A. INTRODUCTION
11.1 This chapter is written by R D Conacher, Deputy Chairman of the Commission. I have particular views, sometimes amounting to dissent, on many of the recommendations made elsewhere in this Report. In sections B to F of this chapter I discuss some matters at length:
B. -Common admission
C. -Government regulation
D. -The Public Council on Legal Services
E. -Professional councils: powers on sufferance
F. -Public members; conflict of interest
G. -Queen’s Counsel
H. -Court Dress
In the last section, section 1, comments are given on the recommendations of the majority one by one.
11.2 In this chapter, in relation to a structure in which a lawyer is admitted as a barrister and solicitor, I use “barrister” to mean a lawyer holding a practising certificate from the Bar Council and “solicitor” to mean a lawyer holding a practising certificate from the Council of the Law Society. I use “member services” to cover what I think the majority mean by “trade union activities” and also to cover social activities.
11.3 I have put views on many matters on which I differ from my colleagues in Part 2 of this Commission’s Discussion Paper (No.4) on the Structure of the Profession. in general I shall not go over the same ground in this chapter.
11.4 The majority find an explanation for much of the difference of opinion between them and me in relation to existing distinctions between barristers and solicitors. They find the explanation in their adherence to a basic principle. I take the inference to be that I do not adhere to the principle. The principle is that if a distinction is to be drawn between practitioners in relation to a particular matter, it should be based on a criterion which corresponds to the justification for making the distinction. I am not aware that I have put forward anything inconsistent with the proposition. I think that our differences depend on other things. As regards the Bar, I gave emphasis in the Discussion Paper on Structure of the Profession to its character as a professional group of lawyers having a common commitment by law to limited functions in legal practice and bound by canons of conduct evolved over a long period and still evolving as appropriate to that commitment. I then saw, and I still see, much to the public advantage in that character of the Bar. I then saw in the proposals of the majority in the Discussion Paper much that was destructive of that character. Now that we have the recommendations of the majority in this Report, I see much in them destructive of both barristers and solicitors as professional groups, and injurious to the public interest. I have in mind especially the intervention of government in the regulation of lawyers in the extreme form put forward by Judge Martin and Mr. Disney, and the precarious nature of such self-regulation as would be permitted to the professions. I see these things in the way that I have described but, so far as I can gather from the Report, the majority or some of them do not, or regard them as outweighed by other considerations where I do not. It is there that the major reason for our differences is to be found.
B. COMMON ADMISSION
11.5 The recommendations are that a lawyer should be admitted under a common title, for example, as a barrister and solicitor, not as a barrister alone nor as a solicitor alone. 1 But admission as barrister and solicitor would not confer a right to practise in either character. In order to gain a right to practise, the lawyer would have to get a practising certificate. 2 Prima facie he would be under the governance of the Council of the Law Society and he would go to that Council for a practising certificate. 3 But he would be at liberty to elect to be governed by the Bar Council and to undertake to comply with its rules: if he did so, he would get a practising certificate from the Bar Council and would be under its governance. 4
11.6 Two consequences of the adoption of the recommendations would be, I think, that lawyers who elected for governance by the Bar Council would be called barristers and collectively would be called the Bar, and that lawyers who did not, or at least lawyers who got practising certificates from the Council of the Law Society, would be called solicitors. Some confusion would no doubt arise by lawyers describing themselves on letter paper and so on as “barristers and solicitors” but, if I am right about the consequences I have suggested, the description would become misleading and would sooner or later be regulated or prohibited.
11.7 The consequences in paragraph 11.6 are, I think, likely, notwithstanding paragraph 4.23 and recommendation 5. There the majority recommend that neither “barrister” nor “solicitor” should be used alone. It is a strong thing to attempt to control language, and a stronger thing to suppose that such an attempt would prevail over general ideas of fitness of language in the future, It is a strange thing to recommend the denial prospectively to Parliament, the courts, the Government and regulatory bodies such language as they respectively may from time to time think appropriate. The majority do not offer alternatives. “Barrister and solicitor holding a practising certificate issued by the Council of the Law Society” might, I suppose, be used instead of “solicitor”.
11.8 The recommendations have something in their favour. They would reduce to insignificant size the problem of the non-practising barrister. A lawyer might get the name “barrister” in common language by getting a practising certificate from the Bar Council, but he would have to pay for the practising certificate, and the Bar rules or regulations might require an undertaking to practise. If he did not get a practising certificate from either professional council, he might with truth be known as a “non-practising barrister and solicitor”: he would be in some degree under the governance of the Council of the Law Society, but he and his kind would hardly be more numerous or more troublesome than the solicitors today who do not hold practising certificates.
11.9 The recommendations are in some ways open to objection. Common admission is opposed both by the Council of the Law Society and by the Bar Council. On this question, the views of the professional councils, elected as they are by the overwhelming majority of barristers and solicitors, are entitled to great weight. But a scheme like that now recommended has not been put to either professional council: we, do not know what they would say.
11.10 Apart from the views of the professional councils, there is much in the traditions of solicitors, and of barristers, traditions of high professional standards of honesty, ability and service, which may not automatically be carried over to the new description. But the experience in Victoria suggests that the risk is not great.
11.11 In our Discussion Paper on the Structure of the Profession I stressed the public utility of the Bar as a body of lawyers sharing a commitment by law to the limited functions of advocacy and advice, acting in general only on the instructions of solicitors. Under the recommendations that commitment would go, but a like commitment would presumably arise under rules or regulations of the Bar Council. The changed nature of the commitment would not, I think, be important.
11.12 Also in our Discussion Paper on the Structure of the Profession, I considered the case there made by the majority for common admission. I thought that that case was not made out, but I had one reservation. The reservation was that the change to common admission would tend to take away one basis for distinguishing between barristers and solicitors as higher and lower branches of the profession. Any change with that tendency was, I said, in that respect a change for the better. On that question I thought that the views of the Law Society should carry great weight. 1 We now have the Law Society’s reply to the Discussion Paper. The Society takes the view that the present divided structure of the profession should be retained. 2
11.13 The recommendations may indeed give a new and firmer basis for the idea of higher and lower branches. At present such an idea cannot find a foothold in the laws relating to the legal profession. But under the recommendations of the majority it would be a prescription of law that there would be taken out of the general mass of lawyers under the governance of the Council of the Law Society those, and those alone, who elected for governance by the Bar Council. The recommendations in this respect would set up barristers as a group having by statute a distinction unique to the group.
11.14 I was for a time attracted by a recommendation for common admission, coupled with other possible recommendations. The other possible recommendations would have been for:
(a) recognition by Parliament of the Bar Council as the governing body of barristers in a manner comparable to that already accorded to the Council of the Law Society;
(b) grant to the Bar Council of statutory power to make regulations generally with respect to the professional practice, conduct and discipline of barristers, subject to approval by the Governor;
(c) recognition by Parliament of the part played by rules and rulings of a professional council, not made formally as regulations;
(d) matters relating to complaints, discipline and professional standards generally in accordance with the recommendations in our Report No.2 (I say generally” because I do not discuss here the points in the recommendations in that Report on which I am in a minority).
11.15 But the recommendations and proposals in this Report on the subjects mentioned in paragraph 11.10(a), (b) fall short of what I had thought possible and are accompanied by other recommendations and proposals that, in my view, are wrong in principle. In the end, I think that the problem of the non-practising barrister can be dealt with by a scheme for practising certificates, whether or not common admission is adopted. I think that there is a risk that the problem of barristers and solicitors being regarded as higher and lower branches may be given a little new life by the recommendations. The change to common admission would make it easier to saddle both branches with such things as a common scheme for compulsory insurance, and to saddle barristers with a liability to contribute to the Solicitors’ Fidelity Fund. Otherwise, as I see it, the change to common admission would be only change for the sake of change, or change for the sake of a theory unrelated to realities. For these reasons I dissent from the recommendation for common admission.
C. GOVERNMENT REGULATION
11.16 On the question of power in the Governor to make regulations, Judge Martin and Mr Disney take one view, Mr Gressier another.
11.17 Judge Martin and Mr Disney propose that the Governor should have unqualified power to regulate in respect of any matter the professional practice, conductand discipline of all barristers and solicitors holding practising certificates. 1 Judge Martin and Mr. Disney anticipate that the Governor would exercise the powers which they propose only:
(a) usually, in pursuance of recommendations made by any one of the Bar Council, the Council of the Law Society, or the Public Council on Legal Services; and
(b) unusually, without any such recommendation.
But they do not propose that the powers of the Governor should be limited in these respects by statute.
11.18 The proposal is that the executive government should have direct statutory power to regulate the day to day practice and conduct of all practising barristers and solicitors. The proposal strikes at the root of professional independence and goes against the overwhelming weight of informed opinion in the common law world. For example in 1977 “Justice”, the British section of the international Commission of jurists, said that “... a legal profession that is, and is seen and believed to be, independent of State control and influence is a cornerstone of the Rule of Law and the preservation of human rights, as the experience of many countries - including this one - has amply demonstrated”. 1 The proposal is, I believe, without precedent in any place in the common law world outside New South Wales. 2 The legislation in South Australia and Queensland referred to by the majority in paragraph 4.30 does not give to the Governor powers of regulation even remotely resembling those in sections 86(1)(a)(iv) and 87(1) of the Legal Practitioners Act, 1898.
11.19 The proposal is in contradiction of opinions expressed in this Commission’s Discussion Paper on the General Regulation of the Legal Profession published in 1979, opinions then having, as I understand it, the concurrence of Judge Martin and Mr Disney. It is worth recalling part of what was there said:
“A form of professional Organisation which exposed the regulation of a profession to ill-considered or ill-motivated interferences by the Government of the day would inevitably prejudice its independence in those areas where that independence is important. This is particularly true of the legal profession. It is of the essence of freedom under law that the Government of the day is itself subject to the law, not merely in theory, but in practical accountability, enforceable before the courts if necessary. It is essential that citizens should have access to lawyers who can invoke the law on their behalf in this way, and that such lawyers should not be exposed to vindictive reaction by the Government, either directly, or through a facade of Government controlled regulation. This applies no less whether the Government is motivated by its own interests, or by pressure from vocal expressions of public opinion.” 1
As the Chairman at that time of this Commission said in a letter to the Sydney Morning Herald, “the discussion papers do not propose handing control of the Bar, or the legal profession, to the Government. They explicitly reject this course”. 2 Even in the present Report Judge Martin and Mr Disney join in saying that it would be undesirable for Government nominees to constitute a substantial proportion of the membership of any general regulatory body of the profession. 3 Yet they propose, not merely that government nominees should be on the professional councils, but that the executive government itself should have statutory power to regulate every aspect of professional practice, conduct and discipline. They do not give reasons for departing from the views expressed in the Discussion Paper except, as I understand it, such reasons as may be found in paragraphs 3.22-26, 28-30, 4.12, 13, 29, 30.
11.20 The proposal that the Governor should be given unqualified general power to regulate the practice, conduct and discipline of barristers and solicitors should be rejected.
11.21 Mr Gressier thinks that the Governor should have power to make regulations:
(a) to regulate in respect of any matter the professional practice, conduct and discipline of barristers, but only on recommendation by the Bar Council; and
(b) to regulate in respect of any matter the professional practice, conduct and discipline of solicitors, but only on recommendation by the Council of the Law Society. 1
11.22 On Mr Gressier’s view, the powers of the Governor referred to in paragraph 11.19(a) and (b) would have the same subject matters as should the powers of the Bar Council and the Council of the Law Society respectively. 1 It seems to me that the powers of the Governor would be redundant: whatever the Governor could do on the recommendation of a professional council the professional council could itself do with the approval of the Governor. Further, the grant to the Governor of direct powers of regulation is bad in principle and a step along that path should not be taken, even with the requirement of a recommendation by a professional council.
11.23 The majority recommend that the Governor should have power to make regulations in relation to specific matters, such as those mentioned in the Legal Practitioners Act, 1898, s.87(1)(a)-(d). 1 The question is, I think, nota question of general regulation and is beyond the scope of this Report. it should be dealt with in relation to particular matters as occasion arises.
D. THE PUBLIC COUNCIL ON LEGAL SERVICES
11.24 The Public Council would, in the eyes of the majority, be a supplement to the public members of the professional councils (see section F below) in providing community participation in the regulatory system, so as to provide adequate protection for the public interest, and would enable a wide range of community viewpoints to be involved in the regulatory system. 1 It would have functions like those proposed for the Community Committee on Legal Services proposed in this Commission’s Discussion Paper on General Regulation. 2
11.25 The Public Council would, at the outset, 1 have 9 members. Of these, 3 would be chosen by the Attorney General. Five of the remaining 6 would be chosen by bodies the majority of whose members are themselves chosen by the Attorney General or by “the Minister”. 2 It seems that the Public Council would be dependent on the government for its funds. 3 Given this government dominance, it is within the power of the government to contrive that the Public Council is responsive to the wishes of the government. Chapter 5 must therefore be read as using “community participation” in a special sense.
11.26 The Public Council on Legal Services would have functions of 3 kinds:
(a) to review and investigate the regulation of the legal profession and, in the language of the recommendation, the delivery of legal services; 1
(b) to advise on the regulation of the legal profession and the delivery of legal services; 2 and
(c) to nominate 3 members of each professional council. 3
11.27 In its functions of review, investigation and advice the Public Council would in the view of Judge Martin and Mr Disney, rank equally with the Bar Council and the Council of the Law Society as a body on whose advice the governor right act in making regulations regulating in respect of any matter the professional practice, conduct and discipline of practising barristers and solicitors. 1
11.28 In the same functions, it would be a specific concern of the Public Council to keep under continual review as matters of central importance questions of whether the professional councils or either of them should be deprived of their regulatory functions, and whether a single governing body for all lawyers should be set up. 1
11.29 I think it possible that some sort of advisory committee, created by one or both of the professional councils or otherwise created, and having demonstrated its responsibility and capacity, could well be an aid to the professional councils. That is the lesson of the experience of the Citizens Advisory Committee in the District of Columbia. 1 But the Public Council recommended by the majority is a very different matter. It is potentially a body merely responsive to the wishes of the executive government and has a major function in keeping always under review the question whether the professional councils should be deprived of their functions as governing bodies. The recommendations seem to me to have a tendency to surround the professional councils in an atmosphere of hostility and uncertainty and to handicap them in the discharge of their functions.
E. PROFESSIONAL COUNCILS: POWERS ON SUFFERANCE
11.30 As a temporary expedient by reason of practical difficulties, and subject to conditions, the majority think it acceptable, as a first phase of reform, to continue with the Bar Council and the Council of the Law Society as general regulatory bodies. 1 Amongst the conditions is one that the question whether the present professional councils should continue as the general regulatory bodies should be subject to periodic review. 2 This question, and the question whether the time has come for the introduction of a single regulatory body for the whole profession are, the majority say, questions of central importance. 3 These questions should also be kept under continual review by, amongst others, the Public Council on Legal Services and the public members of the professional councils. 4
11.31 The professional councils would therefore, in consequence of the recommendations of the majority, be treated as not meriting the enduring trust of Parliament, but would be permitted to have their functions as governing bodies merely precariously. The public members intruded upon the professional councils would have as a continuing concern of central importance the question whether the time has come when the permission thus given on sufferance ought to be withdrawn. Adoption of these recommendations would promote discord and suspicion between each professional council and its public members, and would impede the professional councils and the public members in the discharge of their proper functions in the regulation of the professions.
11.32 I have mentioned the recommendations for periodical review. These would be required prospectively by statute. The first review would be after an initial period of 5 years, subsequent reviews would be at 5 year intervals. The statute might, however, be vague about the nature of the review and the body or bodies to conduct it. The reviews should be instituted by the Attorney General, but if when the time came he thought that there were special circumstances making it undesirable to hold a review he could so certify to Parliament and then he need not institute the review. 1
11.33 If Parliament legislated for these periodic reviews, it would emphasise the precarious nature of the powers given to the professional councils, and would adopt the view (as it appears to me) of the majority that the professional councils are unworthy of enduring trust Perhaps it is possible to imagine a worse legislative context for the introduction of reforms in the structure and regulation of the legal profession, or one with a greater tendency to make the reforms a failure. But none occurs to me.
11.34 I do not object to further reviews of the structure and regulation of the legal profession. What I do object to is a recommendation that Parliament should legislate prospectively on the subject. I have dealt with the tendency of such legislation to impede the professional councils in their work. But there is another objection. I do not see how we can assume that we are wiser on that question than will be the Attorney General holding office from time to time in the future. And we cannot know the facts as they will be in the future and as they will be known to Attorneys-General in the future. We are not equipped to make a recommendation worthy of weight on the question whether there should be reviews in the future. The recommendation does not lose these objections by reason of the vagueness of the proposed legislation or the power of the Attorney General in what he regards as special circumstances.
F. PUBLIC MEMBERS; CONFLICT OF INTERESTS
11.35 As I have said in our Discussion Paper on Structure, I think that a case can be made for a small number of outside members on the professional councils, but not with voting rights. In this I have a measure of agreement with the majority. But I think that the particular recommendations are bad in several respects.
11.36 The majority see as part of the utility of having public members on the professional councils a tendency to reduce the dangers of a conflict between interest and duty affecting the professional councils. They give instances where the professional councils allowed their public duties to yield to the interests of themselves or of their constituents. 1
11.37 One instance is found in the handling by the Council of the Law Society in the regulation of the question of solicitors acting for more than one party to a conveyancing transaction. 1 To me, the charge is fully and satisfactorily answered by the submission to us in 1979 of the Law Society oil conveyancing of land and conflicts of interest relating to conveyancing transactions. 2 A reading of the relevant pages of that submission, 3 and in particular the Society’s circular of 16th May 1975, shows that the Council has for a long time considered and dealt with the question by reference to proper principles, and has not taken the unworthy course of yielding to the private pecuniary interests of solicitors. One may or may not agree with the Council on its conclusions, but it is altogether without warrant to suggest that the private interests of themselves or their constituents have influenced the conclusions. I shall not lengthen this chapter by discussion of other instances given by the majority, but I think that they move too easily from a disapproval of some rule of practice to an assertion that the rule rests on a preference of the interests of lawyers to a conflicting public interest.
11.38 In general, it seems to me that the majority press too far their case on conflicts between interest and duty in the professional councils. The theoretical existence of such conflicts is general and inescapable amongst bodies exercising authority in public affairs. The relevant question is how far such a body is likely to prefer a sectional interest to a public duty. The record of the professional councils, properly understood, is, I believe, one which other public bodies might well envy, and does not give ground for uneasiness for the future. A case that such conflicts were a significant problem was attempted in our Discussion Paper on the General Regulation of the Profession. The case was answered by the submissions of the professional councils in response to that paper. 1 There are useful practical insights into the question in the letter of Mr W H Hurlburt, QC, of Alberta to the Chairman of this Commission dated 7th September 1979. 2
11.39 The leading difficulty about intruding outsiders into an elected professional council lies in the means of choosing them. The majority recommend that of the initial 5 public members, one should be chosen by the Attorney General and one by the leader of the opposition in the Legislative Assembly. 1 So far I am not concerned to differ: no better way occurs to me. But the remaining 3 would be chosen by the Public Council on Legal Services. 2 That Council would be, at least potentially, an instrument responsive to the wishes of government. 3 In the result 4 out of 5 of the public members may be chosen by the government or by a body under government control. That is too heavy an interference by government in professional self-regulation.
11.40 The majority recommend that the public members should not have voting rights with that I concur. But, as I understand it, that would only be the arrangement at the outset as a first phase, and the question should be kept under review. 1 The question is, say the majority, one of central importance and should be kept under continuing review not only by the public members themselves but also by the Public Council on Legal Services. The same people should play a prominent role in the periodic reviews covering (amongst other things) the same question. 2 Similar arrangements for review are recommended on another question of prominence, the number of public members. 3 Thus choice of 80% of the public members would be in the control of the government, and the majority put amongst prominent questions for future review the questions whether the numbers of public members should be changed and whether they should be given voting rights. The recommendations are innocent enough as regards their operation at the outset, but they have within them the seeds of a large or even dominant voice of the government in the decisions of the professional councils. In my view, if there are public or outside members of the professional councils, they should not have voting rights and there should be no suggestion that they might afterwards be given voting rights.
11.41 One problem about having public members on a professional council concerns confidential matters under discussion in the council. An occasion for secrecy may arise by reason of the discussion of the private affairs of a client or of a lawyer, or such an occasion may arise on more general grounds, that premature disclosure of some matter under discussion in the council may impede the discharge by the council of its functions. In their recommendations the majority recognise the problem, and provide for it in relation to the duty which they would impose on public members to pass on information to the Public Council on Legal Services. The duty would be subject to such legal duties of confidentiality is apply to all members of the professional Council in their capacity as members. 1
11.42 I do not see how the restriction could be applied. Suppose that a member of a professional council intended to disclose to a particular person not a member of the council (whom I shall call Jones) some matter arising in discussions of the council which the council properly regarded as confidential. it seems to me that the disclosure could not be justified unless it appeared that the disclosure to Jones was a proper incident of the discharge by the member of his fiduciary duties as member. 1 The point is that the propriety of a disclosure would, I think, depend in part on the identity of the person to whom the disclosure is made or intended. On this basis, there may conceivably be cases where disclosure by any member to the Public Council on Legal Services would be justified, and that would involve that such a disclosure by a public member would be justified. But, so regarded, the power of disclosure allowed to a public member would be very limited, and would be haphazard as far as concerns the Public Council. I think that the question of confidentiality as regards public members is important, that the answer of the majority is not sufficient, and that the question needs further study.
G. QUEEN’S COUNSEL
11.43 This and the fees of junior counsel in two-counsel cases are the subject of chapter 9. In our Discussion Paper on the Structure of the Profession I gave my reasons for thinking that eligibility for appointment as Queen’s Counsel should be confined to practising barristers: the relevant passage is set out in chapter 9 (9.18) of this Report. I adhere to those views. I went on:
(c) What I have said applies to the present structure of the profession and to a structure according to the proposals of the writers [the majority in this Report] if, as they foresee, there still is a strong and vigorous Bar.
(d) If, however, the structure of the profession is so changed that there is not a body of lawyers which can be recognised as a Bar, then, in my view, all that remains is to give)the rank of Queen’s Counsel a decent burial. I do not regard the arrangements in Ontario, existing or recommended, as appropriate to the circumstances of New South Wales.”
I adhere also to those views.
11.44 On the two-counsel rule, I think that its exceptions are too narrow and lack knowledge the constructive thought which has led to the recommendation of the majority. However, I believe that, within proper limits, the rule has a public utility in the shape of putting leading barristers in a position to give a service of high quality. In my opinion the solution does not lie in allowing wider discretions, or wider value judgments, to Queen’s Counsel, To do so would, I think, tend to erode the rule to an extent which would endanger its public utility. The question is difficult and is under discussion between the professional councils. There I think it should be left. The councils will, I have no doubt, give weight to the constructive discussion in chapter 9.
11.45 On the question of the fee of junior counsel on an unmarked brief, I agree that a practice should not continue or develop merely to mark two-thirds of the leader’s fee. I think that there is merit in the statement of principle in paragraph 9.32(a). In particular I think that the standing of the senior counsel should not be a material consideration.
11.46 I do not join in the suggestion that taxing the fee of junior counsel should be considered as a possible means of dealing with the problem of the unmarked brief in two counsel cases. I refer to the general grounds I have given elsewhere for thinking that taxation of barrister’s fees should not be introduced.
11.47 I concur with the majority in their recommendation for encouragement of marked briefs or prior agreement about fees and for advice and assistance to solicitors in relation to fees.
H. COURT DRESS
11.48 This is the subject of chapter 10. In brief, the recommendations are that, subject to arrangements for particular courts, both barristers and solicitors appearing in court would be required to wear a gown. The gown would be of a prescribed material, colour and design, and would be the same for both barristers and solicitors. The wearing of a wig, bar jacket, wing collar or neck-bands would not be allowed.
11.49 The substantial considerations, as I see them, are these:
(a) The robes of the barrister are valuable in several ways, amongst them are contributing to an appropriate atmosphere in court, marking the place of the barrister as one discharging a public function in the administration of justice, marking the professional bonds which contribute to the service offered to the public by the Bar, and reminding the wearer of his duties as one of that profession.
(b) The tendency of the barrister's robes to intimidate witnesses is not of significant magnitude.
(c) The Bar Association and most barristers favour the retention of the barrister’s robes, subject to change in response to circumstances, for example, the possible abandonment of the wing collar.
(d) The Law Society does not wish that solicitors be compelled to wear gowns or any other robes.
11.50 It would, I think, be wrong to impose on solicitors a compulsion to wear a gown, against the views of the Law Society. The matter is not important enough to justify overriding that expression of opinion. Yet all of us here except judge Martin see value in a gown being worn by a lawyer in court. We should not therefore be justified in proposing that the barrister be compelled to give up the gown. To do so would be an and imposition of uniformity. So we should be left with a distinction of dress between barristers and solicitors. If a distinction remains, I see no utility, and some harm, in our recommending that the wig and so on of the barrister be abolished. The dress of lawyers in a court is a matter of the practice and procedure of the court. The judges of the court would take matters of public interest into account and would, I expect, consult the professional councils on any proposals for change. There I think it should be left.
11.51 In our Discussion Paper on the Structure of the Profession, I put views on court dress different from those in paragraph 11.50. I have changed my mind because it now appears to me that the Law Society takes the view that solicitors ought not to be compelled to robe.
I. COMMENT ON PARTICULAR RECOMMENDATIONS
R.1 (1) All persons should be admitted to the profession under a common title.
Comment: I dissent. See paragraphs 11.5-15.
R.1 (2) The Common title should be either “barrister and solicitor” or “lawyer”. We have no firm preference between these alternatives, but we adopt “barrister and solicitor” for use in this Report.
Comment: For me the question does not arise.
R.2 (1) A person who is admitted as a barrister and solicitor should not be entitled to practise unless he or she holds a current practising certificate.
Comment: I concur in principle, save that I would sav “as a barrister or as a solicitor”. But practising certificate” is an ugly name. For solicitors, the name is established by long usage and should not be changed without the concurrence of the Council of the Law Society. For barristers, a scheme with similar consequences might be adopted, but perhaps using different language. For example, the Bar Council might establish a roll of barristers, on which entry might be gained for a fee and might be renewed periodically for a fee. Discussion of practising certificates elsewhere in this chapter should be read subject to the foregoing comment.
R.2 (2) The term “legal practitioner” should be used to denote a barrister and solicitor who is entitled to practise.
Comment: “Legal practitioner” may be a convenient name in legislation applying to both barristers and solicitors. Otherwise, language should be allowed to take its own course.
R.3 (1) The Law Society and the Bar Council should continue as the general regulatory bodies of the profession. This recommendation is to be read in conjunction with recommendations 4 (respective ambits of the Councils), 6-11 (powers of the Councils and of the Governor), 15-21 (public membership on the Councils) and 22-28 (creation of a Public Council on Legal Services).
Comment: In my opinion the council of the Law Society and the Bar Council should continue to be the governing bodies of solicitors and of the bar respectively. The other recommendations should be considered on their merits.
R.3 (2) Our recommendation that there should continue to be two regulatory bodies, rather than one, stems from the practical difficulties involved in introducing one general regulatory body for the profession under present circumstances. Implementation of other recommendations in this report is likely to lead to a substantial reduction in the present degree of division within the profession, thus making it feasible to proceed with the introduction of one regulatory body for the whole profession. This question should be kept under review (see, in particular, RR.50, 51).
R.3 (3) Experience may demonstrate that, despite adoption of the measures referred to in (1) above, it is undesirable to continue to have as a general regulatory body of the profession a body which is also the governing council of a professional association such as the Law Society and the Bar Association. This question should also be kept under review (see, in particular, RR.50, 51).
Comment: In my opinion, putting aside future events not now foreseeable, the present professional councils should remain as governing bodies. I dissent from recommendations for future review. See paragraphs 11.30-34.
R.4 (1) The Bar Council should be the general regulatory body for legal practitioners who elect to be governed by it and who undertake to comply with its rules concerning professional practice. These practitioners should be entitled to vote in elections for practitioner members of the Bar Council, but they should not be required to become members of the Association.
Comment: I comment on this as if there were common admission. In my opinion the Bar Council should be the governing body for lawyers who have a practising certificate from the Bar Council. Subject to other provisions relating to practising certificates, a lawyer (not holding a practising certificate of the Council of the Law Society) should be entitled to a practising certificate from the Bar Council on giving an undertaking to comply with its rules. A lawyer having a practising certificate from the Bar Council should have a vote in elections for the Bar Council, but should not be required to join the Bar Association.
R.4 (2) The Law Society Council should be the general regulatory body for all other legal practitioners. These practitioners should be entitled to vote in elections for practitioner members of the Law Society Council, but they should not be required to become members of the Society.
Comment: I comment on this as if there were common admission. In my opinion the Council of the Law Society should be the governing body for all other lawyers. Subject to other provisions relating to practising certificates, a lawyer (not holding a Practising certificate from the Bar Council) should be entitled to a practising certificate from the Council of the Law Society on giving an undertaking to comply with its rules. A lawyer having a practising certificate from the Council of the Law Society should have a vote in elections for that Council, but should not be required to join the Society.
R.5 Under the system recommended above, the terms “barrister” and “solicitor” would not be appropriate for distinguishing between practitioners who are subject to the Bar Council and the Law Society Council. They should not be used for that purpose in legislation, or, for example, by the courts, the Government or the general regulatory bodies.
Comment: In my opinion the terms are appropriate. Their use should be open as occasion arises. See paragraphs 11.6, 7.
R.6 (1) Generally speaking, the Law Society Council should retain its present statutory powers. These powers include broad powers to make regulation, subject to the approval of the Governor. The Council’s statutory powers should be exercisable in relation to practitioners for whom it is the general regulatory body.
Comment: (a) I concur in the matter in the first two sentences.
(b) If there is common admission, the Council of the Law Society should have such powers of governance as may be necessary in respect of a lawyer who does not hold a practising certificate.
R.6 (2) The Council should continue to have non-statutory powers, arising from the Society’s Memorandum and Articles of Association, to make rules and rulings in relation to practitioners who are members of the Society.
Comment: The Council of the Law Society should continue to have its present function of making rules and rulings, without statutory force, in relation to solicitors.
R.6 (3) In exercising its statutory powers, the Council should not be subject to direction or restraint by a general meeting, or any other organ, of the Law Society.
Comment: I do not dissent, but the recommendation is unnecessary.
R.7 (1) The Bar Council should have some statutory powers, including some powers to make regulations with the approval of the Governor, in relation to practitioners for whom it is the general regulatory body. Mr Disney and Judge Martin consider that the Council should have powers of this kind in the area of investigation of complaints, and perhaps in certain other specific areas. Mr Conacher and Mr Gressier consider that the powers should include a general power, such as the Law Society has at present, to make regulations concerning “professional practice, conduct and discipline”.
Comment: The recommendation accurately states my views.
R.7 (2) The Bar. Council should continue to have non-statutory powers under the Bar Association’s Memorandum and Articles of Association to make rules and rulings. We have recommended earlier that any practitioner who elects to be governed by the Bar Council must also undertake to comply with its rules in relation to professional practice.
Comment: In my opinion the Bar Council should continue to have its present function of making rules and rulings, without statutory force, in relation to barristers. The function should extend to a barrister who is not a member of the Bar Association.
R.7 In exercising its statutory powers, and in making non-statutory rules in relation to professional practice, the Bar Council should not be subject to direction or restraint by a general meeting, or any other organ, of the Bar Association.
Comment: I do not dissent, but the recommendation is unnecessary. Recommendations 6(3) and 7(3) should not differ in their Substance.
R.8 Disciplinary authorities considering action in relation to a particular practitioner should have regard to any relevant rules or rulings of the general regulatory body to which that practitioner is subject, and to whether or not the practitioner is under any obligation to observe the rules or rulings in question.
Comment: In my opinion, where the conduct of a lawyer is impugned before a disciplinary authority, the authority should have regard to any relevant rule or ruling of a professional council under whose governance he was at the time of the conduct, and to ally obligation of his to observe the rule or ruling.
R.9 (1) The Governor should have certain powers to make regulations in relation to the legal profession.
R.9 (2) These powers should include powers to make regulations in relation to specific matters, such as those in relation to which, by virtue of s.87(1)(d) of the Legal Practitioners Act. t898, the Governor already has power to make regulations concerning solicitors.
Comment: Within the subject matter of this Report, namely the Structure and General Regulation of the Legal Profession, there is no occasion for the grant to the Governor of any power to make regulations in relation to the legal profession. On matters outside the scope of this Report, there may be occasion for such a grant. See, for example, the Legal Practitioners Act, 1898, s.87(1)(a)-(d).
R.9 (3) In addition, Mr Disney and Judge Martin consider that the Governor should have a broad power to make regulations in relation to any practitioner, as has been the case in relation to solicitors since 1980. Mr Gressier considers that any such power should be exercisable only on the recommendation of the Law Society Council or the Bar Council. Mr Conacher considers that the Governor should have no such power.
Comment: The last sentence accurately states my views. See paragraphs 11.16-22.
R.10 (1) In general, if either the Law Society Council or the Bar Council prepares draft regulations it should give the other Council, and the Public Council on Legal Services, an opportunity to express its views on them before a final draft is sent to the Attorney General for the approval of the Governor.
Comment: This should be left to the decision of the professional council making the regulation. There should not be a presumption, statutory or otherwise, that there should be consultation.
R.10 (2) When the Law Society Council or the Bar Council sends regulations to the Attorney General for the approval of the Governor it should send at the same time a copy of those regulations to the other Council and to the Public Council on Legal Services.
Comment: As in the case of recommendation 10(1), this should be left to the decision of the professional council making the regulation.
R.10 (3) In general, when the Attorney General receives proposed regulations from the Law Society Council or the Bar (council, he or she should give the other Council, and the Public Council on Legal Services, an opportunity, before the regulations are sent to the Governor, to express its views about them to him or her.
Comment: This should be left to the decision of the Attorney General.
R.11 In general, if the Attorney General proposes regulations to be made by the Governor, the Attorney General should give the Law Society Council, the Bar Council and the Public Council on Legal Services an opportunity to express their views to him or her before a final draft is sent to the Governor.
Comment: See my continent on recommendations 10(1), (2). For me, so far as this Report is concerned, the question does not arise.
R.12 (1) The Law Society Council and the Bar Council should be required to make an Annual Report on the discharge of their regulatory functions to the Attorney General, for presentation to Parliament.
Comment: I concur. in addition, if there are public members of a professional council, the professional council should be at liberty to deal in its annual report with the functions, powers and conduct of the public members and with any report of a public member. And, if there is a Public Council on Legal Services, a professional council should be at liberty to deal in its annual report with the functions, powers and conduct of the Public Council and with any report or public statement of the Public Council.
R.12 (2) The Governor should have power to require, by regulation, that the Annual Reports must contain information on prescribed aspects of the profession and of the work of the Councils.
Comment: I concur.
R.13 Practising certificates should be issued by the general regulatory body of the practitioner in question. But they should not be described as “barristers” or “solicitors” practising certificates.
Comment: (a) I concur in the recommendation in the first sentence.
(b) In my opinion, “barrister’s practising certificate” and “solicitor’s practising certificate” are apt names.
R.14 This is concerned with fees for practising certificates.
Comment: I concur in substance,
RR.15-19 These recommendations are concerned with Public members on the professional councils.
Comment: I adhere generally to what I said in chapter 16 of Paper No.4 on the Structure of the Profession. With that reservation, I dissent from recommendations 15 to 19.
R.20 (1) Generally speaking, every committee of the Law Society Council and the Bar Council should have at least one “public member”. In the case of committees having more than six members, approximately one-third of the members should be public members.
Comment: (a) I dissent. But outside members (if appointed) and other persons, whether or not members of the professional council concerned, and whether or not practitioners, should be eligible for appointment to committees at the discretion of the professional council, or at the discretion of a person (for example, its president) acting with the authority of the professional council. Outside members if appointed should be entitled to observe the work of committees concerned with matters of regulation, and to inspect their papers.
(b) The question whether a committee is concerned with matters of regulation should be for decision by the professional council, or by another person, for example, its president, acting with the authority of the professional council.
(c) If outside members are appointed, the merits of such a decision would be amongst the matters which might be dealt with in a report, annual or special, by outside members to the Attorney General.
(d) Disputes on the question might be avoided by the Bar Association acting so as to confine the Bar Council to matters of regulation and set up another body to handle member services and social activities. Likewise in the case of the Law Society. If the associations did so, a result might be reached not unlike that which I suggested in chapter 16 of our Discussion Paper on the Structure of the Profession.
(e) There may be a case for having outsiders on committees for particular purposes outside the scope of this Report. See, for example, our Report No.2 on Complaints, Discipline and Professional Standards.
R.20 (2) Mr Disney and Judge Martin consider that the public members on committees should be chosen by the public members on the Council in question. Mr Gressier, however, considers that they should be chosen by the President of the Council in question after consultation with the public members of that Council. Mr Conacher considers that the question of membership on committees of any person not a member of the general regulatory body, and of the method by which such members, if any, should be selected, is a matter for the general regulatory body itself.
Comment: The closing words accurately state my views.
RR.20 (3), 21, 22 These are further recommendations about public members on committees.
Comment: For me the questions do not arise. See my comment on recommendation 20(1).
R.23 A new body, to be called the Public Council on Legal Services, should be established by statute to act as a reviewing and advisory body in relation to the regulation of the legal profession and the delivery of legal services.
Comment: I dissent. See paragraphs 11.24-29.
RR.24-28 These have to do with the recommended Public Council on Legal Services. Comment: For me the questions do not arise.
R.29 (1) Practitioners who wish to practise as a principal, otherwise than under pupillage, should be required to hold a full practising certificate.
Comment: I concur.
R.29 (2) Practitioners should not be eligible for a full practising certificate unless they have practised for 12 months on a qualifying practising certificate.
Comment: I concur, save that the period of practice under a qualifying practising certificate should be fixed by the professional council concerned, or by its authority. it should be possible to reduce the period, or to dispense with the need for practice under a qualifying practising certificate. For example, where a lawyer with experience in another State gains admission here and seeks to practise here, a professional council might see fit to grant a reduction or dispensation.
R.29 (3) Practitioners who wish to practise as a principal under pupillage should be required to hold a qualifying practising certificate.
Comment: I take the sense of this recommendation to be that practice as a principal under pupillage should be permitted by a qualifying practising certificate and that practice in that manner for the required period should entitle a lawyer to a full practising certificate. If that is the sense, I think that it is an arrangement that a professional council might well adopt. But where a lawyer has practised in that manner under a qualifying practising certificate for the required period, I do not see why he should not be entitled to a full practising certificate, whether or not he wishes to continue, or to resume, practice under pupillage.
R.29 (4) The holder of a qualifying practising certificate should be restricted to practising as an employee or under pupillage.
Comment: (a) In my opinion the restrictions under a qualifying practising certificate should be determined by the professional council concerned. I think that this recommendation and recommendations 29(5), (6) and 30 rest too much on a wish to impose uniformity for its own sake, and pay too little regard to the practical needs of lawyers entering practice and to practical safeguards against inexperience. The professional councils are in a better position than ourselves to devise appropriate arrangements, are not burdened with the pursuit of a theory about uniformity and are in a position to meet changing circumstances. Similar considerations apply to other recommendations based on chapter 6 of this Report.
(b) The restrictions under a qualifying practising certificate should be determined by the professional council concerned. For example, the Bar Council might restrict practice to practice while a pupil, and the Council of the Law Society might restrict practice to practice as an employee. The qualifications of a master or tutor should be a matter for the professional council concerned.
(c) Pupillage is an arrangement appropriate to the circumstances of barristers. Whether pupillage or something like it should be made an alternative to practice as an employee for new solicitors is a question for the Council of the Law Society.
R.29 (5)Employers and tutors (ie. Practitioners under whose guidance pupillage is served) should be subject to the same general regulatory body as their employees and pupils respectively, should hold full practising certificates, and should have held such certificates for not less than a prescribed number of years.
Comment: See comment on recommendation 29(4).
R.29 (6) It should be permissible to serve some of the 12-month qualifying period as a pupil and some as an employee.
Comment: This should be a matter for the professional council concerned.
R.30 (1) Pupils should not have to be barristers, but, whether barristers or not, they should be prohibited from acting without the intervention of an instructing practitioner, save in prescribed circumstances.
Comment: As regards pupil solicitors, it should be left to the Council of the Law Society to make appropriate arrangements, if the Council sees fit to introduce pupillage as an alternative to employment. A pupil barrister should be under the restraints applying to barristers generally, subject to such other provision as the Bar Council might make.
R.30 (2) Tutors should not have to be barristers, but, whether barristers or not, they should have to be practitioners who, generally speaking, do not act without the intervention of an instructing practitioner. They should have to be approved by their general regulatory body as satisfying this requirement.
Comment: This too should be left to the professional councils. I do not see why, as a general rule, a barrister should need the approval. If Bar rule 26 continues, the need for approval would arise only where the bulk of the intending tutor s work comes to him without the intervention of a solicitor by virtue of the exceptions to the rule. If it became a question whether such a barrister was, for that reason, unfit to be a tutor, the Bar Council should deal with the question.
R.30 (3) Pupils and tutors should be subject to pupillage regulations requiring a significant degree of informal training and supervision by tutors. The Law Society Council and the Bar Council should take steps to ensure the observance of these regulations by practitioners who are subject to their respective governance.
Comment: Whether there should be pupillage for solicitors should be a matter for the Council of the Law Society. Whether the requirements should be by regulation or by some other means, for example rules, should be a matter for the professional council concerned. Otherwise I concur.
R.30 (4) The prescribed circumstances referred to in (1), and the regulations referred to in (3), should be the same for all pupils, whether subject to the Bar Council or the Law Society Council.
Comment: I dissent. The Bar Council should, as in other matters, consider what is right for barristers and for any relevant classes of barristers. if the Council of the Law Society adopts pupillage for solicitors, it should do likewise in respect of solicitors.
RR.31-33 These recommendations concern training and experience for lawyers taking work directly from clients or operating a trust account and for lawyers practising in the manner of barristers, and concern restrictions after an absence from practice.
Comment: These are matters for determination by the professional councils.
R.34 (1) Rights of audience and other rights to do legal work might vary according to one or more of a number of factors, but they should not vary according to whether a practitioner is a barrister or a solicitor.
(2) This recommendation is not intended to preclude practitioners from binding themselves, whether by joining an association or otherwise, not to accept work in particular fields.
Comment: The present rights of audience, and other rights to do legal work, of barristers and solicitors are generally appropriate and there is no occasion for change. However, Acts relating to particular courts and tribunals may require amendment in some details.
R.35 All practitioners should have legal capacity to enter into contractual relationships concerning their professional work.
R.36 All practitioners should be entitled to sue for their professional fees.
Comment: I dissent from recommendations 35 and 36. There is no occasion for change of the present law, under which the acceptance by a barrister of the instructions of a solicitor does not give rise to a contract. The recommendations would lay the ground for litigation between barristers and solicitors and is bad in policy.
R.37 (1)Any immunity from civil liability in relation to a type of legal work should apply to both barristers and solicitors.
R.37 (2) It is beyond the scope of this Report to recommend which types of work, if any, should have the benefit of such an immunity.
Comment: There is no occasion to change the present law.
R.38 The rights of a client or other person to obtain a taxation or other review of a practitioner’s bill might vary according to one or more of a number of factors, but they should not vary according to whether the practitioner is a barrister or a solicitor.
Comment: I dissent. The obligation to pay a barristers fee rests on the instructing solicitor, not on the client. There is a means for settling disputes about fees between barristers and solicitors, agreed between the Bar Council and the Council of the Law Society. If that agreed means is unsatisfactory to solicitors, or to barristers, it is open to the professional councils to agree on different means. It is not a question on which Parliament should intervene. I draw attention to a suggestion I made in our Discussion Paper on Structure (paragraph 13.17) for the case where a claim by a solicitor for reimbursement of a barrister’s fee is not allowed in full on a taxation between solicitor and client.
R.39 The amount specified in a fee scale, or allowed on a taxation, in relation to a particular item of work might vary according to one or more of a number of factors, but it should not vary according to whether the work was performed by a barrister or by a solicitor.
Comment: I dissent. The recommendation does not have regard to the customary terms on which barristers are given, and accept, their instructions. In general, the fees of a barrister are based on what he is instructed to do, not on the particular steps he takes, or the time he spends, in carrying out his instructions. In consequence, fee scales for barristers are, in general, lists of fees for accepting instructions of one kind or another. Different considerations apply in relation to solicitors, and accordingly fee scales are framed on different principles. The recommendation is concerned with a consequence of well-understood ways of conducting legal business, but neither recommendation 39 nor any other recommendation is for any change in those well-understood ways.
R.40 Adequate recognition should be given in a fee scales, taxations, and other reviews of bills, to the additional work and responsibility involved for a legal practitioner who undertakes all the work in a particular matter, rather than referring some of it, such as any advocacy which may be required, to another practitioner.
Comment: I concur. But the matter is self-evident.
R.41 (1) The Bar Council should continue to have an ethical rule along the lines of its present “cab-rank rule” (rule 2).
Comment: I expect and hope that the Bar Council would do so, but it is a matter for the Council. If common admission is introduced, the Bar rule may be more important than it is now. That is because admission and, on a possible view, practice as a “barrister and solicitor” may be held not to attract a canon of conduct like the canon of conduct (distinct from Bar rule 2) now observed by barristers.
R.41 (2) The Law Society Council should consider making an ethical rule in relation to the duties of practitioners to accept instructions from other practitioners. The rule could be similar to the Bar Council’s present cab-rank rule.
Comment: This is a matter for determination by the Council of the Law Society. I express no opinion on what the Council should do.
R.42 The recommendations are concerned with judicial attitudes to advocates.
Comment: The subject is in my opinion outside our terms of reference.
R.43 There should be no rule or practice to the effect that barristers are to be given precedence over solicitors, or vice versa, at court or, at official functions.
Comment: I am not concerned to dissent. Yet any rule may be better than mere disorder. I would leave these things to the courts and to those who conduct the functions. They should not act on a principle that precedence should be given to barristers merely because they are barristers.
R.44 The recommendation is for a special statutory scheme to regulate restrictive practices.
Comment: I dissent. The recommendation is unnecessary and its adoption may be a nuisance. If the professional councils have appropriate general powers to make regulations and rules, they can deal with problems in the light of the facts as they may emerge in the future.
RR.45-47 The recommendations are that the Bar Council should consider relaxing or abolishing some matters which the majority characterise as restrictive practices. The matters are:
(a) acting without the intervention of a solicitor (Bar rule 26);
(b) practising in partnership (Bar rule 16);
(c) barrister as servant of another barrister;
(d) joint appearance of barrister and solicitor;
(e) conference, interview or hearing without instructing solicitor or his clerk (Bar rule 33); and
(f) conference at solicitor s office (Bar rule 34).
The majority add that in doing so the Bar Council should be asked to have regard to some possible changes discussed in the Report.
Comment: The matters specified, like all other matters of practice at the Bar, should be considered by the Bar Council if occasion arises, with appropriate consultation with the Council of the Law Society.
R.48 It may prove desirable to take specific legislative action in relation to the restrictive practices mentioned in recommendations 45-47 if
(i) our recommendations concerning abolition of a number of legal and official distinctions between practitioners are not adopted;
(ii) such abolition does not substantially reduce the adverse effects of the restrictive practices under consideration; or
(iii) the restrictive practices in question are not reconsidered with reasonable speed by the Bar Council.
Comment: I do not join in the recommendation. We should not attempt to influence the way in which those in authority in the future will discharge their responsibilities.
RR.49-51 The recommendations are for future reviews of the regulation and structure of the legal profession.
Comment: (a) I do not join in the recommendations. I have no objection to future reviews. But I am not persuaded that I can speak with greater wisdom than those who will be in positions of authority in years to come. I am persuaded that I cannot know the facts, now in the future, as those can who in years to come will be in positions of authority.
(b) Further, as the recommendations stand, they treat the powers of the professional councils as precarious and as being given merely on sufferance. To do so is to provoke discord and friction, and to distract the professional councils from getting on with their jobs. See paragraphs 11.30-34.
(c) On the point in (a), the mischief is relieved, but not removed, by a power in the Attorney General to dispense with a periodical review if he thinks that there are special circumstances making it undesirable.
RR.52, 53 These recommendations concern the appointment of Queen’s Counsel.
Comment: In my opinion:
(a) The Queen’s Counsel system should continue.
(b) The qualification, and the only qualification, for appointment as Queen’s Counsel, should be outstanding eminence in practice at the Bar, save that it is proper that the Attorney General, if a barrister, should be appointed Queen’s Counsel.
(c) If common admission is introduced and there remains a body of lawyers identifiable as a Bar, appointment should be restricted to members of that body.
(d) If common admission is introduced and there does not remain a body of lawyers identifiable as a Bar, further appointments should not be made. See paragraph 11.43.
R.54 This recommendation concerns a two-counsel rule.
Comment: In my opinion the Bar Council should consider enlarging the exceptions to the two-counsel rule. I think that the enlargement should, as far as possible, not be by way of earning matters at the discretion of senior counsel or for determination by a value judgment made by senior counsel. The Bar Council should give weight to recommendation 54 and should continue consultation with the Council of the Law Society. See paragraph 11.44.
R.55 This recommendation concerns the fees of junior counsel where a leader is briefed.
Comment: I concur. See paragraphs 11.45-47.
R.56 This recommendation concerns court dress.
Comment: In my opinion the present arrangements are generally appropriate. The matter is one of the practice and procedure of the several courts and should be considered by them from time to time as occasion may require. See paragraphs 11.48-51.
FOOTNOTES
| Para. |  |
| 11.5 | 1. Recommendation 1. |
| 2. Recommendation 2(1). |
| 3. Recommendation 4(2), 1 |
| 4. Recommendation 4(1), 13. |
| 11.12 | 1. Discussion Paper on the Structure of the Profession, pp.554-557. |
| 2. Reply by the Law Society to Discussion Paper on the Structure of the Profession, especially at p.3. The Law Society qualifies its view by reference to another structure such as one suggested in an earlier submission. But I do not understand the Society's qualification to go anywhere near embracing the recommendations for common admission in this Report. |
| 11.17 | 1. Recommendation 9(3). |
| 2. para.4.30. |
| 11.18 | 1. Lawyers and the Legal System: a critique of legal services in England and Wales, para.23. |
| 2. But in New South Wales a like power over solicitors was granted by Parliament to the Governor in 1980. See the opening words of section 87(1) of the Legal Practitioners Act, 1898. |
| 11.19 | 1. Pp.127, 128. |
| 2. Sydney Morning Herald, 16th May 1979. |
| 3. para.3.28. See also paras.3.31 (eighth general conclusion), 5.14, 16, 30. |
| 11.21 | 1. Recommendation 9. |
| 11.22 | 1. Recommendations 6(1), 7(1). |
| 11.23 | 1. Recommendation 9(1), (2). |
| 11.24 | 1. paras.5.26, 211(ii). |
| 2. para.5.28. |
| 11.25 | 1. Para.5.29. but later it might have a membership like that proposed for the Community Committee on Legal Services proposed in our Discussion paper on General Regulation (pp.189-192): para.5.29. That would be one of the matters for continuous and periodic view recommendations 49-51, especially 51(ii). |
| 2. See recommendation 24(1) and paras.5.30-32. For the Board of Governors of the Law Foundation, see the Law Foundation Act, 1979, ss.7, 8, sch.2 cl.2. I-or the Legal Services Commission, see the Legal Services Commission Act, 1979, ss-7,8, 14. That the Commission is, for the purposes of any act, a statutory body representing the Crown (s.6(3)) and is, in the eyes of the majority, an “official source” (para.2.9). For the Consumer Affairs Council, see the Consumer Protection Act, 1969, s.7: that Council's functions under the Act are to be performed only with the consent or at the direction of the Minister: s.12(1), (2). |
| 3. Recommendation 28(1), paras.5.;7-40. |
| 4. Discussion Paper on General Regulation pp.90-92. |
| 11.26 | 1. Recommendations 23, 25(1). |
| 2. Recommendation 23. |
| 3. Recommendation 16(1)(iii). |
| 11.27 | 1. para.4.30. |
| 11.28 | 1. Recommendations 49-51, especially 51(iii), (iv), paras.8.2, 3. |
| 11.29 | 1. On the Citizens Advisory Committee, see paras-2.31(b), 3.16. |
| 11.30 | 1. Paras.4.13, 19,8.2. In the summary of principal recommendations, recommendation 3(1) does not put the matter as conditional. |
| 2. para. 4.13 (v). |
| 3. Para.8.2, 3. |
| 4. Paras.4.13(v), 19(iv), 8.3. |
| 11.32 | 1. para.8.4. |
| 11.36 | 1. paras.3.14, 3.24. See also paras.3.23, 4.12, 17, 19(iii). |
| 2. Bar rule 33(a); para.314. |
| 11.37 | 1. para. 3.24. |
| 2. Submission No.258. |
| 3. Pp.59-72. |
| 11.38 | 1. law Society (Submission No.269) pp.23-29 and Appendix; Bar Association (Submission No.266) pp.16-18. And see the letter of the president of the Law Society to the Chairman of this Commission dated 11th October 1981. |
| 2. A copy is appended to the reply of the Law Society to our Discussion Paper No.4 on the Structure of the Profession, October 1981, pp.47-54. |
| 11.39 | 1. Recommendations 15, 16(1)(i), (ii), para.5.16. |
| 2. Recommendation 16(1)(iii); para.5.16. |
| 3. Para.11.24. |
| 11.40 | 1. Recommendations 18(1), 51(1), para.8.2. |
| 2. Recommendations 49-51; paras.8.2-4, 11.28-32. |
| 3. Recommendation 51(i). |
| 11.41 | 1. Recommendation 25(3): para.5.34. |
