The Legal
Profession
Topic 4
Lecture outline
 Now
a (semi) national
profession
 How was this achieved?
 What are the obligations of
members of the profession?
Development of Profession
 English
legal profession develops
to serve developing courts
 Attorneys and pleaders
 Development of Inns of Court
 Practical focus of training
 Solicitors – commercial focus
The Compleat Solicitor 1683
Scale costs: will
And in Australia…..
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State based profession
State based admission


Why?
NSW

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Originally split profession
Victoria ‘fused’
Reform of Australian profession

Law Council of Australia: Blueprint for the
Structure of the Legal Profession: A
National Market for Legal Services.

Mutual Recognition Act 1992 (Cth)
Referral of powers

S51(xxxvii)
 matters referred to the Parliament
of the Commonwealth by the
Parliament or Parliaments of any
State or States, but so that the law
shall extend only to States by
whose Parliaments the matter is
referred, or which afterwards adopt
the law
MUTUAL RECOGNITION (NEW SOUTH
WALES) ACT 1992 - SECT 4
(1) The following matters, to the extent to which they are not otherwise included
in the legislative powers of the Parliament of the Commonwealth, are referred to
the Parliament of the Commonwealth for a period commencing on the day on
which this Act commences and ending on the day fixed under subsection (4) as
the day on which the reference under this Act terminates, but not longer, namely,
the matters to which the Schedule relates but only to the extent of: (a) the
enactment of an Act in the terms, or substantially in the terms, set out in the
Schedule, and (b) the amendment of that Act (other than the Schedules), but only
in terms which are approved by the designated person for each of the then
participating jurisdictions.
(2) For the purposes of this section, a "participating jurisdiction" is: (a) a State
for which there is in force an Act of its Parliament that refers to the Parliament of
the Commonwealth the matters mentioned in subsection (1), or that adopts the
Commonwealth Act, under paragraph (xxxvii) of section 51 of the Commonwealth
Constitution , or (b) a Territory (being the Australian Capital Territory or the
Northern Territory) for which there is in force an Act of its legislature that
requests the Parliament of the Commonwealth to enact the Commonwealth Act or
that enables the Commonwealth Act to apply in relation to it.
....
(4) The Governor may, at any time, fix by proclamation published on the NSW
legislation website a day as the day on which the reference under this Act
terminates.
Common admission

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

Legal Profession Reform Act 1993 (NSW)
Moves towards admission as an Australian
lawyer, rather than State based admission
SCAG reference 2001 – COAG process
Legal Profession Act 2004 (NSW)
Australian lawyer
Section 5 of the LEGAL PROFESSION ACT
2004 (NSW) tells us that:
“an "Australian lawyer" is a person
who is admitted to the legal
profession under this Act or a
corresponding law,”
Towards a national profession

September 2011 – agreement reached by
NSW, Victoria, Qld and NT

Legal Profession National Law

Agreed draft legislation
Application Scheme


Victoria – host legislation
1.1.2 Commencement
This Law commences in a jurisdiction as
provided by the Act of that jurisdiction
that applies this Law as a law of that
jurisdiction.
Objectives
...promote the administration of justice and an efficient and
effective Australian legal profession, by:
 (a) ...national consistency...
 (b) ensuring lawyers are competent and maintain high
ethical and professional standards in the provision of
legal services; and
 (c) ...protection of clients ...and the ...public...
 (d) ...nformed choices about [legal] ...services...
 (e) promoting regulation of the legal profession that is
efficient, effective, targeted and proportionate; and
 (f) providing a co-regulatory framework within which an
appropriate level of independence of the legal profession
from the executive arm of government is maintained.
Where are we now?

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Victoria will host legislation
NSW will host National Legal Services
Board and National Legal Services
Commissioner
Implementation goal:


July 2013
Legal Profession Uniform Law Application
Bill was passed by the Victorian Parliament on
13 March 2014.
Where are we now?


Note name change
Australian Solicitor’s Conduct Rules

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SA and Qld – no other jurisdiction
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=D997CD5392D0-1795-82F7-5436F67E9BCD&siteName=lca
October 2012
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Qld government withdraws support
http://statements.qld.gov.au/Statement/2012/10/3/queensland-not-signing-up-to-nationallegal-profession-reform
De Jersey CJ speech:
http://www.hearsay.org.au/index.php?option=com_content&task=view&id=782&Itemid=4
NSW



Legal Profession Uniform Law Application
Bill 2014 passed 13 May
Assented on 20/05/2014 - Act No 16 of
2014
http://www.parliament.nsw.gov.au/prod/p
arlment/NSWBills.nsf/1d436d3c74a9e047c
a256e690001d75b/07eb41c6b04dca11ca2
57ca600183bba?OpenDocument
Second reading speech

http://www.parliament.nsw.gov.au/prod/p
arlment/NSWBills.nsf/1d436d3c74a9e047c
a256e690001d75b/07eb41c6b04dca11ca2
57ca600183bba/$FILE/2R%20Legal.pdf
4 Application of Legal Profession Uniform Law
The Legal Profession Uniform Law set out in
Schedule 1 to the Legal Profession Uniform
Law Application Act 2014 of Victoria:
(a) applies as a law of this jurisdiction,
and
(b) as so applying may be referred to as
the Legal Profession Uniform Law (NSW),
and
(c) so applies as if it were an Act.
Legal Profession Uniform Law

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Repeals Legal Profession Act 2004
Australian Practising Certificate
Retains role of NSW Admission Board
(LBAB)
Retains role of NSW professional societies
Maintains common admission but
functional separation of earlier Legal
Profession Reform Act 1993 (NSW)
Role of professional societies
LEGAL PROFESSION UNIFORM LAW APPLICATION
ACT 2014


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s29 – Bar Association
s31 – Law Society of NSW
Exercise powers under the Act and as a delegate
of the NSW Legal Services Commissioner
Legal Profession Uniform Law
419 Power to make Uniform Rules
(1) The Council may make Legal
Profession Uniform Rules with respect to
any matter that by this Law is required or
permitted to be specified in Uniform Rules
or that is necessary or convenient to be
specified for carrying out or giving effect
to this Law.
NSW Bar Association


NSW Bar Rules
http://www.nswbar.asn.au/docs/webdocs/
rules2.pdf
These Rules are made in the belief that:
(a) barristers owe their paramount duty to the
administration of justice;
(b) barristers must maintain high standards of
professional conduct;
(c) barristers as specialist advocates in the
administration of justice, must act honestly, fairly,
skilfully and with competence and diligence;
(d) barristers owe duties to the courts, to their
clients and to their barrister and solicitor
colleagues;
(e) barristers should exercise their forensic judgments
and give their advice independently and for the proper
administration of justice, notwithstanding any contrary
desires of their clients; and
(f) the provision of advocates for those who need legal
representation is better secured if there is a Bar
whose members:
(i) must accept briefs to appear regardless of their
personal beliefs;
(ii) must not refuse briefs to appear except on proper
professional grounds; and
(iii) compete as specialist advocates with each other and
with other legal practitioners as widely and as often as
practicable.
The work of a barrister
15. Barristers’ work consists of:
(a) appearing as an advocate;
(b) preparing to appear as an advocate;
(c) negotiating for a client with an opponent to compromise a
case;
(d) representing a client in a mediation or arbitration or other
method of alternative dispute resolution;
(e) giving legal advice;
(f) preparing or advising on documents to be used by a client
or by others in relation to the client’s case or other affairs;
(g) carrying out work properly incidental to the kinds of work
referred to in (a)- (f); and
(h) such other work as is from time to time commonly carried
out by barristers
Rule 16
A barrister must be a sole practitioner, and must not:
(a) practise in partnership with any person;
(b) practise as the employer of any legal practitioner
who acts as a legal
practitioner in the course of that employment;
(c) practise as the employee of any person;4
(d) be a legal practitioner director of an incorporated
legal practice; or
(e) be a member of a multi-disciplinary partnership.
Cab rank principle – Rule 21
A barrister must accept a brief from a solicitor to appear before
a court in a field in which the barrister practises or professes to
practise if:
(a) the brief is within the barrister’s capacity, skill and experience;
(b) the barrister would be available to work as a barrister when the
brief would require the barrister to appear or to prepare, and
the barrister is not already committed to other professional or
personal engagements which may, as a real possibility, prevent
the barrister from being able to advance a client’s interests to
the best of the barrister’s skill and diligence;
(c) the fee offered on the brief is acceptable to the barrister; and
(d) the barrister is not obliged or permitted to refuse the brief
under Rules 95, 97, 98 or 99
NSW Law Society

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
New South Wales Professional Conduct
and Practice Rules 2013 (Solicitors’ Rules)
http://www.lawsociety.com.au/ForSolictor
s/professionalstandards/Ruleslegislation/S
olicitorsRules/index.htm
Australian Conduct rules – but retaining
NSW specific rules
Solicitors' Rules - 2 - Purpose
and Effect of the Rules
2.1 The purpose of these Rules is to assist solicitors to act
ethically and in accordance with the principles of
professional conduct established by the common law and
these Rules.
2.2 In considering whether a solicitor has engaged in
unsatisfactory professional conduct or professional
misconduct, the Rules apply in addition to the common
law.
2.3 A breach of these Rules is capable of constituting
unsatisfactory professional conduct or professional
misconduct, and may give rise to disciplinary action by the
relevant regulatory authority, but cannot be enforced by a
third party


Solicitors' Rules - 3 - Paramount duty
to the court and and the
administration of justice
3.1 A solicitor's duty to the court and the
administration of justice is paramount and
prevails to the extent of inconsistency with
any other duty.
4: Other fundamental ethical
duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any
matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the
course of legal practice;
4.1.3 deliver legal services competently, diligently
and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and
professional independence; and
4.1.5 comply with these Rules and the law.
5: Dishonest and disreputable
conduct
5.1 A solicitor must not engage in conduct, in the
course of practice or otherwise, which
demonstrates that the solicitor is not a fit and
proper person to practise law, or which is likely
to a material degree to:
5.1.1 be prejudicial to, or diminish the public
confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.
6: Undertakings
6.1 A solicitor who has given an undertaking in the
course of legal practice must honour that
undertaking and ensure the timely and effective
performance of the undertaking, unless released
by the recipient or by a court of competent
jurisdiction.
6.2 A solicitor must not seek from another
solicitor, or that solicitor's employee, associate,
or agent, undertakings in respect of a matter,
that would require the co-operation of a third
party who is not party to the undertaking.
Duties of a legal professional
Members of the legal profession owe duties:
 to the law
 to the courts
 to their clients
 to their profession
 to each other
Nature of a professional
“An important basic thesis is that as true
professionals, we embrace unique ethical
responsibilities not because they are
prescribed, or because doing so opens a
gateway to financial return, or because if
discovered in breach we may be disciplined. We
embrace them, I certainly trust, because of a
basic sense of refined decency and fairness; and
albeit on a lesser plane, because we
acknowledge them as a reasonable quid pro
quo for the substantial privileges admission to
this rank accords.”
De Jersey CJ; Bar Practice Course final lecture “The ‘fit and proper’ criterion: indefinable but fundamental” 18 th February 2005
De Jersey CJ:
“But let there be no doubt. A bad
person cannot be a good barrister [or
solicitor].* Those “fit” for this role,
are imbued with ordinary human
decency and fairness, and an acute
perception and acceptance of the
unique responsibilities which
accompany practice…”
* words added
Two elements to admission:


s24: eligibility – which refers to
academic qualifications and completion of
practical legal training
s25: suitability – which refers to whether
or not a candidate is a ‘fit and proper
person’, and includes (s9) a consideration
of whether or not a person is of good
fame and character.
Legal Profession Uniform Law (NSW) s17
(1)The prerequisites for the issue of a compliance certificate
in respect of a person are that he or she-
(a) has attained the academic qualifications specified under
the Admission Rules for the purposes of this section (the
"specified academic qualifications prerequisite" );
and
(b) has satisfactorily completed the practical legal training
requirements specified in the Admission Rules for the
purposes of this section (the
"specified practical legal training prerequisite" );
and
(c) is a fit and proper person to be admitted to the
Australian legal profession.
(2) In considering whether a person is a fit and proper
person to be admitted to the Australian legal
profession(a) the designated local regulatory authority may have
regard to any matter relevant to the person’s eligibility
or suitability for admission, however the matter comes
to its attention; and
(b) the designated local regulatory authority must have
regard to the matters specified in the Admission Rules
for the purposes of this section.
Sir Edward Coke:
“honesty, knowledge and ability;
honesty to execute it truly, without
malice, affection, or partiality;
knowledge to know what he ought
duly to do; and ability, as well in
estate as in body, that he may intend
and execute his office, when need is,
diligently, and not for impotency or
probity neglected.”
NSW Bar Association v
Cummins
Spigelman CJ
[2001] 52 NSWLR 279
[19] Honesty and integrity are important in
many spheres of conduct. However, in
some spheres significant public interests are
involved in the conduct of particular persons
and the state regulates and restricts those
who are entitled to engage in those
activities and acquire the privileges
associated with a particular status. The
legal profession has long required the
highest standards of integrity.
[21]Even in a period where other values have become of
significance to the regulation of the legal profession – I
refer particularly to the application of competition
principles and professional regulation – the traditional
professional paradigm still has a vitality of abiding
significance. Neither the relationship of trust between a
legal practitioner on the one hand, and his or her clients,
colleagues and the judiciary on the other hand, nor public
confidence in the profession, can be established or
maintained, without professional regulation and
enforcement. …Clients must feel secure in confiding their
secrets and entrusting their most personal affairs to
lawyers. Fellow practitioners must be able to depend
implicitly on the word and the behaviour of their
colleagues. The judiciary must have confidence in those
appearing before the courts. The public must have
confidence in the legal profession by reason of the
central role the profession plays in the administration of
justice
Clyne v The New South Wales Bar
Association
“A barrister does not lie to a judge who
relies on him for information. He does not
deliberately misrepresent the law to an
inferior court or to a lay tribunal…he does
not, in cross-examination as to credit, ask
a witness if he has not been guilty of some
evil conduct unless he has reliable
information to warrant the suggestion
which the question conveys.”
Mason P in New South Wales Bar
Association v Hamman
“I emphatically dispute the proposition that
defrauding ‘the Revenue’ for personal gain is
of lesser seriousness than defrauding a client,
a member of the public or a corporation. The
demonstrated unfitness to be trusted in
serious matters is identical. …’The Revenue’
may not have a human face, but neither does a
corporation. But behind each (in the final
analysis) are human faces who are ultimately
worse off in consequence of fraud. Dishonest
non disclosure of income also increases the
burden on taxpayers generally because rates
of tax inevitably reflect effective collection
levels.”
Plagiarism


Re Legal Profession Act; re OG, a lawyer
[2007] VSC 520
Re Liveri [2006] QCA 152


“it should go without saying that an
applicant seeking admission to the legal
profession should not have to be warned
about the unacceptability of cheating in
the course of securing the prerequisite
academic qualification.”
Re Humzy-Hancock [2007] QSC 34
American
Bar
Association
The continued existence of a free and democratic society depends upon
recognition of the concept that justice is based upon the rule of law
grounded in respect for the dignity of the individual and the capacity
through reason for enlightened self-government. Law so grounded makes
justice possible, for only through such law does the dignity of the
individual attain respect and protection. Without it, individual rights
become subject to unrestrained power, respect for law is destroyed, and
rational self-government is impossible.
Lawyers, as guardians of the law, play a vital role in the preservation of
society. The fulfillment of this role requires an understanding by lawyers
of their relationship with and function in our legal system. A consequent
obligation of lawyers is to maintain the highest standards of ethical
conduct.
In fulfilling professional responsibilities, a lawyer necessarily assumes
various roles that require the performance of many difficult tasks. Not
every situation which a lawyer may encounter can be foreseen, but
fundamental ethical principles are always present as guidelines. Within
the framework of these principles, a lawyer must, with courage and
foresight, be able and ready to shape the body of the law to the everchanging relationships of society.
But in the last analysis it is the desire for the respect and confidence of the
members of the legal profession and the society which the lawyer serves
that should provide to a lawyer the incentive for the highest possible
degree of ethical conduct. The possible loss of that respect and confidence
is the ultimate sanction. So long as its practitioners are guided by these
principles, the law will continue to be a noble profession. This is its
greatness and its strength, which permit of no compromise.
Judiciary
 Adversarial
system
 Judge as neutral umpire
 Parties control issues through
pleadings
 Judge does not decide the truth –
but the rights as between the
parties
Judicial independence

Act of Settlement 1701

Security of tenure

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Appointment
Removal
Security of income
s72 Constitution
72. The Justices of the High Court and of the other courts
created by the Parliament-(i.) Shall be appointed by the Governor-General in Council:
(ii.) Shall not be removed except by the Governor-General
in Council, on an address from both Houses of the
Parliament in the same session, praying for such removal on
the ground of proved misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may
fix; but the remuneration shall not be diminished during
their continuance in office.
The appointment of a Justice of the High Court shall be for
a term expiring upon his attaining the age of seventy years,
and a person shall not be appointed as a Justice of the High
Court if he has attained that age…
HIGH COURT OF AUSTRALIA
ACT 1979 - s 6
Consultation with State Attorneys-General
on appointment of Justices
Where there is a vacancy in an office of Justice,
the Attorney- General shall, before an
appointment is made to the vacant office,
consult with the Attorneys-General of the States
in relation to the appointment.
Difficulties with s72:
 Involvement
of political parties in
removal process
 Definition of ‘misbehaviour and
incapacity’
 Two
views
Sir George Lush
"[T]he word 'misbehaviour' in s 72 is used in its
ordinary meaning, and not in the restricted
sense of 'misconduct in office'. It is not
confined, either, to conduct of a criminal
nature…If their [judges'] conduct, even in
matters remote from their work, is such that it
would be judged by the standards of the time to
throw doubt on their own suitability to continue
in office, or to undermine their authority as
judges or the standing of their courts, it may be
appropriate to remove them…[I]t is for
Parliament to decide what is misbehaviour, a
decision which will fall to be made in the light
of contemporary values."
Andrew Wells
"[T]he word 'misbehaviour' must be
held to extend to conduct of the
judge in or beyond the execution of
his judicial office, that represents so
serious a departure from standards
of proper behaviour by such a judge
that it must be found to have
destroyed public confidence that he
will continue to do his duty under
and pursuant to the Constitution."
CONSTITUTION ACT 1902
(NSW)- SECT 53
53 Removal from judicial office
(1) No holder of a judicial office can be removed from the office,
except as provided by this Part.
(2) The holder of a judicial office can be removed from the office
by the Governor, on an address from both Houses of
Parliament in the same session, seeking removal on the ground
of proved misbehaviour or incapacity.
(3) Legislation may lay down additional procedures and
requirements to be complied with before a judicial officer may
be removed from office.
(4) This section extends to term appointments to a judicial office,
but does not apply to the holder of the office at the expiry of
such a term.
(5) This section extends to acting appointments to a judicial
office, whether made with or without a specific term.
JUDICIAL OFFICERS ACT 1986 SECT 41
Removal of judicial officers
41 Removal of judicial officers
(1) A judicial officer may not be removed from office in the
absence of a report of the Conduct Division to the
Governor under this Act that sets out the Division’s
opinion that the matters referred to in the report could
justify parliamentary consideration of the removal of the
judicial officer on the ground of proved misbehaviour or
incapacity.
(2) The provisions of this section are additional to those of
section 53 of the Constitution Act 1902 .
The Judicial Commission of NSW


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
assists the courts to achieve consistency in
sentencing
organises and supervises an appropriate
scheme of continuing education and
training of judicial officers
examines complaints against judicial
officers
gives advice to the Attorney General on
matters concerning judicial officers.
Examples of attempts to remove
from office



Bruce J
Vasta J
Magistrate Jennifer Betts
Brian Maloney
http://video.theaustralian.com.au/2020986545/Second-magistrate-fights-forcareer