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REIQ Journal : June 2008
INDUSTRY PRACTICE 17 Summary The LPA is designed to protect the consumer by ensuring that only a registered Australian legal practitioner is permitted to give legal advice. There are some inbuilt exemptions to this reservation of legal work and one of those exemptions recognises the role of a PAMD Act licensee or employee as set out in section 24. (3B) However, a PAMDA licensee’s work does not include – (a) giving legal advice in relation to a property contract or other document; or (b) providing, preparing or completing a document prescribed under a regulation. Summary It has never been the role of a licensee to give legal advice in relation to a property contract or other document. This section simply reflects what has always been the accepted position. The giving of legal advice is not defined in the LPA 2007 but has been recognised at common law to include any of the following: (1) doing something which, 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; (2) doing something that is positively proscribed by an Act unless done by a duly qualified legal practitioner; (3) 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 experience in the law. It is most important for a licensee to know the extent of his or her role and where the “line in the sand” is drawn regarding the preparation of the property contract and other documentation, and the extent of advice provided. Simply put, if a licensee originally drafts special conditions or gives legal advice about the legal consequences of failure to comply with a condition in a contract for example, then the common law definition of engaging in legal practice may be satisfied. The consequences of breaching the LPA include a fine of $22,500 or two years imprisonment. Other legal consequences may follow. REIQ Journal June 2008