Ethics

A. Unqualified legal practice is a serious concern for regulatory authorities, for the wider legal profession, and for our entire community. Section 2.2.2 of the Legal Profession Act 2004 (pdf), prohibits a person from engaging in legal practice, or from holding themselves out to be qualified to engage in legal practice, unless the person holds a current practising certificate. This preservation of legal work for legal practitioners is cynically viewed by some as a self-interested protection of a valuable monopoly. It also has genuine roots in consumer protection.

The Ethics Committee is often asked to endorse proposals that tread dangerously close to the line of unqualified practice. These include proposals to establish a "precedents business” or to engage an unqualified consultant to undertake borderline non-legal work.

• The definition of legal work is not always straightforward, as case law demonstrates. See: Cornel v Nagle [1995] 2VR 188 at 210.
• Practitioners need to be reminded of their obligations and the need for vigilance.

Actively discouraging and preventing unqualified legal practice is a personal risk management strategy. It is also a means to uphold the "good repute of the profession” by ensuring legal services are only provided by those with the appropriate qualifications and ongoing educational obligations to do so.

Given the regulatory, disciplinary and insurance implications, the Ethics Committee has prepared Unqualified Practice Guidelines (pdf).

A. Clients are generally clients of the firm rather than of the individual solicitor. However a solicitor's departure from a firm raises a number of ethical issues.

• Even when you are leaving a firm, the client's interests must come first. If the solicitor's departure is acrimonious, the clients must not be drawn into that acrimony.
• A solicitor will not generally have a right to keep a list of clients' names and contact details. This raises problems of client confidentiality and may also be a breach of the solicitor's terms of employment.
• Any undertaking by the departing solicitor not to contact the firm's clients must be strictly honoured.
• Even where there is no such undertaking, a solicitor should not solicit the firm's clients with a view to persuading them to leave the firm.
• It will usually be in the interests of all parties for the client to be told about the solicitor's departure and for a new contact person at the firm to be agreed.
• If a client wants to remain with the individual solicitor, the firm should facilitate that arrangement, subject to the firm's reasonable entitlements, such as any entitlement to exercise a lien over files to recover outstanding costs.

The Law Society of Western Australia Ethics Committee has considered these issues in some detail and has developed Guidelines on leaving firms and contacting clients pg.66 (pdf). While not formally endorsed by the Law Institute of Victoria, they contain useful discussion of some of the relevant considerations and a sample letter for notifying clients of a solicitor's departure.