WHEN IS A LAWYER NOT A LAWYER?
A topic that consistently comes up in Ethics assignments is when exactly does someone engage in ‘legal work’ under the Legal Profession Uniform Law? In otherwords, what can non lawyers do before they need a practising certificate?
Taking NSW as an example, it is prohibited for an unqualified entity to engage in legal practice (s10, Legal Profession Uniform Law (NSW)) but ‘legal practice’ is not really defined, other than to say that it does not include policy work. Compliance professionals can breathe easy.
The NSW Law Society has put out a guidance note on this topic which summarises the relevant case law really well. Essentially, legal practice is a question of fact on a case by case basis, but generally means:
– anything normally done by a solicitor, where a person has also held themselves out to be a solicitor;
– a great many things related to litigation, such as litigation advice or the preparation of litigation documents;
– anything involved with advising a person in a particular situation and producing a document affecting their legal rights which is tailored to their situation;
– anything which is required to be done by a legal practitioner under court rules or legislation.
But s10 (1) also sets out a number of exemptions to the definition of legal practice, including for:
– government employees drafting legal documents, or undertaking appearance work;
– public trustees (but only in certain situations); and
– unions (but only in certain situations).