4.1 In this chapter we summarise the proposals for change which we advanced tentatively in 1981 in our Discussion Paper, Advertising and Specialisation, 1 and we mention some of the responses which were made to that Paper.
A. OUR TENTATIVE SUGGESTIONS
4.2 In the Discussion Paper, we suggested that lawyers should continue to be prohibited from advertising themselves as specialists or experts in particular fields. We suggested, however, that there should be some relaxation of restrictions concerning other forms of advertisement about fields of practice. We summarise our principal suggestions below.
I. Solicitors
Willingness to Accept Work
4.3 We suggested that solicitors should be permitted to advertise in newspapers and other publications their willingness or unwillingness to accept work in particular fields of practice, and their willingness or unwillingness to accept such work directly from clients rather than only on referral from other practitioners. 2 No academic or practical qualifications would be required for advertising in this way but advertisements would be required not to be false or misleading and would be subject to certain conditions concerning terminology.
4.4 We canvassed the possibility of publishing a Referrals Directory, intended principally for use by lawyers. It would be in addition to the existing Legal Services Directory and would contain a much greater number of fields than that Directory. It would indicate in which of these fields individual solicitors are willing or unwilling to accept work, and whether or not they accept work directly from clients.
Preferred Fields of Practice
4.5 We said in the Paper that we were not necessarily opposed to the introduction of a scheme permitting solicitors to advertise themselves as, for example, “preferring”, or being “specially interested” in, particular fields. 3 We suggested that, if such a scheme were introduced, it should require practitioners to meet certain qualifications before advertising in such terms, but the qualifications should not be above medium level. They should not involve, for example, successful completion of written or oral examinations, attendance at lengthy courses of education maintenance of substantial levels of concentration in a particular field, or provision of references from fellow practitioners.
4.6 We did not positively suggest the introduction of such a scheme, but we suggested that if it were established it should be a low-medium scheme, with the following principal qualifications for lawyers wishing to advertise themselves as having a “preferred” field or a “special interest” in a field:
- three years in active practice as a lawyer;
- for two years prior to commencing the advertisements, attendance at a specified amount of approved continuing legal education (say, 20 hours each year); and
- for each year after commencing advertisements, attendance at a specified amount of approved continuing legal education (say, 20 hours for each of the first two years and 10 hours for each subsequent year).
We suggested that advertising under this scheme should be restricted to certain broad fields, one of which should be General Practice. There should be no limit on the number of fields in which any one practitioner could advertise, subject to satisfying the qualifications in each field. We stressed that the scheme, including the fixing of qualifications, should be under the control of the general regulatory body for all solicitors, rather than, for example, one or more associations of practitioners interested in a particular field of practice (“special interest associations”).
Special Interest Associations
4.7 We said in the Paper that special interest associations can be beneficial but should not be permitted to become, in reality, the regulatory bodies for solicitors working in particular fields. 4 The general regulatory body for solicitors should retain effective control over the professional activities of all solicitors. We suggested that the general regulatory body should give consideration to establishing, under its own auspices, various special interest associations to be known as “Sections”.
4.8 We suggested that discrimination in law or official practice (such as the practice of the Government and the courts) should rarely, if ever, be based on whether or not a solicitor belongs to a special interest association. For example, if practitioners are to be allowed to advertise themselves as specialists, the right to do so should not be dependent upon being a member of a special interest association (save perhaps a Section under the control of the general regulatory body). We also referred to our suggestions in an earlier Discussion Paper, The Structure of the Profession, concerning the regulation of restrictive practices amongst lawyers, 5 and we pointed out that these suggestions would cover restrictive practices engaged in by special interest associations.
II. Barristers
4.9 Generally speaking, we made the same suggestions in relation to barristers as in relation to solicitors. 6 The principal exceptions were, firstly, we suggested that it might be appropriate to restrict barristers to advertising in publications circulating principally within the legal profession (such as the Law Society Journal or the Law Almanac) and, secondly, we said that the case for introduction of a “preferred areas of practice” scheme is weaker in relation to barristers than solicitors. Both of these exceptions were based on the fact that barristers do not accept work directly from clients.
4.10 In an earlier Discussion Paper, The Structure of the Profession, three of us suggested the abolition of the division between barristers and solicitors. 7 In our Paper, Advertising and Specialisation, we suggested that, if the division were abolished, the rules concerning advertising about fields of practice should be the same for all practitioners, save perhaps that those practitioners who do not accept work directly from clients should be restricted to advertising in publications which circulate principally within the profession.
4.11 One of us, Mr Conacher, differed to some extent from the suggestions made by the majority of us in relation to barristers. 8 He was inclined to prohibit barristers from advertising about their fields of practice, save for advertising their willingness to accept work in particular fields in a directory similar to the Bar List in England. 9
B. RESPONSES TO OUR DISCUSSION PAPER
4.12 The principal responses to our Discussion Paper were from the Law Society of New South Wales and the New South Wales Bar Association. We give an introductory outline of those responses below, and we refer to particular aspects of them in subsequent chapters.
The Law Society
4.13 The Law Society’s response 10 dealt only with our suggestions concerning solicitors. It agreed with our general view that solicitors should be given greater freedom to advertise about their fields of practice. But it disagreed with aspects of the changes which we suggested. Its two principal disagreements were as follows. First, it did not favour our suggestion that solicitors should have wider scope to advertise their willingness or unwillingness to accept work in particular fields. It said that such advertisements should continue to be confined to the Legal Services Directory. Secondly, the Society did not favour advertisements couched in terms of “preferred” fields of practice or “special interest” in particular fields. But it said that solicitors should be entitled to advertise themselves as “specialists”, provided they have become designated as such by satisfying certain qualifications. Accordingly, it proposed what it described as a medium level scheme in place of the low- medium level scheme which we described in our Paper. It also said that “it is quite possible that a high level scheme may be superimposed at a later stage”. 11
4.14 The Society has sought responses from its members before finalising its proposed “medium level” scheme. In the form circulated for discussion, 12 the scheme would involve the following principal requirements for designation:
- substantial involvement in the field for the three years preceding designation (to be determined by” objective and verifiable standards”, and, if measured by the time spent working in the particular field, to require at least 25% of ones time to be spent in the field)’
- at least ten hours of approved continuing legal education in each of the three years preceding designation; and
- affidavits from at least five practitioners in the field “attesting to the competence and qualification of the applicant as a specialist”.
Designation would be valid for three years. Qualifications for re-designation would be broadly similar to those required for designation. Initially the scheme would be confined to four fields of practice: Family Law and Divorce; Criminal Law Magistrates Courts; Personal Injuries - Third Party, and Personal Injuries - Industrial Accidents.
4.15 The Law Society noted “with interest” our suggestion that it should compile and publish a Referrals Directory. The Society said that if it is satisfied that there is “a need for another Directory such as a Referrals Directory then the Society will meet that need”. 13 Subsequently the Society’s Community Assistance Department invited solicitors to notify it about the fields of practice in which they are willing to accept work. 14 Their names will then be passed on to people who ask the Department for assistance in seeking solicitors who handle work in a particular field. There is no restriction on the fields which solicitors may nominate, although the Department has listed 29 fields (in addition to the 14 fields in the Legal Services Directory) in relation to which it has been asked in the past to provide the names of solicitors willing to accept work.
The Bar Association
4.16 In its response, 15 the Bar Association did not express general approval of our suggestion that barristers should be entitled to advertise, at least in publications circulating amongst lawyers, their willingness to accept work in particular fields. But it expressed interest in the possibility of publishing a directory of barristers, along the lines of the Bar List in England, which would include information about the fields in which individual barristers are willing to accept work. It said that it had referred this suggestion to the Joint Working Committee which was established in 1981 by the Bar Association and the Law Society for the principal purpose of considering suggestions made in our earlier Discussion Paper, The Structure of the Profession 16 The Association noted with approval that we did not suggest the introduction of what it called a “specialisation scheme” for barristers, whether at the low-medium level which we described in our Paper or at a higher level. The Association did not refer specifically to our suggestions concerning solicitors, but the general tenor of its response was opposed to the development of “specialisation schemes” within the legal profession.
FOOTNOTES
1. Chapters 5 and 6.
2. For the suggestions summarised in paras. 4.3 and 4.4, see our Discussion Paper, pp.62-67.
3. For the suggestions summarised in paras.4.5 and 4.6. see our Discussion Paper, pp.68-74.
4. For the suggestions summarised in paras.4.7 and 4.8, see our Discussion Paper, pp.75-77.
5. See chapter 6 of that Paper.
6. For the suggestions summarised in paras.4.9 and 4. 10. see our Discussion Paper, chapter 6.
7. See chapter 5 of that Paper.
8. See chapter 15 of our Discussion Paper, Advertising and Specialisation.
9. The English Bar List is referred to in para.3.25 of this Report.
10. “Advertising and Specialisation” (Submission No.412), esp. pp.6-13.
11. See source cited in note 10 above, at p.12.
12. See “Advertising and Specialisation” (Submission No.412), Annexures (b) and (c).
13. “Advertising and Specialisation” (Submission No.412), p.10.
14. See Law Society Journal (1982). vol.20, p.267.
15. “Advertising and Specialisation” (Submission No.406), pp.1-4.
16. The establishment and role of this committee was described in our First Report on the Legal Profession, para.2.26.
