The Legal Profession

1. The Legal Profession Topic 4

2. 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

3. The Compleat Solicitor 1683

4. Scale costs: will

5. Reform of Australian profession • Law Council of Australia:Blueprint for the Structure of the Legal Profession: A National Market for Legal Services. It • Mutual Recognition Act 1992 (Cth)

6. 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

7. 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.

8. Common admission • 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)

9. Towards a national profession • September 2011 – agreement reached by NSW, Victoria, Qld and NT • Legal Profession National Law • Link to draft legislation • http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_CouncilofAustralianGovernments(COAG)NationalLegalProfessionReform

10. 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.

11. 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) ...nformedchoices 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.

12. Where are we now? • Victoria will host legislation • NSW will host National Legal Services Board and National Legal Services Commissioner • Implementation goal: • July 2013 • But, legislation not yet introduced

13. Where are we now? • Australian Solicitor’s Conduct Rules • SA and Qld – no other jurisdiction • http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=D997CD53-92D0-1795-82F7-5436F67E9BCD&siteName=lca • October 2012 • Qld government withdraws support • http://statements.qld.gov.au/Statement/2012/10/3/queensland-not-signing-up-to-national-legal-profession-reform • De Jersey CJ speech: http://www.hearsay.org.au/index.php?option=com_content&task=view&id=782&Itemid=4

14. Australian lawyer Section 5 of the LEGAL PROFESSIONACT 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,”

15. Legal Profession Act 2004 (NSW) • Governs the profession • Uniform legislation to move towards a national profession with national admission and national right to practice • Maintains common admission but functional separation of earlier Legal Profession Reform Act 1993 (NSW)

16. Role of professional societies LEGAL PROFESSION ACT 2004 Practice as a barrister 81 Practice as a barrister (1) Practice as a barrister is subject to the barristers rules. Practice as a solicitor 82 Practice as a solicitor (1) Practice as a solicitor is subject to the solicitors rules.

17. NSW Bar Association • NSW Bar Rules • http://www.nswbar.asn.au/docs/professional/legislation/Rules_april2001.pdf

18. Preamble 1. The administration of justice in New South Wales is best served by reserving the practice of law to officers of the Supreme Court who owe their paramount duty to the administration of justice. 2. As legal practitioners, barristers must maintain high standards of professional conduct. 3. The role of barristers as specialist advocates in the administration of justice requires them to act honestly, fairly, skilfully, diligently and bravely. 4. Barristers owe duties to the courts, to other bodies and persons before whom they appear, to their clients, and to their barrister and solicitor colleagues.

19. 5. Barristers should exercise their forensic judgements and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients. 6. The provision of advocates for those who need legal representation is better secured if there is a Bar whose members: • must accept briefs to appear regardless of their personal prejudices; .... 7. Barristers should be free to choose how they lawfully practise as barristers except only in those cases where the unchecked exercise of that freedom would threaten harm to the greater public interest that barristers' conduct be honourable, diligent, especially skilled, disinterested and competitive and that access to barristers‘ services be enhanced.

20. Cab rank rule 85. 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 87,90 or 91.

21. NSW Law Society • Solicitors’ Rules • http://www.lawsociety.com.au/ForSolictors/professionalstandards/Ruleslegislation/SolicitorsRules/index.htm • Australian Solicitor’s Conduct Rules?

22. Law Society Rules Statement of Principle for Rules 1-16 Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of the relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client’s best interests. Practitioners should maintain the confidentiality of their clients’ affairs, but give their clients the benefit of all information relevant to their clients’ affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.

23. Duties to the Court Statement of Principle for Rules 17-24 Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the Court, and diligent in their observance of undertakings which they give to the Court or their opponents.

24. Relations with other practitioners Statement of Principle for Rules 25 -31A In all of their dealings with other practitioners, practitioners should act with honesty, fairness and courtesy, and adhere faithfully to their undertakings, in order to transact lawfully and competently the business which they undertake for their clients in a manner that is consistent with the public interest.

25. 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

26. 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” 18th February 2005

27. 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

28. 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.

29. 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.”

30. Spigelman CJ in New South WalesBar Association v Cummins “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”

31. 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.”

32. Mason P in New South Wales BarAssociation 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.”

33. 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

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 ever-changing 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.

35. 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

36. Judicial independence • Act of Settlement 1701 • Security of tenure • Appointment • Removal • Security of income • Security of ‘reputation’ – public confidence maintained by restraint of criticism

37. 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… 

38. HIGH COURT OF AUSTRALIAACT 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.

39. Difficulties with s72: • Involvement of political parties in removal process • Definition of ‘misbehaviour and incapacity’ • Two views

40. 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."

41. 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."

42. 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.

43. 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 .

44. The Judicial Commission of NSW • 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.

45. Examples of attempts to remove from office • Bruce J • VastaJ • Magistrate Jennifer Betts

46. Brian Maloney http://video.theaustralian.com.au/2020986545/Second-magistrate-fights-for-career

47. Other attacks on judicial independence • Criticism of judges as individuals • Denigration to corrode authority of court • Abolition of courts • Appointment of judicial officers • Acting judges/part time judges • Finances • Transferral of powers to tribunals