Legal Services Commissioner v Raghoobar

This judgment provides a detailed consideration of the terms “engage in legal practice” and “practice law” within the meaning of Legal Profession Act 2007. The issue was whether a person had engaged in legal practice when he was not qualified to do so contrary to s 24(1) of the Act. In a comprehensive judgment his Honour held that it was apparent, on any view of the matter, that the respondent had undertaken the unauthorised practice of law.

Martin SJA

28 March 2023

The respondent, previously employed as a consultant for various regional law firms, [17], came to the attention of the Commissioner, who sought orders to restrain him from engaging in legal practice (when not qualified to do so) and orders relating to the provision of legal advice, the creation of correspondence on behalf of parties, drawing documents on behalf of parties and giving advice to parties about court proceedings. [2].

Section 24 Legal Profession Act 2007 prohibits participation in legal practice unless the person is an Australian legal practitioner. Section 6(1) defines an Australian legal practitioner as an Australian lawyer who holds a current local practicing certificate or a current interstate practicing certificate. The term “engage in legal practice” is given an inclusive definition in Sch 2 of the Act, namely, it “includes practice law”.

The courts have previously considered what “engage in legal practice” entails. Two Queensland cases are of note. In Legal Services Commissioner v Bradshaw [2009] LPT 21 Justice Fryberg likened “engage in legal practice” and “practise law” to being the professional equivalent of “carry on business”. [11]. His Honour expressed the view that indicia of practicing as a lawyer would include evidence of:

• continuity of repeated acts;
• payment for those acts;
• seeking business;
• a business system;
• the keeping of books and records; and
• a client base.

In Legal Services Commissioner v Walter [2011] QSC 132 Justice Daubney took a different approach. He disagreed with Justice Fryberg’s equation of practising law with the running of a business, instead holding that the terms “engage in legal practice” and “practise law” invoke the notion of carrying on or exercising the profession of law, rather than the “business” of law.” [12]–[13].

His Honour was inclined to adopt this reasoning, that is, that one considers whether or not a person has been exercising the profession of law. Nonetheless, he recognised the utility of the factors identified by Justice Fryberg in the overall assessment of the activities of such a person. [16]. On the facts of this case, it was apparent that the respondent had engaged in legal practice when he was not qualified to do so. The evidence was “replete with examples of that being done” in that he had undertaken a range of activities including:

• assisting with drafting applications and affidavits;
• drafting miscellaneous documents for use in court;
• advising parties to litigation in respect of matters of law and procedure and assisting them in case preparation;
• drafting correspondence to be sent to the other side; and
• charging clients for work completed. [29].

The fact that he expressly informed his clients that he was not holding himself out to be a legal practitioner was irrelevant. [24].

On examining the activities undertaken by the respondent his Honour was satisfied that he had engaged in legal practice. [30].

Disposition

Pursuant to s 703(2) Legal Profession Act 2007, the respondent was restrained from engaging in legal practice in the State of Queensland when not an Australian legal practitioner. [31].

A Jarro