Review of the Legal Profession Act Final Report: Restrictions
CHAPTER 3 : RESTRICTIONS ON NON-LAWYERS USING TITLES OF SOLICITOR AND BARRISTER AND PERFORMING LEGAL WORK
I MATTERS RAISED IN THE ISSUES PAPER
Use of titles
The titles ‘barrister’ or ‘solicitor and barrister’ can only be used by lawyers who hold the relevant practising certificates. The Act contains offences for persons who hold themselves out to be barristers or solicitors and barristers, who are not qualified to act in that capacity. Advantages of reserving the use of titles to practitioners who hold practising certificates are that solicitors and barristers are subject to supervision by the Law Society and Bar Association, and are widely recognised as having particular skills, as adhering to strict professional and ethical rules and as being covered by both professional indemnity insurance and the Solicitors’ Fidelity Fund.
However, the reservation of titles may have disadvantages, including limiting marketing opportunities for other service providers. The reservation of titles alone does not promote consumer awareness of legal services.
Even if titles were not regulated by the Legal Profession Act, it is likely that a person who falsely held himself or herself out as holding a practising certificate or being a qualified lawyer would be guilty of false, misleading or deceptive conduct under the Trade Practices Act 1974 (Cth).
Lawyers’ monopoly on certain categories of work
The effect of section 48E of the Act is to prevent non-lawyers from carrying out certain kinds of work for fee or reward. The effect of section 48E may be to restrict the entry of non-lawyers into the legal services market. In 1992, the Trade Practices Commission recommended that different categories of legal work should be independently reviewed to assess whether a monopoly was in the public interest. A Committee established by the Law Society recommended that if the statutory provisions creating a monopoly over provision of legal services were dismantled, consumer recognition of the difference between lawyers and other service providers could be promoted through education. However, it is possible that the maintenance of a regulatory regime for solicitors and barristers, while dismantling their monopoly over the provision of legal services, could have an anti-competitive effect if the compliance costs of mandatory licensing, insurance and fidelity requirements are too high.
Dismantling the monopoly over the provision of legal services raises additional questions about how to ensure adequate protection of consumers and about the kinds and costs of restrictions which should be placed on non-lawyer providers of legal services.
The Law Society and the Bar Association agreed that the current reservations on the uses of the titles ‘solicitor and barrister’ and ‘barrister’ are an important form of consumer protection. Both submissions alluded to the community expectation that service providers using these titles hold a practising certificate and have received academic and practical legal training. The Law Society supported the retention of section 48E of the Act, which reserves certain categories of work to solicitors because the provision refers to essentially core legal functions. The public benefited from the exclusion of non-lawyers from certain kinds of work because of the distinguishing features of lawyers as officers of the Court and the ethical duties and responsibilities of lawyers.
The ACCC took a different view of this issue. Its view was that there should be no presumption that any area of legal work should necessarily be reserved to lawyers without scrutiny. It noted that section 48E has not been enforced by The Law Society. It recommended as a model for consideration legislation enacted in Ontario for providers of health services which requires a service provider to hold a licence to perform certain harmful acts, rather than licensing health professionals based on their category of training. The ACCC suggested that legislation could reserve certain potentially harmful acts to legal practitioners, such as acts which might lead to financial detriment for clients. It is noted that the Legal Aid Commission referred in its submission to its successful use of non-lawyer advocates in tribunals through its Veterans’ Advocacy Service.
However, the potential problem with such a proposal is the multiplicity of authorisations a service provider would need to hold. Also, it might be difficult for consumers to be sure that a service provider was qualified to perform certain acts.
The titles of ‘solicitor and barrister’ and ‘barrister’ appear to be widely recognised in the community as indicating that a practitioner can accept instructions in any area of law and is bound by ethical and professional obligations. The retention of such titles appears justified.
The position of the ACCC, that harm to the public should be the criterion for any reservation of legal work, appears to be sound. However, it might be argued that a potential risk of harm to the public may arise if an unqualified person performs any kind of legal work. It is suggested that unless other service providers are adequately trained and supervised, they should not be permitted to undertake legal work. However, if a demand exists, schemes for the training and supervision of service providers who wish to work in some sectors of the legal services market should be developed.
3.1 What effect, if any, would the removal of the statutory reservation of titles have on markets?
It appears that the removal of the restrictions would permit the entry of unqualified service providers into the market. In an unrestricted market, consumers would be at risk of misleading conduct by these service providers.
3.2 Given that most practitioners belong to the Law Society or Bar Association, and that the representative roles and standards of those bodies are widely recognised, is there a need for statutory protection of titles?
Statutory protection of titles can be justified by the application of the provisions of the Act dealing with legal practice, complaints handing and discipline to practitioners who adopt those titles.
3.3 Do the public benefits of restrictions on the use of titles outweigh the barriers they create?
The reservation of certain titles to solicitors and barristers appears to be generally accepted in the community. It allows the public to distinguish practitioners who are subject to the regulatory scheme set out in the Act, regulations made under the Act, and professional rules, from other participants in the legal services market.
3.4 Should the Act reserve the use of titles to qualified practitioners who hold practising certificates?
3.5 Should the general restrictions on the performance of legal work be replaced with schemes applying to different categories of work, based on the nature and complexity of the tasks, rather than its categorisation as ‘legal’ work?
There does not appear to be general concern about any anti-competitive effects flowing from the reservation of certain categories of work to solicitors and barristers. The criteria for any reservation of work should be based on the potential harm to the public if the work is undertaken by a person who is not a solicitor and barrister or a barrister. However, some potential for harm is likely to arise if any legal work is undertaken by unqualified persons.
Although there may be no objection in principle to the introduction of licensing scheme to permit non-lawyers to enter the legal services market, a need for such a scheme would need to be demonstrated and appropriate safeguards included in such a scheme.
3.6 What categories of work would be suitable for such schemes?
Further consideration should be given to this issue, based on the matters set out above.
3.7 Should non-lawyers be permitted to perform categories of legal work? What safeguards should apply?
Where there is a genuine and necessary requirement for legal professional skills, lawyers should perform those functions. In other areas there should be appropriate competition between various professionals.