by Arna Delle-Vergini

Back in the day – (I can actually write that and get away with it) – if you were interested in social justice you spent your entire law degree volunteering at (usually) the local CLC. This was purely self-enforced  – it was not part of a legal practice subject that we had to take, as it sometimes is now. But, not only did that experience provide you with the most illuminating introduction to professional life around, it also gave you the “competitive edge” when applying for legal jobs post-admission.

These days, I am told, things are very different. There are few jobs going around and graduates are knocking themselves out just getting paralegal roles. Some would say, there is competition even for volunteering roles. I can well understand this. Volunteering is one of the main in-roads to employment. It is also, in my view, a “must-have” for any emerging lawyer for three basic reasons:

• It provides you with invaluable experience of law in practice. Not only do you learn how law is done but you learn a lot about the people actually ‘doing law’;
• It connects you with other people in the industry and, more importantly, potential employers;
• It creates a “no strings attached” opportunity for you to test out if this is actually what you want to be doing in the first place! Not everyone is suited to law and vice versa.

It also goes without saying that volunteering for altruistic reasons is a worthy goal in-and-of itself. There is enough science to suggest that pursuing altruistic goals is the trait most strongly associated with sustained life satisfaction.[1] And yet I have met many graduates who started out volunteering as students for altruistic reasons but now, basically, are just looking for opportunities they hope will lead to employment. And, let’s face it, these voluntary positions often do.

Volunteering in the legal industry, however, has its dangers. This is particularly so for graduate lawyers who are admitted to practice but do not hold current practising certificates. As a lawyer you are bound by the Legal Profession Act 2004 (Vic) (and associated rules) which includes, of course, not undertaking practice as a lawyer without a current practising certificate.[2] Breaching this rule, incidentally, is a commission of an offence attracting a maximum penalty of two years imprisonment.

This creates somewhat of a tension around what graduate volunteers can and cannot do to obtain the experience they need to be competitive in this current environment. How do you get great work experience without crossing the line? The answer to that question depends on the answer to the obvious question: what does undertaking “legal practice” actually mean?

There is no real definition of legal practice under the Legal Profession Act 2004 (Vic). The Legal Services Board (in an unrelated factsheet on supervised practice, but from which inferences can be drawn) view the following three types of work as constituting legal practice:

• Giving legal advice
• Interpreting legislation or case law
• Drafting contracts

The LSB also view ‘paralegal work’ (which is what you should be doing) as not constituting legal practice, though there is no legislative definition of “paralegal” either.

If in doubt, the LSB suggest that you should ask yourself the following three questions:

• Is the work normally done by a solicitor?
• Does the work require necessary training or expertise in the law (e.g. to give legal advice)?
• Do you have a client?

The LSB’s position roughly correlates with the accepted common law authority on what constitutes “legal practice”: Cornall v Nagle [1995] 2 VR 188.[3]  There, Phillips JA outlined three areas of work which would constitute legal practice:

(1)    Work done, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor; (my italics)

(2)    By doing something positively proscribed by the Act or by the Rules of Court unless done by a duly qualified legal practitioner.

(3)    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.

This, again, is quite broad but provides a useful guideline.

Finally, a helpful factsheet has also been prepared by the Law Institute of Victoria which covers the above considerations. It also confirms that lawyers can delegate legal work to paralegals, however, this does not extend to work that must only be done by a legal practitioner. Back to the same thorny question: exactly when does a person engage in legal practice?

Ultimately, the question as to whether you are engaging in ‘legal practice’ is one of fact. There is no legislative definition of legal practice and the common law authorities’ concept of “legal practice” is not terribly specific. Like so many questions in law, it has to be determined on a case-by-case basis.

So what should you do if you are undertaking work as a volunteer that you feel might fall within the ambit of “legal practice”? If you are not in a position to get a practising certificate yourself (and if you are newly minted you are unlikely to be in that position) then you can do one of two things:

a)      Contact the LIV Ethics Department (03 9607 9336) and discuss it with them – keeping in mind that the answer they give you is not “advice” but “guidance”, and/or apply for an Ethics ruling – again, “guidance” rather than a determination of the facts.

b)      Leave and move onto another voluntary placement.

At the end of the day, these rules are designed to protect consumers of legal services in Victoria. If you firmly believe you are undertaking the work of a solicitor and you are neither qualified nor insured, then you are under a professional obligation to cease that work. The odds of that actually happening in a law firm are, in my view, pretty slim. Most firms are aware of their obligations regarding volunteers and, whilst views may vary as to what constitutes legal practice and what does not, let’s face it – this is voluntary work – no-one can force you to stay!