National Competition Policy Review of the Legal Profession Act 1987


Chapter Seven - Role of the Legal Profession Advisory Council


7.1 The role of the Legal Profession Advisory Council is one of the matters which is required to be examined by Clause 1B of Schedule 8 of the Act. As noted above in chapter 1, the Council was established in 1987 to provide external scrutiny of the Law Society Council and the Bar Council, principally in their rule making functions. The Council is established by section 58 and consists of 11 members. Three members are solicitors, two members are barristers and five members are lay persons: section 58. One of the barristers and two of the solicitors are appointed from panels nominated by the Bar Council and the Law Society Council respectively.

7.2 Members of the Council are appointed by the Attorney General. The Council was based on recommendation 23 of the Report of the Law Reform Commission, of 1982. However, it is noted that the Commissioner recommended that a majority of the members of the Council were not to be nominated or appointed by the Attorney General. Had the Commission's recommendations been implemented, it would have been less likely that a majority of the members of the Council would have been members of the legal profession.[23]

7.3 The Council is required to keep under review the structure and functions of the profession. It is required to report to the Attorney on any matter referred to it by him and any matter relating to the legal profession which the Council considers should be brought to the notice of the Attorney, including professional standards, advertising and the general regulation of the legal profession: section 59.

7.4 The Attorney is also required to seek the views of the Advisory Council on regulations to be made under the Act, unless the circumstances are exceptional: section 216(2).

7.5 Any reports of the Legal Profession Advisory Council on the Barristers Rules, the Solicitors Rules, any joint rules, or on whether the Council considers a regulation to be anti-competitive or otherwise not in the public interest, must be published within 28 days after they are received by the Attorney General: Sections 59(3) and 57H.

7.6 The Council has reported on a number of matters of its own motion and following a referral from the Attorney General. These matters include reviews of the Solicitors' Rules, Barristers' Rules, whether the Councils or the Attorney General should make joint (Solicitors' and Barristers') rules for co-advocacy, mandatory continuing legal education, the method of selection of senior counsel by the Bar Council, the common law immunity of barristers and solicitor advocates, and restrictions on incorporation and multi-disciplinary partnerships. In several of its reports, the Council has recommended that rules be made or modified to ensure that the obligations of members of the profession are clear and that the conduct rules serve the public interest. The Council has also recommended wide ranging reforms to the rules governing the business structures of the profession. These proposals are discussed in greater detail in chapter 10.

7.7 The Attorney General's Department is not aware of concerns expressed about the operations, powers or constitution of the Council. However, it is noted that half of the members of the Council are solicitors or barristers and this may be expected to create a perception that conflicts of interests may arise in the consideration of matters relating to the profession. Nevertheless, members of the legal profession may be best placed to understand and analyse matters concerning the profession, especially when those matters involve statutory and common law rules. The Council has demonstrated its capacity to critically analyse matters affecting the legal profession and to make recommendations which may be at odds with the position of the professional Councils.

QUESTIONS

A. Has the Council discharged its statutory role?

B. Is the statutory role of the Legal Profession Advisory Council adequate to ensure that it provides appropriate independent scrutiny of the profession?

C. Does the membership of the Council ensure public confidence in the independent scrutiny of matters affecting the legal profession by the Council?

Footnotes

[23] Recommendations 23, 24 and 25 of the Report of the Law Reform Commission, First report on the Legal Profession: General Regulation and Structure (LRC 31) (Sydney, 1982), pp. 15 and 16. It was recommended that 3 members be nominated by the Attorney, 3 by non-practitioner members of the Law Foundation and the (proposed) Legal Services Commission; 2 by non-practitioner members of the (then) Consumer Affairs Council and one by the Leader of the Opposition.