Review of the Legal Profession Act Final Report


Licensing


CHAPTER 4: SEPARATE LICENSING OF SOLICITORS AND BARRISTERS


I MATTERS RAISED IN THE ISSUES PAPER

The 1993 Act removed many of the distinctions between solicitors and barristers. Division 1A of the Act provides for both solicitors and barristers to act as advocates, for joint advocacy, and removes any rules preventing attendance by solicitors and barristers on each other. The Barristers’ Rules now provide for direct client access.

However, significant differences still exist between the restrictions placed on barristers and solicitors in the provision of legal services. Barristers and solicitors are required to have separate practising certificates. Barristers must practise as sole practitioners and are subject to limitations on the kinds of work they may accept, which are set out in the Barristers’ Rules.

These remaining restrictions may have an anti-competitive effect. However, there are also significant advantages to the continued division of the profession. These include:

· the cab-rank rule for barristers ensures that all clients can have access to the specialist skills of an advocate;
· restrictions on the work of barristers in jurisdictions where barristers are not required to complete the formal practical training of solicitors may protect consumers of legal services; and
· the use of two separate practitioners in a matter, where the practitioners do not have common business interests, ensures outside scrutiny of the conduct of a client’s case.


II RESPONSES

This issue was addressed by the ACCC, the Bar Association, the Law Society and the Legal Aid Commission. The ACCC stated that it was concerned at the retention of separate certificates for solicitors and barristers and the inability of practitioners to hold both certificates at once. While the ACCC noted that many of the distinctions between solicitors and barristers had been removed, its view was that the removal of the distinction between the two practising certificates would enhance the commercial choices available to legal practitioners and clients, reduce barriers to entry and increase competition. The ACCC stated that even in jurisdictions where the profession has been fused, an independent Bar is active. The LAC stated that within its own offices, the use of solicitor advocates to conduct defended Family Court hearings and criminal trials without instructions from solicitors, and the advocacy performed by its in-house solicitors, had blurred the distinction between solicitors and barristers.

The Law Society supported the need for a separate Bar and its position was that the issue of two certificates did not raise any disadvantages. The restrictions on the use of titles did not affect the ability of the two branches of the profession to compete with each other.

The Bar Association rejected the view that the separate licensing of practitioners restricts the ability of practitioners to choose their mode of practice. The Bar Association also took the view that the amendment to the Act made in 1997, to enable solicitors to call themselves ‘solicitor and barrister’ meant that a solicitor could use all elements of the description. In any case, the public did not pay attention to the title of a practitioner or to their practising certificate when choosing an advocate and therefore solicitor advocates were not placed at a disadvantage when compared to barristers. The Bar Association also stated that the Barristers’ Rules did not impede the freedom of barristers. Its view was that the current scheme where a legal practitioner choosing to practise as an advocate could seek a practising certificate as a barrister, while other practitioners held an amalgam certificate as a ‘solicitor and barrister’ represented the best of both worlds.


DISCUSSION

It is clear that many of the rigid distinctions between the two branches of the profession have been relaxed or removed. Further, recent amendments to the Act to enable solicitors to use the titles ‘solicitor and barrister’ have removed many of the remaining distinctions. There appears to be little evidence of demand for further steps toward the fusion of the profession from either solicitors or barristers. Moreover, it is not clear that competition would be enhanced by such reforms. Practitioners are free to choose to become solicitors or barristers in order to achieve their professional goals. Solicitors are free to practise exclusively as advocates within a range of business structures, while barristers offer advocacy services to the public as sole practitioners.


QUESTIONS

4.1 What are the benefits to the public of the issue of separate practising certificates for barristers and solicitors? Do these benefits outweigh the competitive disadvantages of the restrictions, both to consumers and practitioners?

The issue of separate practising certificates enables clients to identify the branch of the profession of a legal practitioner. There does not appear to be support within the profession for change. Practitioners are able to choose which branch of the profession they wish to join and the titles and type of practice they wish to undertake. While barristers offer specialist advocacy services, solicitors can practise solely as advocates if they choose to and can use the title ‘solicitor and barrister’.

The existence of a separate, specialist Bar facilitates access to specialist advocacy services by the public, and promotes a high standard of advocacy by barristers.

It is possible a voluntary Bar could serve a purpose similar to that of the Bar established under the Act. However, the existence of separate practising certificates complements the enforcement of the Barristers’ Rules, by ensuring that barristers are accountable to their clients and that clients are made aware of the professional rules which govern barristers.

The existence of the compulsory scheme provides a means of accountability and supervision of barristers and it is unclear whether these outcomes could be achieved by a voluntary scheme.

An advocate may choose to practise as a solicitor and barrister if he or she wishes to be subject to the Solicitors’ Rules. While those rules confer greater freedom on solicitors to accept work and form business associations, they do not affect the ability of a solicitor to practise solely as an advocate. It therefore appears that any restrictions in the Barristers’ Rules can be overcome if a legal practitioner instead seeks to practise as a solicitor and barrister.

There does not appear to be any evidence that competition between the branches of the profession is impeded by restrictions on the use of titles.