National Competition Policy Review of the Legal Profession Act 1987
I CURRENT LICENSING SCHEME
4.1 Principle 2 of the COAG Working Party Report provided that licensing arrangements for lawyers which require separate practising certificates for barristers and solicitors should be eliminated. The New South Wales Government adopted the position that a separate licensing system could be retained, provided that rights of practice were co-extensive and the Bar Association did not claim a monopoly on the title 'barrister'. The Trade Practices Commission was also critical of the retention of separate licensing schemes, as was the Access to Justice Committee.
4.2 Both the COAG Working Party Report and the Trade Practices Commission were critical of rules which prevented barristers from appearing in court with solicitors, prevented direct access to barristers by clients or attendance by barristers at solicitors' chambers.
A) Separation of barristers and solicitors in NSW
4.3 While the Legal Profession Reform Act 1993 provided for the common admission of legal practitioners in sections 4 and 17, it maintained the requirement for separate practising certificates. Section 25 of the Act provided that a practitioner was ineligible to practise as a barrister and solicitor, or barrister, unless he or she held a practising certificate. Sections 27 and 28 provide for the Bar Council to issue practising certificates to practitioners who choose to practise as a barrister and for the Law Society Council to issue practising certificates to practitioners who choose to practise as solicitors and barristers.
4.4 As noted in chapter 1, the 1993 amendments removed many of the distinctions between solicitors and barristers, and gave effect to many of the matters identified by the COAG officers' working group. Part 3, 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.
4.5 However, the Rules continue to support the functional separation of the profession. For example, the Rules set out the categories of barristers work and exclude much of the work which is routinely performed by solicitors. Barristers are required to practise as sole practitioners.
4.6 The effect of section 25 of the Act is that only the holder of a practising certificate issued by the Bar Council can call himself or herself a barrister and that only the holder of a practising certificate issued by the Law Society can call himself or herself a solicitor and barrister. A practitioner cannot hold practising certificates issued by both Councils at once: section 38D.
4.7 Practice as a solicitor is subject to the Solicitors' Rules: section 38H. Practice as a barrister is subject to the Barristers' Rules: section 38I.
B) Other jurisdictions
4.8 The common admission of all legal practitioners has been introduced in all States and Territories except Queensland and Tasmania. In Victoria, South Australia and the ACT practitioners are admitted as 'barristers and solicitors', in the Northern Territory as 'legal practitioners' and in Western Australia as 'practitioners'. Persons are admitted in Queensland, either as 'barristers' or as 'solicitors', and in Tasmania, as either 'barristers' or 'legal practitioners'.
4.9 In Queensland and the Australian Capital Territory persons who wish to practise solely as barristers do not need practising certificates. In South Australia, Western Australia and the Northern Territory there is one practising certificate for all legal practitioners. The Legal Practice Act 1996 (Vic) provides for practising certificates to be issued by registered professional associations, and the Bar Council issues practising certificates in that capacity. In addition, some jurisdictions will also issue practising certificates to incorporated companies.
4.10 It should be noted that in all jurisdictions, irrespective of whether a separate practising certificate requirement exists, a voluntary Bar has developed, which performs specialist advocacy functions, as in New South Wales. In most jurisdictions, binding rules can be made by professional bodies representing barristers, and several jurisdictions have rules which restrict direct client access.
Restrictions imposed by the issuing of separate practising certificates
4.11 The introduction of a requirement that barristers hold separate practising certificates and the reservation of the use of the title 'barrister' to practitioners holding a separate class of practising certificate, has an anti-competitive effect, and imposes restrictions on the capacity of both solicitors and barristers to choose their mode of practice and to advertise their services. Any benefit to the public may be outweighed by the anti-competitive consequences of the restrictions.
4.12 The disadvantages to solicitors may include not being eligible to automatically join the Bar Association (section 57M(1)) and being prevented from using the title of barrister, even though they practise as an advocate. It might also be argued that the preservation of the distinctions between barristers and solicitors promotes the use of barristers by clients in matters in which solicitor-advocates could act, because it creates a perception that barristers are more skilled that solicitor advocates in certain areas. The use of barristers may also lead to duplication and added expense for clients.
4.13 Conversely, restrictions on the ability of barristers to perform tasks which are not 'barristers work' undermines the freedom of choice of barristers, and their clients. The most obvious of these is the rule that barristers must operate as sole practitioners. This rule is discussed in greater detail in chapter 10, which deals with the general issue of business structures. Although barristers may accept direct access clients, they are prevented by the Barristers' Rules from performing many of the tasks performed by solicitors. Most barristers have practised as solicitors, and in any case, should not accept work which they are not able to perform competently.
Benefits of the separation of the profession
4.14 The public benefit derived from the separation of the profession is that all clients of solicitors have access to the specialist advocacy services of barristers.
4.15 Barristers are subject to the cab rank rule, which requires a barrister to accept any brief, subject to some exceptions. This rule ensures that any client, including clients from rural areas, can have access to the specialist skills of an advocate. The Bar Association has a separate practical legal training course which deals with advocacy, procedure and evidence. Practitioners who have completed this course have formal qualifications in advocacy. The issue of a practising certificate by the Bar Association enables a client, especially a direct access client, to rely on the fact that an advocate has undertaken formal training in this area and is a specialist. It is noted that many clients of legal practitioners have little knowledge of the nature of the services required. The existence of minium standards assists in maintaining quality services where market failure occurs. Also, there may be significant competition among barristers for work, which could ensure that prices are controlled.
4.16 However, in some jurisdictions barristers are not required to complete the formal practical legal training which is a prerequisite to holding a practising certificate as a solicitor, and may not have sufficient skills to accept instructions in conveyancing, probate or business transactions. In these circumstances, the restrictions in the Barristers' Rules on barristers performing work traditionally performed by solicitors may be regarded as reasonable.
4.17 Therefore, the issue of separate practising certificates recognises the different skills of practitioners and protects consumers from practitioners who have not completed formal training requirements to a satisfactory level.
4.18 In addition, 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 and the advice provided to the client as to the merits of a case. The existence of the independent Bar also supports the 'cab rank' rule, which obliges barristers to accept any brief. This rule does not apply to solicitors.
II FURTHER ISSUES
4.19 There may be clear public benefits, such as those listed above, derived from the existence of a separate Bar. However, the existence of such benefits does not mean that such a separation needs to be underpinned by legislative rules which prevent a practitioner from using the titles of both barrister and solicitor, whatever their level of expertise.
4.20 Further, there are many areas of specialisation in legal practice and no other area requires the use of a separate title or formal recognition. Instead, it is assumed that practitioners will not accept instructions in areas in which they do not specialise. Moreover, practitioners have the ability to advertise their services.
A. 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?
B. Is there a need for a separate Bar, offering specialist advocacy services?
C. Is there any public benefit in legislative provisions supporting the existence of a separate Bar, or could a voluntary Bar serve a similar purpose?
D. What are the benefits to the public of restrictions in the Bar Rules on the practice of barristers? Do these rules unreasonably restrict the ability of barristers to compete with solicitors?
E. Do the remaining restrictions on the use of titles by barristers and solicitors respectively restrict the ability of the two branches of the profession to compete with each other?
 Trade Practices Commission Final Report, n 7, 96, Access to Justice Report, n 8, 113
 As noted above in chapter 1, holders of practising certificates issued by the Law Society may now use the title 'solicitor and barrister', as a result of amendments made by the Legal Profession Amendment Act 1996. Previously, this category of practitioners was only permitted to use the title 'solicitor'.
 Rule 80.
 See Barristers Rule 75. The restrictions in Rule 75 prevent barristers from acting as a general agent or attorney; serve any process of court, or acting for clients in conveyancing, probate or letters of administration or the incorporation of companies.
 Legal Practice Act 1996 (Vic), Part 2, Division 4; Queensland Law Society Act 1952(Qld), s 38(1); Legal Practitioners Act 1981 (SA), s 16; Legal Profession Act 1993 (Tas), s 51; Legal Practitioners Act (NT), Part IV; Legal Practitioners Act 1970 (ACT) s 21.
 In South Australia practising certificates may be issued to a company. A 'company' is defined in the legislation as 'a company incorporated under the law of South Australia': Legal Practitioners Act 1891, s 16(2)-(6). In Tasmania practising certificates may be issued to 'legal practitioner corporations': Legal Profession Act 1993, ss 149, 150. These are companies formed for the purpose of practising the profession of law: s 3. In Victoria practising certificates may be issued to incorporated practitioners: Legal Practice Act 1996 (Vic), s 31 (the definition of 'legal practitioner' includes an incorporated practitioner), 22, 29
 In Queensland, barristers are not required to undertake the formal practical legal training that solicitors must. However they must complete practical tests and exercised prescribed by the Barristers Admission Rules 1975, Rule 25
 See section 38J. This issue is discussed in greater detail below in chapter 8