By Paul Gregoire and Ugur Nedim
In December 2012, the Legal Practice Board of Western Australia charged James Dean and Mark Simonsen with engaging in legal practice despite being unqualified to do so. The pair of non-lawyers had provided legal advice to a husband divorcing his wife and charged $5,000 for the service.
The non-lawyers engaged in the delivery of family law advice to their client, Mr McCarthy, in Dean’s Perth eastern suburbs home in December 2011. Dean assisted with the court process, even appearing once in the WA Magistrates Court, while Simonsen drafted the legal documents.
Dean advised McCarthy to make his soon to be ex-wife’s life as “unpleasant as possible”. And this included taking out a violence restraining order against her.
However, as the case got more complex, Dean withdrew his services. Both non-lawyers refused to reimburse their fees.
The two men pleaded not guilty to three charges laid against them under the provisions of the Legal Profession Act 2008 (WA). But they were found guilty of having been practising law unlawfully. Dean was fined $6,000, while Simonsen was given a $5,000 fine.
McCarthy went on to engage a qualified lawyer to negotiate his property settlement. And in April 2016, the WA Supreme Court dismissed appeals against the convictions brought by the pair of non-lawyers, ruling the grounds the appeals were based upon were difficult to understand.
Unqualified practising offences
The laws that govern unqualified legal practice in NSW are contained in chapter 2 of the Legal Profession Uniform Law (NSW) (the Uniform Law), which is legislation regulating the legal profession in this state that came into operation on 1 July 2015.
Section 10 of the Uniform Law prohibits unqualified entities from engaging in legal practice. And those found to be breaking the prohibition have committed an offence that carries a maximum penalty of a $27,500 fine and/or 2 years imprisonment.
Entities that are qualified to engage in legal practice are defined, under section 6, as Australian legal practitioners, law practices, Australian-registered foreign lawyers, locally-unregistered foreign lawyers practicing foreign law, or those authorised to practice under another Australian law.
An Australian legal practitioner is defined as a lawyer with a current Australian practising certificate. Qualified lawyers in this state can be verified on the Law Society of NSW website. And if an unqualified individual is thought to be practising in NSW, they can be reported to the Law Society.
Section 11 of the Uniform Law prohibits unqualified entities from advertising or making representations maintaining that they are entitled to practice law. And an individual found guilty of this crime is liable to a $27,500 fine.
While a third party found guilty of advertising or making representations in regard to law services provided by an unqualified entity can be fined $5,500.
Further legal practice provisions
Section 12 of the Uniform Law sets out that persons are permitted to use titles, such as lawyer, legal practitioner, barrister and solicitor, when they comply with the restrictions that are outlined elsewhere in the legislation.
Section 13 provides that a lay associate of a law practice doesn’t break the law if they receive payment from the firm, publicise themselves as a lay associate, or deal with the finances of the practice. A lay associate is someone working for a practice that isn’t a legal professional.
And section 14 of the Uniform Law sets out that local regulatory authorities are to carry out investigations and institute prosecutions of any contravention of these laws. These authorities are the NSW Law Society, the NSW Bar Association and the state Legal Services Commissioner.
The objective of all these laws governing unqualified practice, according to section 9, are to ensure that legal work is only carried out by qualified entities and in turn, protect clients.
A case in point
The 2011 Queensland Supreme Court case Legal Service Commissioner versus Walter involved the commissioner seeking an injunction to prevent David Walter from engaging in legal practice in that state under the provisions of the Legal Profession Act 2007 (Qld), as he was not entitled to do so.
Justice Martin Dabney explained that Walter – a non-lawyer – had been involved in the preparation and prosecution of ten actions in that state’s Supreme Court. And whilst there was no evidence he received payment for these actions, he had solicited donations from the public to fund them.
During the proceedings, it was revealed that “over a significant period of time”, Walter had been engaged in advising parties on law, assisting them in case preparation, drafting court documents and legal correspondence, as well as purporting to act as one party’s agent.
His Honour found that Walter was not only practising law without being qualified to do so, but he “repeatedly sought, in many different proceedings, to ventilate a fundamentally misconceived legal argument” in “cases brought by other parties”.
“It is one thing for the respondent himself to run these misconceived arguments in proceedings to which he personally is a party,” the justice said, as he ruled that an injunction to prevent Walter from practising law was required.
“It is quite another thing, however, for him to use other parties effectively as stalking horses to enable him to continually repeat these contentions.”
But, while non-lawyers Dean, Simonsen and Walter all seemed to be upfront about the fact that they weren’t actually properly registered legal professionals, there are cases of fraudulent entities advertising their services on the basis that they are actually qualified lawyers.
The Law Society of SA warned last July that a website had been set up that appeared to be a legitimate law firm, which was sending out emails to members of the public providing instructions on how to claim an inheritance left by an undisclosed deceased relative.
Then president of the SA Law Society Amy Nikolovski explained that the language used in the email indicated that there was something illegitimate about it, however some members of the public might not be able to pick that up.
“The letter also contains instructions for the recipient to follow. This is not how a lawyer-client relationship works,” said Nikolovski, while the scam was still operating. “It is the client who instructs the lawyer following the provision of advice by the lawyer.”