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Review of the Legal Profession Act Final Report
Accreditation
CHAPTER 6: SPECIALIST ACCREDITATION SCHEMES
I MATTERS RAISED IN THE ISSUES PAPER
The Act permits accreditation schemes but does not give them exclusive status. Section 38K provides that a barrister or solicitor may hold himself or herself out as a specialist, but only if the barrister or solicitor has appropriate expertise or experience or is accredited under an accreditation scheme conducted by the Law Society or the Bar Association.
Accreditation may enhance the ability of consumers to choose legal services by giving them access to more information about the relative merits of practitioners. Conversely, accreditation may distort markets by increasing the costs of services and excluding practitioners who are not accredited from providing services, even if they have the expertise to do so. In this case, it would have an anti-competitive effect.
It is not clear whether accreditation schemes have had an anti-competitive effect on the market for legal services. However, because a practitioner need not be accredited to advertise himself or herself as a specialist, the existence of formal accreditation schemes appears unlikely to have this effect. Further, the Law Society’s annual report of 1997 indicates that more than 1,000 solicitors, of a total of about 13,000, are accredited specialists. This is a significant proportion of the profession.
II RESPONSES
Respondents who addressed this issue agreed that the scheme for specialist accreditation does not have an anti-competitive effect because it does not operate as a barrier to practice in particular areas, and provides consumers with information about the specialised skills and experience of solicitors. The ACCC concluded that accreditation schemes did not appear to create barriers to entry into specialty areas because the scheme did not have exclusive status or prevent practitioners from advertising themselves as specialists in particular fields. However, while the Act does not prevent organisations other than the Law Society Council and Bar Council form offering specialist accreditation, it is suggested that it may be appropriate for the Act to be amended to expressly permit other organisations, such as universities, to offer specialist accreditation schemes.
QUESTIONS
6.1 Have the specialist accreditation schemes affected the market for legal services?
It appears that specialist accreditation schemes may have assisted consumers in choosing solicitors with appropriate skills. However, no submission has provided evidence that the schemes have prevented the entry into the specialised market of solicitors who have not received accreditation.
6.2 Does the public benefit achieved by informing consumers about quality services outweigh any anti-competitive effect on other practitioners?
It does not appear that the schemes have had an anti-competitive effect.
6.3 Are the existing accreditation schemes sufficiently rigorous to ensure that accredited practitioners can offer highly specialised services? Should the Act expressly permit other organisations, such as universities, to offer accreditation schemes?
There is nothing in the Act to prevent other organisations from offering accreditation schemes. However, an amendment to the Act to place schemes offered by other organisations on the same footing as those offered by the Law Society Council and Bar Council, may be warranted. There may be a need for standards to be developed for such schemes and this issue may require further consideration.
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