A. INTRODUCTION

3.1 In this chapter we discuss some basic issues relating to general regulation and to the division of the profession. The discussion, and the conclusions which we draw from it, are of a somewhat general nature. Subsequent chapters contain further discussion, and specific recommendations, in relation to particular issues.

3.2 In considering these issues, we have sought to identify, and to be guided by, the public interest. Assessment of the public interest is a complex value judgment involving consideration of a diversity of interests, many of which may be in conflict. In the present context, it is obviously of fundamental importance to consider the interests of legal practitioners, since it is the regulation and structure of their profession which is under consideration. The manner in which they practise, the satisfaction and remuneration which they derive from their practice, and indeed their right to practise at all, are at issue. The interests of clients must also be of major significance. The type of service which they get from lawyers may have a substantial and even crucial effect on, for example, their livelihood, their domestic relationships, their financial position or their personal liberty. It is necessary also to consider the viewpoints of would-be clients; those who, for example, would like to avail themselves of lawyers’ services but either cannot afford them, or cannot find an appropriate and accessible lawyer, or are daunted by the formality and the language of the law. Due consideration must be given to the interests of judges and other people who work within the legal system , although they are not legal practitioners. Finally, there are the interests of the general public who, although they may never go to a lawyer, may be affected substantially if the legal profession and the legal system do not have the confidence of the community.

3.3 We have mentioned a number of broad interest groups. But there is, of course, considerable diversity of interests within these groups. For example, the division of the profession into barristers and solicitors may have consequences for a sole practitioner in a remote country town which differ substantially from those for a partnerin a large Sydneyfirm. The consequences for a large corporation wishing to litigate a taxation dispute may differ substantially from those for a person in straitened financial circumstances who is seeking compensation for injury suffered in a road accident.

3.4 Existing or proposed schemes in relation to the regulation and structure of the profession may have an effect on many different aspects of the legal system and on some matters outside that system. An assessment of the public interest must take into accountthis wide range of consequences and we mention many of them later in this Report. But the matter of central significance is the effect on the delivery of legal services and, in particular, on the

• quality,
• cost,
• accessibility, and
• speed

of those services. Each of these four aspects is important. For example, the structure of the profession cannot be regarded as satisfactory if it results in legal services being of very high quality but too expensive for all save a few, or being quick and readily accessible but of inadequate quality.

B. THE GENERAL REGULATION OF THE PROFESSION

3.5 We discuss in this section a number of basic issues concerning general regulation. We do so under the following heads:

(i) Regulation in the Public Interest;

(ii) The Independence and Responsiveness of the Profession;

(iii) The Value of Professional Participation;

(iv) The Value of Lay Participation;

(v) The Role of Professional Associations;

(vi) The Role of the Courts; and

(vii) The Role of Government.

We do not consider in this section whether or not there should continue to be different systems of general regulation for barristers and solicitors. That issue falls within the next section of this chapter, in which we look at the general question of the division of the profession into barristers and solicitors.

3.6 Manyof the matters which we consider in this section were discussed at greater length in our Discussion Paper, General Regulation. Some were dealt with at length in submissions made to our Inquiry, especially bythe Law Society and the BarAssociation. Our footnotesgive references to a number of these sources forthe benefitof those who wish to consideringreater detail than it is possible to give in this Report the arguments which we have considered in arriving at the views expressed here.

I. Regulation in the Public Interest

3.7 It is generally agreed that regulation of the profession should be carried out in a manner which is in the public interest. For example, the Law Society’s response to our Discussion Paper on general regulation said that the Society

“accepts and agrees with the Commission’s premise that regulation of the profession should be for the benefit of the public.” ¹

We have referred earlier in this chapter to the diversity of interests, both within and outside the profession, which must be taken into account in assessing the public interest. The task of regulation involves identification and appreciation of the se many interests, and fair-minded resolution of conflicts which may exist between them. We comment later in this section on ways in which the regulatory system can be designed to fulfil these responsibilities.

II. The Independence and Responsiveness of the Profession

3.8 In a just and democratic society, it is essential that there be an independent legal profession, in the sense of a body of lawyers who are willing and free to provide legal assistance fearlessly to all sections of the community. ¹ Lawyers must be free to argue their clients’ cases vigorously against the Government, against powerful institutions and against public opinion. This is an ideal which may never be fully achieved, but its value is demonstrated by many acts of courage and independence by lawyers on behalf of their clients. The importance of this ideal must be in the forefront of any consideration of the general regulation of the profession.

3.9 Another principle of fundamental importance is that the profession must be responsive to the community’s needs for legal services. Lawyers have been granted by Parliament exclusive rights to undertake for reward certain types of work, such as the conduct of litigation, which are of great significance to the affairs of the community. Parliament and the Government have a responsibility to ensure that the public is able to obtain satisfactory service from those to whom these exclusive rights have been given.

3.10 A system for general regulation of the profession must strike a balance between these two principles of independence and responsiveness. In the words of the Professional Organisations Committee’s report to the Government of Ontario, there is

“an inevitable, and in many ways healthy, tension between two equally fundamental constitutional values: the independence of the judiciary and the bar [ie. the legal profession], and the supremacy of the legislature. Obviously, neither value can be interpreted or applied in such absolutist terms as to negate the other”. ¹

The preservation of due independence for the legal profession does not require or justify the profession being entirely free from outside involvement in its regulation.

3.11 The way in which the balance between the principles of independence and responsiveness should be struck is a fundamental theme of the comments in this chapter in relation to general regulation. it should not be overlooked, however, that the two principles are, in some ways, interdependent rather than conflicting. An independent legal profession is needed and valued withinthe community. But if the profession fails to meet the community’s needs by, for example, providing services which are unduly slow, expensive or otherwise inadequate, Parliament and the Government will come under pressure from the community to intervene in the regulation of the profession.

III. The Value of Professional Participation

3.12 There can be no doubt that legal practitioners have a vital role to play in the regulation of their profession. ¹ First, their knowledge and experience of the profession, and of the legal system generally, are invaluable if regulation is to be sufficiently informed, well-directed and fair. Secondly, decisions made by a regulatory authority are more likely to have the respect of the profession if it is known that practitioners played a substantial role in their formulation. A regulatory authority is unlikely to be effective if many of its decisions are widely regarded within the profession, whether fairly or not, as being ill-informed or unreasonable. Thirdly, lawyers’ freedom to act for clients against the Government or other powerful interests in the community might be seriously eroded if they were controlled largely from outside the profession. Fourthly, it is important to preserve and develop the professions sense of responsibility for maintaining its standards, rather than to relegate it to a minor role in its own regulation.

3.13 Each of these reasons suggests that a substantial number of practitioners should be involved in regulation. For example, a decision is more likely to be well-informed, fair, and respected within the profession if it was made by a body which includes lawyers from a wide range of backgrounds in the profession. Each of the reasons, save the first may gain added strength if the practitioners involved in the regulatory system are chosen, whether directly or indirectly, by the profession itself.

3.14 On the other hand, legal practitioners can have limitations as members of regulatory authorities. They may lack sufficient awareness and understanding of the impact of particular regulatory measures upon clients, would-be clients and others outside the profession. They are at risk of giving excessive weight, whether consciously or not, to their own interests, or those of other lawyers, to the detriment of the broader public interest. They may be too lenient towards aberrant lawyers, thinking “there but for the grace of God go I”, or they may be too harsh towards lawyers who do not conform to the prevailing political or social values within the profession. These limitations are not merely hypothetical. Their effect can be seen in the work of the Law Society Council and the Bar Council as general regulatory bodies. We have described in our Discussion Papers a number of aspects of regulation in which, in our view, these Councils have given insufficient weight to the public interest. They include, for example, their handling of complaints and discipline (some weaknesses in which have been remedied since our detailed investigation of that area), ¹ their restrictions on advertising, ² aspects of the Law Society Council’s regulation of trust accounts, ³ and the Bar Council’s rules against acting without an instructing practitioner. ⁴

IV. The Value of Lay Participation

3.15 The manner in which the profession is regulated affects many people outside the profession, especially clients and would-be clients. ¹ The involvement of some non-lawyers in the regulatory system can help to ensure that the interests of these people are understood and given due consideration. A further advantage of involvement of members of the community is that, by helping the profession to recognise and respond to the community’s needs for legal services, it reduces the likelihood of government intervention of a kind which would gravely weaken the independence of the profession. Moreover, members of the public are more likely to have confidence in the profession if they know that non-lawyers playa significant role in its regulation. Non-lawyer participation is more likely to fulfil these purposes if the non-lawyers in question are not chosen by the profession itself.

3.16 We have referred in chapter 2 to a number of recent instances of non-lawyers being given a role in systems for regulation of the profession. ¹ The contribution which non-lawyers can make to discussion of regulatory issues has been praised by many leaders of the profession who have personal experience of it. A typical comment comes from Washington, DC, where, as we have mentioned, the Bar Association has a Citizens Advisory Committee of non-lawyers which chooses its own members and also chooses three non-lawyers to act as non-voting members of the Association’s Board of Governors. ² The President of the Bar Association has said of the Committee’s members:

“They help us look at matters from another perspective, and make us aware of the needs and concerns of the public. They also help laymen understand the legal system and the profession .... The citizens make us aware of how laymen view our profession and what they expect from us. They call attention to our shortcomings, they make us engage in critical self-examination, and they step on some sensitive toes. By stepping on our toes and pressing lay views, they put us on our toes to improve the profession and our service to the community......” ³

3.17 Lay membership of the general regulatory body of a profession is not a new concept, nor is its application confined to the legal profession. The General Medical Council in England, for example, has had lay members for more than one hundred years. ¹ In Ontario, Chief Justice McRuer (sitting as a Royal Commission) recommended in 1968:

“Lay members should be appointed by the Lieutenant Governor in Council to the governing bodies of all self-governing professions and occupations”. ²

This recommendation has been implemented in Ontario in relation to the legal profession and many other professions, and a similar approach has been adopted in places such as Quebec and California. ³

3.18 Several arguments are put against non-lawyer participation in regulation. It is said, for example, that non-lawyers lack knowledge and experience of the inner workings of the profession and. accordingly, are likely to make ill-informed decisions or to rely so heavily on lawyers that their participation serves little purpose. But some non-lawyers have considerable familiarity with the legal system. In any event, non-lawyers’ lack of knowledge of aspects of the work of a lawyer must be balanced against the knowledge and experience which they may have, but which lawyers may lack, in relation to other areas relevant to regulation of the profession. The criticism would be powerful in relation to a regulatory body consisting entirely of non-lawyers. But a body with an appropriate mixture of legal and non-legal membership can obtain the benefit of a broad and balanced range of expertise and perspectives.

3.19 Another criticism voiced about participation by non-lawyers is that if they are members of a regulatory body consisting predominantly of lawyers they are likely to play an excessively passive role. In our view this criticism, like the criticism of their lack of relevant knowledge, does not justify rejection of the concept of non-lawyer members of regulatory bodies. It indicates that if there are to be non-lawyer members they should comprise a significant proportion of the body, rather than say only 5-10%, and they should be people who are intelligent, confident and articulate. There might be a need to establish an advisory committee consisting entirely or substantially of non-lawyers, from which non-lawyers on the regulatory body could derive information, inspiration and support.

3.20 It is sometimes argued that non-lawyer membership of general regulatory bodies would threaten the independence of the profession. ¹ This criticism might be valid if non-lawyers were to constitute a majority on those bodies, but we see it as having little the strength if non-lawyers are clearly in the minority, let alone if they have no vote or sit only on committees rather than on the governing body itself. Moreover, in some circumstances the involvement of non-lawyers can operate to preserve or enhance lawyers’ independence. For example, it can help to protect individual practitioners from over-zealous regulation by their colleagues in matters such as advertising or participation in public affairs. In any event, as we have said earlier, the independence of the profession cannot be absolute. It must be balanced with the need for responsiveness to the communities needs.

3.21 Other criticisms of participation by non-lawyers relate to matters of detail concerning their number, the manner in which they are selected, and their precise role, rather than to the basic issue of whether non-lawyers should be involved at all. We refer to these matters when making specific recommendations in chapters 4 and 5.

V. The Role of Professional Associations

3.22 Several arguments may be advanced in favour of the Law Society Council and the Bar Council remaining as the general regulatory bodies of the profession. ¹ Firstly, a professional association governed by a Council which is also a general regulatory body may be less inclined to pursue a narrow and selfish course on behalf of its members, and maybe more inclined to encourage the adoption of a public-spirited approach by the profession. Both in New South Wales and elsewhere, many professions other than law are regulated by bodies which were established especially for that purpose and are not also the governing bodies of professional associations. ² Experience with this separation of functions indicates that it can result in the professional associations having greater power, in reality, than the regulatory bodies, yet being under no duty to exercise their power in the public interest. Secondly, the fact that a general regulatory body is also the governing body of a professional association may make some lawyers more willing to devote their time and energy to being members of it or its committees. Thirdly, lawyers may be more willing to accept regulation by a general regulatory body if, being also the governing body of their professional association, it takes action to advance their interests by, for example, arguing for increases in lawyers’ fee scales or providing its members with an advisory service on office management. Fourthly, the creation of new general regulatory bodies might be complex and expensive, and they would start without the authority which has been developed by the Law Society Council and the Bar Council over the years.

3.23 There are, however, two powerful arguments against the governing bodies of professional associations being the general regulatory bodies of the profession. The first stems from the need for general regulatory bodies to act in the public interest, rather than merely in the interests of the profession or a dominant sector of the profession. If they also have a responsibility, as the governing body of a professional association, to advance the interests of that association’s members, they are likely to be faced on many issues with a choice between a course which is in the public interest and a course which their members regard as being in their own interests. ¹ The responsibilities of the Law Society Council and the Bar Council towards members of their respective associations appear from their memoranda of Association. In addition to objects such as promoting the administration of justice, law reform, and the study of law there are objects such as, in the case of the Law Society, “to represent generally the views of the profession” and “to acquire any rights or privileges which the Society may regard as necessary or convenient ... for promoting the interests of the profession”, ² and in the case of the Bar Association, “to uphold the honour and dignity and promote the interests of the Bar of New South Wales” and “generally to do all such things as may in the opinion of the Council be of benefit to the Bar of New South Wales or the members thereof”. ³

3.24 Both the Law Society and the Bar Association have submitted to us that this conflict does not exist or is not significant. ¹ We do not accept those arguments. In our view, the conflict is sometimes acute. We do not accept those arguments. As the Committee of Inquiry into the Future Organisation of the Legal Profession in Western Australia has said:

“the inevitable conflict between the [Law] Society’s responsibility to its individual members and to the public and the profession as a whole, is likely to limit the capacity of the Society to fulfil either role”. ²

In the words of Chief Justice McRuer of Ontario:

“There is a real risk that the [general regulatory] power may be exercised in the interests of the profession or occupation rather than in that of the public”. ³

The conflict is particularly obvious in relation to the handling of complaints against lawyers, but it arises in other areas of regulation concerning questions such as fee competition, advertising, borrowing from clients, acting for both clients in conveyancing transactions, barristers acting without an instructing solicitor, and many others. Although there have been many occasions on which the Law Society and Bar Association have put the public interest ahead of that of their own members, there have been a number of other occasions when, in our view, they have given undue weight, whether consciously or unconsciously, to their members’ interests. ⁴ Moreover, even it, as the Law Society contends, the conflict is always resolved in favour of the public interest, there would remain the harm done to public confidence by the appearance of a conflict.

3.25 One way of reducing the disadvantages of this conflict would be to add some non-lawyers to the governing Councils of the professional associations. A balance would need to be struck between adding a sufficient number to ensure that the Councils give adequate consideration to the interests of non-lawyers, and yet not adding so many that the profession ceases to identify with the Councils. Whatever number of non-lawyers were added, the problem would arise of their role in relation to the non-regulatory functions of the Councils. The profession might reasonably object to non-lawyers being entitled to vote on questions such as whether the association should apply for an increase in fee scales, or should develop a library for use by its members. This difficulty would be avoided if the non-lawyers had no voting rights, or if they sat on committees rather than on the Councils themselves, but either of those approaches would reduce their ability to safeguard the public interest. Another possibility is for the Councils to delegate their non-regulatory functions to bodies on which non-lawyers do not sit, or at least do not have voting rights.

3.26 The second major argument against vesting general regulatory power in the governing body of a professional association arises if, as is usually the case, the right to elect the governing body is confined to members of the professional association. This means that practitioners are denied a vote for the principal body by which they are to be regulated, unless they join a particular professional association and thereby subject themselves to the internal rules of that association. A possible response to this argument is to allow all practitioners to vote for the general regulatory body, regardless of whether or not they are members of the association. All practitioners would be required to contribute to the cost of the regulatory functions of the body, but members of the association might pay an additional fee to meet the cost of such non-regulatory functions as they wish their association to perform. The members of the association might reasonably object to the non-regulatory functions, funded exclusively by them, being exercised by a body for which non-members have a right to vote. Moreover, difficulties might arise in seeking to distinguish between regulatory and non-regulatory functions, and in any event the regulatory body would continue to have the conflict between these functions to which we have referred earlier. These problems would be reduced if the governing body were to delegate many of its non-regulatory activities to other organs of the association.

VI. The Role of the Courts

3.27 At present the courts play an important role in the regulation of practitioners’ conduct in the course of litigation, and the Supreme Court is the ultimate disciplinary body for the profession. ¹ But, in practice, they do not act as the general regulatory body of either branch of the profession. Several considerations suggest that the present role played by the courts in relation to regulation of the profession should not be extended. First, courts traditionally eschew questions of general policy as far as possible, particularly if those questions are currently controversial. A general regulatory body, however, must be involved heavily in policy-making and, on occasion, in controversy. Secondly, courts are not equipped to undertake the amount of investigation and administration required of a general regulatory body. Thirdly, judges are well-informed and experienced in relation to the conduct of litigation, but this is not necessarily so in relation to other aspects of legal practice. Fourthly, their appreciation of the interests of non-lawyers may be limited by their lengthy experience as legal practitioners and then as judges.

VII. The Role of Government

3.28 We have spoken earlier in this chapter of the fundamental importance of having a body of lawyers who are free to represent clients vigorously against Government and other powerful interests. ¹ We have referred also to the importance of preserving a profession’s sense of responsibility for its own standards. ² For these reasons it would be undesirable, in our view, for Government nominees to constitute a large proportion of the membership of any general regulatory body of the profession.

3.29 There is a strong case, however, for some Government role in professional regulation. Despite the weaknesses in the democratic process, the Government has two major claims in this context. One is that it, alone of all the institutions in the community, is accountable at regular intervals to the whole community. The other is that the Government is responsible for the whole range of public policies throughout the community. These two factors mean that the Government may be more in touch than a professional body with changing public needs and attitudes, and with the impact on the profession of policy considerations arising in other areas. The Government has a continuing responsibility to oversee the functioning of the legal profession in the public interest, and to propose to Parliament changes in the law regulating the professions. Parliament may delegate to the governing body of a professional association the primary responsibility for regulation of the profession, or of a sector of the profession, but it and the Government have a responsibility to ensure that any such body remains accountable for the exercise of the power delegated to it. ¹

3.30 In reality, a danger of Government participation in regulation is that rather than being too dominant, it may be ineffectual. Ministers and senior public servants are likely to have too many competing demands on their time to enable close and continuous involvement in regulation of the profession. Moreover, public servants may have a limited acquaintance with many of the issues concerning delivery of legal services, whether from a practitioner’s viewpoint or that of a client. If they are appointed to sit on regulatory bodies they may regard it as beyond their function and training to play a vigorous personal role, especially oil controversial issues. One way of reducing the demands on public servants would be to establish a committee to advise the Government in relation to its involvement in regulation of the profession. In this way the views of interested, well-informed and forthright people, especially non-lawyers, would be obtained on a regular basis. If chosen by appropriate means, the committee could also reduce the danger of Government intervention occurring tor reasons of party politics or personalities.

VIII. Some General Conclusions

3.31 The considerations to which we have referred in this section on the general regulation )f the profession lead us to the following general conclusions.

(i) Regulation of the profession should be directed towards the public interest.

(ii) Assessment of the public interest is a complex value judgment involving consideration of a wide range of interests, including those of lawyers, clients, would-be clients and others.

(iii) The perception and balancing of these interests requires substantial participation by lawyers and non-lawyers in the regulation of the profession.

(iv) in order to preserve due independence for members of the profession, the profession’s sense of responsibility for its standards, and its respect for the rules by which it is governed, the general regulatory bodies of the profession should consist predominantly of lawyers chosen by the profession itself.

(v) There are substantial advantages and substantial disadvantages in the Law Society Council and the Bar Council being general regulatory bodies responsible for protecting the public interest, as well as being governing bodies of professional associations, responsible for advancing the interests of their own members. if they are to retain these dual roles, it will be necessary to provide additional safeguards for the public interest.

(vi) Practitioners’ rights to vote in elections for the general regulatory body to which they are subject should not depend upon whether or not they are members of a particular professional association.

(vii) Whether or not the Law Society Council and the Bar Council remain as general regulatory bodies, a committee, consisting principally of non-lawyers, should be established by statute to advise the Government and the general regulatory body or bodies on matters relating to the regulation of the profession.

(viii) The Government is entitled to a significant role in the regulation of the profession in order to ensure that the profession is being regulated in the public interest. But its role should not be dominant and should not be of such a kind as to threaten the existence of a legal profession which is willing and free to represent clients against Government without fear of reprisal.

(ix) The courts are not appropriate bodies to have a greater role in regulation of the profession than they have at present. In particular, it would not be appropriate for them to be given general responsibility for the regulation of the profession.

3.32 These general conclusions leave unresolved one fundamental issue, namely whether the Law Society Council and the Bar Council should continue as general regulatory bodies. We return to that issue, and to many other issues concerning general regulation, in later chapters. Before doing so, we consider whether the profession should continue to be divided into barristers and solicitors. The answer to that question must obviously affect our recommendations about the future regulatory roles, if any, of the Law Society Council and the Bar Council.

C. THE DIVISION OF THE PROFESSION INTO BARRISTERS AND SOLICITORS

3.33 We discuss in this section some basic issues concerning the present divided structure of the profession and the desirability or otherwise of changing that structure. We do so under the following heads:

(i) Flexibility and Freedom of Choice.

(ii) Division of Labour between Practitioners.

(iii) Development and Identification of Specialisation.

(iv) Consequences of Specialisation.

(v) Independence and Objectivity.

(vi) Accessibility to Clients and Other Practitioners.

(vii) Support and Assistance from Other Practitioners.

(viii) The Operation of the Courts.

At the end of the section we draw some general conclusions from the preceding discussion.

3.34 It is important to emphasise at the outset that we do not give serious consideration to the introduction of a structure in which practising in the style in which barristers now practise would be prohibited or discriminated against. We know of no-one who proposes such a structure, and we regard it as clearly unjustifiable. The important question, in our view, is whether the present divided structure gives practitioners sufficient freedom to practise in the style which best suits them and their clients, whether that be the style in which barristers now practise or some other style. We do not consider that the continued existence of a strong and vigorous Bar depends upon the maintenance of a divided structure. The experience of the legal professions in South Australia, Western Australia, New Zealand and elsewhere demonstrates the correctness of that view. We give other reasons for it in the course of this section.

3.35 The issues considered in this section were discussed in greater detail in the Commission’s Discussion Paper, The Structure of the Profession. Tentative views expressed by us in Part I of that Paper were the subject of comment by our colleague, Mr Conacher, in Part II of the Paper, and by the Bar Association, the Law Society and others in submissions or other responses to the Paper. Many of the arguments raised by these commentators are referred to in the text of this section, with appropriate citations being included in the footnotes.

I. Flexibility and Freedom of Choice

The importance of Flexibility and Freedom of Choice

3.36 There is a wide diversity of needs for legal services amongst clients and would-be clients. ¹ This arises not only from differing types of legal problem, but also from factors such as a clients financial situation, geographical location, and familiarity with the legal system. There is also a wide diversity of needs and preferences amongst lawyers in relation to the manner in which they practise. This arises from factors such as their aptitudes, experience, personality and geographical location. Moreover, the needs of particular lawyers and clients can be changed substantially by variations in the economic situation, changes in substantive or procedural law, or technological developments.

3.37 In the light of these diverse needs and changing circumstances, it is important, both for lawyers and for their clients or would-be clients, that the structure of the profession should give lawyers substantial freedom of choice concerning the manner in which they organise their practices. Freedom of choice encourages flexibility, diversity, competition and innovation. It enables lawyers to respond to the needs of their particular clients or potential clients, to their own capabilities and preferences, and to the circumstances of particular cases. If the structure of the profession unduly restricts this freedom, it may adversely affect the quality, accessibility, speed or cost of legal services. This does not mean that the structure should provide absolute freedom of choice, but rather that freedom should not be restricted to a greater degree than is clearly required in the public interest.

The Combined Effect of Distinctions and Restrictive Practices

3.38 The present divided structure substantially restricts practitioners’ freedom of choice as to the style in which they practise and the manner in which they handle particular matters. This arises principally from the combined effect of, on the one hand, legal and official distinctions between barristers and solicitors, and on the other hand, restrictive practices amongst barristers. We mentioned some of these distinctions and restrictive practices in chapter 2, ¹ and we describe many of them in detail in chapters 4, 6 and 7.

3.39 The combined effect of the restrictive practices and the distinctions may be summarised as follows. The restrictive practices require a barrister to practise in a particular style, the principal elements of which are being a sole practitioner and not acting without the intervention of an instructing solicitor. If a barrister wishes to practise in a slightly different style (for example, by going into partnership with another practitioner who does not act without the intervention of an instructing solicitor) he or she must become a solicitor. Upon doing so, the legal and official distinctions between barristers and solicitors mean that, for example, he or she has to obtain a practising certificate, pay for indemnity insurance, contribute to the Fidelity Fund, and cease to wear a wig and gown when appearing as an advocate. His or her professional fees will be subject to much tighter regulation than those of a barrister. These and many other consequences arise even though the practitioner is practising in the same style as a barrister save that he or she is now in partnership with another practitioner who practises in the same style, and may be doing exactly the same kind of work as a barrister. We do not see why, for example, the wearing of a wig and gown, or the liability to obtain a practising certificate, should turn upon whether a practitioner is in sole practice or in partnership. Consequences similar to those described above will arise if, for example, a barrister wishes to continue as a sole practitioner and is generally willing to observe the Bar Association’s rule against acting without the intervention of an instructing practitioner, but wishes to make an exception in relation to work from, say, a particular institutional client which has its own legal department that is willing and competent to do the work of an instructing solicitor. Indeed, the legal and official distinctions to which we have referred apply even where a solicitor practises in precisely the same style as a barrister they depend on whether one is admitted as a barrister, not on whether one practises in the style of a barrister.

Justifiable and Unjustifiable Distinctions

3.40 There are, of course, many circumstances in which legal or official distinctions between practitioners may be appropriate, and may be compatible with, or even enhance, freedom of choice and flexibility within the profession. But it is unfair, and inimical to freedom of choice and flexibility, for a distinction to be based on a criterion which differs from the justification f or the distinction. For example, if the justification for a distinction lies in the difference between the style of practice of a barrister and all other styles, the criterion used for the distinction should be whether or not a practitioner practises in that style, rather than whether or not he or she is admitted as a barrister. After all, solicitors may practise in the style of a barrister. If the justification for a distinction lies in one aspect of the style of a barrister, such as not acting without the intervention of an instructing solicitor, the criterion used should be whether a practitioner practises in that way, not whether he or she is a barrister or practises in all respects in the style of a barrister. If the justification lies in the type of work, say, advocacy, which a practitioner performs in a particular instance, the criterion should be whether the practitioner is undertaking that work. The fact that a large proportion of the advocacy in this State is performed by barristers does not justify the criterion being whether or not the practitioner is a barrister. A similar point may be made in relation to a distinction for which the justification lies in whether the practitioner was instructed by another practitioner in the particular case in question. The fact that in most instances instructed practitioners are barristers does not justify the distinction being drawn between barristers and solicitors.

3.41 Some people seek to justify many of the existing distinctions between barristers and solicitors on the ground that, in practice, all or most barristers have a certain characteristic (eg. acting only with an instructing practitioner, or specialising in advocacy) which is relevant to the distinction in question, but few, if any, solicitors have the same characteristic. ¹ In our view, this approach has substantial failings. Considerable unfairness may be caused to those lawyers (and hence to their clients) who have a characteristic which is rare in their own branch yet common in the other branch. This unfairness can deter practitioners from practising in the style which best suits them and their clients. The result may be the complete, or virtually complete, disappearance of the characteristic from one branch thereby giving a retrospective and spurious “justification” to the original distinction. If that distinction and other unjustified distinctions were removed, the characteristic in question might cease to be confined solely, or largely, to one branch of the profession.

The Effect of Distinctions in the Present Divided Structure

3.42 Later in this Report we look at a number of existing legal and official distinctions which are based on whether a practitioner is a barrister or a solicitor. ¹ In each instance we conclude that a distinction on that basis is not justified, although in some instances a distinction on another basis, such as whether a practitioner is being instructed by another practitioner in the matter in question, may be justifiable. The principal effect of the present unjustified distinctions, in conjunction with the restrictive practices at the Bar, has been to put undue pressure on practitioners who wish to specialise in advocacy (especially in the higher courts), and in advisory work, to practise in the style of a barrister irrespective of whether that style is best-suited to them or is in the best interests of their particular clients or potential clients. if they were to diverge, even slightly, from the barristers style, they would incur a substantial number of disadvantages, and only a few minor advantages, as a result of the distinctions between barristers and solicitors. The result of this pressure to conform to one particular style can be seen by comparing the style of practice of specialist advocates in the higher courts in New South Wales with those in places where few, if any, legal or official distinctions are drawn between barristers and solicitors. In New South Wales all such advocates, with perhaps one or two exceptions, are barristers and practise in the style of barristers. By contrast, in those Australasian jurisdictions which have a flexible structure, some of these advocates practise at the Bar, but many others practise in partnerships, sometimes taking work directly from clients and sometimes having an instructing practitioner, whether from their own firm or from elsewhere. ² In these places there is a wider range of choice for practitioners, unencumbered by unfair distinctions, and as a result there is a greater scope for diversity and competition, and a greater range of choice for clients in relation to the way in which they may have their matter handled.

Restrictive Practices at the Bar

3.43 We have mentioned the combined effect of restrictive practices and legal or official distinctions, but thus far we have concentrated on the distinctions. We have done so because it is more appropriate and feasible for Parliament and the Government to place primary emphasis on the removal of unjustified legal or official distinctions, rather than to seek modification or abolition of restrictive practices which arise from the action of private individuals and their association. If unjustified distinctions were removed, the restrictive practices at the Bar might have less impact on the profession as a whole and on the public interest. Practitioners would be able to avoid those practices by practising outside the Bar, without thereby incurring unjustified disadvantages.

3.44 Nevertheless, restrictive practices within the profession should be subjected to scrutiny, lest they constitute unreasonable restraints on competition and flexibility within the profession and thereby are contrary to the public interest. This applies whether or not the unjustified distinctions in law or official practice are abolished. It is generally accepted in Australia, as in many other countries, that restrictive practices in the realm of trade and commerce can affect adversely the quality and cost of goods and services. ¹ These consequences can arise within the professions and, both in Australia and elsewhere, restrictive practices in the professions are, to some, extent becoming subject to outside regulation. ²

II. Division of Labour

3.45 In the remaining sections of this chapter we look at a number of benefits which are said to arise from the present divided structure. In doing so, we consider the extent to which these benefits do, in fact, occur under that structure, whether they are obtainable only under such a structure, and whether they are accompanied by certain disadvantages which might be avoided or reduced by changing the structure. We reiterate that, in our view, the question is not whether the Bar should be abolished or discriminated against, but whether practitioners who wish to practise in styles other than that in which barristers now practise should be permitted to compete on fair terms with those who practise in that style. In particular, we consider whether the barristers style of practice is so clearly different from, and superior to, other styles as to justify the way in which it is singled out for special, usually favoured, treatment under the present divided structure.

Advantages of a Division of Labour

3.46 The New South Wales Bar Association has submitted to us that:

“The separation of the profession provides a convenient division of labour, not a multiplication of labour. Law is, today, infinitely complex and no one person could possibly cope with all aspects of all branches of the law. in particular, there is an obvious practical difference between the process of interviewing clients and assessing what their cases are really about, on the one hand, and presenting those cases in Court, on the other hand. The distinction between barrister and solicitor reflects this difference. if the one person is placed in the position where he does both jobs, he will do each of them less thoroughly than if he is able to confine his attention to one of them.” ¹

3.47 There can be no doubt that in many circumstances the use of two lawyers on a matter has substantial advantages. ¹ The sheer volume of work may require it. Even in a less onerous matter, the overall quality and efficiency of service provided may benefit from different lawyers concentrating on separate aspects of it, and from the ready availability of an informed second opinion. Division of labour is, therefore, often desirable and sometimes essential. Its benefits may be enhanced if, as occurs in the present structure, barristers specialise on one side of the traditional division of labour and solicitors on the other. This specialisation can enable work to be more skilled and efficient. It is possible that any consequential saving of time may be reflected in lower fees for clients.

Disadvantages of a Division of Labour

3.48 There are circumstances, however, in which the advantages of division of labour are outweighed by its disadvantages. ¹ For example, in many relatively simple cases it would be quicker, and equally adequate, for one lawyer to handle the whole matter. In these cases the involvement of two lawyers, one instructing the other, is a waste of time and money.

3.49 Moreover, a division of labour can lead to a confusion or abdication of responsibility on the part of some, or all, of the lawyers involved. The solicitor may rely on the barrister, the barrister may rely on the solicitor, and the client may find that the practical effect is that no-one is accepting a proper degree of responsibility. This should not happen, but in some cases it does happen. Additional cost and delay may arise from the need to transfer information between the lawyers involved, and from duplication of work, such as the reading of documents. The possibility of inefficiency arising out of the involvement of both a barrister and solicitor is increased by certain Bar rules and practices. For example, generally speaking, barristers are required to be accompanied by solicitors at conferences and in court, not to attend conferences at their instructing solicitors’ offices, and to go through their instructing solicitor if they wish to obtain further information from their client or from potential witnesses. ¹

3.50 Another important consideration is whether a particular client can afford to pay for both a barrister and a solicitor. In some cases it may be essential to have two lawyers, and if the client cannot afford them then he or she must hope to obtain legal aid. In many other cases, however, while it may be preferable to have two lawyers, one would be sufficient and is all that the client can afford.

The Rigidity of the Present Structure

3.51 In short, division of labour on a case is sometimes desirable and sometimes undesirable. A principal weakness of the present structure is that it inhibits flexibility in this respect. The structure contributes to a situation in which, for cases in the higher courts, it is in practice almost inevitable that a barrister will have to be used. It also increases the likelihood of advisory work having to be sent to a barrister, rather than being dealt with by the original solicitor or by another solicitor on referral. it involves rules and practices which require that wherever a barrister is used a solicitor must also be used, and that there must be a division of labour between the barrister and the solicitor along specified lines. The overall effect, then is that the present structure of the profession tends to impose for a wide range of cases a standardised method of handling them. This method may often be suitable but in other circumstances, for the reasons mentioned above, it may cause undue cost or delay or may affect adversely the quality of service provided. Sometimes it may prevent a client from obtaining competent legal service at a price which he or she can afford.

III. Development and identification of Specialisation

Development of Specialisation

3.52 According to the New South Wales Bar Association:

“The continuation of the existing division of the profession makes available, in fact, to members of the public the specialist services of the separate Bar, that body comprising those practitioners who are

(a) skilled and experienced in the specialty of advocacy, whether in general or in particular areas and who hold themselves out as, and are identified and accepted both within and outside the legal profession as, specialists in that sense; and

(b) skilled and experienced in areas of the law in relation to which they are available to advise and be consulted by any member of the public, through his solicitor, when independent specialist advice or consultation is required.

Thus ... the New South Wales Bar constitutes and provides the form of specialisation appropriate to the needs of the public and of the legal profession in New South Wales, a specialist service which it is essential in the public interest to maintain.” ¹

3.53 There are undoubtedly many specialists at the Bar, especially in the field of advocacy. ¹ The existence of the Bar nurtures to some extent the development of specialisation within the profession. ² By becoming barristers, practitioners announce, in effect, that they are prepared to take court work and advisory work on referral from solicitors and that, since work will be taken on referral only, solicitors can refer matters to them without fear that the clients will be taken over. Such an announcement greatly increases barristers’ prospects of obtaining sufficient work to develop a specialist practice.

3.54 There are, however, some aspects of life at the Bar which do not encourage specialisation. Barristers are required to practise on referral only and therefore cannot build up a specialist practice with the assistance of clients who come directly to them. Nor, generally speaking, can they take any other type of work directly from clients in order to keep themselves going while they build up their specialist work. Since they must practise as sole practitioners rather than as partners or employees, they cannot obtain the support of partners or employers to “carry” them during difficult times and to share the capital costs of acquiring expensive library and technological resources which may be necessary for advanced work in their chosen field. Solicitors, especially those who work in medium-sized or large firms, do not face these difficulties to the same extent.

Identification of Specialists

3.55 The Bar Association claims that the existence of the Bar not only facilitates specialisation but enables specialists to be identified more readily. ¹ The Law Society, however, has described the structure as being

“open to criticism in that

(i) it regards all members of the bar as specialists in one or more fields of legal practice, irrespective of the actual degree of expertise of each barrister; and

(ii) it fails to recognise the extent of specialisation and expertise which has been obtained by many solicitors.” ²

The Society’s criticisms may be some what over-stated, but in our view they point to significant failings in the present system. In relation to the Society’s first criticism, it is clear that many barristers cannot claim specialist expertise in any particular field. ³ Moreover, the present system does not enable a barrister’s particular field or fields of specialisation to be identified readily by all solicitors. City solicitors with big litigation practices may have little difficulty, but this is not the case for many suburban and country solicitors. The Law Society has submitted to us:

“Because of the absence of volume of work and close contact with counsel, it is difficult for country solicitors to know which counsel is the most competent one to engage in particular matters.” ⁴

In relation to the Society’s second criticism, Mr Justice Jacobs (then of the Court of Appeal pointed out more than a decade ago that barristers

“are the specialists in litigation and a limited number are specialists in other fields, but the real specialists are becoming the firms of solicitors who can undertake the advising, preparing and carrying through of large commercial transactions”. ⁵

IV. Consequences of Specialisation

Advantages and Disadvantages

3.56 We have referred to the Bar Association’s emphasis on the value of the Bar as a source of specialists. What are the advantages of specialisation, whether at the Bar or elsewhere? There is no doubt that specialisation in a particular field of practice can have many important advantages. ¹ It can enable a practitioner to substantially improve the quality, speed and efficiency of his or her service. As society and the legal system become increasingly complex, there is a growing number of fields in which a measure of specialisation is essential for the provision of satisfactory service. It is simply not possible for a practitioner to achieve and maintain competence across the whole range of law.

3.57 The advantages of a measure of specialisation can be substantial and in some cases essential. But two qualifications need to be expressed. ¹ First, specialists can tend to become unwilling or unable to handle work outside their specialist field. This applies, for example, to solicitors specialising in the preparation of a case and barristers specialising in its presentation, thus reducing the number of practitioners who are willing and competent to handle both preparation and presentation in appropriate cases. Secondly, intensive specialisation can lead to in-breeding and tunnel vision within those working in the field, raising the danger of problems being handled automatically in accordance with the prevailing views of specialists in the field, rather than being examined to see whether a particular problem might better be dealt with by a new method or by a specialist in another field.

3.58 Some particular advantages of specialisation are said to arise in relation to the Bar. ¹ By specialising in advocacy and opinion work on referral from instructing solicitors, barristers can avoid the high overheads, ² and the frequent interruptions, that may be involved in establishing and working in a solicitor’s office which may be frequented by many clients and may require extensive staff, premises and other resources for the handling of clients’ affairs.

3.59 There is strength in these points, but several qualifications must be taken into account. First, in relation to freedom of distraction at the Bar, the Bar Association has submitted to us that interruptions in chambers can be frequent, making sustained concentration very difficult. ¹ Secondly, while there can be no doubt that, on average, barristers’ overheads are substantially lower than those of solicitors, much of this difference arises from the mere fact that solicitors tend to handle those parts of a case which involve high overheads, such as the collection of evidence and the preparation of documents. To this extent, there is no overall saving for the client, nor for the profession as a whole. Thirdly, some of the difference in average overheads is misleading, because solicitors often include within their overheads the salaries of fee-earning solicitors on their staff. Fourthly, there is reason to expect that some solicitors can keep their overheads as low as barristers, or even lower. A likely possibility would be a solicitor specialising in advocacy who gets most of his work from an institutional client (such as an insurer) which has the resources and willingness to undertake most of the preparation of the case. And if a specialist advocate joins a medium or large firm of solicitors, the consequential addition to the firm’s overheads may not be substantial and may be less than the overheads of the barristers whom the firm would otherwise have briefed.

The Effect on Non-Specialists

3.60 It is important to consider also the impact of specialisation on the provision of services by non-specialists. ¹ Excessive encouragement of intensive specialisation within the profession can deplete unduly the supply of non-specialists to whom clients can resort for a preliminary diagnosis followed by a referral to an appropriate specialist, or for the handling of a problem which is simple or which, although difficult, arises in a country area remote from specialists. The development of a high degree of specialisation can result in various types of work coming to be regarded widely as requiring the services of a specialist, even though non-specialists with a modicum of experience in the relevant fields would be competent to handle them. In consequence, non-specialists can be deprived of the experience needed to develop or maintain their competence in performing these tasks, and thus the attitude that they are not competent to handle the work becomes self-fulfilling. As the more stimulating, prestigious and remunerative work is taken over by specialists, so there is a tendency for the status, morale and eventually the calibre of non-specialists to decline, not only in relation to their remaining work in specialist fields but also in non-specialist fields and in the general diagnostic and referral role.

3.61 The process described in the previous paragraph can be seen in the history of the medical profession, in which specialisation has developed to a greater degree than has yet occurred in the legal profession. It has led to great concern about the number and standards of general medical practitioners. For example, an Australian commentator has written:

“it is a paradox of technical progress and specialisation that while the professional situation of the generalist is weakened, the need for his services as a guide and coordinator is not .... The experience of the United States is not an encouraging precedent. In many locations the general practitioner has disappeared and a large proportion of primary care is supplied either as a by-product of specialist practice, or by hospital out-patient and casualty departments and by the practitioners of fringe medicine. The remarkably high costs of services reflect misuse of resources rather than improvement in the availability or quality of care.” ¹

3.62 The relevance of these considerations to the present divided structure of the legal profession is that, while that structure leads to experience in advocacy and opinion work being concentrated in the relatively small group of lawyers at the Bar, and thus tends to promote a special excellence in that group, the structure may so affect the calibre of services provided by the remainder of the profession that its overall effect is adverse. For example, if solicitors refer almost all advocacy or legal advice of any substance to the Bar, rather than undertaking it themselves, they reduce their competence to handle such work. It may appear on the surface that this does not matter because the work will be done by barristers. But it does matter. It reduces solicitors’ ability to prevent legal problems arising for their clients, to diagnose promptly and accurately those problems which do arise, and, where the assistance of a barrister is necessary, to seek it at the right time and to gather evidence and present issues to the barrister in an effective and efficient manner. Moreover, it increases the likelihood of clients incurring additional expense and delay through having to resort to two lawyers rather than one. For a significant number of clients the financial or geographical difficulties of briefing a barrister may be prohibitive, forcing them to rely solely on their solicitor, whose lack of opportunity to develop experience in the field in question may lead to inadequate service.

3.63 Consequences of this kind have been adverted to in many submissions to us. For example, the Chief Solicitor of the Commonwealth Bank submitted to us:

“The present form of the division seems to produce two undesirable tendencies:

(a) Many solicitors seem to be reluctant to express an opinion or follow a course of action in a contentious matter without obtaining an opinion or advice from a barrister.

(b) Although some solicitors competently carry out advocacy, there appears to be a predominant practice of briefing a barrister for the sole purpose of advocacy in even the most elementary of matters.” ¹

V. Independence and Objectivity

Freedom from Conflicting Interests

3.64 Barristers may be less prone than many solicitors to certain conflicts of interests. ¹ The division of labour means that barristers often do not have close or continuing contact with clients, and thus may be able to give more objective advice, unclouded by a long association with the client and with the conduct of his or her legal affairs. The fact that barristers practise as sole practitioners, rather than as partners or employees of other practitioners, leaves them free of possible conflicts between, on the one hand, their clients’ interests, and on the other hand, interests of their partners or employers, or of clients of their partners or employers. Solicitors, on the other hand, may have ties with partners or employers, and with a wider range of business interests than most barristers. Chief Justice Burt, of Western Australia, has put the matter in the following way:

“A large firm has many permanent clients and through them it develops a permanent connection with various interests in the community. This compromises the independence of counsel. He becomes identified and this restricts his availability.” ²

3.65 On the other hand, the extent and significance of these differences between barristers and solicitors should not be exaggerated. The practice of many barristers rests heavily on a flow of work from a particular client, type of client (such as trade unions), or firm of solicitors. Some have general retainers binding them to accept such work as may be offered by a particular client. These ties can reduce availability and independence. Also, barristers’ independence and distance from clients can sometimes lead them to have an inadequate understanding of their clients’ needs and an insufficient commitment to provide the best possible service.

The “Cab-rank” Rule

3.66 Another aspect of independence at the Bar is the Bar Association’s rule (colloquially known as the “cab-rank” rule), which in certain circumstances requires barristers to accept work which is offered to them. ¹ The Association has submitted to us that the rule

“is of great importance in practice because it ensures that barristers are not identified with their clients. It also enables parties with unpopular causes or defences to obtain proper representations.” ²

The Association has re-iterated the importance of this rule in its reply to our Discussion Paper on the structure of the profession. ³ But there are fourteen paragraphs of exceptions to the rule and in relation to a previous version of the rule, in which the exceptions were fewer and no more subjective than those in the present rule, the Law Society said that

“the interpretation of the duty and its exceptions has become highly subjective and there is, in reality, ample opportunity for any barrister to refuse any brief offered to him”. ⁴

3.67 We share the Society’s view quoted above. But we think that the cab-rank rule does have a valuable effect in reducing criticism of barristers who accept unpopular clients. Some barristers who might otherwise be willing to take unpopular cases could be deterred if such appearances were generally construed by professional colleagues and the public as expressions of sympathy for the client’s cause. But the cab-rank rule, or something like it, need not be unique to the Bar. It could be extended to any practitioner offered work by an instructing practitioner, at least in relation to litigious work. In the view of the Law Society, it is already the case that “most solicitors feel they have a subjective moral obligation to accept most work and most clients” and that this obligation is “subject only to the same exceptions applying to the [Bar Association’s cab-rank rule]”. ¹ We consider the cab-rank rule, and the application to solicitors of a somewhat similar principle, in greater detail in a later chapter. ²

VI. Accessibility to Clients and Other Practitioners

3.68 We have mentioned already some matters which affect the accessibility of legal services, such as the incidence and identification of specialist practitioners, and the effects of specialisation on non-specialists. In this section we refer to several other issues which substantially affect accessibility. ¹

Client Poaching

3.69 An important advantage said to be inherent in the divided structure is that, because a barrister may not deal with clients except through a solicitor, any solicitor may obtain the assistance of a barrister without running the risk of permanently losing the client to that barrister. ¹ This, it is said, improves clients’ access to lawyers of appropriate skills. The protection against client-poaching is said to be of special importance in relation to sole practitioners and small firms, which are more likely to lack specialist skill in a particular field and therefore to need to refer a client to another lawyer. They may also be more vulnerable than large firms to having unfavourable comparisons made by a client between their resources and those of the firm to which the client is referred. The Bar Association has submitted to us:

“Without the Bar, individual or small group practice amongst solicitors may well become impossible or dangerous.” ²

3.70 In our view, the risk of client-poaching is not great. First, our inquiries indicate that referrals between solicitors, including referrals from small outlying practices to large Sydney firms, are by no means uncommon and are increasing in frequency. Secondly, a practitioner who gained a reputation as a client poacher would be unlikely to continue to get work on referral, and his or her practice would thereby suffer. Thirdly, experience in professions with flexible structures shows that practitioners, including country practitioners, frequently brief amalgam practitioners (ie. those who are not at the separate Bar) despite the alleged risk of client-poaching. Our survey of the profession in South Australia found that small and country practices were at least as willing to brief amalgams as to brief practitioners at the Bar. ¹ Fourthly, if there is a widespread fear, whether justified or otherwise, that client-poaching will occur, practitioners who are willing to undertake not to poach clients referred to them, or at least not to do so within a specified period of the referral, could be permitted to advertise that fact Indeed the choice has to be made between, on the one hand, the Bar’s present restrictive practice against accepting work directly from clients, and on the other hand, a rule prohibiting client-poaching in certain circumstances, the latter alternative may well be preferable in the public interest.

Access to Practitioners in Firms

3.71 Another matter concerning accessibility arises from the fact that barristers have to be in sole practice. If they were in a firm, it is said, they might be largely occupied with work for clients of that firm and they might be more likely to have to decline a brief due to a conflict between the interests of the potential client and those of an existing client of the firm. This is a valuable attribute of barristers, but its significance by comparison with solicitors should not be exaggerated. First, solicitors can be, and many are, sole practitioners. Secondly, by contrast with a barrister, a partner in a firm is more likely to be able to transfer to other partners, or to employees, work which does not require his or her skills. In this way, the partner can make time to handle a greater number of clients. These arrangements are especially likely to be made if the partner is so busy that he or she is having to decline work referred to him or her by other practitioners, whether inside or outside the firm. Thirdly, most firms, and especially those members of them who receive work from outside practitioners, are unlikely to want to turn down this outside work any more than inside work. Experience in New South Wales shows that some leading advisers working in firms, including medium-sized and large firms, receive and accept much outside work. Our survey in South Australia showed that when leading amalgams received instructions from other practitioners, about half were from practitioners in their own practice and about half from outside practitioners. Those instructions which were declined were as likely to come from inside the practice as from outside it. In relation to instructions which were accepted, those sent to amalgams were more likely to come from small practices than were those sent to members of the Bar. ¹

Country and Suburban Areas

3.72 Both the Law Society and the Bar Association have stressed in their submissions to us the special value of the Bar for country and suburban solicitors, and for their clients. ¹ There is strength in this view as an argument for retention of a strong Bar. But for reasons which we have given above, we consider that there is considerable, and growing, scope for country and suburban solicitors to refer matters to other solicitors as an alternative to using the Bar. As we have mentioned, in South Australia country and suburban solicitors are as likely to instruct amalgams as to instruct members of the Bar. ² This use of other solicitors would be aided considerably by relaxing the present restrictions on advertising by solicitors. ³

3.73 It is important, too, to bear in mind the problems which arise from the present centralisation of the Bar. Apart from a small number of barristers in the cities of Newcastle, Wollongong and Parramatta, the Bar is clustered together within a couple of hundred metres of the Supreme Court building in central Sydney. The Law Society has pointed out some of the problems which this causes for country solicitors:

“There is difficulty in briefing counsel as a matter of urgency and, even in non-urgent matters, once counsel is briefed it is more difficult for a country solicitor not having the close personal contact with counsel or the volume of work to extract favours from counsel or even to have counsel deal with his matters in turn.” ¹

The problems can be especially marked in relation to advocacy. Country solicitors have frequently told us of the difficulties and expense of obtaining barristers to take briefs at country sittings. Country solicitors often have very little choice as to whom they brief and may find themselves left without a barrister, or with a strange barrister, at the last minute. Even when barristers are available, bringing them from Sydney is expensive.

VII. Support and Assistance from Other Practitioners

3.74 A feature of the Bar is its corporate life. ¹ It embraces the communities of barristers sharing floors of buildings, and the Bar Association itself. Through close proximity, and the traditions of the Bar, many barristers have ready access to the advice and assistance of other barristers. They can benefit from an overflow of work amongst other barristers on their floor and elsewhere. These characteristics can be of special value to newly-fledged barristers. However, many of the virtues of corporate life seen in the Bar by its older or former members have become less substantial in recent years as the Bar has grown rapidly in size.

3.75 It must not be forgotten that practice outside the Bar often provides support and assistance of at least equal value to that which is available at the Bar. A firm may provide an environment which is both intellectually and socially rewarding, and may provide ready access to the experience and expertise of colleagues. Many solicitors hold a view similar to that expressed by a prominent Canadian advocate (now an appellate judge) while practising in a firm in Ontario:

“My partners are my friends. I see them socially... I discuss problems with them, whether they are engaged principally in litigation or principally in corporation law. To me, practising in chambers in the same building with some of my present partners would be a poor substitute for the advantages of true partnership, practised in an aura of friendship and affinity of taste.” ¹

Solicitors often maintain extensive contacts with solicitors outside their own firm. By comparison with barristers, they have greater opportunities for extensive contact with clients, which can give them a wide range of knowledge and experience outside a purely professional milieu.

VIII. The Operation of the Courts

A Flood of Inexperienced Advocates?

3.76 An argument commonly advanced in favour of the present structure is that because it, in effect, confines advocacy in the higher courts to the Bar, it thereby prevents the courts from being flooded with inexperienced or incompetent advocates who are unfamiliar to the judges and to other advocates. ¹ It is argued that the advent of these advocates would greatly prolong the hearing of many cases and would erode the mutual understanding and trust between advocates and judges which, at present, substantially improves the speed and fairness with which cases are resolved. ²

3.77 The strength of this argument in modern times must be assessed in the light of the substantial increase in the size of the Bar and the Bench, and the high proportion of inexperienced barristers. The Bar now comprises some 700 or so practising barristers, about one-third of whom have been at the Bar for less than five years. ¹ Moreover, even if higher court advocacy were no longer confined, in practice, to the Bar, the overwhelming majority of it would continue to be undertaken by skilled specialists in advocacy, whether at the Bar or otherwise, rather than by neophytes. Even if a sense of responsibility or pride did not deter the incompetent advocate, the fear of judicial criticism or disciplinary action would be highly likely to do so. Perhaps more importantly, many inexperienced advocates would prefer to spend their time working on matters in which they are experienced, rather than working less efficiently and less remuneratively on the unfamiliar task of advocacy. The experience in flexibly-structured professions in Australasia and Canada supports these views. Concern has been expressed at the standard of advocacy in the United States. ² But that country differs from Australasian and Canadian jurisdictions in many relevant respects, including methods of legal education, the widespread use of contingent fee arrangements, emphasis on written procedure, the appellate system, and methods of judicial selection. Chief Justice Burger has been a prominent critic of standards of advocacy in his country and has proposed that advocates should be required to undergo special training. But he has said that “we cannot have, and most emphatically do not want, a small elite, barrister-like class of lawyers.” ³

Selection of Judges

3.78 Another argument advanced in favour of the present structure is that the bar provides a pool of specialist advocates from which judges can be chosen. ¹ Because the pool is relatively small and its senior members are well-known to each other and to the judiciary, identification of the professional skills and personal qualities desirable in judges is facilitated.

3.79 Several reservations must be expressed about this view. As we have mentioned, both the Bar and the Bench are now large. Moreover, both the Bar and the Bench in England are very much larger than in New South Wales, yet the process of judicial selection from the ranks of some 4,000 barristers appears to work at least as well as in this State. We have expressed earlier the view that, whether or not the present divided structure is retained, higher court advocacy would remain, in practice, largely the preserve of a group of specialist advocates which would not be much greater in size than is the case at present. The skills and personalities of these advocates would be well-known amongst themselves, the judges, and others whose opinion would be likely to play a direct or indirect role in judicial selection.

IX. Some General Conclusions

The Need for Reform

3.80 As we see it, the present divided structure has the following disadvantages, amongst others.

(i) In many cases, two lawyers (a barrister and a solicitor) are used where one lawyer would be sufficient and more economical.

(ii) Where a barrister and a solicitor are used, the division of labour between them is often determined by rules or practices which are not appropriate to the particular circumstances, with the result that duplication, omission, or confusion may occur.

(iii) Many solicitors are unduly deterred from handling matters on their own without reference to a barrister, and therefore they do not develop their ability to undertake advocacy and to advise on difficult questions of law.

(iv) Especially in relation to litigation, firms of solicitors are deterred from providing a complete service to their clients, yet in many circumstances such a service might be more efficient than one which involves a barrister.

(v) The number and calibre of specialist solicitors tends to be underestimated, especially by members of the public, thus inhibiting the supply and accessibility of such specialists.

(vi) In practice, the ranks of leading advocates and advisers (including Queen’s Counsel) and the judiciary are deprived of much valuable talent to be found amongst solicitors.

(vii) Specialist advocates and advisers are less readily accessible to clients in country and outer suburban areas.

(viii) There are undue restrictions on the freedom and incentive for lawyers to introduce new methods of providing legal services, or to extend existing methods into new areas.

A Basis for Action

3.81 The response to these weaknesses in the present structure should be based, in our view, on the following premises.

(i) In view of the diverse needs and preferences of lawyers and their clients, the structure of the profession should not restrict the style in which practitioners may practise, unless the need to do so is clearly demonstrated. Freedom of choice in this respect encourages flexibility, diversity, competition and innovation.

(ii) The style in which barristers presently practise is appropriate for many practitioners, and the use of such a practitioner can be beneficial for many clients. It should continue to be a prevalent style within the profession and there should be no discrimination against it.

(iii) But there are other styles of practice which are better for some practitioners, and which are of greater benefit to many clients, than the style of a barrister. This applies to those types of work which barristers presently do, namely advocacy and advisory work on the instructions of another practitioner, as well as to other types of work.

(iv) The present divided structure of the profession involves a combination of, on the one hand, legal and official distinctions between barristers and solicitors, and, on the other hand, restrictive practices at the Bar. This combination substantially restricts practitioners’ flexibility and freedom of choice in relation to the style in which they practise.

(v) The restrictive nature of the present divided structure applies particularly to practitioners who wish to practise in the same fields and in the same style as barristers, save that they wish to practise in partnership or to do some types of work without the intervention of an instructing practitioner.

(vi) In order to remove any undue restrictions on these and other styles of practice, each of the existing legal and official distinctions between barristers and solicitors should be examined in order to consider whether it is justified.

(vii) If unjustified distinctions between barristers and solicitors are removed, restrictive practices at the Bar will be less likely to constitute unreasonable restraints on practitioners. Practitioners who do not wish to comply with the practices will have greater freedom to practise outside the Bar.

(viii) Nevertheless, these restrictive practices should be carefully reconsidered to see whether they are contrary to the public interest, and, if so, whether they should be relaxed or abolished, either voluntarily or otherwise.

(ix) In considering the impact of these restrictive practices on the public interest, it is necessary to recognise the important role which the Bar plays in nurturing a group of practitioners who, generally speaking, have a valuable degree of independence, accessibility and expertise.

Para.
3.7	1. Submission No.269 (“Reply to the Law Reform Commission's Discussion Paper No.1 in relation to the General Regulation of the Legal Profession”), para.2.1.
3.8	1. For a fuller discussion of the issues referred to in paragraphs 3.8-3.1 1, see our Discussion Papers, General Regulation, pp.124-127, and The Structure of the Profession, Part II, ch.6 and para.11.5. See also eg. Law Society of New South Wales, Submission No.244 (The Role of Lawyers in Society and Special Needs for Legal Services”), pp.5-12 and Submission No.269 (Reply to the Law Reform Commission's Discussion Paper No. 1 in relation to the General Regulation of the Legal Profession), paras.4.1-4.15; New South Wales Bar Association, Submission No.266 (Reply to the Law Reform Commission's Discussion Paper No.1 - General Regulation”),pp.26-27: Needham J, Submission No.271.
3.10	1. Professional Organisations Committee, Report (Ontario, 1980), p.26.
3.12	1. Fora fuller discussion of the issues referred to in paragraphs 3.12-3.14, see our Discussion Paper, General Regulation , pp.119-127. See also Law Society of New South Wales, Submission No.225 (“Control of the Profession”), p.2; and Submission No.269 (“Reply to the Law Reform Commission's Discussion Paper No.1 in relation to the General Regulation of the Legal Profession”), para.4.14.
3.14	1. See our Discussion Paper, Complaints, Discipline and Professional Standards -Part I , and our Background Paper -I .
	2. See our Discussion Paper, Advertising and Specialisation .
	3. See our Discussion Paper, Solicitors' Trust Accounts and the Solicitors' Fidelity Fund .
	4. See our Discussion Paper, The Structure of the Profession, Part I.
3.15	1. For a fuller discussion of the issues referred to in paragraphs 3.15-3.21, see our Discussion Papers, General Regulation , pp. 1 34-149, and The Structure of the Profession, Part 11, paras.6.6-6.13. See also Law Society of New South Wales, Submission No.269 (“Reply to the Law Reform Commission's Discussion Paper No.1 in relation to the General Regulation of the Legal Profession”), pp.4, 37; Needham J, Submission No.27 1, pp.4, 9.
3.16	1. See paragraphs 2.31-2.32.
	2. For a brief description of the Committee, see paragraph 2.31.
	3. Pickering, “The Bar and the Community” (1980) District Lawyer, vol.4, p.6.
3.17	1. For a fuller description of the Council's membership, see our Discussion Paper, General Regulation, pp.79-80.
	2. Royal Commission of Inquiry into Civil Rights Report No.1 , (Ontario, 1968), vol.3, p.1166.
	3. For a description of these developments, see our Discussion Paper, General Regulation, pp.80-87, 90, 97.
3.20	1. See NSW Bar Association, Submission No.266 (“Reply to the Law Reform Commission Discussion Paper No.1 - General Regulation”), pp.11-13; Law Society of New South Wales, Submission No.269 (“Reply to the Law Reform Commission's Discussion Paper No.1 in relation to the General Regulation of the Legal Profession”), pp.14-23.
3.22	1. Fora fuller discussion of the issues referred to in paragraphs 3.22-3.26, see our Discussion Papers, General Regulation , pp.119-127, and The Structure of the Profession, Part II, ch.16. See also, eg. Law Society of New South Wales, Submission No.269 (“Reply to the Law Reform Commission's Discussion Paper No.1 in relation to the General Regulation of the Legal Profession”); NSW Bar
	Association, Submission No.266 (“Reply to the Law Reform Commission Discussion Paper No.1 - General Regulation”).
	2. See eg. General Regulation , ch.4.
3.23	1. On this conflict, see, e.g., our Discussion Paper, General Regulation, pp.29-31 and 136139; Keay, Submission No. 145, p.3-4; British Legal Association, Submission to the Royal Commission on Legal Services (England and Wales), p.9; and the sources cited in notes 3.24. 2 and 3 below.
	2. Clause 3(2), (5).
	3. Clause 4(b), (q).
3.24	1. NSW Bar Association, Submission No.266 (“Reply to the Law Reform Commission's Paper No.1 - General Regulation”), pp.16-18; Law Society of New South Wales, Submission No.269 (“Reply to the Law Reform Commission's Discussion Paper No.1 in relation to the general Regulation of the Legal Profession”), pp.23-29 and Appendix.
	2. Working Paper No.1 , (July 1981), para.2.26.
	3. Royal Commission of Inquiry into Civil Rights Report No.1 , (Ontario, 1968), vol.3, p.1166.
	4. See, for example, the matters mentioned in paragraph 3.14.
3.27	1. For a fuller discussion of the issues referred to in paragraphs 3,27, see our Discussion Paper, General Regulation , pp.129-134.
3.28	1. See paragraphs 3.8-3.11. Fora fuller discussion of the issues referred to in paragraphs 3.283.30, see our Discussion Paper, General Regulation , pp.127-129.
	2. Paragraph 3.12.
3.29	1. For an expansion of this argument, see Professional Organisations Committee, Report, (Ontario, 1980), p.28.
3.36	1. For a fuller discussion of the matters referred to in paragraphs 3.36-3.37, see our Discussion Paper, The Structure of the Profession , Part I, pp.106-108.
3.38	1. Para.2.14.
3.41	1. See eg. The Structure of the Profession , Part II, esp. ch. 14.
3.42	1. See chapters 6, 9 and 10.
	2. See our Discussion Paper, The Structure of the Profession, Part I, chapter 3, and our Background Paper -IV, Parts I and II.
3.44	1. See in particular, the Commonwealth Trade Practices Act 1974.
	2. See chapter 7. See also eg. Pengilley, Trade Associations, Fairness and Competition, (Law Book Co., 1981), pp.122-130, 143-148; Goldfarb v. Virginia State Bar, (1975) US Reports, vol.421, p.773; Combines Investigation Act (Canada), and Law Society of British Columbia v. AG. for Canada , (1981) Western Weekly Reports, vol.2, p.159.
3.46	1. NSW Bar Association, Submission No.180, (“Division of the Legal Profession into Two Branches”), p.8.
3.47	1. For a fuller discussion of the issues referred to in paragraphs 3.46-3.51, see our Discussion Paper, The Structure of the Profession, Part I, pp.113-124. See also eg. Law Society of New South Wales, Submission No.200 (“Division of the Legal Profession into Two Branches”),Appendix II; NSW Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”), pp.8-10.
3.48	1. See eg. Mr Justice Samuels, Submission No.113, pp.10-11.
3.49	1. See Rules of New South Wales Bar Association, rr.32-34; the Association’s Submission No.80 (“Division of the Legal Profession into Two Branches”), p.5; and our Discussion Paper, The Structure of the Profession, Part I, pp.60-64.
3.52	1. NSW Bar Association, Submission No.184 (“Certification of Legal Practitioners as Specialists”), p.2.
3.53	1. For a fuller discussion of the issues referred to in paragraphs 3.52-3.55. see our Discussion Paper, The Structure of the Profession , Part I, pp.133-143, Part II, paras.12.41-12.43. See also our Discussion Paper, Advertising and Specialisation , pp. 14-22 and 45-9. See also, eg. NSW Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”), pp.9-13; Law Society of New South Wales, Submission No.200 (“Division of the Legal Profession into Two Branches”), pp.14-15; Mr Justice Deane, Submission No.55, p.8.
	2. On the incidence of specialisation at the Bar, see our Discussion Papers, The Structure of the Profession , Part I, pp.68 and 134-137, and Advertising and Specialisation , pp.9-13.
3.55	1. See paragraph 3.52.
	2. Law Society of New South Wales, Submission No.200 (“Division of the Legal Profession into Two Branches”), p.14.
	3. See the sources referred to in note 3.55.1 above.
	4. Law Society of New South Wales, Submission No.200 (“Division of the Legal Profession into Two Branches”), p.3.
	5. Mr Justice Jacobs, “The Future of the Legal Profession in Australia”, an address to the Australian National University Law Society, 2nd May, 1968, p.10. (For this and some other portions of the address, see Disney et al., Lawyers , (Law Book Co., 1977), p.70).
3.56	1. For a fuller discussion of the issues referred to in paragraphs 3.56-3.63, see our Discussion Papers, The Structure of the Profession, Part I, pp.121-124 and 143-146, and Advertising and Specialisation, pp.37-58. See also the sources cited in note 3.53.1.
3.57	1. See further our Discussion Paper, Advertising and Specialisation , pp.43-44.
3.58	1. See eg. Mr Justice Hutley, Submission No.90, p.6.
	2. See eg. Tomasic and Bullard, Lawyers and their Work, (Law Foundation of NSW, 1978), Table 174; Law Society of New South Wales, Submission No.257, pp.13-16; Meredith, “Structure and Financial Performance of Legal Practices in NSW”, in Tomasic (ed), Understanding Lawyers (Law Foundation of NSW, 1978), pp.347362; our Discussion Paper, The Structure of the Profession , Part II, para.12.14: New South Wales Bar Association Submission No.194 (“The Fixing and Recovery of Charges for Work Done by Legal Practitioners”), pp.4-10.
3.59	1. NSW Bar Association, Submission No.194 (“The Fixing and Recovery of Charges for work Done by Legal Practitioners”), p.19.
3.60	1. For a fuller discussion of issues referred to in paragraphs 3.60-3.63, see our Discussion Paper, Advertising and Specialisation , pp.54-56.
3.61	1. R Scotton, Medical Care in Australia: An Economic Diagnosis (1974), p.97.
3.63	1. L Hollis, Submission No.22, p.9.
3.64	1. For a fuller discussion of the issues referred to in paragraphs 3.64-3.67, see our Discussion Paper, The Structure of the Profession , Part I, pp.146-150, Part II, paras.12.6-12.8, 12.15. See also, eg. NSW Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”), pp.16-17; Liberal Party of Australia (NSW Branch), Submission No.404, p.1.
	2. Chief Justice Burt, Letter to the President of the New South Wales Bar Association, reproduced in the Association’s Submission No.80 (“Division of the Legal Profession into Two Branches”), p.55.
3.66	1. Rules of the New South Wales Bar Association, rule 2. On the cab-rank rule generally see our Discussion Paper, The Structure of the Profession, Part II, para.12.12; and the sources in notes2, 3, and 4 below.
	2. New South Wales Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”), p.5.
	3. New South Wales Bar Association, Submission No. 401 (“Reply to the Law Reform Commission's Papers on The Structure of the Profession”), p.4.
	4. Law Society of New South Wales, Submission No.264 (“Duty to Accept Work”), p.2. See also Lord Diplock in Saif Ali v. Sydney Mitchell, (1978) Weekly Law Reports, vol.3, p.849.
3.67	1. Law Society of New South Wales, Submission No. 264 (“Duty to Accept Work”), pp.3, 4.
	2. See paragraphs 6.76-6.81.
3.68	1. For a fuller discussion of the issues referred to in paragraphs 3.68-3.73, see our Discussion Paper, The Structure of the Profession , Part I, pp.150-159.
3.69	1. See eg. The Structure of the Profession, Part II, para. 12.13; NSW Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”), pp.15-16; Law Society of New South Wales, Submission No.200 (“Division of the Legal Profession into Two Branches”),Appendix 1.2.
	2. NSW Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”), p.15.
3.70	1. For the report of the South Australian survey, see our Background Paper -IV, Part II.
3.71	1. For these and other results of the survey, see our Background Paper -IV, Part II.
3.72	1. Law Society of New South Wales, Submission No.200 (“Division of the Legal Profession into Two Branches”), pp.10-11, Appendix 4; NSW Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”), pp.14-16, and Submission No.401 (“Reply to Law Reform Commission's Paper on The Structure of the Profession”), p.9.
	2. See our Background Paper -IV, Part II.
	3. See our Discussion Paper, Advertising and Specialisation.
3.73	1. Law Society of New South Wales, Submission No.200 (“Division of the Legal Profession into Two Branches”), p.3.
3.74	1. Fora fuller discussion of the issues referred to in paragraphs 3.74-3.75, see our Discussion Paper, The Structure of the Profession, Part I, pp.159-162. See also The Structure of the Profession, Part II, paras.12-17-12.32; NSW Bar Association, Submission No.80 (“Division of the Legal Profession into Two Branches”).
3.75	1. J. Arnup, “Fusion of the Professions”, (1971) Law Society of Upper Canada Gazette, vol.5, p.38 at 47.
3.76	1. See eg. Judges of the High Court of England, Submission to the Royal Commission on Legal Services, pp.7-15 (reprinted in NSW Bar Association Submission No.80 (“Division of the Profession into Two Branches”), p.69 at 72-79).
	2. For a fuller discussion of the issues referred to in paragraphs 3.76-3.79, see our Discussion Paper, The Structure of the Profession , Part I, pp.162-166.
3.77	1. NSW Law Almanac 1981.
	2. See the sources cited in chapter 2, footnote 2.35.5.
	3. See Burger, “Special Skills of Advocacy” (1973) Fordham Law Review, vol.42, p.227 at 230.
3.78	1. See, for example, the NSW Bar Association's Submission No.80 (“Division of the Legal Profession into Two Branches”), p.17.