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Papua New Guinea Law Society v Stegman [1997] PGNC 57; N1571 (9 May 1997)

Unreported National Court Decisions

N1571

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 88 OF 1997
BETWEEN
PAPUA NEW GUINEA LAW SOCIETY - Informant
And
RICHARD STEGMAN - Defendant

Mount Hagen

Injia J
17 February 1997
9 May 1997

LAWYER - Prosecution under Lawyers Act 1986 - Company employee not a “lawyer” and not admitted to practice under the Act calling himself “Legal Officer” and head of Company’s Legal Department - Whether such person holds himself out or represents himself to be a Lawyer - Lawyers Act 1986, S.60(1)(b).

Cases Cited:

No cases are cited in the judgment.

Counsel:

P Kunai for the Applicant

R Stegman in person

9 May 1997

INJIA J: This prosecution is brought by the Papua New Guinea Law Society (PNGLS) against the defendant under the Lawyers Act 1986 (herein after referred to as the “Act”). The prosecution was initially commenced in the District Court at Mount Hagen but because of the definition of “Court” in the Act, to mean the National Court, the case was transferred to this Court under S.23 of the District Courts Act (Ch. No. 40).

The PNGLS is empowered by the Act to institute prosecutions against any person who is not a lawyer for breach of provisions of the Act: S.8(d).

By information dated 6 November 1996, the PNGLS charged the Defendant under S.60(1)(b) of the Act. The charge reads in part “that on 20th May 1996 and 19 August 1996 at Mount Hagen, you Richard Stegman have held yourself out or represent yourself to be a lawyer when you have not been admitted to practice as a lawyer” thereby contravening Section 60(1)(b) of the Lawyers Act No. 66 of 1986.

Section 60 (1) (b) of the Act provides:

“(1) It is an offence for a person who has not been admitted to practice as a lawyer:

(a) ...

(b) to hold himself out or represent himself to be a lawyer.

Penalty: A fine not exceeding K1,000.00.”

Section 1 defines a lawyer as a person who has been admitted to practice as a lawyer under the Act.

It was alleged by PNGLS that on 20 May 1996, the Defendant swore an affidavit in support of a pending Court case before the District Court in Mount Hagen wherein he identified himself as a “Legal Officer”. It is further alleged that on 19th August 1996, the Defendant wrote a letter to the Lawyer for Steamships Trading Limited in relation to a pending Court case wherein he again identified himself as a “Legal Officer”.

The Defendant denies the charge. In his affidavit evidence, he admits that he deposed to the said affidavit and wrote the said letter and called himself a “Legal Officer” of his employer companies even though he is not a “lawyer” within the meaning of the Act. But he denies that in so doing, he held himself out or represented himself to be a lawyer. The Defendant in his affidavit gives a detailed explanation as to why he is not guilty of committing an offence under S.60(1)(b) of the Act by calling himself a “Legal Officer”. It is necessary to set out his affidavit in full. He says:

“1. My name is Mr Richard Stegman and I am not a Lawyer.

2. I have been employed since the middle of December 1995 as Head of the Legal Department or the Officer in charge of the Legal Department at Plumes & Arrows. See Appendix, ‘A’.

3. Because I am the Head or Officer in charge of the Legal Department at Plumes & Arrows I can use the phrase, “Legal Officer”, in Affidavits and other Correspondence which refer to legal matters.

4. The main work of this Department is:

(a) Drafting Civil Default Summonses against Individuals, Companies, and Government Departments for the non-payment of outstanding debts.

(b) Drafting Defences, Affidavits, Notices etc. for the same Civil Default Summonses against Individuals, Companies, and Government Departments.

(c) Attending hearings and Trials of the same to their completion.

5. The Legal Department at Plumes & Arrows does not charge for its services. It solely takes outstanding invoices passed on to it from the Accounts Department and issues Civil Default Summonses against Individuals, Companies, and Government Departments, whatever the case may be. The Department is only interested in collecting the money owed to it (Plumes & Arrows) by various Individuals, Companies, and Government Departments. The Legal Department does not accept work from outside Companies, neither does it offer legal advise.

6. I have been accused of offending Section 60(1)(b) of the Lawyer’s Act No. 66 of 1986. The Law reads and I quote, “It is an offence for a person who has not been admitted to practice as a lawyer to hold himself out or represent himself to be a lawyer”, end of quote. I deny most vigorously this accusation because of the following reasons:

(a) The expression, “Legal Officer”, around which the entire case hinges can be defined as someone who is in charge of a Legal Department and who handles the legal matters of that Department. This individual does not have to be a Lawyer. He can be any well educated individual. The Defendant is the legal Officer of the Legal Department of Plumes & Arrows. See Appendix, ‘A’.

(b) Further, because the Defendant is employed by Plumes & Arrows as head or Officer in charge of the Legal Department which drafts Civil Default Summonses against Individuals, Companies, and Government Departments for the non-payment of outstanding debts, he can use the phrase, “Legal officer”, in Affidavits and Correspondence referring to legal matters without holding himself out or representing himself to be a lawyer.

(c) Further, in the portion that I have received of the Lawyer’s Act (57, 58, 59, 60 & 61) the phrase, “Legal Officer”, is not defined in the Lawyer’s Act as being synonymous with the word Lawyer. In fact it does not define the phrase, “Legal Officer”, at all. Neither does this portion of the Lawyers Act, that I have received, state or imply that to use the expression, Legal Officer”, one is holding oneself out or representing oneself to be a lawyer. So how is the Defendant offending against this Act?

Further if the expression, “Legal Officer”, can be construed to mean Lawyer there would be other such phrases in the English language that could be interpreted to mean lawyer thus creating possibility after possibility for an individual to offend against this Act. Individuals would be subject to the whims of other individuals and groups.

It would also appear that whenever an individual places the adjective “Legal” in front of a significant word he or she can be in danger of holding him or herself out or representing him or herself to be a Lawyer. Certainly this was not the intention of the law maker.

(d) Further, the wording of Section 60 (1) (b) of the Lawyer’s Act has too broad a meaning, includes too many possibilities, thus opening itself for misinterpretation, abuse and the whims of other individuals and groups. What exactly does the phrase, “to hold himself out or represent himself to be a lawyer”, mean? Where are the practical, concrete examples to clarify this expression so that it can be made applicable to individual cases. There are no Section or Subsection references with this phrase in the Lawyer’s Act Section 60 to clarify it. So if one uses the expression, “Legal Officer”, how does one know he is holding himself out or representing himself to be a Lawyer?

(e) The Affidavits that have been presented in the court proceedings with the phrase, “Legal Officer”, underneath the signature of the Defendant have been accepted and NOT REJECTED by the various Magistrates in the District and Local Courts. Consequently the Magistrates themselves did not think that the Defendant held himself out or represented himself to be a Lawyer by using the expression, “Legal Officer”, else they would not have accepted them.

(f) The Defendant has not held himself out or represented himself to be a lawyer by attending in court to the Default Summonses for Plumes & Arrows. Magistrates themselves can allow various individuals to attend to cases in court if they think they are suitable. The Defendant has been presenting cases in court for Plumes & Arrows for over a year now. The total number of cases (some concluded, some still pending) are over 80. The Defendant has been allowed by the various Magistrates to attend to these Civil Default Summonses in the District and Local Courts to their completion. Thus the Magistrates have given the Defendant TACIT PERMISSION to act in this capacity.

(g) The Magistrates themselves know that the Defendant does not hold himself out or represent himself to be a lawyer in court by the fact that they always attend to the cases of the Lawyers first before they let the Defendant present his case or cases.

(h) The Defendant himself does not hold himself out or represent himself to be a Lawyer by his conduct in court and at the Registrar’s Office. In court he sits in the back with the onlookers and only approaches the Lawyer’s bench when his case is on or he is told to by the Magistrates themselves. At the Registrar’s Office the Defendant waits with the other people outside the grill until the clerks have time to serve those waiting.

(i) In conclusion I have never called myself a Lawyer. I have never written, “Lawyer”, under my name. I have never had a desire to be a Lawyer. With all due respect I have Certificates and Degrees from the U.S.A. that have been harder and longer to get than the LLB Degree.”

His evidence is supported by the evidence of Mr Peter Van Fleet and Peter J. Spencer who are the “owners” of Budoa Investments Pty Ltd, Tribal World (PNG) Pty Ltd and Minj Hotels Pty Ltd. Mr Stegman is said to be the “Legal Officer” of all these companies as well as Plumes & Arrows Hotel.

I agree with both parties that the central issue in this case is whether a person who is not admitted to practice as a lawyer under the Act and calls himself a “Legal Officer” holds himself out or represents himself as a lawyer within the meaning of S. 60 (1) (b) of the Act. The Defendant admits that he is not a lawyer as defined under S. 1 of the Act. He submits that because the definition of a “Lawyer” in the Act does not mean or include a “Legal Officer”, it is not an offence under S. 60 (1) (b) to call himself a “Legal Officer” and do the things he is presently engaged in doing for his employer. It would be a logical extension of his argument that if he called himself a “Lawyer” when he was not admitted to practice as a lawyer under the Act, and did the very things he is doing now, he could be held in breach of S. 60 (1) (b).

Counsel for the prosecution submits that although the definition of the word “Lawyer” in the Act is not wide enough to include terms like “Legal Officer”, the use of the term “Legal Officer” in the documents in Court proceedings misleads the public and the legal profession into thinking that he is a lawyer duly admitted to practice under the Act when in fact he is not and therefore, he is in breach of S.60 (1) (b) of the Act.

It is necessary to define the term “Legal Officer” in the generic sense. If in a generic sense, “Legal Officer” means a “Lawyer”, is Mr Stegman representing or holding himself out as a “Lawyer” by calling himself a “Legal Officer” within the meaning of S. 60(1)(b) of the Act? To assist me in my task of interpreting the words “Legal Officer”, I am not referred to any authorities or treatises by both parties.

In my view however, the ordinary English meaning of a “Lawyer” and “Legal Officer” is beyond doubt. A “Lawyer” is defined as a member of the legal profession, or a person versed in law: The Concise Oxford Dictionary. The word “Legal” is an adverb of the word “Law”. “Legal” means according to or relating to, based on, falling within the provisions of or occupied with law: The Concise Oxford Dictionary. The phrase “Legal Officer” has a wide meaning. In a generic sense, a “Legal Officer” is synonymous with a “Lawyer”. In other words, a “Lawyer” is a “Legal Officer”. A legal officer is therefore a person who performs duties in the field of law. He could be an adviser on matters of law, he could be involved in the preparation and publication of legal documents, he could represent people in legal matters in meetings, at negotiations, and in tribunal or court hearings. In either situation, a person who calls himself a “Legal Officer” or a “Lawyer” must possess some qualification knowledge and skill in the field of law to call himself a “Legal Officer” or a “Lawyer”.

The statutory definition of a “Lawyer” in the Act is a restricted one. Not every person who calls himself a “Lawyer” is a “Lawyer” within the meaning of the Act. For instance, a Law Graduate who only holds a LLB degree and completed pre-admission courses at the Legal Training Institute only or a person whose previous admission has expired but is not renewed may call himself a “Lawyer” without being admitted to practice under the Act - in a generic sense without offending S. 60 (1) (b). For there are many kinds of legal work that a person who possess a legal qualification (such as law degree) and legal experience but who is not admitted to practice under the Act can do. For example, he could be a legal adviser or officer of a government department, a company, an institution, etc. Therefore, it seems to me that what is important under S. 60 (1) (b) is not what legal name a person calls himself per se but having given himself a legal name, what that a person does. It is really a question of what a person admitted to practice law under the Act is entitled to do or things which a person not admitted to practice under the Act is not entitled to do.

The next logical question then is whether the Act defines or prescribes those activities which are exclusively reserved for persons admitted to practice as “Lawyers” under the Act.

Upon admission to practice as a lawyer, a person may be either issued with an unrestricted or restricted practicing certificate: S. 39. The holder of an unrestricted practicing certificate “entitles” that person “to practice as a lawyer in any manner allowed under the Act”. S. 39 (3). A restricted practicing certificate holder “entitles the holder to practice as a lawyer, but not - (a) on his own account: or (b) in partnership with another lawyer; or hold moneys in trust for another person who is a client”: S. 39 (4). But the Act does not specifically define what “practicing as a lawyer” involves in terms of legal work. I am also not aware of any prevailing promulgation or regulations or rules under the Act.

Section 60 (2) & (3) may provide some assistance on this point. Section 60 (2) - (3) define specific offences relating to the conduct of non-lawyers who do specific things which only lawyers admitted to practice under the Act can do. S. 60 (2) & (3) provides:

“(2) Subject to Subsection (3), it is an offence for a person who has not been admitted to practise as a lawyer, in expectation of a fee, gain or other reward:

(a) to draw or prepare a will or other testamentary settlement; or

(b) to draw or prepare a conveyance or other deed or instrument in relation to real or personal property; or

(c) to issue, defend or carry on a court action or proceedings in the name of another person.

Penalty: A fine not exceeding K1,000.00.

(3) It is not an offence against Subsection (2) where the person:

(a) drawing or preparing the will or other testamentary settlement; or

(b) drawing or preparing the conveyance or other deed or instrument in relation to real or personal property; or

(c) issuing, defending or carrying on a court action or proceedings in the name of another person, was, at the time of the alleged offence -

(d) a public officer, who draws or prepares documents in the course of his official duty; or

(e) an employee of a lawyer admitted to practise who, in his capacity as an employee, carries out general legal work in the ordinary course of his employment on behalf of his employer.”

It may be inferred from S. 60 (2) and (3) that the specific things set out in (2) (a), (b) and (c) are reserved for lawyers admitted to practice under the Act. They are things which only lawyers admitted to practice under the Act can do and they’re entitled to charge a fee or receive a gain or reward for doing those things. A person who is employed and paid by a company to do these things may be deemed to be a person who is engaged to do them “in expectation of a fee, gain or other reward” . That gain or reward is in the form of his salary, a form of income received for performing legal work. The only exceptions are if he is a “Public Officer” of the company or an employee of a lawyer admitted to practice under the Act: S. 60 (3) (d) (e).

The evidence in the instant case is that the Defendant whilst calling himself a “legal officer” is engaged as an employee of the Budoa Investments Pty Ltd trading as Plumes & Arrows. He is the head of the Legal Department” of these companies for which I assume the position is fully funded and remuneration provided for the person so employed. Mr Stegman holds no secret about being a legal man with legal knowledge and skill and his ability to do things which only a lawyer admitted to practice under the Act is entitled to do. For instance, in his affidavit of 20th May 1996 filed in the District Court in Mount Hagen in the matter of DC No. 80/96 between Budoa Investments Pty Ltd trading as Plumes & Arrows v (1) Mr Danny George, (2) Mr Tommy Goddard and, (3) New Guinea Motors Pty Ltd, he deposed to the following:

“(2) I, Richard Stegman am the Legal officer of Budoa Investments Pty Ltd, Tribal World (PNG) Pty Ltd; and Minj Hotels Pty Ltd, and act on behalf of Mr Peter Van Fleet, the Director, and Mr Peter James Spencer, the owner in this matter.”

It is not disputed that the Defendant is not a Public Officer of these Companies such as a Director or Company Secretary. There is also no dispute that he is not employed by or works under a lawyer admitted to practice under the Act. Therefore, I find that he does not fall into the exceptions in S. 60 (3) (d) or (e). But he has been preparing and issuing, proceedings, defending or carrying on court actions and acting on behalf of or in the name of these companies and their Directors and proprietors. In other words, by doing the very things he is prohibited from doing or doing the things only lawyers admitted to practice under the Act can do, he has been holding himself out or representing himself to the public in Mount Hagen, the Lawyers, the Lower Courts, and the Court Registry staff to be a lawyer admitted to practice under the Act. He has been employed by these companies for a reward in the form of his salary. He has not told the District Court that he is not a lawyer, that he is not a Public Officer or that he is not employed by a lawyer as a clerk, etc. for which he would require the leave of the Court to appear in Court on behalf of his clients: District Courts Act (Ch. No. 40), S. 59 (1)(e), Local Courts Act (Ch. No. 41), S. 24 (1)(e).

He has deposed before the District and Local Courts that he acts on behalf of these Companies and on behalf of the Director and proprietors and is entitled to do as a “Legal Officer” of the companies. But he does not posses any legal qualifications whatsoever which might put him in the category of “Legal Officer” in the general sense. The preparation of affidavits in these proceedings and in the District Court in Mount Hagen and correspondences issued by him to Lawyers suggest that he has acquired some knowledge and experience somewhere in matters of law and procedure and thereby he’s able to call himself “Legal Officer” and do the very things he is prohibited under the Act and which activities only a lawyer admitted to practice under the Act is entitled to do. In so doing, he has held himself out or represented himself to be a “Lawyer” within the meaning of S. 60 (1)(b) of the Act.

For these reasons, I am satisfied that the PNGLS has proved its case to the required standard of proof, that is, proof beyond reasonable doubt. I find the Defendant guilty of contravening S. 60 (1) (b) of the Lawyers Act. I will now proceed to administer the allocatus, receive submission on sentence and determine the appropriate punishment.

Lawyer for the Informant: Kunai & Co Lawyers

Defendant in person