A. INTRODUCTION

15.1 In this chapter we consider restrictions concerning attraction of business by barristers. In particular, we look at

• individual advertising;
• community discussion;
• solicitation.

We begin by describing the present position in New South Wales in relation to each of these forms of attraction of business. We discuss whether there is a need for change, and then we make some recommendations. We conclude the chapter with some comments about the implications in this context of the recommendation in our First Report on the Legal Profession that the present division in the profession between barristers and solicitors should be abolished.

B. THE PRESENT POSITION

I. Individual Advertising

15.2 The principal restriction on advertising by barristers in New South Wales is contained in the rules of the New South Wales Bar Association:

“73. A barrister shall not directly or indirectly do or cause or allow to be done anything for the purpose of or with the primary motive of personal advertisement of himself as a barrister or which is likely to lead to the reasonable inference that it is done for that purpose.”

15.3 Other relevant rules provide that unless with the prior permission of the Bar Council, a barrister must not

• disclose to the public that he or she is a barrister “when such qualification is not a relevant consideration” (rule 74.a.);
• give interviews to the media” in connection with any legal proceedings” (rule 74.b.);
• take any steps to procure, or to encourage any person to procure:

a. the attendance of the press at any proceedings in which he is appearing as a barrister;

b. the publication or broadcasting of any matter concerning any proceeding or dispute in relation to which he is acting as a barrister” (rule 75).

There are some exceptions to these rules. The main ones are, first that barristers may give certain basic information about a case in response to inquiries from the press, provided the information is not to be attributed to them (rule 76), and, secondly, that in some circumstances barristers may advise clients to seek to correct reports about them (the clients) in the media (rule 77).

II. Community Discussion

15.4 The main restrictions on community discussion by barristers arise from the rules referred to above in relation to individual advertising. ¹ They prohibit barristers from according interviews to the media in relation to any legal proceedings, save with the prior permission of the Bar Council or, to a limited extent, in relation to proceedings in which the barrister is acting. ² Generally speaking, other forms of community discussion by barristers are permitted, provided that a barrister does not breach rule 73 (see para.15.2 above) and does not disclose himself or herself as being a barrister when that status is not a relevant consideration”. ³

III. Solicitation

15.5 The principal restriction in relation to solicitation is the following rule of the Bar Association:

“72. A barrister shall not directly or indirectly do or cause or allow to be done anything for the purpose of soliciting employment as a barrister or which is likely to lead to the reasonable inference that it is done for that purpose.”

15.6 In addition, there are several rules aimed at prohibiting barristers from soliciting work from solicitors. For example, generally speaking, a barrister is prohibited from visiting solicitors’ offices ⁴ and from sending solicitors “a memorandum containing his name and address, the fact that he is a barrister, or his curriculum vitae”. ⁵

15.7 Although there is no explicit rule in relation to the use of business cards by barristers, the Bar Council decided in 1975 that, although they may be used, they must not indicate that the person in question is a barrister. ⁶ There is a rule to that effect in relation to barristers’ stationery. ⁷ Queen’s Counsel, however, may indicate that rank on business cards and stationery. ⁸

C. OUR DISCUSSION PAPER

Our Suggestions

15.8 In our Discussion Paper, Advertising and Specialisation, the majority of us suggested some relaxation of the present restrictions on individual advertising by barristers. ⁹ Generally speaking, our suggestions were similar to those which we made in relation to solicitors, save that advertising by barristers would be confined to designated publications, such as the Law Society journal, circulating principally within the legal profession.

15.9 The majority of us also suggested clarification and relaxation of the restrictions on community discussion by barristers. ¹⁰ We suggested that this could be achieved by adopting the rules of the English or Victorian Bars in this area.

15.10 In relation to solicitation by barristers, the majority of us did not favour a substantial relaxation of the present restrictions, at least in the near future, but we suggested certain changes in relation to restrictions on visiting solicitors’ offices. ¹¹ We also suggested that barristers should be permitted to describe themselves as such on business cards and stationery. ¹²

15.11 One of us, Mr Conacher did not “see utility in advertising by barristers”, save for the publication of a directory along the lines of the English Bar List, and the periodical publication by the Bar Council of practice changes such as the commencement of practice or a change in address. ¹³

A. Response

15.12 In its response to our Discussion Paper the New South Wales Bar Association said that the rules in relation to attraction of business, like other rules of professional conduct, “are properly determined by the profession itself in the light of tradition and experience, changing and developing over the years as circumstances changed”. ¹⁴

15.13 In relation to community discussion the Association said that since 1972

“there would be very few occasions when a member of the Bar has been refused permission under the rules to make a statement to the media or to a meeting on a matter of public interest though permission is, of course, refused to those who wish to address on matters that have occurred in a piece of litigation in which they have been recently involved.” ¹⁵

But it informed us that it had referred to its Rules Committee our suggestion that the English rules in relation to community discussion by barristers should be adopted. ¹⁶

15.14 The Association said that “there has always to date been a majority” of the Bar Council which does not favour relaxation of the restrictions in relation to business cards and stationery, and that there

“does not seem to be any compelling reason why the firmly held view should not continue so long as they are held by a majority of the Bar in this particular matter.” ¹⁷

D. THE NEED FOR CHANGE

Introduction

15.15 We discussed earlier in this Report a number of considerations which are relevant to restrictions on attraction of business by solicitors, and we recommended changes in those restrictions. ¹⁸ We mention here various differences, or alleged differences, between barristers and solicitors, which may indicate that the restrictions upon barristers should differ from those upon solicitors. ¹⁹ These issues were considered in greater detail in our Discussion Paper.

Solicitors Choose Barristers

15.16 Barristers do not accept work directly from clients. Accordingly, it is argued, there is little or no need for the public to be able, without the help of a solicitor, to locate a barrister or to identify one who is well-suited to his or her needs. ²⁰ This task, it is said, is seen by solicitors as their responsibility and they are able to perform it satisfactorily. There is, therefore, no need for advertising or solicitation.

15.17 This argument has strength but in our view, it should not be accepted without important reservations. First, a number of solicitors, especially in outlying areas, have considerable difficulty in finding a barrister who is suited to a particular case. ²¹ Secondly, clients are entitled to choose their own barrister. ²² Thirdly, lack of public awareness of all but the few leading barristers who receive substantial media coverage can lead clients to insist that these leaders should be briefed for them, yet other barristers known to the instructing solicitor but not to the client may be at least as competent more readily available, and less expensive.

Competition at the Bar

15.18 AnotherargumentisthattheBarishighlycompetitiveanddoesnotneedthestimulus of advertising. ²³ We question, however, whether the Bar is more competitive, especially in terms of fees, than at least some sectors of the solicitors’ branch. In some ways the smallness and cohesiveness of the Bar militates against competition; we described in our First Report on the Legal Profession the extensive range of restrictive practices at the Bar. ²⁴

15.19 It is argued that barristers are under special pressure to provide good service, because they are under the eyes of instructing solicitors. ²⁵ This argument has strength. However, our inquiries lead us to the view that a number of solicitors are not well-informed users of barristers’ services and do not constitute a significant stimulus to competition between barristers in terms of the quality or speed of service provided or the fees charged. ²⁶

Ethical Duties and Mutual Trust

15.20 Another argument is that the danger that advertising may lead to an excessively commercial cut- throat atmosphere in the legal profession is especially serious in relation to barristers. ²⁷ Barristers must not fight too zealously for their clients at the expense of observing their ethical duties to the courts. Moreover, mutual trust between barristers helps to avoid delay, expense and needless dispute in the conduct of litigation.

15.21 Again, these points have merit But the difference between barristers and solicitors in this context should not be exaggerated. For example, solicitors also are subject to ethical duties which may conflict with the interests of their clients. This conflict may arise not only when acting as advocates but also when acting as an instructing solicitor or in non-litigious matters.

E. OUR RECOMMENDATIONS

I. Individual Advertising

15.22 In our view, the need for barristers to be permitted to advertise to the public is substantially less than the need for solicitors to do so. On the other hand, we do not consider that the potential disadvantages of enabling barristers to advertise are substantially greater than those in relation to solicitors. In the result although we see no compelling reason for restricting barristers to any greater extent than solicitors in this area, we do not consider that, at least at the present time, there is a pressing need to ensure that extensive advertising by barristers to the public is permitted.

15.23 Weconsider,howeverthatbarristersshouldbepermittedtoadvertisetootherlawyers by inserting advertisements in publications which circulate principally within the legal profession. Many solicitors would benefit from this additional source of information, and consequential benefits would flow to clients and barristers. The restriction to lawyers’ publications would avoid many of the dangers of false, misleading or disreputable advertising.

15.24 Accordingly, we recommend that the restrictions on advertising by barristers should be the same as those recommended earlier in this Report in relation to solicitors, ²⁸ save that advertisements by barristers could be confined to publications circulating principally within the legal profession. These publications would include, for example, the Law Society Journal, the Australian Legal Directory, and the Referrals Directory which we recommended in Part II of this Report. ²⁹

15.25 As indicated, we do not consider that the permissible content of advertisements by barristers should be more restricted than in relation to advertisements by solicitors. But if that view is not accepted, we recommend that at least the following types of information should be allowed to be advertised in addition to basic information such as name, address and telephone number:

(i) the fact that a barrister is commencing practice;

(ii) change of address or telephone number;

(iii) willingness to accept work in particular fields of practice;

(iv) Knowledge of foreign laws;

(v) date of admission;

(vi) fixed fees for clearly specified services.

At present, New South Wales barristers can advertise some of these items to some extent. They can arrange for the first of them to be indicated in the Law Society Journal can circularise information about the second item to solicitors who have instructed them, and can indicate the fifth item in the Law Almanac.

II. Community Discussion

15.26 In relation to community discussion by barristers about cases in which they are, or were, involved, we consider that the existing Bar Association rules (principally rules 75 and 76) are broadly satisfactory. However, we recommend that consideration should be given to replacing those rules with a somewhat more liberal rule along the lines of the following English Bar rule:

“102. A barrister may not write for publication, broadcast by radio or television, publish in a film or otherwise cause or permit to be published any particulars of any matters on which he has been or is currently engaged as Counsel unless he can do so without disclosing confidential information and without giving publicity to his own part in the matter.”

The Victorian Bar has rules to similar effect. ³⁰ We consider, however, that if the English rule is adopted, the word “undue” should be added before the word “publicity” towards the end of the rule. It is unrealistic, and indeed undesirable, to require that barristers’ comments on cases in which they are, or were, involved must not disclose the fact of their involvement.

15.27 We turn now to community discussion by barristers which does not relate to proceedings in which they are, or have beer involved. Our principal criticism of the current Bar Association rules in New South Wales is that they prohibit comment in relation to “any legal proceeding”. ³¹ In our view such a restriction is clearly unjustifiable. It is alleviated somewhat by the Bar Council’s power to grant exemptions in specific instances. But this arrangement involves the Council in an area where some decisions may raise highly subjective considerations of politics or personalities. We recommend adoption of the English Bar rules in this area, which enable barristers to comment on legal or non-legal issues, whether involving legal proceedings or not, and in doing so to describe themselves as barristers if the topic is a legal one or if being a barrister is relevant. ³²

III. Solicitation

15.28 Generally speaking, we see no substantial need, at least at the present time, to change the present restrictions on solicitation by barristers. However, we do recommend two changes which are relevant to solicitation. First, we recommended in our First Report on the Legal Profession that the present prohibition on barristers visiting solicitors’ offices should be abolished or relaxed substantially. ³³ Secondly, in relation to business cards, we recommend adoption of a rule along the lines of the following rule of the English Bar:

“106. A barrister may use a visiting card which bears the following details:

(a) The word ‘barrister’ or initials ‘QC’ as appropriate.

(b) Other professional and academic qualifications.

(c) Professional address, telex and telephone numbers.

A barrister may not make his visiting card available to any person other than for social purposes, unless that person has asked for it or for the information on it.”

F. UNDER OUR RECOMMENDED STRUCTURE

15.29 Wehaverecommendedabovethattherestrictionsonattractionofbusinessshouldbe tighter in relation to barristers than in relation to solicitors. The reason for this difference is that barristers, unlike solicitors, do not accept work directly from clients. If the recommendations in our First Report on the Legal Profession are adopted, the profession will cease to be divided into barristers and solicitors. ³⁴ In that event, the restrictions recommended above in relation to barristers should apply to all practitioners who do not accept work directly from clients, all other practitioners should be subject to the restrictions which we have recommended in earlier chapters in relation to solicitors.

FOOTNOTES

1. For a fuller description of the present rules. see our Discussion Paper, Advertising and Specialisation, pp.177-178.

2. See NSW Bar Association rules 74-76.

3. NSW Bar Association rule 74a.

4. NSW Bar Association rules 34 and 35.

5. NSW Bar Association rule 74f.

6. Correspondence to this Commission from the Registrar of the Bar Association September 1981.

7. NSW Bar Association rule 74e.

8. In relation to stationery, see the rule cited in note 15.7.2 above.

9. Pp.184-185.

10. Pp.185-186.

11. P.186.

12. P.186.

13. See pp.201-202 of our Discussion Paper. Mr Conacher retired from the Commission prior to the preparation of the present Report.

14. “Advertising and Specialisation” (Submission No.406), p.5.

15. See source cited in note 13.

16. See source cited in note 13.

17. See source cited in note 13.

18. See chapters 11-14.

19. Pp.180-184. See also the sources cited at p.225 of the Paper.

20. See eg. New South Wales Bar Association, “Advertising” (Submission No.196). para.5.2.

21. See para.5.20 of this Report. and our First Report on the Legal Profession, paras.3.55, 3.73.

22. At least in the sense that if their solicitor will not brief the barrister of their choice they may go to another solicitor.

23. See eg. New South Wales Bar Association (note 18 above), paras.3.2, 5.2.

24. See chapter 7.

25. See eg. New South Wales Bar Association (note 18 above), para.5.2.

26. See eg. our First Report on the Legal Profession, para.6.59.

27. See eg. NSW Bar Association (note 18 above), paras.3.1-3.4.

28. See chapters 12 and 13.

29. See paras.6.21 and 7.7-7.8.

30. See Sir G Gowans, The Victorian Bar (Law Book Co., Sydney, 1979), pp.84-87.

31. Rule 74b.

32. Rules 102 and 104.

33. See paras.7.34-7.40.

34. See chapters 4 and 6.