The Offence of Engaging in Unqualified Legal Practice in Australia

A retired Qantas pilot has been fined $4,500 and placed on a one-year good behaviour bond in the Downing Centre local court for pretending to be a lawyer. 

55-year old Nathaniel Whitehall flew planes for more than 20 years and took early retirement in 2020, when he decided that he wanted to change the direction of his life. 

He began working for a conveyancing company in Newcastle on the New South Wales Central Coast and, while doing so, prepared and witnessed the signing of multiple family wills while pretending to be a lawyer. 

He also signed a water access licence purporting to be qualified as a solicitor to do so, and represented a woman for a traffic infringement in Belmont Local Court while presenting himself to the court as a lawyer.

Mr Whitehall told the court he gained no financial benefit from his conduct, and that “I was, in some cases, just simply helping out a friend or colleague”.

But despite the fact there was no evidence the retired pilot represented individuals is more substantial matters, the presiding magistrate Juliana Crofts remained unimpressed, remarking of his attitude towards his offending:

“The way the matter was run before the court does seem to indicate a lack of understanding as to the seriousness of the offending”.

Her Honour was concerned about the defendant’s lack of remorse but took a range of factors into account before passing sentence, including his lack of prior convictions, history of service to the community, the relatively minor matters he was involved in and the unlikelihood of reoffending.

Not the first time

This is certainly not the first time a person has been prosecuted for pretending to be a lawyer.

In fact over the past couple of years, several individuals have been prosecuted for putting themselves out to be a lawyer – including those who have represented defendants in serious criminal cases.

The offence of engaging in unqualified legal practice in Australia 

Section 10(1) of the Legal Profession Uniform Law (‘the Uniform Law’)– which except for minor variations has been enacted in all Australian states and territories – prescribes a maximum penalty of 2 years in prison and/or 250 penalty units (equivalent to $27,500 at the time of writing) where the following rule is contravened:

“An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity”.

What is a qualified entity?

A ‘qualified entity’ is defined by the Uniform Law as:

1. an Australian legal practitioner; or

2. a law practice; or

3. either:

(i) an Australian-registered foreign lawyer; or

(ii) a foreign lawyer who is not an Australian-registered foreign lawyer but only to the extent that the foreign lawyer’s legal practice is limited to the practice of foreign law and is carried out in accordance with the applicable requirements of Part 3.4; or

(d) an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction, other than this Law or the Uniform Rules; or

(e) an entity engaged in legal practice of a kind specified in the Uniform Rules for the purposes of this definition, but only while the entity engages in the legal practice in accordance with any applicable requirements of the Uniform Rules.

What is legal practice?

The Uniform Law defines ‘legal practice as including practising law or providing legal services.

The definition does not extend to engaging in policy work, including developing and commenting on legal policy.

What is the meaning of to practise law and to provide legal services?

The Uniform Law does not define the meaning of to ‘practise law’.

However, it defined ‘legal services’ as work done, or business transacted, in the ordinary course of legal practice.

What is the meaning of providing legal services?

Whether a person has provided legal services is a matter of fact to be determined on a case-by-case basis.

In that regard, the Law Society of NSW explains that:

“Following are a number of principles emerging from case law: 

1. If a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with action usually taken by a solicitor – I think he then does act as a solicitor.
2. The giving of advice as to the legal character and prospects of potential litigation especially implying that this would be done following a detailed assessment of evidentiary materials supplied by the person in question is unarguably engaging in legal practice. A statement that this is what will be done necessarily implies that the person to be proffering the advice is entitled to do so.
3. A person who is not admitted to practice as a barrister or a solicitor may be regarded as acting or practising as a solicitor by doing something that is positively proscribed by legislation or rules of court unless done by a duly qualified legal practitioner or 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.
4. Although charging a fee for the work undertaken may be indicative of a person engaging in legal practice it is not a necessary pre-condition to a finding that a person has engaged in legal practice.
5. The following practises especially when taken in combination can be said to lie near the very centre of the practice of litigation law:

(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 

6. This is the essence of legal practice, the advising of a particular person in a particular situation and the production of a document which affects legal rights and which is tailored to the particular needs of that person.”

Exemptions

The Uniform Law also contains a number of exemptions from the requirement of having to be a qualified lawyer to provide legal services, which include:

1. Undertaking conveyancing work under a licence in force under relevant jurisdictional legislation; 
2. An officer or employee of a government authority drawing instruments in the course of the person’s duty other than as parliamentary counsel, legislative counsel or legislative drafter; 
3. An officer or employee of a government authority undertaking appearance work in courts or tribunals under the authority of a law of a jurisdiction or of the Commonwealth; 
4. A public trustee or a company that performs the functions of a public trustee of a jurisdiction to the extent that the person is performing work in the course of preparing a will or providing a related service or in the course of carrying out any other work involving or in connection with the administration of trusts, the estates of living or deceased persons or the affairs of living persons; 
5. An industrial organisation providing legal services but only to the extent as set out in the Rules.

Years of study and training

It typically takes about 5 to 6 years from the start of university to being admitted as a lawyer and obtaining a practising certificate in Australia. 

And, once a person has entered the profession, there are a number of pieces of legislation including the Legal Profession Uniform Law 2014 (or the ‘Uniform Law’) which, together with its regulations, set out the rules relating to admission as a lawyer and practising certificate requirement. 

This legislation also sets out the standards and conditions for the operation and management of law practices, requirements regarding trust funds, costs billing, marketing and advertising etc. 

In addition to this, the Uniform Law imposes strict ethical obligations on lawyers, including duties to:

• Ensure the courts and administration of justice are paramount, and to therefore avoid anything that will adversely affect them,
• Deliver legal services competently, diligently and as promptly as reasonably possible, which includes undertaking proper due diligence,
• Act in the best interests of clients,
• Provide clear, complete and timely advice, and
• Uphold ethical obligations including those relating to confidentiality and conflicts of interest.
• The situation involving the young man raises questions about the extent of compliance with a number of these duties.

Registers of legal practitioners in New South Wales 

Law is one of the most highly regulated professions in Australia. 

In New South Wales, to practice as a solicitor, a person must hold either an Australian practising certificate issued by the Law Society’s Council or a practising certificate issued by the designated regulatory authority in another Australian state or territory. 

Most Australian States and Territories have very similar laws and regulatory standards, although they do differ from time to time and there have long been calls for a nation-wide register of legal practitioners to make it easy for potential employers to undertake checks on inter-state candidates, as well as for potential clients to get assurance that the lawyer they have chosen does have the appropriate qualifications to practice law and the experience needed to handle their matter. 

In the meantime, each state has its own register. In New South Wales, you can conduct your own check via the Law Society of New South Wales Register of Solicitors and the 

New South Wales Bar Association Find a Barrister List. 

Lawyers do get ‘struck off’ the register from time-to-time too if they are found to be guilty of misconduct or behaviour that brings the profession into disrepute. 

If a person’s name is removed from the register, they can no longer practice law.