Legal Profession Act 2007 (Qld) (‘LPA’)
Under the LPA, without a practising certificate you are not a ‘solicitor’ or a ‘legal practitioner’ (even if you were originally admitted as such); you are a ‘lawyer’. The definitions of these terms are in Schedule 2, section 6 and section 5 respectively.
Section 24 of the LPA says that without a practising certificate it is an offence for you to engage in legal practice. Engaging in legal practice is not defined in the LPA but by the common law. It will generally include giving legal advice, so you should not sign anything that involves you giving legal advice. The Society’s view is that you are not permitted, for instance, to act for family or friends, even without payment. Payment is just one of the factors that may be relevant in deciding whether you are engaging in legal practice, it is not conclusive.1
Section 25 of the LPA says that without a practising certificate, it is an offence for you to represent or advertise that you are entitled to engage in legal practice. Accordingly, you need to be careful what you call yourself. In particular you need to take great care in describing yourself as a ‘lawyer’ as, depending on the circumstances, this may be taken to be a representation of an entitlement to engage in legal practice (even though strictly you are a ‘lawyer’ as defined in the LPA).2 Another obvious point to make here is that most lay people, and probably many lawyers, would think that ‘lawyer’ means someone who is able to practise law. You need to avoid any hint of misleading anyone as to your status and entitlements.
Land Title Act 1994 (Qld) (‘LTA’)
You can witness documents under the LTA, such as ‘Transfer - Form 1’. See section 161(2)(b), Schedule 1 and the definition of ‘lawyer’ in Schedule 2 of the LTA.
Oaths Act 1867 (Qld) (‘Oaths Act’)
You can take (witness) an affidavit or statutory declaration under the Oaths Act. See sections 13 and 41 of the Oaths Act and section 36 and schedule 1 of the Acts Interpretation Act 1954 (Qld).
Powers of Attorney Act 1998 (Qld) (‘PAA’)
Under the PAA there are certain documents that are required to be signed by an ‘eligible witness’.
Section 31 of the PAA defines ‘eligible witness’ as including a lawyer, by reference to section 36 and schedule 1 of the Acts Interpretation Act 1954 (Qld) and that a lawyer is an Australian Lawyer within the meaning of the LPA.
Certifying documents
Where you are asked to certify a document as a ‘solicitor’ or as a ‘legal practitioner’ you should not do so, as neither of these terms will apply to you without a practising certificate, as explained above.
Where you are asked to certify a document as a ‘lawyer’, or if you are considering amending the description of your status in the attestation clause from ‘solicitor’ to ‘lawyer’, you should not do so, as this may be taken as a representation of entitlement to engage in legal practice contrary to section 25 of the LPA.3
Where you are asked to certify that a document is a true copy of another document (usually an original), if that is really all that is involved and there is no suggestion of any legal advice, this is unlikely to amount to ‘engaging in legal practice’, which is what you are not permitted to do (see above). However, without authority on point, this should be treated as a ‘grey area’.
Document for use overseas
Under no circumstances should you witness or certify a document for use overseas. This should only be done by a Notary Public.
Professional indemnity insurance
You must not engage in legal practice without this insurance.4 The professional indemnity insurance arranged by the QLS through Lexon Insurance only covers acts done in the course of employment by a law practice. JPs and Commissioners for Declarations have the benefit of legislation protecting them from claims in most circumstances, but you do not.
As you do not have any insurance for signing, witnessing or certifying documents, if you were to do so you would be exposing yourself personally to potential liability, which is a matter for you but, more importantly, any aggrieved party risks being left without an effective remedy if you are unable to meet their claim. It is perhaps unethical, and certainly undesirable, that you should subject any person to this risk. This might even be regarded as unsatisfactory professional conduct. Compulsory insurance is, after all, a fundamental plank of consumer protection in the LPA.
1 Legal Services Commissioner v Walter [2011] QSC 132.
2 Legal Services Commissioner v Beames [2012] QSC 327, [11] – [13].
3 Ibid [11] – [13].
4 LPA ss 353-354.