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LIV President's Blog 2012

LIV President's Blog 2013

Reynah Tang, LIV President 2013 on the latest issues and topics. Read and comment.

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You wouldn’t ask an electrician to do your plumbing

You wouldn’t ask an electrician to do your plumbing
While I am a self-confessed tax geek, and have worked in both accounting and legal firms, I would never profess to be an accountant.
I respect the work of tax accountants and understand there may be some crossover in the various responsibilities of tax lawyers and accountants. But there is a stark distinction between the two roles. Just as I don’t offer to do my clients’ tax returns, nor should tax accountants be providing legal advice, or drafting trust deeds or other legal documents.
The Legal Profession Act 2004 says a person must not engage in legal practice unless they are a legal practitioner. The penalty could be two years’ imprisonment. The Law Institute’s Unqualified Practice Guidelines suggest a person could have engaged in unqualified legal practice just by behaving in a way that “creates a reasonable inference that the person is qualified to provide legal services”.
Know your own boundaries
We also need to be cognisant of our own boundaries. Encroaching on matters in which we are ill-qualified to advise is not in the best interests of our clients. It can also leave us exposed.

Bernie Marks, a member of the LIV’s Taxation and Revenue Committee, raises some pertinent issues in this month’s Law Institute Journal. He says when lawyers rely on the advice of a tax agent instead of a tax lawyer, they must be vigilant not to breach their duty of care to their clients. “The starting point for non-tax specialist lawyers who are retained to provide advice on a general matter in which there might be incidental tax issues – and who are either ignorant of the tax issues or give incorrect or incomplete tax advice – is that they may be liable not only for the tax penalties and interest that the Commissioner of Taxation imposes for an incorrect return but also for the tax that might have been saved had the tax issues been properly addressed,” he writes.

It’s a timely warning as the end of the financial year is upon us.

Clients’ best interests paramount
The rules about engaging in legal practice are about protecting clients. Their best interests are paramount. Sometimes other groups are authorised by legislation to provide a limited range of services, such as conveyancers who are permitted to complete contracts of sale of real estate. However, they cannot go further and commence legal proceedings if the transaction goes awry.
Likewise, not all migration agents are lawyers. The Office of the Migration Agents Registration Authority says to become a registered migration agent, an applicant must satisfy certain “knowledge requirements”. This can be fulfilled with a current legal practising certificate. The other path is in completing the Graduate Certificate in Australian Migration Law and Practice. However, you do not have to be a legal professional to gain this qualification.
Those migration agents who are not legal professionals should be transparent about this. This is especially the case with newly-arrived migrants, who are often vulnerable and may need assistance with a litany of issues that are related to other aspects of the law, such as family and employment law. Instead, the migrant should be referred to an appropriate legal professional with expertise in the area, if they need help with these matters. 

As property lawyer Anne Nielsen points out, you wouldn’t seek the services of an electrician if your plumbing failed. So why would people get legal advice from someone who isn’t qualified in the practice of law?
Have you seen egregious examples of non-lawyers providing legal advice? 
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Reynah Tang
There are no special rules regarding reporting instances of unqualified legal practice.
However, both the Legal Services Board and those who conduct investigations of such offences on its behalf are under strict confidentiality/secrecy obligations pursuant to the Legal Profession Act 2004. And, of course, any member of the LIV is free to speak to either of us, on a confidential basis.

Reynah Tang.
29/07/2013 3:24:06 PM

Hi Reynah/Michael,

What protection is available to people who do disclose instances of unqualified legal practice?

Is there an equivalent to whistleblower laws which protect a complainant if they have genuine and substantiated fear of the repercussions of disclosure?

Do the Legal Profession Act or associated regulations/rules provide for such disclosure?
27/07/2013 1:07:45 PM

Stephen Warne
Ultimately, the inaccessibility of justice in the present system suggests to me that in fact anyone should be able to assist people with legal problems. That should be the starting point for public policy, at any rate, and exceptions carved out from there. The office of lawyer should remain but lawyers, with the advantage of a fidelity fund, professional indemnity insurance, the collegiate advantages of being a member of a profession, and a law degree should have to compete with everyone else. Of course non-lawyers who assisted people with legal problems could obtain legal advice where necessary. Yes, there would be problems, but could they possibly be as great as the problem inherent in the current system, which is that punters cannot afford lawyers, or even lawyers' secretaries?

If non-lawyers who wished to assist others with legal problems had to register on the internet in a forum in which rich client appraisal was encouraged, the crowd would regulate: consider, for example, the success of Airbnb, where such a system has convinced millions of people to rent their homes to strangers whom they can evaluate via their Airbnb profiles.

A great deal of legal practice is commoditised and capable of being carried out perfectly well by laymen educated in that area of practice. And if 'perfectly' is inaccurate, better to have good but imperfect assistance than none.
18/07/2013 2:21:10 AM

Reynah Tang
Thank you for your comment Michael,

We agree that the issue of unqualified practice is of significant importance to the reputation of the profession and the protection of consumers of legal services. The Regulation section of our website includes a wealth of information and resources to assist members:
Reynah Tang
12/07/2013 2:36:04 PM

Michael McGarvie
The issue of unqualified legal practice discussed by Reynah Tang in the LIV President’s blog (28 June 2013), is one which the Legal Services Board recognises as being of great importance to both the profession and to consumers of legal services.

As the peak regulator of the Victorian legal profession, the Board has a responsibility to protect the public and the reputation of the profession by investigating and prosecuting cases of unqualified legal practice.

The Board is on the alert for information or evidence which reveals people who have no legal qualifications are undertaking legal work, or purporting to be able to undertake legal work. Non-lawyers working in the taxation, conveyancing, migration, industrial relations and debt collection sectors are, by our experience, particularly at risk of crossing the line from providing general advice and services to providing legal advice and services. If they do so they will be in breach of the Act, and the Board must respond.

The Legal Services Commissioner holds a delegation from the Board to investigate and prosecute non-lawyers who engage in unqualified legal practice. At 4 July, the Commissioner had 43 open files on this issue, with several matters either due for a hearing in VCAT or awaiting a decision.

However, approximately one quarter of all unqualified legal practice cases involve people who do hold legal qualifications, but do not have a practising certificate. In recognition of the important role the LIV plays in regulating lawyers, the Board has delegated the LIV the power to investigate and prosecute suspected cases of unqualified legal practice by lawyers.

Although often these cases are situations where a new graduate has not applied for a practising certificate, a certificate has not been renewed, or a foreign lawyer has not registered to practise in Victoria, there are instances where practitioners are known to be without a practising certificate because it has been cancelled, suspended or refused.

The Board relies upon the LIV for its expertise in investigating these matters. The work done by the LIV in this area is critical in helping to ensure the profession’s own high standards are maintained.

Michael McGarvie
CEO, Legal Services Board
12/07/2013 12:00:56 PM

Reynah Tang

Thank you for your post in response to my blog. The LIV currently holds a delegation, from the Legal Services Board, to conduct investigations into unqualified practice. The ultimate decision in respect of prosecution lies with the Legal Services Board. Whilst the LIV has undertaken investigations of unqualified people we are very reliant upon LIV members and the public to bring to our notice instances of unqualified practice.

If you have specific examples would you please provide them to the LIV to enable an investigation to be commenced.

Reynah Tang
2/07/2013 5:11:33 PM

Periklis Ginis
When will the LIV undertake to conduct investigations ,gather the necessary evidence to provide the prosecuting authorities with a detailed brief to help them prosecute?
we can wail on the sidelines or be pro-active in protecting our professional rights and reputations and the rights of the general public to proper professional advice.
Until there are a number of prosecutions against accountants,migration agents and others practising in para-legal areas we are to use the venacular,"p.......into the wind"
Cross professional niceties are preventing our interests as legal practitioners from being protected.We act or slowly watch our areas of practice wither!!
Reynah,I would appreciate a direct response to my comments and the proposed action to be taken by the LIV.
PERIKLIS GINIS 0417387159 ,
29/06/2013 6:49:17 AM

Reynah Tang
Thank you for your feedback John, 
These videos were produced to inform the general public and highlight that a lawyer is best placed to provide certain advice in a variety of circumstances. 
You are very welcome to post the video on your website. 
28/06/2013 1:56:19 PM

John Macmillan
Great video and good initiative but first interview of client did not ask whether client bought privately or at auction. Thats not a criticism but an editorial issue.

Do we have a licence to put that on our web site if we decide to do so.?
28/06/2013 12:56:11 PM

Terry McHugh
In my practice, which deals exclusively with workplace relations law, we have noted a huge problem with non-lawyers advertising "expert advice", specialist advocacy" and/or "representation".

We have had numerous cases where clients have come to us after having been lured and misled by these unqualified individuals who are largely unregulated. One of them advises "clients" at his "chambers". Usually percentage fees are charged, giving these operators a huge competitive advantage over genuine lawyers. For example, they may not have any qualifications at all, they may not have any insurance, they are not necessarily accountable to any governing body making it is difficult for their “clients” to make a complaint when their cases go off the rails.

We also receive numerous enquires where dissatisfied individuals are surprised to learn that they have not been dealing with a lawyer at all.

Frequently, cases are inappropriately filed in non-court jurisdictions, because these unqualified advocates don't have the right to appear in court. The clients realise too late that they have lost their other legal rights due to expiration of time, a problem which has been magnified with recent changes to the Fair Work Act lodgement time limits.

On a related subject, lawyers are excluded from appearing in some jurisdictions (e.g. WorkCover conciliations). This is a denial of a very basic human right - to have legal representation (and a restraint of trade for lawyers) - all in aid of insurance company profits.

An analogy is banning doctors from treating patients in hospital; I doubt whether doctors, their patients or the community would tolerate that, yet our profession has been so demonised that governments can get away with what they have done to us.
28/06/2013 12:40:49 PM

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