pro Bono Professional Indemnity Insurance Scheme in 2009, which provides free professional liability insurance to in-house lawyers working on pro bono projects approved by the Australian Pro Bono Centre. 30 Consequently, registered in-house counsel should presume that they are persons practising law within the meaning of the AHR Act. This position will not change simply because an in-house counsel may also perform other roles in their position that are not related to the practice of a legal practice (for example, managing the administrative aspects of a business, procurement or compliance services function). Unlike the situation of Crown counsel,13 there is no exception to the requirement that registered in-house counsel must be in possession of a recent lawyer`s certificate when practising as a lawyer.14 In-house counsel must assume that they are practising as lawyers and, as such, must have a corresponding training certificate. Independently, consideration should be given to either the eligibility of the management consultant to provide legal services to a particular company, or any business structuring or employment issues that may need to be addressed to ensure that business activities proceed as usual for in-house counsel. As the once relatively sparse ranks of in-house counsel have recently expanded, the courts have certainly been quick to emphasize the equality of conduct expected of this group of professionals, compared to their counterparts in law firms (and now law firms) and in individual practice.