When can the unqualified be qualified? Non-lawyers engaging in legal practice - when is it OK and when is the law broken

Key Points
  • As a general rule, engaging in legal practice requires an individual to obtain the appropriate accreditation to do so.
  • In certain instances it may be possible for a non-legally qualified person, to provide legal services.
  • There are several implications for non-lawyers who give legal advice and their ‘clients’.

Only lawyers can provide legal advice, but anyone can provide legal information. When thinking of the difference, you might ask your friend or colleague to provide information about a serious illness; however you would seek out a qualified medical professional in relation to its treatment.

Your local butcher charges less money to remove organs and limbs than a doctor, that doesn’t mean you should employ them to perform surgery.

Similarly, accountants, HR staff and insurance brokers, whilst possessing specialised knowledge in their field, do not possess the same proficiency to advise on legal matters. Whilst this may seem a cheaper option, you may be on the receiving end of the old adage of the most expensive legal advice is free advice.

The provision of legal services enjoys strict regulation in most countries, and rightly so. With lawyers providing advice to clients on how clients should act in a variety of circumstances, from criminal proceedings to complex business mergers, wills and estates, and property matters, legal situations are often high stakes endeavors. Consequences for the client if poor advice is acted on can be severe so it’s understandable that legislation is in place to ensure those who give legal advice are qualified and can be held accountable when things go wrong.

Australia’s strict regulation governing the provision of advice means that generally only a lawyer can give legal advice. This usually applies only to an individual who has undergone specialised legal education and has then attained all the necessary qualifications to practice law in their chosen jurisdiction, including the appropriate certification.

But are there circumstances where someone who is not a qualified lawyer can provide legal services?

First it must be noted that there is a distinct difference between providing legal advice as opposed to legal information. The provision of legal information does not require an individual to be a legal practitioner. The distinction between advice and information is clear in theory - Legal advice proposes a course of action where as legal information is generic and does not propose a course of action. Think of it like you might ask your friend or colleague to provide information about a serious illness; however you would seek out a qualified medical professional in relation to its treatment.

In New South Wales the provision of legal advice is governed by the Legal Profession Uniform Law 2014 (NSW) (the Uniform Law) which states that “An entity must not engage in legal practice…, unless it is a qualified entity”.

The term “engage in legal practice” may be difficult to define plainly. That being said, generally there are three primary scenarios where a non-qualified lawyer or other non-qualified person can be said to be engaging in legal practice. Not all are held to be in contravention of the Act:

  1. A non-qualified person performing legal work outside the context of any profession for which they are qualified;
  2. A professional, but not a legal practitioner, performing legal work in the course of activities associated within their profession. For example a financial professional involved during the preparation of a trust deed.
  3. A non-lawyer is permitted by legislation to represent a party as an agent in certain proceedings.

In the first scenario, a non-qualified person engaging in legal work outside of the context of any professional qualification can incur a substantial penalty under the Uniform Law -up to $27,500, or two years imprisonment, or both.

In 2006 the Supreme Court of NSW found that a former Barrister, whose practicing certificate was cancelled in 2001, was unlawfully engaging in legal practice despite repeatedly stating in documents provided to his client that he could not give legal advice.

The Court echoed the sentiment of Justice Brinsden in the United States who surmised that it is safe to follow the rule that, if the giving of such advice requires the giver possess legal skill and knowledge greater than that of the average citizen then, such conduct constitutes practice of the law.

The Australian Courts have also noted that charging a fee for the legal service can be a determining factor in whether it constitutes a contravention of the Uniform Law.

In certain circumstances a non-legal professional may perform legal work in the course of other activities that are associated with the practice of their profession. This occurs routinely in a variety of professions, such as a financial professional being involved in the preparation of a trust deed or a real estate agent engaging in a lease or sale agreement.

Finally, particular jurisdictions allow for a non-lawyer to represent a party as an agent. The Fair Work Act 2009 allows representation by a paid agent in certain circumstances. This can work both ways as leave must also be sort to have legal representation within the context of the Fair Work Commission.

The usual justification provided for legislated restrictions on the provision of legal services is to ensure the proper administration of justice and to protect the public against those who have not had the level of education required to provide proficient legal advice.

The added benefit of being protected by legal professional privilege cannot be understated. This means that you can be assured that whatever you disclose to your retained solicitor will remain between the two of you; the same cannot be said in other professions.

As the creator of the iconic Forbes magazine Malcom Forbes once quipped “Never hire someone who knows less than you do about what he’s hired to do”. Why accept anything less than this for those you entrust to act on your behalf in legal matters?

Post by Carlin Brunner-Evans and Warwick Ryan

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