1.1 We have been asked to inquire into a wide range of matters in relation to the legal profession in New South Wales. Our terms of reference for this Legal Profession Inquiry are reproduced in Appendix I of this Report. This Part, and Parts II and II, of this Report are the responsibility of Messrs. Disney and Gressier, and Judge Martin. Part IV was prepared by Mr. Conacher.

I. The Scope of this Report

1.2 The present Report covers four topics, namely

• The General Regulation of the Profession;
• The Division into Barristers and Solicitors;
• Queen’s Counsel;
• Court Dress.

The following portions of our terms of reference are of particular relevance to those topics.

“To enquire into and review the law and practice relating to the legal profession and to consider whether and, if so, what changes are desirable in

(a) the structure, Organisation and regulation of that profession;

(b) the functions, rights, privileges and obligations of all legal practitioners; and

(c) the provisions of the Legal Practitioners’ Act, 1898, and the Rules and Regulations made thereunder and other relevant legislation and instruments,

with particular reference to but not confined to the following matters

(d) the division of the legal profession into two branches;

(e) the rights of audience of legal practitioners;

the existence or otherwise of monopolies or restrictive practices within the profession;

(g) the right of senior counsel to appear without junior counsel;

(k) the fixing and recovery of charges for work done by legal practitioners, in-cluding the charging by junior counsel of two-thirds of his senior s fee and the fixing of barristers’ fees in advance for work to be done;

but not including an examination of ... legal education prior to admission.”

1.3 A number of issues arise in relation to each of the four areas considered in this Report. The following are amongst the more important of them.

General Regulation of the Profession

Which body or bodies should be responsible for general regulation of the profession? Should there be different systems of regulation for differentsectorsof the profession? Should there be a greater degree of public participation in the regulation of the profession; for example, should governing bodies of the profession include some non-lawyer members? Should there be a system for regulation of restrictive practices within the profession?

The Division into Barristers and Solicitors

Should lawyers be admitted to the profession under a common title rather than as either barristers or solicitors? Should some or all of the existing distinctions between barristers and solicitors be abolished? For example, should they be subject to the same training requirements after admission, and to the same systems for fixing and reviewing fees?

Queen’s Counsel

Should Queen’s Counsel continue to be appointed solely from the ranks of barristers, rather than, for example, also from the ranks of solicitors and academic lawyers? Should Queen’s Counsel continue to be prohibited from appearing without a junior counsel? When both a Queen’s Counsel and a junior counsel act for a party, what rules or practices, if any, should apply to the relationship between their respective fees?

Court Dress

Should there continue to be a special dress for advocates appearing in the higher courts in this State? if so, what should it be? For example, should gowns be retained but not wigs, bar jackets and other formal accoutrements?

1.4 The general regulation of the profession and its division into barristers and solicitors are closely related topics. We deal with them in Part II of this Report. Queen’s Counsel and court dress are considered in Part III. In the remainder of the present chapter we describe briefly the principal methods which we have adopted in order to inform ourselves, and to canvass opinions, about the topics dealt with in this Report and the other topics falling within the scope of the Legal Profession Inquiry.

II. Our Methods of Inquiry

1.5 At the commencement of the Inquiry we issued a general invitation to lawyers and members of the public to make submissions to us. We have received more than 400 submissions from a wide range of people and organisations, including some from other parts of Australia and from overseas. A number of responses have been made in other forms such as articles in periodicals, speeches and press releases. ¹

1.6 We have had discussions with a wide range of lawyers about issues relevant to the Inquiry. Some of these meetings were at our initiative, while others were in response to invitations. They included State and regional law society meetings, barristers meetings, national and international conferences of lawyers, and university seminars, as well as many private interviews. ¹ We arranged meetings on a number of occasions with office-bearers of the Law Society of New South Wales and the New South Wales Bar Association in order to discuss particular aspects of the Inquiry.

1.7 We have also had discussions with a large number of non-lawyers, including members of other professional disciplines such as accountancy and medicine. A special effort was made to obtain the views and experiences of people who do not write submissions to Inquiries or speak at public meeting, but who may nevertheless have well-informed and responsible views to express. We conducted “open houses” in eight country and six suburban centres where, at well-publicised times, a member of the public could talk privately to a member of the Commission (or, less frequently, to a member of the Commission’s staff about his or her experiences with lawyers. More than 300 people attended these open houses. More than 500 other people telephoned, visited or wrote to us at the Commission. In addition we examined over 600 files in which the Law Society of New South Wales or New South Wales Bar Association had dealt with complaints against their members, and we obtained information about many hundreds of other complaints. ¹

1.8 A considerable amount of empirical research has been carried out, or initiated, by the Commission. Statistical analyses were made of extensive samples of complaints about lawyers. ¹ The operation of the “fused” legal profession in South Australia was the subject of a series of statistical surveys, as was the work of accountants in examining solicitors’ trust accounts in New South Wales and Queensland. ² We co-operated with the Law Foundation of New South Wales in an extensive questionnaire survey of the profession in this State. ³

1.9 We also undertook or commissioned bibliographical research into the history and present operation of the legal profession, and of certain other professions, in New South Wales and many other parts of the world. We have been assisted in this work by a number of academic consultants from law and other disciplines. ¹

III. Discussion Papers and Background Papers

1.10 With the benefit of the information and ideas obtained by these means, we prepared and published a series of six Discussion Papers on various topics falling within our terms of reference. These Papers described the present position in New South Wales and made tentative suggestions for change in certain respects. They were supplemented by five Background Papers containing further information about the position in New South Wales and in some other places. ¹

1.11 The Discussion Papers were published in order to obtain the benefit of responses to tentative suggestions before we decided upon final recommendations to be made in our Reports. The Papers received considerable publicity in the media, resulting in further submissions and other responses to us. They were also the subject of seminars and of sessions of lawyers’ conferences in New South Wales and elsewhere.

1.12 Two of the Discussion Papers, General Regulation and The Structure of the Profession, covered the areas with which we deal in this Report. Suggestions made in them, and responses which they evoked, are referred to in subsequent chapters. The responses have influenced our final recommendations to a substantial extent, both on general issues and on points of detail.

Para.
1.5	1. Submissions and certain other responses are listed in Appendices II and III of this Report.
1.6	1. In New South Wales, meetings were held with the Liverpool and District Law Society, the St George-Sutherland Law Society, the Clarence River and Coffs Harbour Law Society, the Hunter Valley Law Society, the Near Western Law Society, the Central Western Law Society, the South West Slopes Law Society, and the Western Suburbs Law Society. Conferences at which discussions were held included those of the Law Society of South Australia, the Law Society of Tasmania, the Eastern Solicitors Law Association (Victoria), the Law Council of Australia (1979, 1981), the New Zealand Law Society, the American Bar Association and the International Bar Association. Two seminars were organised at the University of New South Wales in 1979 and 1981 respectively.
1.7	1. For further details of the inquiries mentioned in this paragraph, see our Discussion Paper, Complaints, Discipline and Professional Standards-Part I, and our Background Papers I and III.
1.8	1. The reports on this research are contained in Background Paper - III .
	2. For the reports of these surveys see, respectively, Background Papers IV and V.
	3. A report on the results of this survey has been published by the Law Foundation: see Tomasic and Bullard, Lawyers and their Work (1978).
1.9	1. Some of the results of this research have been summarised in our Discussion Papers and in Background Papers II and IV. Our principal academic consultants on topics relevant to the present Report are listed in Appendix IV.
1.10	1. The Discussion Papers and Background Papers are listed on page v of this Report.