What Constitutes “Legal Work”?
(EXPANDED CASE NOTES)
DEAN -v- LEGAL PRACTICE BOARD  WASC 260 (7 August 2015)
Mr Dean was found to have engaged in legal work for a Mr McCarthy by:
“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.”
In particular Mr Dean:
- had an initial meeting where he was informed about the Family Law proceedings;
- advised Mr McCarthy as to steps to take, including seeking a VRO
- advised Mr McCarthy what to say to his ex wifes lawyers
- told Mr McCarthy that he should apply for a divorce on the basis of annulment. Mr Dean prepared an application and the supporting affidavit. It was Mr Dean’s idea to file the application. He told Mr McCarthy that if the court granted a divorce on that basis, then his wife’s permanent residence visa would be revoked. Mr Dean provided a typed document and Mr McCarthy completed the blank fields with his handwriting.
- attended court with Mr McCarthy. Mr Dean was going to represent Mr McCarthy as his McKenzie friend. The presiding Magistrate did not permit Mr Dean to act as his next friend and he did not grant the VRO to Mr McCarthy.
- suggested to Mr McCarthy that he put a caveat on the property in Darlington so that it could not be sold without his authority.
The Judge found – “I am satisfied, and I am satisfied beyond a reasonable doubt that each of the accused engaged in legal practice either by preparing documentation in relation to Family Court proceedings or by giving legal advice about the appropriate course Mr McCarthy should follow in pursuit of a settlement.”
The decision was affirmed on Appeal.
The Legal Practice Board v Adams  WASC 78 (30 March 2001)
Mr Adams was found to have acted as a lawyer when “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.”
“…On 8 December 1992, members of the White family met with Mr Adams at Mr White’s home to discuss the claim against Perpetual for outstanding money. Mr Adams told the White family that he had been extensively trained to become a solicitor and that he had previously been a practising solicitor for a number of years. The White family then agreed to retain him to recover the money thought to be owing to them by Perpetual on the basis that the White family would pay to Mr Adams 10 per cent of any sum of money which was recovered, either by legal action or by settlement of an action. The White family also agreed to pay Mr Adams for his out-of-pocket expenses, namely, travel from Perth to Mandurah and return, postage and telephone expenses. Mr Adams later reiterated to the White family on many occasions that he had had extensive legal training and that he had been a practising solicitor. He quoted cases of settlements, divorces and other legal matters in which he had been involved….”
“…In the weeks that followed, various meetings took place concerning advancement of the claim. Mr White said in evidence that the White family was advised by Mr Adams to issue notices of default to Perpetual in accordance with the requirements of the four deeds and the deed of novation and to commence legal proceedings…”
Mr Adams drafted two notices of default by hand and drafted a writ of summons and statement of claim against Perpetual.
Mr White said in evidence that Mr Adams went with him to the Supreme Court to ensure that the two writs of summons were issued out of the court.
The judge noted “in purporting to act as a consultant, Mr Adams may not have been fully aware of where the boundary lay between giving commercial advice with a view to assisting a claimant and acting as a solicitor”
The Judge also quoted earlier cases:
28 In Barristers’ Board v Palm Management Pty Ltd  WAR 101 Brinsden J had occasion to consider the meaning of the expression “administration of law”. He was of the view (at 107) that the expression “administration of law” is to be read as meaning “the practice of law” or “the practice of the law” and this meaning should be given to the phrase in s 77. He went on to suggest that 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.
29 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”.
30 It is apparent from Cornall v Nagle (supra) that where a person in bringing documents into existence exercises his mind as to what is the appropriate form of words to accommodate the particular case, then this can be regarded as drawing or preparing a legal document. A process of that kind goes beyond mechanical or clerical tasks and is of a kind required to be performed by a solicitor. Also see Attorney-General v Quill Wills Ltd (1990) 3 WAR 500; The Legal Practice Board v Said, unreported; SCt of WA (Scott J); Library No 940608; 31 October 1994.
LEGAL PRACTICE BOARD -v- GIRAUDO  WASC 4 (14 January 2010)
The defence was summarised thus:
Mr Giraudo accepts that he prepared court documents and letters for Mr Domney, but says that this was only done as a secretary or scribe. He says that he gave no legal advice and that it was Mr Domney who controlled what was put in writing. He also accepts that he attended conferences with Mr Domney and others, but says that he did so only in a clerical capacity. He says that he became an employee of the business and wrote letters and attended conferences in that role.
The court found:
At the first meeting Mr Giraudo told Mr Domney that he was involved in ‘the legal business’. He told Mr Domney that he was a patent attorney and an international patent consultant and that he could therefore give legal advice. Mr Domney then told Mr Giraudo about a number of debts that were owed to him. Mr Giraudo advised that he could help Mr Domney recover these debts and prepare all the necessary court documents.
Mr Giraudo filed a responding affidavit in the present proceedings and gave evidence denying that he had ever represented himself as having legal skills. He said that he had referred to himself as ‘an intellectual property consultant’ and accepted that he had told Mr Domney that he might be able to help him recover a debt but denied saying that he could prepare any court documents.
Mr Giraudo wrote letters such as:
“I represent Euro Automobil Australia and I am today in receipt of your letter dated September 20, 2001 per Jean Galea. Adrian has engaged me to help resolve this matter.
I have been working through the facts and the issues to seek to determine exactly what has happened and who is liable for what. There are seven parties involved here and I am still unravelling the details.”
The Court provided useful observations about the correspondence written by Mr Giraudo:
…This letter goes well beyond merely recording the relevant facts. It considers and makes assertions in respect of the legal consequences of those facts. It is consistent with Mr Giraudo providing a legal analysis beyond that which would be expected of a lay person…
…In my view it is plain that in this letter he was representing his views as to legal issues on behalf of Mr Domney. His use of the word ‘client’ was intended to give the impression that Mr Giraudo was representing Mr Domney in respect of this legal dispute and that he had authority to do so….
…The plain meaning of the letter is that Mr Giraudo was conveying his own views, albeit on behalf of Mr Domney. It is clear that Mr Domney was relying on Mr Giraudo to contribute his own skills and abilities in endeavouring to resolve the legal dispute….
…Although Mr Giraudo persistently denied that the letter of 19 October 2001 contained any advice of a legal nature, it is my view that that evidence is entirely inconsistent with the words of the letter. The letter gives advice for resolving a legal dispute and shows an appreciation of the fact that Mr Domney was likely to require and rely upon that advice. As to the reference in the letter to not being skilled or qualified to assist with court proceedings, this only aggravates the circumstances by showing that Mr Giraudo was conscious of the need for qualifications. The best inference that could be drawn for him is that he may have been mistaken as to where the boundary lay regarding the need for qualifications…
… the only reasonable interpretation of this letter is that it is making representations as to the law. These are representations being made by Mr Giraudo, albeit on behalf of Mr Domney. There is nothing to suggest that Mr Domney is the author of the letter, quite the contrary. Furthermore, by inviting the lawyers for the customs brokers to provide the legal basis for their client’s claim and any ‘precedent’ that supports it, Mr Giraudo is seeking to argue the legal merits of the dispute….
… Despite Mr Giraudo’s valiant attempts to portray his presence at the pre-trial conference as being only that of a passive observer, it is apparent that he was there to assist Mr Domney and fully expected that Mr Domney would seek his advice as to how he should proceed. This reflects both the role played by Mr Giraudo and that Mr Domney relied upon him. He was not an impartial observer, but an advisor on how to resolve this legal dispute….
… Throughout his evidence, Mr Giraudo appeared to be under the mistaken impression that if all of the factual material upon which the letters and documents he created were based came from Mr Domney, his role could be described as secretarial in nature. In truth, however, it was clear from the evidence that whilst Mr Domney had provided the factual history, Mr Giraudo had placed that history into a logical format; had drawn conclusions as to the legal consequences; and had given advice and made recommendations in regard to those consequences….
…. It was no answer to the Board’s allegations for Mr Giraudo to say that he was not the sole author of the documents which he prepared in the sense that Mr Domney had some input into them. By analogy where a lawyer acts upon the instructions of his or her client, the client provides some input into the documents that the lawyer prepares. That does not mean that the client is the author of the documents. The important distinction is that a lawyer applies some independent skill in how to present the material provided to him or her by his client and in giving advice and making representations as to the legal consequences. Mr Giraudo acted in a similar way in respect of Mr Domney….
VAN DER FELTZ -v- LEGAL PRACTICE BOARD  WASC 2
Mr Ric van der Feltz’s advertisement on Gumtree said, in part:
“I can help you prepare to represent yourself in Court and with filling out Court applications and other Court documents and the drafting of affidavits.
I am not a Lawyer and do not give legal advice. I do have an overseas Law Degree and extensive experience representing myself in the Magistrate, District and Supreme Court and the State Administrative Tribunal (SAT) in commercial and administrative matters and helped others do the same.
You might just need some help to guide you through the Court system and that’s where I come in at a fraction of the cost of a Lawyer.
A first meeting is free and obligation free. If you decide to proceed I will charge a one off fee depending on the matter and the court.”
Mr van der Feltz denied “representing and advertising that he was entitled to engage in legal practice.”
The Supreme Court found, at par. 80 -82, that the advertisement offered to perform legal work: “…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 : –
‘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.’
Legal Services Commissioner v Walter  QSC 132 (27 May 2011)
The LSC sought an injunction to stop Mr Walter “engaging in legal practice in the State of Queensland when not an Australian legal practitioner.”
 …This relatively broad approach to construing the term “engage in legal practice” is consistent with traditional notions of legal practice (i.e. those which were in place prior to the introduction of the LPA and similar legislation in other jurisdictions). In Downey v O’Connell  VicLawRp 16;  VLR 117, Gavan Duffy and O’Bryan JJ said at 122:
“The common conception of a practising barrister or solicitor is that of a legally qualified barrister and solicitor who holds himself out to the public in general as willing to act as a direct and responsible personal confidential legal adviser, and to do, and be directly responsible for, legal work generally and who has clients for whom he does legal work in that way.”
 More recently, in Cornall v Nagle  VicRp 50;  2 VR 188, J D Phillips J, in construing the Legal Profession Practice Act 1958 (Vic), identified that a person who was neither admitted to practice law nor enrolled as a barrister and solicitor may be regarded as acting or practising as a solicitor in one of three ways:
- By doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor;
- By doing something that is positively proscribed by legislation or rules of court unless done by a duly qualified legal practitioner;
- By doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law.
 In the case before him, J D Phillips J considered it unnecessary to go beyond an example of the giving of legal advice as part of a course of conduct and for reward as an example of the third category of conduct, but said, at 208:
“In my opinion, the giving of legal advice, at least as part of a course of conduct and for reward, can properly be said to lie at or near the very centre of the practice of law, and hence the notion of acting or practising as a solicitor … If the public is to be adequately protected from those lacking relevant qualifications, then, in the context of a regulated legal profession, the giving of legal advice professionally is, I think, to be regarded as exclusively the province of those properly trained in the law and having the necessary expertise. It is thus something required to be undertaken only by the legally qualified, and not by those not properly qualified. Nor, if the protection of the public is to be adequate, can that protection be left to depend (as does the Sanderson test) upon whether the unqualified one declares that he has no legal training … [B]y prohibiting any unqualified person “acting or practising as a solicitor” s90 should be taken to encompass the giving of legal advice, at least in circumstances where there is a course of conduct involving the giving of that advice for reward. I go no further than that, only because it is unnecessary to do so in this particular case.”
 In short, the fact that a person is engaged in the business of providing legal services is indicative of that person practising law, but a person may be practising law without being in business. It is clear, for example, that an Australian legal practitioner can exercise the profession of law for clients without any entitlement to or expectation of reward or remuneration from those clients. But an Australian legal practitioner who habitually acts pro bono for needy clients can hardly be said to be not engaged in legal practice because he or she provides professional legal services without reward from those clients.
“…The respondent has been closely involved in the preparation and prosecution of no less than ten actions in the Supreme Court at Cairns which have been brought by various plaintiffs against the chief executives of a number of local government authorities, a State Government Minister and a number of other defendants. The material also discloses that the respondent’s involvement in this litigation has included providing advice to the plaintiffs to commence those proceedings, drafting correspondence, pleadings and submissions in the proceedings, at times corresponding on behalf of the plaintiffs with other parties to the litigation, and purporting to act as the agent of one of the plaintiffs, Mrs Burns…”
 Whilst there is no evidence that the respondent received remuneration for providing advice and other services to the plaintiffs in the ten actions to which I have already referred, there is evidence that he has solicited financial donations from members of the public to fund litigation of this nature. Moreover, it appears that he received remuneration to draw written submissions for the applicant in another proceeding in the Court of Appeal.
 In short, the evidence makes it clear that this respondent has engaged, over a significant period of time, in a practice of:
(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.
 To adapt the words of J D Phillips J, each of these matters can be said to lie near the very centre of the practice of litigation law. Taken in combination, and recalling that the evidence discloses that these services have been provided by the respondent for numerous parties over numerous years, it is clear to me that the respondent thereby carried on or exercised the profession of law, and accordingly can be said to have practised law.
Cornall v Nagle  VicRp 50;  2 VR 188 (25 March 1994)
“…In each of the letters forming part of the correspondence relied upon, the defendant claimed to have been appointed as “attorney under power” and to be acting on behalf of the person or persons in question as her or their “attorney” (either with or without the additional description of “agent”). At no time did he claim to be an “attorney at law” or a “legal attorney” and therefore it was submitted on his behalf that the description he adopted in this correspondence was rather to distinguish his position from that of a solicitor, than to misrepresent it as such…”
“…All things considered, I do not consider that the use of the word “attorney” in these letters is itself a breach of the order of McGarvie J restraining the defendant “from using any name or title implying that he is qualified to practise as a Solicitor”. That would, I think, be going too far in view of the conjunction of that word “attorney” with the expression “appointed under the Instruments Act” – which, I should add, was the way in which the defendant used the word in the documents in evidence that were not letters…”
“…If the conduct is proscribed unless done by a properly qualified solicitor with a current practising certificate, then any one who indulges in that conduct but is not so qualified is, I think, “acting or practising as a solicitor”….In such a case 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…”
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(What Constitutes “Legal Work”? (EXPANDED CASE NOTES))