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Week 2 History Structure and Regulation - Coggle Diagram
Week 2 History Structure and Regulation
2 Historical Outline
changed over time with some states having a split profession while others have a fused profession
split profession
Queensland
both solicitors and barristers have codes of conduct
Bar Association of Queensland Barristers’ Conduct Rules (23 February 2018
Australian Solicitors Conduct Rules June 2012
NSW
Fused Profession
In South Australia, Victoria, Western Australia and the Australian Capital Territory, the professions of barrister and solicitor are fused, but an independent bar is maintained for those wishing to practice solely as barristers
Tasmania and the Northern Territory, the profession is fused and a small number of practitioners operate solely as barristers.
increase in external regulatory authorities in what could best be described as a co-regulatory model
structure of the Australian Legal Profession was heavily influenced by the English profession whose characteristics
● A divided profession;
● Boundaries between the different groups fixed by defined incompatibilities, preventing the undertaking of specific tasks;
● The exercise of strong control over its members by enforcing ethical standards.
Competition Policy Reform (Queensland) Act 1996 (Qld) s 8.
National competition policies apply to the legal profession.
Legal Profession Act 1997
(Qld) Part 2.7
incorporated legal practices (IPL)
multi-disciplinary partnerships (MDL)
Queensland Law Society (QLS)
professional association which represents the interests of lawyers and rule of law in the public policy arena
QLS holds specific statutory responsibilities under the
Legal Profession Act 2007
(Qld)
Dual Role
that occupied by its statutory obligations
licensing and regulating authority
Solicitors are not, by the operation of the Legal Profession Act, compulsorily drafted into membership of a professional union. They are, in effect, licensed and regulated by a corporation, which has been given specific statutory functions by the Parliament.
Legal Profession Act 2007 (Qld) implements in the Queensland context, national uniform regulation of legal practice.
Based on the model laws released by the Standing Committee of the Attorneys- General (SCAG) in 2004
Model laws to form the foundation for uniform legislation regulating the legal profession across Australia, but not ot impinge upon each state / territory regulation or the legal practice
Main areas for uniformity are;
6 more items...
Aim of uniformity according to
Statement of National Practice
4 more items...
that which comprises its representative functions under its Memorandum of Association
trade union" for its members, representing their interests and putting their point of view while simultaneously being responsible for maintaining professional standards of conduct and hearing and adjudicating complaints against its members
Bar Association of Queensland
Objects of the bar - see Week 2 material section 2.3 a - w
3 Present Restrictions and Change
Many
restrictive practices
of the English legal profession were adopted by the divided profession in Queensland, for example
Lawyers’ monopoly on initiating litigation on behalf of clients;
Barristers approached only through a Solicitor;
Solicitors’ monopoly over conveyancing; and
QCs only appearing with a junior counsel.
For and Against assessment of restrictive practices
Against
Unnecessary use of two lawyers (barrister and solicitor)
Duplication of services
Omission and confusion of function
Lack of freedom and incentive for lawyers to innovate
For
Specialist advocates
Avoid conflicts of interest
Independent objective
Ready access to non-specialist solicitors
Voluntary Membership
The
Legal Profession Act 2007
(Qld) s 684 membership of the law Society is voluntary
Advertising Restrictions
https://www.lawcouncil.asn.au/files/web-pdf/Aus_Solicitors_Conduct_Rules.pdf
Australian Solicitors Conduct Rules 2012 rule
The Australian Solicitors Conduct Rules 2012 rule 36 provides:
36 Advertising
36.1 A solicitor of a law practice must ensure that any advertising, marketing, or promotion in connection with the solicitor or law practice is not:
36.1.4 prohibited by law.
36.1.1 false;
36.1.3 offensive; or
36.1.2 misleading or deceptive or likely to mislead or deceive;
36.2 A solicitor must not convey a false, misleading or deceptive impression of specialist expertise and must not advertise or authorise advertising in a manner that uses the words “accredited specialist” or a derivative of those words (including post-nominals), unless the solicitor is a specialist accredited by the relevant professional body.
Qld Law Society Summary of the rules
https://www.qls.com.au/Guides/Australian-Solicitors-Conduct-Rules
In addition under the
Australian Consumer Law (Cth)
(Competition and Consumer Act 2010 (Cth) Sch 2 (‘Australian Consumer Law’; formerly the Trade Practices Act 1974 (Cth)) there are prohibitions on misleading or deceptive conduct (s 18), false or misleading representations about services (s 29) and misleading conduct as to the nature etc. of services (s 34)
Personal Injuries Preceding Act 2002
Qld s 64 and 65.
4 Regulatory Institutions
Ethics in Law: Lawyers’ Responsibility and Accountability in Australia
(LexisNexis, 6th ed, 2014) 93 reproduces what the Law Society of New South Wales (equally applicable in Queensland) sees to be the
main reasons for self-regulation
:
● Logical and efficient for consultant professions;
● History of setting and enforcing compliance with high standards of professional practice;
● Courts rely on professional practitioners as the best arbiter of proper professional conduct;
● An informed understanding of a professional discipline is required;
● Independent legal profession is essential for self-regulation and the rule of law;
● Service ideal – altruistic and service to the community;
● Historical high standards maintained by disciplining members;
● Non-lawyers cannot understand the applicable proper standards of the profession;
● Ideology of the rule of law (threat of arbitrary government action); and
● An ethical code protects the public interest.
National Associations
Law Council of Australia
The Law Council of Australia was formed in 1933 of a federation of all law societies and the New South Wales, Queensland, Victorian and Australian Capital Territory Bar Associations.
Council of Australia is based on membership of constituent bodies, i.e. state law societies and other prescribed categories.
It also has six sections of substantive law practice:
Family
Federal Litigation
Criminal
General Practice
Business
International
Australian Bar Association
formed in 1962 to represent barristers at a national level
The objectives under the constitution include:
‘Advance the interests of barristers’
‘Maintain and strengthen the position of the Bar’
5 Self-regulation and Co-regulation
The Queensland Law Society and Queensland Bar Association act as regulatory bodies to protect the public interest.
The legal profession is unique in having its members regulate the profession
Although there is now a failsafe system represented by the Legal Services Commission.
CO-REGULATION
Why do we currently have a co-regulated profession?
● A gulf has formed between the legal profession and the society it serves. A better-informed community is asking for accountability, transparency and sound professional standards.
● Co-regulation is a result of:
(a)The shift in society’s, and that of independent regulators (such as the LSC), expectations of the profession; .
and
(b) Our continued and strong desire to actively participate in shaping the future – your future – of the profession