by Tim O’Dwyer M.A., LL.B
Marty Zelig was a former articled law clerk who, while continuing to study part-time for his law degree, became a project coordinator with a property development company. His new job involved handling all the company’s real estate transactions. So when work-mate Francine Clare and her husband George signed a contract to buy their first home, Marty happily agreed to look after their conveyancing to save solicitors’ costs. There was apparently no question of payment because Marty felt he was merely doing friends a favour.
The purchase proceeded satisfactorily. Settlement was effected on time and without any complications. The sellers’ solicitors, Dobsons, co-operated throughout and seemed quite comfortable dealing at all times with Marty.
Almost a year later Marty was shocked to find himself the subject of an investigation conducted by the Law Society for the Legal Services Commission (LSC). After the sale had settled Dobsons ascertained that Marty was not a solicitor and, quite appropriately, wrote to the LSC. Dobsons questioned whether Marty’s handling of the Clares’ conveyance may have constituted “engaging in legal practice” in contravention of the Legal Profession Act. The relevant section of this Act stipulated that a person must not engage in legal practice (which includes providing conveyancing services) unless the person is a qualified legal practitioner. Dobsons supplied the LSC with a copy of the sale contract showing the buyers as “self-acting”, copies of documents witnessed by Marty as a Justice of the Peace and copies of correspondence from him on his employer’s letterhead. In one particular letter Marty stated that he was “writing for and on behalf of” the buyers who were described as “our clients”.
The Law Society investigation was fairly thorough, if not very prompt. Although Dobsons lodged their “complaint” in November, shortly after settlement, the Society’s follow-up interviews with both Marty and Francine did not occur until September the following year.
Marty willingly explained his position. He told the investigator of his long and close friendship with Francine, that he received no payment and that this was his first, and would definitely be his last, “private” conveyancing transaction. He had not realised the significance of the compromising language used in his correspondence.
When Francine was interviewed she confirmed her friendship with Marty. Her husband, she explained, had approached Marty in the first instance to request his assistance with their conveyancing because they had been aware of Marty’s legal knowledge and experience. Francine also confirmed that they had not paid Marty anything. Nor had he provided them with any legal advice. Rather, he had assisted mainly with the “processes involved”. Finally, Francine had been fully aware of and approved all Marty’s correspondence before it was sent on their behalf to Dobsons.
The Law Society’s report confirmed how Marty had been “open about the matter and his part in the property transaction on behalf of his friend and co-worker.” The report accepted that Francine had read and approved the correspondence and forms drafted by Marty. This arrangement indicated to the investigator that Marty had acted “more in an administrative role rather than in a legal advisory role.”
The report noted in passing that neither Francine nor Dobsons had raised any issue of incompetence on Marty’s part in his handling of the conveyance. No evidence was found of his “making a living” out of conveyancing or handling conveyancing for anyone else – “apart from people that he had a close association with both socially and at work”. Never mind the plight of solicitors who try to make a living out of conveyancing while unqualified “Good Samaritan” conveyancers help friends for free. No matter either that it took some 10 months to ascertain whether or not someone drawn to the LSC’s attention might have been regularly profiting from illegal and possibly incompetent conveyancing.
The report concluded it unlikely, in all the circumstances, that any prosecution would be successful. Nor would it be “in the public interest”. Consequently the Law Society’s recommendation was that the complaint be “summarily” dismissed.
The LSC subsequently supplied Dobsons with a copy of the report while informing them that “no further action” would be taken on their “complaint”. Dobsons were, however, formally thanked for bringing the matter to the LSC’s attention.
(This true story, where real names are not used, first ran in Australian Property Investor Magazine.)
To comment on this article, please return to the Australian Real Estate Blog.