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Vulnerable volunteers

Vulnerable volunteers

Carl Buhariwala

Volunteering can be a valuable part of a law school education but students should be wary of crossing ethical and legal lines, writes Carl Buhariwala.

Many students supplement their university learning experience with practical legal work as a volunteer. This can be a win-win situation for both the firm and the student.

However, students need to be aware of the professional conduct rules and remain cautious if their principal is not taking a strict supervisory role. Otherwise the student and/or principal at the firm could be liable for their misconduct.

As the supply of law students and recently admitted practitioners rises, demand, unfortunately, is not keeping pace. The strict laws and professional rules regarding the supervision of non-lawyers adds time that needs to be taken out of a lawyer’s busy schedule to accommodate the student. In addition, the firms that might be able to hire volunteers are usually cautious of who they select because it is the firm’s reputation and supervising lawyer’s practising certificate that is at stake if something were to go wrong.

As a volunteer, the same ethical duties, responsibilities and obligations apply as if you were an employee. Simply because the student does not receive remuneration should not lower his or her obligations. Regardless of whether the student volunteers at a community legal centre or organisation, law firm, legal organisation or acts as an assistant to a barrister, the professional requirements are to be followed strictly.

The firm places trust in the student and the student is expected to act diligently and prudently. Otherwise, the student should reconsider the commitment they need to make and seek alternative opportunities if they feel that they should be rewarded for their effort and service.

Although the student might feel that he or she has very little input towards the operations of the firm, he or she is still representing the firm and completing the work set. As a student who has volunteered at law firms and organisations, I understand how easy it can be to convey information that might be taken to be legal advice in the matter.

For example, phone discussions should take place with caution. It is possible for a pressing client to create a situation of panic and the student might blurt out information without considering its effect on the matter. Emails and letters should be carefully worded, remain short and not contain irrelevant sentences. These documents should never be signed off by the student. The principal should check all outgoing correspondences and should not rely solely on their faith in the student and turn a blind eye. 

Unfortunately, there is a desire to impress the partner or principal at the firm by doing the work alone. However, that approach might not be all that beneficial if errors go undetected. It can be easy to lapse into a state of lawyering and the student might become overwhelmed with the client’s issue and take the matter into his or her own hands.

This is extremely risky especially if the work done goes unchecked. Student should refrain from taking a leading position on a client's file and ensure that they are not working as the 'lawyer' in charge.

Students should know that they are not allowed, and are unqualified, to give legal advice. As a non-lawyer, he or she should not act or present themselves as being a person capable of giving legal advice. This is also to prevent any claim for misleading and deceptive conduct and a failure in the principal's duty of care.

Principals should supervise the student volunteers and not allow the student’s influence to dominate the nature of advice given to the client. Their lack of experience could cause tangential matters to be discussed that are unrelated to the client’s instructions and potentially lead to other ethical dilemmas. 

Practitioners may consider that they can take on more work because they have a volunteer assisting them. This might be possible. However, the practitioner still needs to supervise the volunteer. This can be a time-consuming exercise and the firm should have procedures and protocols in place so that volunteer students can easily adapt to the working style of the firm.

The legal profession is built upon trust and integrity. Lawyers should avoid situations that breach their fiduciary duties. Students should refrain from doing anything on the file when they are uncertain. Volunteers should not rush their work in the anticipation that it will be sufficient. Discussions with the client should be left to the absolute minimum and everything should be checked by the supervising lawyer. 

Clients will not be happy if their matter undergoes errors in preparation and execution. Students should also be cautious of their actions as they will soon be applying for admission and their character record should not be tarnished. If a student feels that he or she is about to cross a professional boundary, the student should stop and ask for guidance. 

Carl Buhariwala is a fifth-year commerce and law student at Monash University.

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