A. THE GENERAL QUESTION

2.1 The general question with which we are concerned in this Part of the Report is:

• To what extent and by what means, if any, should specialisation within the legal profession be regulated?

We use the term "specialisation" in a broad sense rather than as a precise term of art. In common parlance, specialisation is often used to mean a substantial degree of concentration o)f work in a particular field. But concentration in a field often leads to expertise in it and, accordingly, specialisation is commonly used to connote a substantial degree of both concentration and expertise. In this Report we use it to embrace both of its common meanings, that is, concentration and concentration and expertise. And we use it to cover a wide range of possible views about the degrees of concentration and of expertise necessary to constitute specialisation. We use cognate words, such as "specialise" and "specialist', in the same broad manner. More precise terminology is adopted where it is necessary to do so.

B. THE FOCUS OF DISCUSSION

2.2 In recent years there has been considerable discussion in Australia, and elsewhere in the common law world, about regulation of specialisation within the legal profession. The focus of discussion has been on the question of practitioners advertising about their particular fields of practice, whether in terms of "specialisation" or of such other characteristics as “experience”. “expertise” or merely "willingness to accept work". Should any such advertising be permitted? If so, should it be confined to those practitioners who satisfy special criteria, such as academic or practical qualifications?

2.3 We too concentrate principally in this Part on the issue of practitioners' rights to advertise claims about particular fields of practice. There are other types of action which could be taken to regulate specialisation. For example, practitioners who satisfy special criteria for designation as "specialists" in a particular field could be permitted to charge higher fees than non-designated practitioners, or could be given exclusive rights to undertake work in that field. But for reasons explained in chapter 5, we agree with the broad consensus amongst lawyers that discriminations of such a kind would not be desirable. Accordingly, we do not discuss these possibilities in detail.

2.4 We are concerned in this Part with one aspect of advertising by lawyers, namely advertising about fields of practice. We are not concerned here with the general question of advertising by lawyers, including questions such as the media in which advertisments appear and the full range of different types of information or assertion which may be advertised. Those issues are discussed in Parts III and IV and we incorporate into our recommendations in that Part the recommendations made in this Part in relation to advertising about fields of practice. As a background to the present Part, we indicate at this stage that in Parts III and IV we recommend a relaxation of the present restrictions on advertising in order to allow a wider range of material to be advertised in a wider range of publications and media.

C. "FIELDS OF PRACTICE SCHEMES"

2.5 We make frequent use in this Part of the expression "fields of practice scheme", by which we mean a body of rules in relation to advertising by practitioners about particular fields of practice. The rules may relate to advertisements about specialisation expertise, willingness to accept work, or some other characteristic in relation to a field of practice.

2.6 For convenience of discussion we describe various fields of practice schemes along a spectrum from “low level” to “high level”, according to the level of qualifications, if any, which they require of practitioners wishing to advertise about fields of practice.

• An example of a low level scheme is one which permits practitioners to advertise that they specialise in a particular field of practice, provided that the advertisement is not false or misleading.
• An example of a high level scheme is one which allows practitioners to advertise that they specialise in a particular field, provided that they spend 60% of their time working in the field and have passed a rigorous written examination in it.