Investigation of a Good Samaritan Conveyancer
OPINION
by Tim O’Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au
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”.
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4 Comments
Thanks for the article, Tim.
It seems to me that people naturally help their close friends for no recompense. However, friends should not be put at risk.
What concerns me about inexpereinced friends helping out in this situation is that conveyancing and associated activities (not including the marketing of the property) require a high level of technical knowledge and experience. There are countless serious tricks and traps for the uninformed. Qualifications are insufficient without experience.
Marty clearly did not appreciate the risks – otherwsie he would have identified the risk to himself.
The Clares should count themselves lucky that nothing aparently went wrong. I say “apparently” because probolems may not be identified until after the Clares have SOLD unless they retain a competent professional to check the process. In my view, what they did was like having unprotected sex with a stranger : it may be okay but you never know and any bad consequences are potentially very serious.
If a good samaritan gave a friend free surgery, their noble motives would certainly not stand up as a defence if they weren’t legally qualified to do so.
Even if nothing went wrong this time, the law has to take a stance to deter it in the future.
Completely agree with Geoffrey Adam, it is a qualified and experienced lawyer job that should dealt with professionally.
I think it comes back to competence and attentiveness. Not necessarily a lawyer job by default though Sajen.
I’d take a dilligent licensed conveyancer over a nonchalant jack of all trades solicitor any day.
Speaking as a selling agent here I find the latter are often spread too thin. I mean no disrespect to the broader Legal profession. Anyone that knows me can attest to this. I have many friends in Law.
I also preface what I’m about to say with the following: There is a huge difference between a property lawyer and a practitioner who occasionally dabbles in conveyancing.
It has just been my experience that some solicitors are almost too smart or too diversely skilled for their own good. Perhaps it is because there is no particular intellectual challenge for them in this area.
The impression given to me is that a minority of solicitors see conveyancing as a chore or a bore, often making them not only more expensive but also less effective than many licensed conveyancers who actually enjoy what they do.