What Sort Of Work Constitutes “Legal Work”?

Regardless of how you describe what you do, if you have an expertise beyond the average person in legal matters and offer to use your knowledge and skills to help someone, that may well be legal work. The type of work concerned can range from providing advice and writing letters, up to attending court.

Summary

The test for whether work is legal practice is the nature of the work itself, not how it is described by the person doing it.  People have described themselves as employees, clerks, attorneys under a power of attorney, as a Mackenzie friend or even “some help to guide you through the Court system” and been found to be in breach.

To call yourself an “attorney” is not enough to be found to be performing legal work.

There needs to be an assertion or expectation that the person holds a greater degree of knowledge or skill than the average person in relation to legal matters or issues and that the person makes that knowledge and those skills available for the benefit of others. The assistance has to go beyond clerical help in filling out forms.

The work itself can range from attending at a Court or tribunal, drafting court documents, drafting correspondence, advising on steps to take in Court, advising on strategies to take in a legal dispute, and providing advice on legal matters or legal rights generally.

A short summary of the sort of work that Courts have found to be legal work:

DEAN -v- LEGAL PRACTICE BOARD [2015] WASC 260 (7 August 2015)

The legal work involved:

“advising him in connection to Family Court of Western Australia proceedings that he was involved in,
advising him to initiate an application for the annulment of his marriage,
advising him to lodge a caveat in respect of the former matrimonial home and
drafting correspondence to be sent to Mr McCarthy’s wife in connection with the Family Court proceedings.”

The Legal Practice Board v Adams [2001] WASC 78 (30 March 2001)

The legal work:

“he did directly or indirectly draw, prepare and sue out two writs of summons indorsed with statements of claim and commence two actions in the Supreme Court of Western Australia.”

Barristers’ Board v Palm Management Pty Ltd [1984] WAR 101

The practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.

 If the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the person giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of the law.

 Further, he cited with approval a proposition emerging from the decided case that where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required. A charge for such service brings it definitely within the term “practice of the law”.

Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188 (25 March 1994)

There is no requirement that the unqualified one should have so acted as to lead to the reasonable inference that he is qualified; it is enough that he does the proscribed act.

Legal Services Commissioner v Walter [2011] QSC 132 (27 May 2011)

The legal work involved:

(a) advising parties to litigation in respect of matters of law and procedure;

(b) assisting parties to litigation in the preparation of cases for litigation;

(c) drafting court documents on behalf of parties to litigation;

(d) drafting legal correspondence on behalf of parties to litigation; and

(e) purporting to act as a party’s agent in at least one piece of litigation.

VAN DER FELTZ  -v- LEGAL PRACTICE BOARD [2017] WASC 2

“…The Magistrate found that the appellant represented himself in the advertisement as having an overseas law degree and as having experience in the Magistrates Court, District Court, Supreme Court and State Administrative Tribunal. This knowledge and experience was said to provide him with the ability to assist people to represent themselves, and in filling out court documents and drafting affidavits. His Honour found that notwithstanding that the appellant stated in the advertisement that he was not a lawyer and did not give legal advice, he indicated that he had the experience and ability to assist people with legal issues….”

“…The necessary implication of the words of the advertisement was that the appellant would use specialised knowledge and experience to assist litigants. He represented himself as having skills in how a person should represent him or her self and how to complete documents. The fee structure implied that this work would be of more than of a clerical nature but would utilise the appellant’s claimed expertise in legal matters.”

When considering what constituted legal work the Supreme Court  quoted,  with approval, several decisions, which we repeat below with certain parts underlined for emphasis :

State Ex Rel Florida Bar and Sperry 1962 140 SO (2d) 597 [591]: –

‘It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.

 We think that in determining whether the given of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires of the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law.’

Would you like more information about these cases? Click here


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(Do Credit Repair Businesses Offer To Provide Legal Services?)

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(Why Credit Repair work is, by its nature, legal work (and thereby reserved for lawyers))

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(‘I Am Not A Lawyer And [I] Do Not Give Legal Advice’ said the ad – OH YES YOU DO, said the Court)

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(Unqualified Legal Work Finished – Now To Just Refund All The Fees Charged And Pay All The Fines Imposed By The Court)

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(What Sort Of Work Constitutes “Legal Work”?)

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(What Constitutes “Legal Work”? (EXPANDED CASE NOTES))

About The Authors:

Graham Doessel CEO of Legal Practice Holdings & MyCRA Lawyers in conjunction with Patrick Earl, Senior Solicitor of Armstrong Doessel Stevenson Lawyers, a division of Legal Practice Holdings

2017-09-05T05:24:11+00:00

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