A practitioner of more than 30 years’ experience has been fined and publicly reprimanded for practising without a certificate.
In an on-the-papers decision delivered on Friday in the Queensland Civil and Administrative Tribunal in Brisbane, the practitioner was found to have engaged in unsatisfactory professional conduct in mid-2023.
The Legal Services Commissioner (LSC) alleged 11 charges that the practitioner represented that he had an entitlement to engage in legal practice and that he engaged in legal practice, when he was not entitled to do so.
He had held a practising certificate since his admission in 1983 until 2012, and between 2014 and 2016, but not after.
In May and June of 2023, the practitioner undertook legal work for an energy company. It included preparing documents including a shareholders’ agreement, IP licence agreement, and employment agreements.
Correspondence he issued sometimes used a header containing the practitioner’s name and the words “Corporate Advisor” and “Lawyer”, and purported that he was acting for clients.
The practitioner agreed with the LSC’s characterisation of his conduct and the proposed sanction.
In his evidence, he deposed that after 2016, he continued to use the title “lawyer” in some correspondence “as I was unaware that doing so may have been in contravention of the Legal Profession Act 2007 (Old) in that I may be “representing an entitlement to engage in legal practice when not entitled””.
“From when I ceased to hold a practising certificate, my honest belief was that using the term “Lawyer” as part of my letterhead, which was used for some limited correspondence, might give rise to a view that I may be offering legal services or undertaking legal work. To this end, in my fee agreements I specifically stated that I was not providing primary legal advice,” he stated.
“My use of the term “Lawyer” was only intended to convey the fact that I was admitted as a lawyer on the Queensland Supreme Court roll of solicitors – and whatever that might imply.”
The practitioner deposed that his intention was to help the energy company resolve a dispute between shareholders.
“It was wholly unintentional on my part during this period that I was actually or intending to provide primary legal advice or undertaking legal practice, but rather was seeking to provide commercial advice to deal with a commercial dispute,” he deposed.
Justice Kerri Mellifont said the facts demonstrated the practitioner had contravened Sections 24 and 25 of the Legal Profession Act 2007 (Qld), albeit confined to dealings involving one energy company.
She said she agreed with the parties’ characterisation of the conduct as unsatisfactory professional conduct, and considered the proposed sanctions appropriate.
“It is a serious matter to represent oneself to be entitled to engage in legal practice and to engage in legal practice when not entitled to do so,” she said.
“In some circumstances, more significant sanctions would attach. However, the overall circumstances of this case are that a public reprimand and modest pecuniary penalty are appropriate.
“In that regard, I accept (the lawyer’s) explanation that he did not intend to hold himself out as entitled to engage in legal practice, and did not intend to engage in legal practice without a necessary practising certificate.
“(The lawyer) has readily admitted that his thinking in that respect was not sufficiently clear, and that he ought to have been more careful in the way in which he conducted himself.
“He has been fully cooperative with the LSC in its investigation and in these proceedings, including by participating in a compulsory conference even before the first directions hearing of the matter was called.
“He has actively, and without fuss, engaged in the process of reaching agreement on the facts without any apparent attempt to minimise his conduct.”
The practitioner gave a signed undertaking to the LSC that he would not engage in legal practice and/or represent an entitlement to do so unless he had an appropriate level practising certificate.
He was also ordered to pay the LSC’s costs.
Read the decision here.
For help with ethical issues, call on the QLS Ethics Centre.
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