A. INTRODUCTION

6.1 In chapter 4 we recommended the abolition of separate admission of barristers and solicitors. A principal reason for that recommendation was that, in our view, the existing legal and official distinctions between barristers and solicitors are inappropriate and should be abolished, in which case much of the justification for separate admission would disappear. In this chapter we look at a number of the existing distinctions between barristers and solicitors, and we explain why we consider that each of them should be abolished. in each case our reasons apply not only to the present distinction, based on whether a practitioner is admitted as a barrister or as a solicitor, but also to its replacement by a distinction based on whether a practitioner practises in the style in which barristers now practise. Accordingly, our criticisms of the former should be read as applying also to the latter.

6.2 It is necessary for the discussion in this chapter to proceed on the assumption that separate admission is retained. If it is not retained, the existing distinctions based on admission will necessarily disappear. However, the recommendations in this chapter apply whether separate admission is retained or abolished. As we have said, our recommendations for the abolition of distinctions between barristers and solicitors should be read as including opposition to the introduction of similar distinctions based on whether or not a practitioner practises in the style of a barrister.

6.3 In some of the areas considered in this chapter, we recommend that, although distinctions between barristers and solicitors should be abolished, certain other distinctions between practitioners should be retained or introduced. There are, at present, many legal and official distinctions between practitioners which have nothing to do with the difference between barristers and solicitors. The fact that we do not mention them in this chapter does not mean that we consider them to be undesirable; it means only that they are not relevant to the issues with which we are concerned in this Part of this Report.

6.4 The distinctions discussed in this chapter arise in the following areas:

(i) Requirements for Admission

(ii) Requirements concerning Training and Experience after Admission

(iii) Rights of Audience and Other Rights to do Legal Work

(iv) Civil Rights, Liabilities and Immunities concerning Professional Work

(v) Regulation of Fees

(vi) Duties to Accept Work

(vii) Appointment as judges

(viii) judicial and Official Attitudes

(ix) Distinctions in the Federal Sphere.

The principal recommendations which we make in this chapter are listed as recommendations 29-43 in the Summary of Principal Recommendations at the beginning of this Report.

6.5 Certain important distinctions between barristers and solicitors are not dealt with in this chapter. We discussed in chapter 4 existing distinctions in the areas of admission, general regulation, and, to some extent, the right to practise. Some other distinctions are not dealt with here because they relate to an area, such as professional indemnity insurance, which we shall examine comprehensively elsewhere in our Reports on the Legal Profession Inquiry. In relation to these areas, it is convenient to defer our discussion of distinctions between barristers and solicitors until we deal with the area generally. The areas in question, and the Reports in which we shall discuss them, are as follows: First Report -Queen’s Counsel (chapter 9), Court Dress (chapter 10); Second Report -Complaints, Discipline and Professional Standards; subsequent Reports -Advertising, Specialisation, Professional Indemnity Insurance, Trust Accounts and the Fidelity Fund.

6.6 Before looking at particular distinctions, we reiterate briefly a basic principle which we discussed in chapter 3. ¹ That principle is that if a distinction is to be drawn between practitioners in relation to a particular matter, it should be based on a criterion which corresponds to the justification for making the distinction. For example, if the justification for a distinction is based on whether or not a practitioner specialises in advocacy, the distinction should not be drawn on the basis of whether a practitioner is a barrister or a solicitor. It is not sufficient to argue that the proportion of specialist advocates is higher amongst barristers than amongst solicitors great unfairness may be caused to those solicitors who do specialise in advocacy. Moreover, the fact that fewer solicitors specialise in advocacy may be due, to some extent to distinctions between barristers and solicitors which place solicitor advocates at an unfair disadvantage. In our view, much of the difference of opinion between Mr Conacher and ourselves in relation to whether existing distinctions between barristers and solicitors should be retained arises from our adherence to the basic principle which we have described. ² In saying this we do not overlook the fact that there is much common ground between Mr Conacher and ourselves in relation to these distinctions. In particular, as Mr Conacher has said, all four of us

“....

(d) recognise that in some fields, of which an important one is advocacy in the higher courts, barristers are dominant;

(e) think that in these fields solicitors are under unfair handicaps;

(f) think that that dominance is partly the result of those handicaps;

(g) think that to the extent to which that dominance is the result of those handicaps, the freedom in law of the solicitor is not matched by freedom in fact;

(h) think that those handicaps ought to be taken away;

“

B. REQUIREMENTS FOR ADMISSION

Introduction

6.7 In 1974, the then Attorney-General, at the request of the then Chief Justice of New South Wales, established a Committee of Inquiry into Legal Education in New South Wales (to become known later as the Bowen Committee) to inquire into “all aspects of the system and the control of legal education and of qualifications for admission as a barrister or solicitor,” ¹ Subsequently, the present Attorney-General referred for inquiry by our Commission a wide range of issues concerning the legal profession. With the Bowen Committee Inquiry already under way, “legal education prior to admission”, ² was excluded specifically from our terms of reference. The Bowen Committee reported in 1979 ³ and its recommendations are presently under consideration by the Government. In these circumstances, we do not consider in detail, or make firm recommendations about, the existing distinctions between barristers and solicitors in relation to educational requirements for admission. We do make some observations on those distinctions, however, and we also refer to some other distinctions concerning admission.

6.8 We refer in the following paragraphs to various recommendations of the Bowen Committee. The Committee was not asked to consider the general question of the division between barristers and solicitors, nor the question of introducing common admission. Indeed, the extract quoted above from its terms of reference might be taken as precluding consideration of common admission. The Committee appears to have assumed the retention of separate admission; certainly its Report did not discuss the issue. However, as we indicate below, a number of the recommendations which the Committee made about admission requirements, and about the authorities concerned with prescribing those requirements, would remove or reduce certain of the present distinctions between barristers and solicitors in these areas.

Academic Training

6.9 At present, there is no distinction between barristers and solicitors in relation to the academic training requirements for admission. ¹ The Bowen Committee recommended that this situation should continue. ² We see no reason to differ from this view, but the matter clearly falls outside our terms of reference.

Practical Training

6.10 At present, attendance at a practical training course run by the College of Law is a prerequisite for admission as a solicitor. The course may be taken on a full-time basis for six months, or as a “sandwich course” with periods of full-time attendance at the College interspersed with periods of working in a legal office. By contrast, barristers do not have to undertake any practical training prior to admission. The Bar Association presently requires its new members, after admission, to attend a course of evening lectures on aspects of law and of practice at the Bar. ¹ But barristers who do not belong to the Association have the right to practise without satisfying any such requirements.

6.11 The Law Society has submitted to us that barristers, as well as solicitors, should be required to undertake a practical training course prior to admission. The Society suggested that the course should be at the College of Law and could be “either the existing course or a course specially designed for prospective barristers.” ¹ The Bar Association has submitted to us that barristers should be required to undergo a course at a “College of Law for the Bar or... a new department within the existing College of Law devoted to education of the Bar.” ² It did not express a firm view as to whether the course should be taken before or after admission.

6.12 The Bowen Committee’s proposals on practical training before admission would reduce, but not eliminate, the present distinctions between barristers and solicitors in this area. The Committee recommended that barristers should be required to undergo training “adjusted to their needs within the College of Law or some other approved institution for practical training.” ¹ It said that “differences in the functions” of barristers and solicitors should be reflected in their practical training.” ² Nevertheless, it recommended that, just as solicitors “should be taught the basic principles of advocacy”, so prospective barristers “should be given the opportunity to obtain office training”. ³ The Committee’s proposals proceeded on the assumption that the present divided structure of the profession would continue. A different view might or might not have been taken if that division had been reduced in degree or abolished.

6.13 Our terms of reference preclude us from making recommendations in relation to training requirements for admission. But training requirements after admission fall within those terms, and it is not possible to explain our recommendations in that area (see paragraphs 6.20-6.42) without indicating our views concerning the closely-related question of training prior to admission. In our view, all candidates for admission to the profession should be required to undertake a course at the College of Law, the length and content of which should not vary according to whether they wish to be admitted as barristers or as solicitors. We give our reasons briefly in the next paragraph.

6.14 First, practitioners’ capacity to change their style of practice, and the fields in which they work, is enhanced by having had a preliminary practical training which covered a wide range of the skills necessary for different styles and fields of practice. This flexibility is valuable both for the public interest in the efficiency of the profession and for the personal interests of practitioners, especially as the opportunities and demands involved in legal practice are changing with increasing rapidity. ¹ Secondly, it has long been acknowledged by many barristers and judges that the degree of inter-action between barristers and solicitors is so great that an understanding of the work of a solicitor is an important attribute in a barrister. Likewise, a solicitor is likely to benefit from some training in the work of a barrister. Thirdly, the differences in the types of skills necessary for barristers and solicitors are not as substantial as is sometimes asserted, and they are decreasing. For example, many solicitors now undertake a considerable amount of advocacy, ² and some solicitors frequently give specialist advice on referral from other solicitors.

Other Requirements

6.15 There are, at present, certain distinctions of relatively minor significance between barristers and solicitors in relation to requirements of moral fitness for admission, and requirements to enrol as student clerks or students-at-law a specified period prior to seeking admission. ¹ We agree with the Bowen Committee that these distinctions should be removed.

6.16 At present, a period of practice subject to some form of guidance, such as service of articles under a solicitor, is not required as a qualification for admission to either branch of the profession. The Bowen Committee, however, recommended that all would-be solicitors should be required to practise as an employee of a solicitor for 12 months prior to admission and that all barristers should be required to serve as a pupil of a barrister for 12 months after their admission. ¹ We consider the general question of practice under guidance in the course of discussing training requirements after admission (see paragraphs 6.20-6.42 below).

Determination and Administration of Requirements

6.17 The Supreme Court has the ultimate responsibility for admitting both barristers and solicitors, but important roles in the determination and administration of admission requirements are played by the Barristers Admission Board in relation to barristers and by the Solicitors Admission Board in relation to solicitors. ¹

6.18 The Bowen Committee’s recommendations would reduce the extent of this distinction between barristers and solicitors. It recommended that the power to determine academic practical training requirements for admission to the profession, whether as a barrister or a solicitor, should be vested in one body, the Council of Legal Education, to be established by statute. ¹ It proposed the retention of the two separate Admission Boards to perform certain administrative functions and to assist the Court to determine whether candidates satisfy the requirements of moral fitness for admission. ² But it said that the question whether there should continue to be two Boards rather than one should be kept under review. ³

6.19 For reasons explained earlier,’ it is not appropriate for us to make recommendations in relation to the authorities by which the requirements for admission should be determined and administered. In any event, we are concerned in the present context only with distinctions between barristers and solicitors. Accordingly, we confine ourselves to two observations, both of which are based on the desirability of avoiding inappropriate distinctions between practitioners in relation to the specified requirements for admission and the way in which those requirements are administered. First, we share the Bowen Committee’s view that requirements for admission should be fixed by a common body for the whole profession. Secondly, if there continues to be a need for an Admission Board, we consider that it would be appropriate to have only one such Board for the whole profession.

C. REQUIREMENTS CONCERNING TRAINING AND EXPERIENCE AFTER ADMISSION

I. Introduction

6.20 In chapter 4 we made the general recommendation that for both barristers and solicitors the right to practise should be dependent upon holding a practising certificate. In this section we look at the existing distinctions between barristers and solicitors in relation to the training and experience, if any, which is required of them before they may

(i) practise as a principal (ie. as a sole practitioner or partner);

(ii) accept work directly from clients;

(iii) practise in the style in which barristers now practise;

(iv) return to practice after a period out of active practice.

II. Practising as a Principal

The Present Position

6.21 The Law Society has broad statutory power to impose “conditions” on solicitors” practising certificates. ¹ It uses this power to require that before solicitors are issued with an unconditional practising certificate entitling them to practise as either a principal or an employee, they must first practise for 12 months on a conditional practising certificate which restricts them to practising as an employee. ² There are no special requirements of supervision or training during this period. All that is required is the production at the end of the period of a certificate from the employer to the effect that 12 months employment has been served.

6.22 Barristers do not require practising certificates and may practise as principals immediately upon admission. The Bar Association, however, requires its new members to undertake 12 months as a “pupil” of a “tutor”. A tutor must be a member of the Association who has practised at the Bar for at least seven years but is not a Queen’s Counsel. ¹ A pupil is entitled to practise as a principal, although like other members of the Association he or she cannot accept work without the intervention of a solicitor. During pupillage, the pupil and the tutor are required to “use their best endeavours... to ensure that the newly admitted member is fully cognisant of [the Association’s rules] and of the standards of conduct etiquette and competence expected by the court, fellow barristers, solicitors and the public, of members of the Bar of New South Wales.” ² In practice, some pupils obtain considerable advice and experience through their tutors but others have scarcely any contact with them. All pupils are required to attend a course of evening lectures about various aspects of law and of practice at the Bar.

The Issues

6.23 Should these distinctions between barristers and solicitors continue? In our view, it is desirable for all practitioners to have some form of guidance during their first 12 months in practice. We note that both the Law Society and the Bar Association share this view, in that they favour the introduction of compulsory pupillage for all new barristers rather than, as at present, only for those who join the Bar Association. ¹ The Law Society adds that “the present requirements of pupillage and attendance at lectures... should be formalised and rigidly enforced”. ²

6.24 The question then arises whether the period of practice while subject to guidance should have to be served as an employee, or whether some, or all, types of practitioners should be permitted to serve it as a pupil. In one sense, pupillage provides the public and the practitioner with less protection from the dangers of inexperience than does employment. This is because a pupil can practise as a principal and when doing so does not present the tutor with the risk of incurring vicarious liability. As a result, there is less incentive for a tutor to supervise the pupil’s work and to remedy any mistakes which may occur. On the other hand, some safeguard is provided by the fact that, under present arrangements, pupils are not entitled to accept work without the intervention of an instructing practitioner. This reduces the danger of pupils being given work which is beyond their capabilities, and having to handle matters without the assistance of another practitioner. A further consideration to be taken into account is that, at present barristers in New South Wales are sole practitioners and do not employ other practitioners. We recommend in chapter 7 that the Bar Association should consider allowing its members to form small partnerships and to employ a limited number of other members. But it is unlikely, at least in the near future, that these changes would lead to positions as employees of members of the Association becoming widely available.

Our Views

6.25 On balance, we are inclined to favour pupillage being available, subject to certain conditions, as an alternative to employment for the purposes of satisfying our proposed requirement of 12 months practice while subject to guidance. Those conditions are:

(i) pupils should be prohibited from acting without the intervention of an instructing practitioner, save in prescribed circumstances;

(ii) tutors should be required to be practising on the basis that, generally speaking, they do not act without the intervention of an instructing practitioner;

(iii) pupils and tutors should be subject to rules which require a significant degree of informal training and supervision by tutors, and these rules should be enforced.

6.26 In relation to the first condition it should be noted that it does not require that pupils must be admitted as barristers rather than solicitors. Moreover, the circumstances in which work can be accepted without the intervention of another practitioner should be the same for all pupils, whether admitted as barristers or as solicitors. In relation to the second condition, the general regulatory body of an intending tutor should be the arbiter of whether he or she satisfies the requirements which we have proposed for tutors. The third condition would require rules which are more stringent and detailed, and more strictly enforced, than the present pupillage rules of the Bar Association. At the Victorian Bar, the relationship between tutor and pupil tends to be much closer than in New South Wales; their Reading Rules would be a useful model. ¹ The rules should be the same for all pupils.

6.27 We recommend that, in order to implement these proposals, all practitioners who wish to practise as a principal, otherwise than under pupillage, should be required to hold what we shall refer to as a full practising certificate. Practitioners should not be eligible for a full practising certificate unless they have practised for 12 months on what we shall refer to as a qualifying practising certificate. The holder of a qualifying certificate should be restricted to practising as an employee or, subject to the conditions we have listed in paragraph 6.25, as a pupil. Some of the 12-month qualifying period could be served as a pupil and some as an employee. At the end of the period, each holder of a qualifying certificate should be required to produce a certificate from his or her employer or tutor indicating that the requisite period has been served. The employer or tutor should have to be subject to the same general regulatory body as the employee or pupil. The employer or tutor should, of course, hold a full practising certificate and should have done so for at least a prescribed number of years. We make no recommendation as to what number should be prescribed. At present, the Law Society often permits the equivalent of our 12-month qualifying period to be served under the guidance of a practitioner who is a fellow employee (usually the person in charge) in the legal department of a government or corporation or in a legal aid centre. Our recommendations are not intended to prohibit or deter this practice.

6.28 We mentioned earlier the Bowen Committee’s recommendation that solicitors should have to serve 12 months as an employee prior to admission rather than as at present, after admission. Our recommendations in the previous paragraph are intended to be an alternative to those of the Bowen Committee; we do not propose that any practitioner should be required to serve a period in employment both before and after admission.

III. Accepting Work Directly from Clients

The Present Position

6.29 The basic question with which we are concerned here is whether a practitioner who wishes to accept work directly from clients should have to satisfy any special requirements of training or experience. The present position, broadly speaking, is as follows.

(i) Barristers who belong to the Bar Association are prohibited by its rules from acting without the intervention of an instructing practitioner, save few specified circumstances. ¹ Although the strict legal position is somewhat uncertain, it seems to be generally assumed that a barrister, whether or not a member of the Association, may not act without the intervention of another practitioner. ²

(ii) Solicitors are entitled to accept work directly from clients. As we have mentioned earlier, however, solicitors, unlike barristers, have to undertake a College of Law course in order to obtain admission, and before being entitled to practise as a principal must practise for 12 months as an employee of another solicitor.

(iii) Barristers who wish to act in matters without the intervention of an instructing practitioner may decide to cease being a barrister and to obtain admission as a solicitor. If they have not been barristers for five years or more, they are usually required to satisfy the normal requirements for admission as a solicitor, including the College of Law course. ³ Whether or not they have been barristers for five years or more, they are usually required, upon admission as a solicitor, to practise for 12 months as an employee before becoming entitled to practise as a principal. ⁴

Some Relevant Considerations

6.30 In effect, the present system aims to ensure that practitioners who deal directly with the public as principals have had some training (at the College of Law), and some experience (as an employee of a solicitor), which is specially relevant to that style of practice. One justification for this approach is that the need to ensure that a practitioner is competent is greater when he or she can be retained directly by members of the public, rather than being chosen by an instructing practitioner who then has the opportunity and responsibility to ensure that satisfactory service is provided. Another justification is that practitioners who accept work directly from clients are commonly involved, unlike other practitioners, in the handling of trust accounts and the management of substantial office systems and resources. These skills are not easily acquired without practical training and experience.

6.31 A number of other considerations need to be taken into account in deciding whether the present system should be retained. First, many barristers who have practised for some time, but have not dealt directly with clients, may nevertheless have acquired knowledge and experience which would enable them to deal directly with clients at least as competently as a solicitor whose experience is confined to serving a year as an employee of another solicitor. Secondly, the present system imposes the training and experience requirements on all solicitors, yet a significant number of solicitors (including many who are employed by government or corporations) do not deal directly with the public or handle trust moneys. Indeed, the requirements would apply to a solicitor who decided to practise in the style of a barrister. Thirdly, the period of employment is not required to be served in a practice which deals directly with the public or handles trust moneys. Accordingly, it may fail to serve some of the major aims of the system. Fourthly, we have expressed earlier the view that completion of the College of Law course should be required of everyone seeking admission to the profession, rather than only of would-be solicitors. Fifthly, we suggest in chapter 7 that the Bar Association should consider relaxing its present rule against acting without an instructing practitioner. If such a relaxation were to occur, some members of the Association might acquire significant experience of dealing directly with clients.

Our Views

6.32 In the light of these various considerations, we are of the view that no special requirement concerning training or experience should be based on whether or not a practitioner wishes to accept work directly from clients. However, we recommend that practitioners who wish to operate a trust account should be required to have practised for at least six months as an employee of ,i practitioner who operates a trust account. This six-month period could be served as part of the twelve-month qualifying period recommended in paragraph 6.25, or at a later stage in a practitioner’s career. The requirement concerning operation of a trust account should be the same for all practitioners, save that it should not apply to practitioners who have been in active practice for five years or more.

6.33 The recommendations in the previous paragraph should not be read as prohibiting the Bar Council from continuing to require practitioners who are subject to its governance not to act without the intervention of an instructing practitioner. But as we have mentioned, we consider that question in chapter 7 when discussing restrictive practices at the Bar and we recommend that the Council should be asked to consider some voluntary relaxation of the present rule.

IV. Practising in the Style of a Barrister

The Present Position

6.34 The question with which we are concerned here is whether practitioners should be required to undertake special training or experience if they wish to practise in the style in which barristers now practise. The present position may be summarised as follows.

(i) As mentioned earlier, barristers who join the Bar Association are required by the Association to serve 12 months as a pupil of another member and to attend evening lectures which deal, amongst other things, with practice at the Bar. Other barristers have the right to practise without satisfying any such requirements.

(ii) For solicitors, the requirements concerning training and experience do not differ according to whether or not they wish to practise in the style in which barristers now practise. By contrast with barristers, therefore, solicitors wishing to practise in that style must complete the College of Law course and must serve 12 months as an employee of another solicitor. The period in employment need not be served under a solicitor who practises in the style in which barristers practise.

(iii) As we have mentioned, solicitors need not become barristers in order to practise in the style of a barrister. But the practice is for them to do so. Generally speaking, they may transfer without any further re-quirements of training or experience, but if they wish to become members of the Bar Association they will usually be required to undertake pupillage. ¹

Some Related Changes

6.3 5 We have expressed the view that all candidates for admission should be required to attend the college of Law. Training at the College involves a significant amount of supervised training in advocacy, including mock trials. No supervised training of this kind is presently provided for barristers, even those who arc members of the Bar Association. Moreover, we envisage that if attendance at the College of Law became mandatory for would-be barristers as well as for would-be solicitors it would give greater attention than at present to matters relevant to practice in the style of a barrister. It might, for example, cover much of the ground presently covered in the Bar Association’s evening lectures.

6.36 In addition, we recommended earlier in this chapter that all practitioners who wish to practise as a principal should be required to practise for 12 months as an employee or pupil. This would avoid the present situation in which barristers who do not belong to the Bar Association do not have to undergo any period of practice under guidance.

Our Views

6.37 Against this background, we do not recommend that any special requirement concerning training or experience should be based on whether or not a practitioner wishes to practise in the style in which barristers now practise. As we mentioned earlier, the need for public protection is less here than in relation to practitioners who act without the intervention of an instructing practitioner. Moreover, the charges referred to in the previous two paragraphs would provide all practitioners with formal training in advocacy and in practice at the Bar, and would require all practitioners, including those practising in the present style of a barrister, to under go a period of practice under guidance, either as a pupil or as an employee.

6.38 The Bar Council may wish to require special training or experience of any practitioner who elects to become subject to its governance. We do not suggest that the Council should be prohibited from doing so, but any such requirements should not be so onerous as to constitute an unreasonable barrier to practitioners who wish to transfer to the governance of the Law Council after some years in practice. For example, if a practitioner has been in active practice under the governance of the Law Society Council for a period of, say, three years or more, he or she should not be required to undertake a lengthy period of pupillage upon electing to be governed by the Bar Council, In our view, the required period, if any, in such circumstances should not exceed six months, and credit should be given for any period of pupillage served during the 12 month qualifying period which we have said should be required of all practitioners.

V. Returning to Practice

The Present Position

6.39 At present, solicitors who cease or resume practice must notify the Prothonotary of the Supreme Court accordingly. ¹ If they remain out of practice for two years or more, they must seek leave of the Court to resume practice and may be required to serve 12 months as an employee before becoming entitled to practise as a principal. ² In reality, no significant check is kept on whether a solicitor who holds a practising certificate is actually practising. But the cost of the certificate, and the related cost of compulsory insurance premiums and contributions to the Fidelity Fund, is likely to be a substantial deterrent against solicitors applying for a certificate when they do not intend to practise.

6.40 Barristers can leave and return to active practice without any notification and without satisfying any special requirements. There is a list of practising and non practising barristers in the Law Almanac, but there is no requirement in law that those on the practising list must actually practise nor that those on the non-practising list must not practise.

Our Views

6.41 In our view, all practitioners who have been out of active practice for a substantial period should be subject to controls designed to protect the public from engaging practitioners who have lost touch with current law and practice. The variety of circumstances which may arise is so great that it would not be appropriate to impose a rigidly uniform requirement of, say, 12 months practice as an employee for any practitioner who has been out of active practice for two years or more. A number of factors need to be taken into account when considering what, if any, period as an employee should be required. They include the length of time spent previously in active practice, the nature of the work undertaken while not in active practice, and whether or not the practitioner wishes to accept work directly from the public. If a discretion is to be exercised in this respect it is more appropriate for it to be vested in the general regulatory body of the practitioner in question rather than in the Supreme Court.

6.42 We recommended in chapter 4 that all practitioners should be required to have practising certificates. We recommend here that where an applicant for a practising certificate has not held a practising certificate during the preceding two years, the general regulatory body to which he or she applies for the certificate should have a discretion to require the practitioner to complete up to 12 months in practice as an employee or pupil, on a qualifying practising certificate, before becoming entitled to a full practising certificate. We envisage that where a practitioner has been without a certificate for only two or three years it would rarely be appropriate to require him or her to serve more than 6 months, if any period at all, as an employee or pupil.

D. RIGHTS OF AUDIENCE AND OTHER RIGHTS TO DO LEGAL WORK

Rights of Audience

6.43 Generally speaking, there is no difference between the rights of audience of barristers and solicitors in New South Wales courts. ¹ There may, however, be some differences. First, it may be argued that a barrister’s rights of audience are dependent upon the barrister being instructed by a solicitor. No such limitation applies to the rights of audience of solicitors. ² Secondly, in relation to the rights of audience of practitioners who are employed by other practitioners, there may be differences in some courts according to whether the employee is a barrister or a solicitor. ³ At present, barristers rarely practise as employees of other practitioners, but in chapter 7 we recommend that the Bar Council should consider action to enable barristers to be employed by other barristers to some extent.

6.44 In our view, the rights of audience of all practitioners should be defined by statute and should be the same for barristers as for solicitors. This is largely, but not entirely, the situation at present. As to the first possible difference noted in the previous paragraph, we do not favour the right of audience of any category of practitioner being dependent, as a matter of law or official practice, upon whether the practitioner is instructed by another practitioner. There is no such distinction at present in relation to solicitors and we see no reason why it should apply in relation to barristers. As to the second possible difference, this arises principally from matters of drafting in particular statutes. We suggest that rights of audience of all practitioners, whether barristers or solicitors, who are employed by other practitioners should be expressed in similar terms. The main arguments which may be adduced for restricting the rights of audience of employed practitioners relate to the possibility of conflicts of interest between employer and employee, and the possibility of doubt arising about the scope of an employee’s authority. Whatever strength these arguments have does not depend upon whether the employee is a barrister or a solicitor.

Other Rights to do Legal Work

6.45 Many exclusive rights to do legal work for reward apply equally to barristers and solicitors. This is the case, for example, in relation to conveyancing and probate work. ¹ Generally speaking, however, statutory rights to issue court process and to lodge documents on behalf of clients are vested in solicitors but not in barristers. In our view, these rights should be vested in all practitioners, subject to conditions designed to ensure that the particular practitioner has the authority to act on behalf of the client. If a practitioner does not act without the intervention of an instructing practitioner, then he or she might rarely exercise these rights. But it could be convenient to do so on occasions where the instructing practitioner is not readily available. Moreover, members of the Bar Association can accept some work directly from clients, and in chapter 7 we suggest that they should be permitted to do so in a wider range of circumstances. This would increase their need to have the right to issue process, and related rights.

6.46 Generally speaking, the most appropriate way of implementing these recommendations would be to vest in all legal practitioners the statutory rights which are presently vested in solicitors. This would involve retention of any conditions which are presently placed on those rights, such as that the practitioner in question must be practising as a principal or must be the practitioner on the court record. The rights presently vested in barristers would then be abolished. These proposals would not preclude practitioners from agreeing amongst themselves not to undertake certain types of work. Agreements of such a kind fall within the ambit of chapter 7 on restrictive practices.

E. CIVIL RIGHTS, LIABILITIES AND IMMUNITIES CONCERNING PROFESSIONAL WORK

6.47 In this section we consider distinctions between barristers and solicitors in relation to:

(i) their capacity to enter into contractual relationships concerning professional work;

(ii) their rights to sue for professional fees;

(iii) their immunity from civil liability for professional work.

The Present Position

6.48 Solicitors have legal capacity to enter into contractual relationships concerning their professional work. Barristers do not. ¹

6.49 Solicitors are entitled to sue for their professional fees, provided that they deliver a bill in a specified form (known as a “taxable” form) at least one month before suing. ¹ Barristers have no legal right to sue for their fees. ² Nevertheless, solicitors are, generally speaking, “honour bound” to pay the fees of a barrister retained by them ³ and if they do not do so their names may be put on a list kept by the Bar Association for the information of its members. Rules of the Bar Association prohibit members from accepting a brief from a solicitor named on the list unless their fees accompany the brief, and from acting in a matter on which another barrister has worked unless they are satisfied that the fees have been paid or that arrangements have been made to the satisfaction of the other barrister. ⁴ The latter prohibition does not apply where there is a bona fide dispute over fees. In addition, the Bar Association and the Law Society have established a joint scheme for arbitrating fee disputes between barristers and solicitors. ⁵ Submission to arbitration requires the consent of both parties, but the decision of the arbitrator is binding.

6.50 Barristers were long regarded as having common law immunity from civil liability arising out of their professional work. ¹ Recent decisions in courts outside New South Wales (most notably the House of Lords) have confined this immunity to the actual conduct of a case in court and work intimately connected therewith. ² The question has not arisen for decision in New South Wales, but it is likely that at least the general tenor of these recent decisions would be followed. Before these decisions it was generally thought that solicitors had no immunity. But some judges involved in those cases suggested, without having to decide the point that solicitors have the same immunity as barristers. ³

Possible Justifications for the Present Distinctions

6.51 One argument for these distinctions stems from a traditional view of barristers as being gentlemen and, therefore, remunerated only by way of honorarium. ¹ This argument is unrealistic and inappropriate in modern times. Other arguments relate to characteristics of advocacy which are said to set it apart from other fields of professional work. Foremost among the characteristics referred to are the importance of advocates being sufficiently independent of their clients to observe properly their duties to the court, the importance of unpopular clients being able to obtain representation in court the difficulty of conducting a case in court where quick decisions (often between conflicting duties) have to be made, and the undesirability of, in effect, rehearing a case in order to determine whether an advocate has been negligent and, if so, what the outcome of the case would have been in the absence of negligence.

6.52 These arguments may or may not be sufficient reason for distinguishing between advocacy and other professional work, but they do not justify distinctions between barristers and solicitors. They relate to advocacy, and a substantial amount of advocacy is undertaken by solicitors, as well as by barristers. Moreover, most of the arguments relating to advocacy apply also to the preparation of cases by instructing solicitors. This is true, for example, of the arguments based on the need to provide unpopular clients with representations these clients need someone to prepare the case as well as someone to argue it in court. It is also true of arguments based on the importance of lawyers observing their duties not to mislead the court; these duties apply to those who instruct advocates as well as to the advocates themselves, and breaches by the former can result in the Courts being misled as seriously is breaches by the latter.

6.53 As we have mentioned, judges in courts outside New South Wales have decided recently that immunity from liability is confined to advocacy and work intimately connected therewith, and some have suggested that it may apply to solicitors as well as to barristers. These views are ill accord with the comments which we made in the previous paragraph.

Our Views

6.54 We consider that all practitioners should have legal capacity to enter into contractual relationships in relation to their professional work, and should have the right to sue for their professional fees. This is subject of course, to the general laws of the land concerning contractual capacity and suing for fees. In our view, there is value in prohibiting all practitioners, as solicitors presently are, from suing until a reasonable period after delivery of a bill. We question, however, whether the bill should have to contain all the detail of a taxable bill, which is often expensive to provide and confusing to read. But whatever detail should be required, we can see no justification for a distinction in that respect between barristers and solicitors. There may or may not be justification for distinctions based on other criteria, such as the type of work to which the bill relates or whether the person to be sued for the fees is the instructing practitioner rather than the lay client.

6.55 In relation to immunity from civil liability, we see no good reason for distinguishing between barristers and solicitors. Recent decisions provide considerable support for that view. It is beyond the scope of this Report to consider whether the immunity should continue to exist and, if so, what types of work it should cover. We say only that the scope of any immunity should be the same for barristers as for solicitors.

F. REGULATION OF FEES

I. Fee Scales

The Present Position

6.56 There are some statutory fee scales, known as “solicitor-and-client” scales, which specify the amount that solicitors may charge their clients for certain types of work. ¹ There are no such scales in relation to barristers.

6.57 There is a second type of fee scales, known as “party-and-party” scales. ¹ Unlike solicitor-and-client scales, these do not fix the amount which practitioners can charge their clients for particular items of work. They fix the amount which clients can recover as reimbursement of legal expenses incurred by them in a case where they obtain an “order for costs” against someone else, usually the unsuccessful party. But they have a considerable indirect effect on the amount which practitioners charge their clients for work covered by the scales. If the clients seek an independent review of the amount charged by their solicitor or barrister, using the procedure known as “solicitor-and-client taxation” (see para.6.65), the fees allowed on the review in relation to many of the items in the practitioner’s bill may be determined by reference to the fees fixed for those items in a party-and-party scale. In relation to barristers’ fees, however, such a review fixes the amount which the client must pay for the barristers services but does not affect the amount which the barrister can seek from the solicitor by whom he or she was engaged.

6.58 In some areas of litigation, there is a party-and-party scale which covers a certain type of work if it is performed by a solicitor, but there is no scale covering the same work if it is performed by a barrister. In other areas, barristers and solicitors are covered by separate scales specifying different fees for the same type of work. The difference in fees may arise through different fees being specified for the same item, or an item being allowed in one scale but not the other, or different methods of calculating fees for the same item (for example, a daily rate by contrast with an hourly rate in relation to fees for appearances in court), or in other ways. We mentioned a number of these differences in our Discussion Paper, The Structure of the Profession, and we do not repeat them here. The differences can lead in many circumstances to the fee allowable under the scale varying substantially according to whether the work in question was performed by a barrister or by a solicitor. In some circumstances the fee allowed is higher where the work was done by a barrister, but in other circumstances it is lower.

The Issues

6.59 The first question is whether there should be situations in which a scale applies to certain types of work when they are performed by a barrister but no scale applies when they are performed by a solicitor, or vice versa. It might be argued that there is less need to control the fees of those who practise in the style of a barrister because the instructing practitioner can ensure that the fee is reasonable. Experience has demonstrated, however, that many solicitors often do not know what is a reasonable fee for the barrister or do not take sufficient care to ensure that the fee charged is reasonable. What often happens is that the solicitor neither marks the barrister’s brief nor makes an arrangement with the barrister about the latter’s fee. The barrister then marks a fee and, whether it is reasonable or excessive, the solicitor asks the client to pay it. In most cases, the client pays, whether or not he or she regards the fee as reasonable. The client has left the matter of the barrister’s fee to the solicitor, the solicitor has left it to the barrister, and the barrister is left with a wide discretion as to what he or she will charge. In these circumstances the client has had little protection from the solicitor.

6.60 The second question is whether, if both barristers’ and solicitors’ fees are covered by a scale, or by two separate scales, there are circumstances in which the fee for the same item of work should differ according to whether it is performed by a barrister or solicitor. It may well be reasonable for fees to differ according to the complexity of the work, the amount of money at stake, the exceptional skill of the particular practitioner, or many other factors. But we can see no good reason why they should differ merely because the work is undertaken by a barrister rather than by a solicitor.

6.61 In some circumstances it may be appropriate for a scale to specify a lump sum for a whole matter, such as an undefended divorce, rather than separate fees for individual items of work, such as writing a letter or making a telephone call. In some circumstances it may be appropriate to specify a fee for the conduct of a case which may be charged irrespective of whether the case is settled before trial. But if either of these methods is adopted for a particular type of work we see no reason why it should be adopted for barristers but not for solicitors, or vice versa.

6.62 It might be argued that solicitors’ overheads are higher than those of barristers, and therefore solicitors should be allowed higher fees for the same work. But adoption of that argument would substantially reduce the incentive for practitioners to conduct their practices efficiently. in any event, there is a wide variation in levels of overheads amongst solicitors; some may have overheads much lower than most other solicitors and even than some barristers.

Our Views

6.63 We do not suggest that fee scales are always or frequently desirable. But we recommend that whether or not a particular type of work is covered by a fee scale should not depend upon whether the work is performed by a solicitor or a barrister. We also recommend that the fees specified in a scale should not vary according to whether the work is performed by a barrister or a solicitor. This means that not only should the actual fees, or range of fees, be the same but, for example, if fees are prescribed by reference to time units, the units should be the same. It also means that, for example, the fees allowed for an instructing practitioner should be the same whether the advocate is a barrister or a solicitor, and if the fees specified for barristers in relation to court appearances include preparatory work and waiting time, the fees for solicitors doing the same type of appearance should also include these items.

6.64 These recommendations apply both to scales concerning the fees charged to a client (“solicitor-and-client” scales) and to scales concerning fees recoverable from a person other than the client, such as the opposing party (“party-and-party” scales). They do not apply, however, to unofficial fee scales which bind only such practitioners as agree to be subject to them. These scales fall within the ambit of our discussion of restrictive practices in chapter 7.

II. Review of Bills

The Present Position

6.65 Clients who are dissatisfied with a bill rendered by their solicitor may have two principal methods of seeking an order that the bill be reduced. First, they can have the bill referred for review, known as “solicitor-and-client taxation”, by a court officer. ¹ Generally speaking, this “taxing officer” can order the amount of the bill to be reduced if it is unreasonable. If the fee was agreed previously with the client, however, the power to order a reduction is much restricted. Secondly, many clients who wish to dispute a bill not exceeding $1500 can seek an order from a Consumer Claims Tribunal reducing the amount of the bill. The order can be made if the Tribunal considers that it is “fair and equitable” to do so.

6.66 By contrast, there is, generally speaking, no procedure by which a barrister can be required to submit his or her fees to a reviewing authority which has power to order the barrister to reduce them. There is no form of “barrister-and-client” taxation, and as the Consumer Claims Tribunals are confined to reviewing contractual relationships they have no direct power in relation to barristers.

6.67 Both solicitors’ and barristers’ fees may be subjected to another form of review, known as “party-and-party” taxation. ¹ But such a review does not directly affect the fees which barristers or solicitors can charge their clients. Rather it determines how much of those fees can be recovered by the client from the opposing party or from some other person. The principal distinction between barristers and solicitors in relation to this type of review concerns the different fee scales which are applicable. We have referred to them earlier. Another distinction is that, while the bill submitted for review must include considerable detail about the solicitor’s work and the fee charged for each item of it, it need not include as much detail in relation to the barrister’s work or the method used to calculate his or her fees.

Some Relevant Considerations

6.68 We have mentioned earlier the weaknesses in the argument that there is little or no need to provide a system of review of barristers’ fees because the instructing solicitors provide a check on whether they are reasonable. In our view, this argument is not in accord with the realities of many relationships between barristers and their instructing solicitors. The scope for achieving a greater degree of control by solicitors is limited. The Law Society, like its counterparts in some other jurisdictions, has had little success in its efforts to have solicitors agree barristers’ fees in advance wherever possible. Such agreements continue to be the exception, and indeed in very many cases it would be exceedingly difficult, if not impossible, for either the barrister or the solicitor to predict with accuracy the amount of work which will be required of the barrister.

6.69 The present forms of indirect review by a solicitor-and-client taxation or by proceedings before a Consumer Claims Tribunal have substantial limitations. They cannot be invoked by solicitors, yet, as we explained earlier, solicitors are under certain professional obligations to pay the fees of barristers retained by them and may incur sanctions if they do not do so. Moreover, if a client invokes a review and obtains an order reducing his or her barristers fees, this does not. generally speaking, have the effect of reducing the amount which the solicitor is obliged in honour to pay the barrister. And if the barristers fees are reduced by a solicitor-and-client taxation, either the client or the solicitor, but not the barrister, will have to pay the cost of the taxation.

6.70 We have recommended earlier that barristers should have contractual capacity. If this recommendation were adopted, one consequence would be that anyone having a contractual obligation to the barrister to pay his or her fees would have the right to a direct review of them by a Consumer Claims Tribunal. But there would continue to be no right to seek a direct review of them by taxation. Moreover, if the contractual obligation is on the solicitor, the client, by whom in almost all cases the barrister’s fees are ultimately borne, will continue to be without any form of direct review, whether by a Consumer Claims Tribunal or by taxation. And the degree of control exercised by most solicitors over their barrister’s fees is not likely to increase substantially as a result of their present professional obligation to pay those fees being replaced by a contractual obligation. This is one of the reasons advanced by those who argue that the contractual obligation to pay a barrister, or a solicitor instructed by another solicitor, should rest on the client rather than on the instructing solicitor. That issue, however, is beyond the scope of this Report.

Our Views

6.71 In the light of these considerations, we recommend that the rights of a client or other person to obtain a taxation or other review of a practitioner’s bill should not vary according to whether the practitioner is a barrister or a solicitor. For example, any person who is under a contractual obligation to the practitioner to pay the bill should be entitled to a review of it by taxation or, subject to the financial and other limitations on its jurisdiction, by a Consumer Claims Tribunal. Where there has been a prior agreement about fees these rights to a review should be subject to restrictions of the kind which presently apply in relation to solicitors. The recommendation which we have made would be ineffectual, of course, if our earlier recommendation that barristers should have contractual capacity were not adopted. It will be of limited effect if, as a general rule, barristers’ contractual relationships are with instructing solicitors rather than with clients. In either of these eventualities, measures will need to be taken to provide clients with a better avenue for review of their barrister’s fees than is presently available to them. It is beyond the scope of this Report to recommend particular measures for that purpose, but there would be a strong argument forgiving clients the right to a direct taxation of their barrister’s fees, despite the fact that their obligation to pay those fees may be to the instructing solicitor rather than to the barrister.

6.72 For the same reasons as we gave in relation to fee scales, we recommend that the amount allowed on taxation for a particular item of work, such as an appearance as an advocate, should not vary according to whether it was performed by a barrister or a solicitor. But it might vary according to other factors such as the special difficulty of the task in the circumstances of the particular case. In relation to all forms of taxation of barristers’ fees, including “party-and-party” taxation, we recommend that those fees should be required to be specified in a reasonably detailed form. Requirements in this respect should be prescribed by rule of court.

6.73 The present system of taxation has been much criticised for undue complexity, expense and delay. It is beyond the scope of this Report to consider whether these criticisms justify substantial reform of the taxation procedure. In our view, the present procedures are sufficiently useful for us to recommend, as we have, that they should be available more widely. But this does not mean that we think they are not capable of’ significant improvement. If a better system of review is developed, we envisage that it should apply to all practitioners in the same way as we have recommended above in relation to the present system of taxation.

III. A Particular Issue

6.74 It is important that if practitioners handle the whole of a matter themselves, rather than working in conjunction with a barrister or an instructing solicitor as the case may be, the additional work and responsibility involved should be recognised in any relevant fee scales and in taxations and other reviews of fees. In particular, the work of presentation in court should be sufficiently remunerated. Failure to observe this principle would constitute an unfair and undesirable deterrent to solicitors who otherwise would be willing to handle a case entirely on their own when they are competent to do so. This does not mean, for example, that a practitioner who handles a case alone should be allowed to charge twice over for reading the papers. But sufficient recognition should be given to the extra preparation for trial which will usually be required if a solicitor is acting also as the advocate rather than as an instructing solicitor only.

6.75 In our view, considerable effort and care will be necessary to implement the recommendation made in the previous paragraph. But we regard it as being of major importance, and worthy of such work as may be necessary for its implementation. The importance of the task is manifest in the history of the largely unsuccessful attempts, dating from 1891, to abolish the rigid division of the profession in Victoria. ¹

G. DUTIES TO ACCEPT WORK

The Present Position

6.76 We discussed some aspects of this topic in chapter 3. We repeat some of that discussion in the course of considering the topic in greater detail here. Members of the Bar Association are subject to an association rule, known colloquially as the cab-rank rule, which provides that a member “shall not refuse to accept a brief in a field in which he professes to practise, except in the following circumstances........ These circumstances are described in fourteen paragraphs. They include cases where the complexity of the matter is such that the barrister considers it beyond his or her capacity, where the fee offered is not a proper fee, having regard to all relevant factors including the complexity of the matter and the seniority and experience of the barrister; where the length of time in which the barrister will be involved full-time in the matter is such as would seriously affect his or her practice; and where the barrister considers that having regard to other commitments, professional or otherwise, he or she will have insufficient time to give proper attention to the brief. The cab-rank rule does not bind barristers who are not members of the Bar Association and it is not clear whether, independently of the rule, courts regard barristers as under a legal duty to accept work.

6.77 There is no formal rule requiring solicitors to accept work in certain circumstances. The Law Society has submitted to us, however, that “most solicitors feel they have a subjective moral obligation to accept most work and most clients”, and it suggests that a solicitor may be ethically bound to accept a client “in cases of dire emergency or unavailability of alternative practitioners”. ¹ It says that the “subjective moral obligation felt by most solicitors is subject only to the same exceptions applying to the present ethical duty on barristers to accept all briefs offered to them”. ²

Some Relevant Considerations

6.78 We quoted in chapter 3' the conflicting views of the Bar Association and the Law Society concerning the practical significance of the Association’s cab-rank rule. In our view, the main practical effect of the rule in New South Wales is not that it forces reluctant barristers into accepting unpopular cases, but rather that it reduces criticism of barristers who do take such cases. 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. The cab-rank rule can play a valuable role in providing some protection for a barrister against such allegations.

6.79 It is important to bear in mind that the cab-rank rule has no application unless a client has found a solicitor who is willing to instruct a barrister on his or her behalf. This provides barristers with some protection against having to accept vexatious clients. Application of the rule to practitioners who accept work directly from clients would impose a far greater obligation on them than it presently imposes on members of the Bar Association. The same is not true, however, of its application to practitioners who, although not members of the Bar Association, do not act without the intervention of an instructing practitioner.

6.80 It may be argued that if, as we have recommended earlier, barristers are to have contractual obligations in relation to their professional work, they should not be obliged to accept work which they do not want. This may be an argument against imposing a statutory or common law duty on barristers, but it is of less weight in relation to an ethical rule which has generous exceptions of the type to be found in the Bar Association’s present rule. In addition to those mentioned already, those exceptions cover circumstances “where [the barrister’s] past experience of the particular client or an essential witness is such as to give him good reason to believe and he does in fact believe that his performance in the conduct of the proceedings would be adversely affected” or where “his advice as to the preparation or conduct of the proceedings has been ignored by his instructing solicitor or the client”. ¹ Moreover, as we have mentioned, barristers (and probably solicitors also) have an immunity from civil liability which extends it least to the conduct of a case in court and work intimately connected therewith.

Our Views

6.81 As we see it, neither barristers nor solicitors are subject, at present, to a general legal duty to accept work offered to them. We do not suggest that Such a duty should be imposed. We recommend, however, that the Bar Council should continue to have an ethical rule along the lines of its present cab-rank rule. In addition, we recommend that the Law Society Council should consider making an ethical rule in relation to the duties of practitioners to accept instructions from other practitioners. The rule could be similar to the Bar Council’s present cab-rank rule.

H. APPOINTMENT AS JUDGES

The Present Position

6.82 At present, both barristers and solicitors are eligible for appointment as judges. In the case of New South Wales Courts, a statutory requirement of five years’ standing as a barrister or seven years’ standing as a solicitor is common, ¹ but in federal courts the usual requirement is five years’ standing as a legal practitioner. ²

6.83 Almost all judicial appointments from the New South Wales profession have been made from the rinks of barristers. In recent years, however, several New South Wales solicitors have been appointed to the Family Court of Australia, two to the Industrial Commission, and one to the Workers’ Compensation Commission. The present Chief Judge of the Land and Environment Court was a solicitor prior to his first judicial appointment, to the Industrial Commission. Early in 1982 a solicitor was appointed to the District Court bench for the first times since 1859. But no solicitor in this State has ever been appointed to the High Court, the Federal Court, or the Supreme Court.

Some Considerations

6.84 The general question of eligibility for appointment to judicial office is not within out terms of reference. But distinctions in that area between barristers and solicitors are clearly relevant to the structure of the profession. For example, if judges of the higher courts arc chosen solely from the ranks of barristers, then practitioners with judicial aspirations may feel obliged to become barristers, whether or not the barrister’s style of practice accords with their preference or is best-suited to their clients’ needs. Moreover, judges of the higher courts playa substantial role in the regulation of the profession in relation to matters such as admission, costs and discipline. There are obvious limitations in having such roles played by bodies consisting entirely of people whose practising life was spent solely or largely in the same small sector of the profession.

6.85 There are strong grounds for believing that it is not necessary to have practised as a barrister in order to be of judicial calibre. This is demonstrated by experience with appointments of amalgam practitioners in the flexible professions in Australasia to senior judicial positions at State and national level. Moreover, solicitors appointed from divided professions to various judicial bodies in Australia, ¹ and to the Crown Court in the United Kingdom, ² have come to be regarded as, generally speaking, the equal of those of their colleagues who were appointed from the ranks of barristers. Many solicitors in New South Wales have Substantial experience in advocacy, ³ and many have acquired close familiarity with the conduct of litigation through working with counsel on numerous cases. It must be remembered also that it is not uncommon for a barrister to be appointed as a judge largely on the grounds of a reputation acquired in, say, equity, and then to have to sit on cases, such as criminal trials, with which he or she has little or no prior acquaintance. Moreover, many solicitors have expertise and personal qualities which can be of great value on the Bench. We refer, for example, to an understanding of the commercial world, or of a wide cross-section of the Community, and to qualities such as commonsense and fair-mindedness which are not found solely amongst barristers.

6.86 It is relevant in this context to refer to some comments by the Commonwealth Attorney-General, Senator Durack. In 1980 he pointed out that his recent appointments to the federal judiciary

“included 12 solicitors, four women lawyers, two Government lawyers and one academic lawyer. These selections represent a substantial departure from the limited areas of traditional appointments. I hope the boundaries of eligibility will continue to widen, and I do not exclude the High Court from that .... It would be regrettable if we developed a judicial class remote from the concerns and feelings of the community.” ¹

The Attorney-General’s reference to widening the boundaries of eligibility reflects the power of custom in this area. The appointments to which he refers were a departure fro in customary perceptions of eligibility, but did not involve any broadening of eligibility as a matter of law.

Our Views

6.87 In the light of these considerations, we favour the abolition of the existing distinctions between barristers and solicitors in relation to their legal eligibility for appointment to a judicial office. Moreover, we are of the view that, as a matter of practice, appointments to judicial office should not be regarded, even in relation to the higher Courts, as having to be made solely from the ranks of barristers rather than also from amongst solicitors.

I. JUDICIAL AND OFFICIAL ATTITUDES

Attitudes towards Advocates

6.88 It has been suggested to us that some judges are more favourably disposed towards barrister advocates than towards solicitor advocates. A survey in 1977 found that about half of the solicitors surveyed considered that judicial antipathy towards solicitor advocates was “frequently” or “occasionally” an “important” reason for them deciding to refer an latter to be handled by a barrister. ¹ Similar views have been expressed to us by a number of individual solicitors and by some senior court officials. We think that there may be justification for these views in relation to some members of the judiciary, but whether the views are right or wrong the fact that they are widely held is of considerable significance.

6.89 It is neither surprising nor undesirable that ill-prepared or incompetent advocates will, on occasion, incur expressions of judicial disapproval. if, however, even one judge, without good cause, favours a barrister at the expense of a solicitor, the administration of justice suffers to some extent. A similar result follows if the same degree of judicial tolerance is not extended to both the inexperienced solicitor and the inexperienced barrister. Judicial attitudes should demonstrate beyond doubt that there is no reasonable basis for any solicitor to believe that he or she is discriminated against in any court on the ground that he or she is a solicitor.

Precedence at Court and at Official Functions

6.90 In earlier times, there were practices in the courts and elsewhere by which barristers were given precedence over solicitors. In the courts, this often included the right of pre-audience; that is the right for barristers to have their cases heard before those in which the advocates are solicitors. Some of these old practices remain. On ceremonial occasions, such as when a judge is sworn in or retires, the representative of the Bar is heard before the representative of solicitors. In the church services at the beginning of the legal year, the barristers move in procession ahead of the solicitors-indeed, in some instances the solicitors are not included in the procession. On these and other occasions, a barrister who is newly admitted to the profession may have precedence over the most senior and highly respected solicitor. In addition, there remains a tendency in some courts to regard instructing solicitors as not entitled, without the express leave of the court, to sit at the Bar table, alongside their advocate, even when there is sufficient room for them to do so.

6.91 In our view, distinctions should not be drawn between barristers and solicitors in these ways. If at some official functions it is necessary to give precedence to barristers over solicitors, there should be no systematic preference for one branch over the other. Where each branch has a representative, precedence might be determined, where necessary, by their respective number of years standing in the profession. The order in which a court hears cases should reflect the exigencies of Court business and the fair treatment of litigants and practitioners, rather than whether the advocate involved is a barrister or a solicitor. Practitioners’ access to the Bar table, or any other Court facility, should depend on the function they are performing at the time, rather than involve distinctions between barristers and solicitors.

J. DISTINCTIONS IN THE FEDERAL SPHERE

6.92 We are a State body, conducting an inquiry at the request of our State Attorney-General. It is not our role, therefore, to make recommendations about federal laws or practices which distinguish between barristers and solicitors. But in many instances the abolition of a distinction at State level between barristers and solicitors can be expected to lead to abolition, at least in relation to New South Wales practitioners, of any similar distinction at federal level. In many such instances there is at present no Federal distinction in relation to practitioners from some other parts of Australia, notably, of course, those in which all practitioners are admitted as barristers and solicitors. For example, in most states all practitioners appearing as advocates in the higher courts of their state wear wigs and gowns, and they do likewise in the higher federal courts. The fact that New South Wales barristers wear wigs and gowns in federal courts, but solicitor advocates do not, is due to a distinction drawn at the State level. The abolition of the State distinction can be expected to lead to the disappearance of the distinction at federal level also.

K. TRANSITIONAL ARRANGEMENTS

6.93 Implementation of a number of the recommendations in this chapter would require transitional arrangements in order to avoid unfairness to practitioners, clients or other people. This applies especially to our recommendations concerning training and experience requirements after admission. In many instances the precise nature of these transitional arrangements would depend on whether a number of the other recommendations in this Report were to be implemented. The range of possible situations in which transitional arrangements might need to be devised is so great that it would be highly complex and confusing to make specific recommendations in this Report.

Para.
6.6	1. See paragraphs 3.38-3.42.
	2. See eg. Parts I and II of our Discussion Paper, The Structure of the Profession, and chapter II of this Report.
	3. The Structure of the Profession, Part II, part.10.6.
6.7	1. Committee of Inquiry, Legal Educations in New South Wales, (NSW Govt Printer, 1979), para.1.3.
	2. For full terms of reference, see Appendix I.
	3. See note 6.7.1 above.
6.9	1. See Legal Education in New South Wales, chs.5-7.
	2. Legal Education in New South Wales, para.6.12.6.
6.10	1. See Bar Association Rules, rule 99; and the Bar Association’s Submission No.131 (“Admission and Right to Practise of Legal Practitioners”), pp.1-13.
6.11	1. Submission No.262 (“Admission and Right to Practise”), p.17.
	2. Submission No.131 (“Admission and Right to Practise of Legal Practitioners”), p.12.
6.12	1. Legal Education in New South Wales, p.199.
	2. Ibid., p.198.
	3. Id.
6.14	1. On this point, see Legal Education in New South Wales, para.3.4.9.
	2. See our Discussion Paper, The Structure of the Profession Part I, pp.60-67.
6.15	1. See Legal Education in New South Wales, paras.5.8.1-5.9.2.
	2. Ibid., paras.5.8.4, 5.9.2.
6.16	1. Ibid., paras.8.7.4, 8.8.11.
6.17	1. For the powers and functions of the Supreme Court and the two Admission Boards, see Legal Education in New South Wales, ch.5.
6.18	1. Ibid., ch.11.
	2. Ibid., paras.5.1.1, 5.5.4, 5.9.2.
	3. Ibid., paras.5.3.1.
6.19	1. See para.6.7.
6.21	1. Legal Practitioners Act, 1898, ss.66, 67.
	2. See Law Society of New South Wales, Submission No. 262 (“Admission and Right to Practise”), p.15.
6.22	1. See Bar Association Rules, rule 97. For a general description of the pupillage requirements, see NSW Bar Association, Submission No.131 (“Admission and Right to Practise of Legal Practitioners”). p.15.
	2. Bar Association Rules, rule 98.
6.23	1. See the Law Society's, Submission No.262 (“Admission and Right to Practise”), p.17, and the Bar Association’s Submission No.131 (“Admission and Right to Practise of Legal Practitioners”), pp.7-11.
	2. Submission No.262, p.17.
6.26	1. See Gowans, The Victorian Bar (1979), pp.34-41.
6.29	1. See rule 26.
	2. On this point, see paragraph 7.41.
	3. See Law Society of New South Wales, Submission No. 262 (“Admission and Right to Practise”), p.21.
	4. Ibid., p.20.
6.34	1. See Legal practitioners Act, 1898, s.11; and NSW Bar Association Submission No.131 (“Admission and Right to Practise of Legal Practitioners”), p.9. See also Barristers Admission Rules, rule 14, and Law Society of New South Wales, Submission No.80 (“Division of the Legal Profession into Two Branches”), p.22.
6.39	1. Solicitors' practices Rules, rule 3.
	2. Ibid., rule 11.
6.41	1. See our Discussion paper, The Structure of the Profession, Part I, p.65.
	2. See eg. Legal Practitioners Act, 1898, s.15; District Court Act, 1973, s.43; Courts of Petty Sessions (Civil Claims) Act, 1970, s.11.
	3. See eg. the sections cited in note 2 above.
6.45	1. Legal Practitioners Act, 1898. ss.40C, 40D.
	2. See eg. Supreme Court Rules, Part 65, rule 8 and Part 66, rule 1(1) District Court Rules, Part 45, rule 5 and Part 48. rule 1(1).
6.48	1. See eg. Saif Ali v. Sydney Mitchell, [1978] All England Reports, Vol.1, p.1033, and Sources cited therein.
6.49	1. Legal Practitioners Act, 1898, s.21; Morgan v. Meissner, [1975] NSW Law Reports, p.614.
	2. See Saif Ali v. Sydney Mitchell (note 6.48.1 above) and sources cited therein.
	3. Joint Statement of the Law Society of New South Wales and the New South Wales Bar Association (1977), p.l (printed in NSW Bar Association, Submission No.194 (The Fixing and Recovery of Changes for Work done by Legal Practitioners”), Appendix A.)
	4. Bar Association Rule, rr.64, 85.
	5. See Joint Statement cited in note 3 above.
6.50	1. See cases cited in Rondel v Worsley [1967] Weekly Law Reports, vol.2, p.1666 and in Saif Ali v. Sydney Mitchell (note 6.48.1 above).
	2. See Saif Ali v. Sydney Mitchell; Rees v. Sinclair, [1974] New Zealand Law Reports, vol.1, p.180: Feldman v. A Practitioner, (1978) South Australia State Reports, vol.18, p.238.
	3. See eg. Rondel v. Worsley, [1969] Appeal cases, vol.1, p.169, the speeches of Lord Reid (p.232), Lord Morris of Borth-y-Gest (pp.243-4) and Lord Pearce (p.267). In Saif Ali v. Sydney Mitchell, see the speeches of Lord Wilberforce (p.1039), Lord Diplock (p.1046) and Lord Salmon (p.1048).
6.51	1. See Baker, “Counsellors and Barristers” (1969) Cambridge Law Journal, vol.27, p.205 at 227-9.
	2. For argument along these lines see eg. Rondel v Worsley [1967] Weekly Law Reports, vol.2, p.1666; Saif Ali v Sydney Mitchell (note 6.48.1 above).
6.56	1. See our Discussion Paper, The Structure of the Profession, Part I, pp.76, 299.
6.57	1. See our Discussion Paper, The Structure of the Profession, Part I, pp,76, 79-83, 299-300.
6.58	1. Part I, pp.81-82.
6.65	1. See generally Saddington, Costs (Law Book Co., 1947) ch.1; Ahern & Seibel, Legal Costs (NSW) (Butterworths), pp.xiii-xv, xix-xx. See also eg. Legal Practitioners Act 1898, s.22, and Supreme Court Rules Part 52; District Court Act 1973, s.122 and Rules, Part 39.
	2. Consumer Claims Tribunal act 1974, s.26(1); Consumer Claims Regulations, ch.9. See also Silver v Consumer Claims Tribunal [1978] New South Wales Law Report, vol.2, p.313; Thomson v Consumer Claims Tribunal [1981] NSW Law Reports, vol.1, p.68.
6.67	1. See the Sources cited in note 6.65.1 above.
6.75	1. See our Background Paper -IV, pp.11-14 and 17, and the sources cited therein at pp.50-54.
6.76	1. Bar Association Rules, rule 2.
6.77	1. Submission No.264 (“Duty to Accept Work”), p.3.
	2. Ibid., p.4.
6.78	1. See para.3.66.
6.80	1. Rule 2.k.l.
6.82	1. See, for example, Supreme Court Act 1979, s.26(2); District Court Act, 1973, s.6(2).
	2. See, for example, Judiciary Act, 1903, s.51 Federal Court Act, 1976, s.6(2).
6.85	1. Principally the Family Court of Australia.
	2. See eg. Hodgson, “Solicitor-Puisne Judges” (1981) New Law Journal, vol.131, p.273; and Aequalitas, “Two Classes of Judge”, (1981) Law Society Gazette (England) vol.178, p.257.
	3. See our Discussion Paper, The Structure of the Profession, Part I, pp.66-67.
6.86	1. See Australian Law News (Sept 1980), p.8 at 11.
688	1. See Tomasic and Bullard, Lawyers and their Work in New South Wales (law foundation of NSW 1978), Table 163. See also Law Society of New South Wales, Submission No.200 (“The Division of the Legal Profession into Two Branches”), p.11 and Appendix 6.1.