A. INTRODUCTION

1.1 We have been asked to inquire into a wide range of matters in relation to the legal profession in New South Wales. Our terms of reference for this Legal Profession Inquiry are reproduced in Appendix I of this Report. We have published two Reports prior to the present one. The First Report contains our final recommendations in relation to the general regulation of the legal profession; the division of the profession into barristers and solicitors; various aspects of the Queen’s Counsel system; and the dress worn advocates in court. The Second Report contains our final recommendations in relation to the making, investigation and adjudication of complaints about lawyers, and certain other matters concerning discipline and standards within the legal profession.

B. THE SCOPE OF THIS REPORT

1.2 The present Report covers two general topics, namely,

• Specialisation and related matters (dealt with in Part II);
• Advertising and other Attraction of Business (Parts III and IV).

The following portions of our terms of reference are of particular relevance to these topics:

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

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

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

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

with particular reference to but not confined to the following matters -

(h) the fixing and maintenance of ethical standards;

(n) advertising;

(p) the certification of legal practitioners as specialists in particular fields;

(u) the necessity for participation by legal practitioners in courses of continuing legal education; ”

C. OUR METHODS OF INQUIRY

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

1.4 We have had discussions with a wide range of lawyers about issues relevant to the Inquiry. Some of these meetings were at our initiative, while others were in response to invitations. They included State and regional law society meetings, barristers meetings, national and international conferences of lawyers, and university seminars, as well as many private interviews. ² We arranged meetings on a number of occasions with office-bearers of the Law Society of New South Wales and the New South Wales Bar Association in order to discuss particular aspects of the Inquiry.

1.5 We have also had discussions with a large number of non-lawyers, including members of other professional disciplines such as accountancy and medicine. A special effort was made to obtain the views and experiences of people who do not write submissions to Inquiries or speak at public meetings, but who may nevertheless have well-informed and responsible views to express. We conducted “open houses” in eight country and six suburban centres where, at well-publicised times, a member of the public could talk privately to a member of the Commission (or less frequently, to a member of the Commission’s staff about his or her experiences with lawyers. More than 300 people attended these open houses. More than 500 other people telephoned, visited, or wrote to us at the Commission. In addition, we examined over 600 files in which the Law Society of New South Wales or the New South Wales Bar Association had dealt with complaints against their members, and we obtained information about many hundreds of other complaints. ³

1.6 We have carried out a considerable amount of empirical research. Much of this research has been the subject of reports published in our Background Papers. ⁴ In addition, we co-operated with the Law Foundation of New South Wales in an extensive questionnaire survey of the profession. ⁵ We also have undertaken or commissioned bibliographical research into the history and present operation of the legal profession and of certain other professions, in New South Wales and many other parts of the world. ⁶ We have been assisted in this work by a number of academic consultants from law and other disciplines. ⁷

D. DISCUSSION PAPERS AND BACKGROUND PAPERS

1.7 With the benefit of the information and ideas obtained by the means referred to above, we prepared and published a series of six Discussion Papers on various topics falling within our terms of reference. These Papers described the present position in New South Wales and made tentative suggestions for change in certain respects. They were supplemented by five Background Papers containing further information about the position in New South Wales and in some other places. ⁸

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

1.9 One of the Discussion Papers, Advertising and Specialisation, covered areas with which we deal in this Report Suggestions made in it, and responses which they evoked, are referred to in subsequent chapters. All responses made to us have been taken into account in determining our final recommendations.

FOOTNOTES

1. Submissions and certain other responses are listed in Appendices II and III of our First Report.

2. For further details, see First Report, para. 1.6, footnote 1.

3. For further details of the inquiries mentioned in this paragraph, see our Discussion Paper, Complaints, Discipline and Professional Standards - Part I, and our Background Papers I and III.

4. See Background Papers II-V.

5. A report on the results of this survey has been published by the Law Foundation: see R. Tomasic and C.Bullard, Lawyers and their Work in New South Wales (1978).

6. Some results of this research which are relevant to the present Report are contained in Background Paper - IV (The Structure of the Profession).

7. Our principal academic consultants are listed in Appendix IV of our First Report.

8. The Discussion Papers and Background Papers are listed on page v of this Report.