LEGAL PRACTICE BILL
[B20 – 2012]
Comparative Perspectives:
Australia, Ireland, India, Namibia, Nigeria, United
States of America and Zimbabwe
(5 June 2013)
1
Introduction
• Comparative documents have been prepared and distributed for
England and Wales (8 March 2013); India, Zimbabwe, Namibia and
Nigeria (24 May 2013); Ireland (24 May 213); and USA and Australia
(3 June 2013). Countries chosen at request of Committee.
• Approach has been broadly to describe the regulatory bodies and
disciplinary structures, as well as to note developments.
• Note: The Department has already presented an overview of the
position in England and Wales. Also, deals with the USA in its
document dated 20 March 2013.
• Propose to outline India, Zimbabwe, Namibia and Nigeria but focus
on Ireland and Australia as these are in the process of
undergoing/considering regulatory reform.
2
India
Regulatory regime:
• Advocates Act 1961 governs the legal profession.
• Promotes self-regulation.
• Fuses roles of solicitors and barristers. Recognises only
advocates. Can be either senior or junior advocates.
Seniority on basis of ability (standing at the Bar, special
knowledge or experience in law).
• Two structures: Bar Council of India and State Bar
Councils.
3
India
Bar Council of India
•
•
•
•
•
•
Apex statutory body.
Sets standards of professional conduct and etiquette, as well as
procedures for disciplinary committees; safeguards the rights, privileges and
interests of advocates’; promotes law reform; deals with referred matters
from State Bar Councils; provides legal aid for poor.
Regulates legal education (content, syllabi, and duration of law degree),
although universities have some role.
(Profession determines matters such as admission, practice, ethics,
privileges, regulations, discipline and improvements to the profession.
Notably, profession largely responsible for law reform too.)
Composition: Made up of members elected from each State Bar Council.
Attorney General and Solicitor-General ex officio members.
Legal Education: Assisted by Legal Education Committee with 5 members
of Bar Council and 5 co-opted (academics). Has established a Directorate.
4
India
State Bar Councils:
• Composition: Between 15-25 advocates elected as council
members; Advocate-General ex officio member.
• Term: 5 years.
• Powers and functions: Admissions, prepare and maintain roll,
discipline, ‘safeguard the rights, privileges and interests of
advocates’; promote law reform.
• Admission: Advocates require LLB degree and fee – certificate of
enrolment with a state bar council. Can appear before all
courts/tribunals.
• Discipline: Committees (x3 members) hear complaints of
professional misconduct. Appear to Bar Council and, finally, to the
Supreme Court.
5
India
Reform
• Prompted by concerns, among others,
discipline and legal education:
• Supreme Court states Bar Council of India
‘ineffective’, complains courts are victims
because of these lawyers. Approximately 4000
pending cases (2013).
• 2010, Bar Council introduced All India Bar
Examination to improve standards of entrants to
profession.
6
India
State-driven reform:
• Legal Practitioners (Regulations and Maintenance of Standards in Professions,
Protecting the Interests of Clients and Promoting the Rule of Law Bill (2010
draft bill)
•
Along lines of UK. Proposes a Legal Services Board and ombudsman, as well as duty
of legal practitioners to provide pro bono services.
•
Response – opposition to government appointees to proposed Legal Services Board
(undermine independence); should strengthen Bar Councils and existing systems
instead of creating a super-regulator above the Bar Council India; opposition to
power of a Legal Services Board to censure the bar councils (undermine faith in legal
profession); powers of ombudsman questioned; need greater clarity on pro bono
work; Consumer Protection legislation should apply; not enough consideration given
to the impact of multi-disciplinary services’.
•
•
Higher Education and Research Bill (2012).
Prompted widespread opposition (1.7 million lawyers held a 2-day strike).
7
Zimbabwe
• Legal Practitioners Act, 1981, fused
profession.
• Transformation of profession – 99% of
advocates were white, only advocates could
appear in superior courts. Also to reduce legal
costs.
• Registered Legal Practitioners can appear in
courts.
• Conveyancers and notaries must be registered
to practice.
8
Zimbabwe
Regulatory bodies:
• Law Society:
• Statutory body – independent and self-regulating
to which every legal practitioner can belong.
• Council:
• Manages the Law Society
• Composition: No less than 11 members – 9
elected by Society, 2 are ministerial appointees
and 2 more co-opted by Council (external).
9
Zimbabwe
• Powers and functions:
• Keeps registers of legal practitioners.
• Represents views of the legal profession and maintains
its integrity and status.
• Defines and enforces correct and uniform practice and
discipline among legal practitioners.
• Promotes social intercourse between legal practitioners.
• Considers and deals with all matters affecting the
professional interests of the legal practitioners.
• Promotes study of law and jurisprudence and provides
means of securing efficiency and responsibility on the
part of those seeking registration.
• Makes recommendations on training.
10
Zimbabwe
• Discipline:
• Carried out by Disciplinary Tribunal.
• Composition: Chair and Deputy are judges, appointed by
CJ; 2 others members from panel of 10 legal
practitioners (Council submits names).
• Legal Education:
• Council of Legal Education
• Composition: Chair and 7 other members. The Chair
nominated by the Chief Justice and appointed by the
Minister of Justice.
11
Nigeria
•
•
•
Legal Practitioners Act, 2004.
Fused profession but seem to retain both solicitors and advocates
Regulatory bodies:
•
Bar Council (Attorney-General (Federation) President of the Council); the AttorneysGeneral of the States; and twenty members of the Nigerian Bar association
•
Body of Benchers (The Chief Justice of Nigeria and all the Justices of the Supreme
Court; the President of the Court of Appeal; the Attorney-General of the Federation
and Minister of Justice; the Presiding Justices of Court of Appeal Divisions; the Chief
Judge of the Federal High Court; the Chief Judge of the Federal Capital Territory,
Abuja; the Chief Judges of the States of the Federation; the Attorneys-General of the
States of the Federation; the Chairman of the Council of Legal Education; the
President of the Nigerian Bar Association; and thirty legal practitioners nominated by
the Nigerian Bar Association; and persons, not exceeding ten, who appear to the
Body of Benchers to be eminent members of the legal profession in Nigeria of not
less than 15 years post-call standing.) (Seems to be responsible for admission).
Nigerian Bar Association – although non-statutory, is recognised in legislation and
appoints members to supervisory bodies.
•
12
Nigeria
• Discipline
• Legal Practitioners Disciplinary Committee of Body of
Benchers.
• Appeal to Appeal Committee: Body of Benchers.
• Then to Supreme Court (final, also original jurisdiction).
• Legal Education:
• Council of Legal Education is the supervisory body
responsible for the accreditation, control and
management of legal education in Nigeria. The Council
established under the Legal Education (Consolidation)
Act, 2004. In charge of the Nigerian Law School. Must
do LLB first.
13
Nigeria
• Reform
• Need for compulsory practicing certificates
(issued yearly on payment of fees).
• Need fully-staffed independent
professional standards office in each state
of the federation to deal with complaints
against lawyers and bring disciplinary
action against them before an independent
disciplinary tribunal.
14
Namibia
Regulatory regime:
•
•
•
Legal Practitioners Act 15 of 1995 (controversial at time)
Fuses profession but referral rule remains. Society of Advocates continues as de facto bar
(voluntary association) with pupilage and admittance programme.
[Exemption certificates: allows practitioners to practice without Fidelity Fund certificate].
Regulatory bodies:
•
•
Law Society of Namibia:
Statutory body , made up of legal practitioners.
•
•
Powers and functions:
Maintaining and enhancing the standards of conduct and integrity of all members of the legal
profession.
Presenting the views of the legal profession.
Encouraging and promoting efficiency and responsibility in the legal profession.
Defining and enforcing correct and uniform practice.
Assisting implementation of any legal aid scheme.
Discipline
•
•
•
•
•
15
Namibia
•
Council of the Law Society:
•
Composition: Elected by Law Society (9 members).
•
•
Powers and functions, include:
Fixing the subscriptions, fees, levies or other charges payable to the Law Society by
the members of the Law Society.
Enrolment.
Fees and expenses for non-litigious work. Also between legal practitioners, including
foreign lawyers. Permitting members of the Law Society to form associations, to be
known as regional circles; and determine their duties, functions and powers.
Making rules in respect of the method of the investigation of complaints against legal
practitioners; the accounts and records to be kept in relation to the affairs and assets
of the Law Society; the procedure to be followed and the requirements to be satisfied
by a member who wishes to obtain the recommendation of the Law Society for his or
her appointment as Senior Counsel; the conditions under which and activities for
which persons other than legal practitioners may be employed by legal practitioners
to assist them in their practices and any other matters. (These rules shall be made
with the approval of the Chief Justice.)
•
•
•
16
Namibia
Legal Education:
• Law Faculty of the University of Namibia (statutory) –
gives practical training for universities.
• Board for Legal Education (statutory) – Provides
curriculum and moderates qualifying exam.
Discipline:
• Disciplinary Committee of the Law Society and the High
Court (consist of 4 Council and 1 ministerial appointees)
• Minister makes rules.
17
Ireland
•
•
•
•
•
•
•
•
Regulatory reform driven by:
Increasing pressure on the legal profession to remove restrictive/
uncompetitive practices from 1980’s onwards.
The economic meltdown in the European Union (EU) and the
subsequent collapse of the Irish economy in 2010.
Retains split profession with Law Society and Bar Council.
Retains referral rule although solicitors can appear in all Irish Courts.
Self –regulatory.
Profession criticised for overcharging, unfair restrictions and anticompetitive practices.
Various reports produced on anti-competitive practices [Restrictive
Practices Commission report, 1982, – conveyancing; Fair Trade
Commission (FTC) report 1990 – advocates fused bar as inefficient and
costly; need for review of legal education, especially Law Society’s role in
admission exam; opposed mandatory fees scales as become fixed charges;
OECD report on regulatory reform in Ireland, 2001, advocated reforms to
increase competition for conveyancing to allow banks/financial institutions]
18
Ireland
•
•
•
•
•
•
•
•
Competition Authority Report 2006, highlighted following issues that limit
access, choice and value for money for both those entering the profession and
those purchasing services:
Unnecessary restrictions on becoming a solicitor/ barrister, including monopolies on
training.
Limitations on access to barristers for legal advice and a ban on barristers forming
partnerships or chambers.
Failure to provide consumers with information to help them choose suitable services.
Charging of proportional and percentage fees. Limited information available to
consumers about fees and costs before they engage a lawyer makes it difficult for
consumers to shop around for legal services. The lack of information available to
consumers led to the retention of a number of anti-consumer practices.
The method of awarding the title of Senior Counsel questioned. The Competition
Authority recommended that the government establish objective criteria for awarding
the title of SC, with a procedure for monitoring work and removing the title if
necessary. It also recommended that solicitors - who have a right of advocacy in
every court in Ireland - should be entitled to hold the title of SC.
Severe limitations on advertising by barristers and unnecessary restrictions on
solicitor advertising.
Rigid business models.
19
Ireland
Key recommendations:
•
•
•
Legislation – a comprehensive Legal Services Bill
Establish an independent Legal Services Commission to oversee the
regulation of legal services, involving "a wider group of stakeholders than
the current model of self-regulation". “ although the Law Society and the Bar
Council would still have a role to play in the regulation of the profession but
would be required to separate this role completely and distinctly from that of
representing their members.
Establish an independent body to set standards for solicitor and barrister
training and approve institutions to provide such training. The Minister for
Justice, Equality and Law Reform should transfer the Law Society’s role of
setting standards for legal education to an independent body, such as the
Legal Services Commission. The Law Society and any other institution that
wished to provide training for solicitors should have to apply to the Legal
Services Commission for approval to do so.
20
Ireland
Key recommendations continued:
• Remove unnecessary barriers to switching between the branches of
solicitor and barrister.
• Allow qualified non-solicitors to provide conveyancing services. Anyone who
wanted to provide conveyancing services should have to be registered as a
conveyancer by a Conveyancers’ Council of Ireland which would have
responsibility for regulating their training, qualification and operation.
Conveyancers should have to abide by a code of ethics, to have
professional indemnity insurance and to contribute to a compensation fund.
• Allow unlimited direct access to barristers for legal advice.
• Establish objective criteria for appointing Senior Counsel.
• Require solicitors and barristers to issue 'meaningful' fee or fee estimate
letters and outline a 'meaningful sanction' for solicitors who fail to provide
such letters
• Allow non-solicitors to assess legal costs. Appropriately qualified people
should be eligible for appointment to the proposed Legal Costs Assessment
Office.
21
Ireland
Response from Profession
• Bar Council argued lack of research evidence to support
conclusions. Also partnership and direct access recommendations
would increase costs. BUT did introduce certain reforms (mandatory
fee estimates in cases; advertising and the abolition of a practice
whereby junior counsel marked two thirds of senior counsel’s fee).
Response from Government:
• Rejected the recommendations from the Irish Competition Authority
that it introduce an English-style arrangement, with an oversight
regulator and full separation of regulatory and representative
functions within the Law Society and Bar Council. Did introduce the
Legal Services Ombudsman Act (2009) but never appointed an
ombudsman.
22
Ireland
•
•
•
•
•
•
•
After the economic meltdown, drive for reform increases to address toxic triadic
relationship (IMF driven):
Legal Services Regulation Bill (no consultation)
Establishes:
Legal Services Regulatory Authority (LRSA), consisting of 11 persons, with a lay
majority, 2 nominees Bar Council, 2 nominees Law Society, 1 ministerial nominee
and 1 legal costs accountant. To take over regulation from the Law Society and Bar
Council of Ireland, who will pay for it through a levy.
Independent complaints structure to deal with complaints about professional
misconduct which will be supported by a Legal Practitioners Disciplinary Tribunal.
Office of the Legal Costs Adjudicator (the OLCA) with requirement that lawyers
provide far greater transparency over their costs.
Also, LRSA must make proposals to advance more complex issues”, such as
unification of the two branches of the legal profession; a separate profession of
‘conveyancers’; direct access to barristers and barrister partnerships; partnerships
between barristers and solicitors and multi-disciplinary practices.’
23
Ireland
• Legal Services Regulatory Authority (LRSA)
• Regulates the provision of legal services by legal practitioners and
ensure the maintenance and improvement of standards in the
provision of such services.
•
•
•
•
Objectives:
Protecting and promoting the public interest.
Supporting the proper and effective administration of justice.
Protecting and promoting the interests of consumers relating to the
provision of legal services.
• Promoting competition in the provision of legal services in the state.
• Encouraging an independent, strong and effective legal profession.
• Promoting and maintaining adherence to the professional principles.
24
Ireland
• Discipline
• The LSRA to establish a Complaints
Committee (lay persons majority). ADR
methods.
• Escalated to an independent Legal
Practitioner’s disciplinary tribunal –
members appointed by government with
majority of lay persons.
25
Ireland
Fees
• Bill establishes Office of Legal Costs
Adjudicator (former Taxing Master)
• Sets out legal costs principles applicable
to both Barristers and solicitors.
26
Ireland
• Criticism:
• The Bill as published contains ‘a blueprint for the control of the legal
profession.’ In particular, the government’s power to appoint
members of the Legal Service Regulatory Authority and also to
remove a member at any time when the removal ‘appears to be
necessary for the effective performance of the function of the
Authority’ seems to be at the heart of the criticisms.
• Potential cost of the proposed new regulator and that the
establishment of a new authority will substantially increase
regulatory costs.
• Law Society maintains that some of the fair procedures in relation to
complaints, which are built into the current system, appear to have
been omitted from the Bill.
• No Regulatory Impact Assessment was carried out before the Bill
was published. No consultation or research has been conducted into
many of the proposals in the Bill.
27
Australia
• Has 9 systems – 1 federal and 8 state and territory systems.
• Formal division retained in NSW, Victoria, Queensland and the
Australian Capital Territory with Bar Councils and Law Societies.
• Even so, distinction is unclear as the Bars in Australia never held
monopoly of right of appearance. (For example, solicitors in New
South Wales have practising certificates issued as "solicitors and
barristers" and are free to provide advocacy services and promote
themselves as such).
• Since 1960, independent Bars have also emerged in Western
Australia, South Australia, Tasmania and the Northern Territory,
where the profession is formally fused.
•
28
Australia
• Reform (Phase 1- the Model Law Project):
• Reforms unfolding for more than a decade in
Australia ended self-regulation by the legal
profession, replacing it with a co-regulatory
system that separated regulatory from
representative functions and created a series of
more independent disciplinary agencies
operating closer to government than to the
profession.
29
Australia
•
•
Reform (Phase 2 – the National Legal Professional Reform Project) – 2009
onwards
Draft National Law 2011
• Has following objectives::
 Provide and promote national consistency
 Ensure lawyers are competent and maintain high ethical and professional standards
in the provision of legal services; and
 Enhance the protection of clients of law practices and the protection of the public
generally; and
 Empower clients of law practices to make informed choices about the services they
access and the costs involved; and
 Promote regulation of the legal profession that is efficient, effective, targeted and
proportionate; and
 Provide a co-regulatory framework within which an appropriate level of independence
of the legal profession from the executive arm of government is maintained.
• Establishes and National Legal Services Board and Standing Committee
30
Australia
• Standing Committee (Attorney-Generals):
• Role:
 A general supervisory role in relation to the
Board and the Commissioner.
 The Committee may request reports from the
Board and the Commissioner regarding
specified aspects of their operation.
 The Committee may receive and consider
annual and other reports from the Board and the
Commissioner.
 Considers National Rules.
31
Australia
• National Legal Services Board
• Composition: 7 members appointed as follows:
 2 members appointed by the host Attorney-General on the
recommendation of the Law Council of Australia;
 1 member appointed by the host Attorney-General on the
recommendation of the Australian Bar Association;
 3 members appointed by the host Attorney-General on the
recommendation of the Standing Committee on the basis of their
expertise in one or more of the following areas: the practice of
law; the protection of consumers; the regulation of the legal
profession; financial management;
 1 member appointed as the Chair by the host Attorney-General
on the recommendation of the Standing Committee.
32
Australia
• Legal Professional National Rules:
• Board makes Rules on:
• The professional conduct of Australian legal
practitioners, Australian-registered foreign
lawyers and law practices; and
• The National Rules may contain provisions
designated as Continuing Professional
Development Rules.
• The Bill also provides for the issue of Legal
Costs.
33
Australia
• Legal Costs
• Provides for legal costs.
• Objectives are:
 to ensure that clients of law practices are able to
make informed choices about their legal options and
the costs associated with pursuing those options; and
 to provide that law practices must not charge more
than fair and reasonable amounts for legal costs; and
 to provide a framework for assessment of legal costs.
 Costs must be fair and reasonable (sets out what that
entails).
34
Australia
•
•
Discipline:
National Legal Services Commissioner appointed on the
recommendation of the Standing Committee and with the concurrence of
the Board.
•
Objectives of the Office of the National Legal Services Commissioner are:
 to ensure that complaints against law practices, Australian legal practitioners,
Australian-registered foreign lawyers and other lawyers and disputes and other
issues involving law practices are dealt with in a timely and effective manner; and
 to ensure compliance with requirements of this Law and the National Rules by
law practices, Australian legal practitioners, Australian-registered foreign lawyers
and other lawyers as referred to; and
 to educate the legal profession about issues of concern to the profession and to
clients of law practices; and
 to educate the community about legal issues and obligations that flow from the
client-practitioner relationship; and
 to promote national consistency in the application of this Law and the National
Rules to the Australian legal profession.
•
Supreme Court retains jurisdiction.
35
Way forward/concluding remarks
• Documents descriptive and broad.
• A next step, research on specific issues
identified by Committee would perhaps be
useful.
36