Solicitor, Barrister, Lawyer or …?

3c03d90f48b112fea9bdcc435f03000cMy friends on Twitter have discussed the nomenclature we use to describe members of the legal profession (the polite nomenclature, that is).

Some of us (me included) prefer to describe ourselves as a ‘lawyer’, which is a fairly generic label. The Encyclopaedic Australian Legal Dictionary defines ‘lawyer’ as:

A barrister or solicitor; a person qualified to practise law. The term is used in everyday parlance to describe members of the legal profession, while the term “legal practitioner’, being more precise, is most commonly found in legislation.

This definition is useful as a generic touchstone, but it also produces some questions. For example: What is a barrister? How is that different from a solicitor? Why is ‘legal practitioner’ stated as being ‘more precise’? What is this legislation they mention?

I could exhaustively answer these questions, but I will not because I am half way between Christmas and New Year and I feel lazy. But I can give an illustration by using myself as an example.

I was admitted to the legal profession as a “barrister and solicitor” and officer of the Supreme Court of Victoria (Australia), by s 8 of the Legal Practice Act 1996 (Vic).  After the admission ceremony I signed the roll of practitioners kept by the Court, at which point my admission was effective: s 6(3) 1996 Act. Soon after the Prothonotary sent my details to the then Legal Practice Board, to be stored on a register.  I was admitted, but not yet qualified to practice law in Victoria.  To practice, I was obliged to be admitted AND hold a practising certificate: section 314 of the 1996 Act. The recognised professional association (RPA), being the Law Institute of Victoria, was responsible for issuing my practising certificate. The Victorian Bar Council was the RPA for barristers (s 454 Sched 2, cl 15).

The 1996 Act used the terms, “legal practitioner”, defined as a person admitted to legal practice in Victoria, and “current practitioner”, defined as a legal practitioner that holds a practising certificate, but did not define the words “barrister” or “solicitor”. However, s 69 of the 1996 Act provided that an RPA could make practice rules for ‘sole practice by barristers’, including the requirement that a practitioner it regulates:

(a)  must practise as a barrister only;

(b) must not carry on, engage in or practise any business, profession or occupation that is inconsistent with practice as a barrister

This suggests, without explanation, that barristers must only do “barrister work”. I was unable to find a copy of the Victorian Bar Rules extant when I was admitted but we can look at the existing Victorian Bar Incorporated Practice Rules effective since September 2009,which are an amended version of the rules made on 23 September 1997.

In distinguishing barristers from solicitors, I see Victorian Bar Rule 120 states:

A barrister shall not act as, or perform the work of, a solicitor, save as permitted by these Rules.

There are two other rules that stand out for me: r 86 and r 114.  The former states the ‘Cab-Rank Principle’ that, subject to certain conditions, a ‘barrister must accept a brief from a solicitor to appear before a court, to advise or to draw pleadings or any other document in a field in which the barrister practises or professes to practise’ (italics added). The latter provides a ‘barrister must be a sole practitioner, and must not practise (a)  in partnership with any person; (b)  as the employer of any legal practitioner who is in active practice; or (c)  as the employee of any person’. Solicitors are not so constrained.

The Victorian Bar website ‘What is a barrister?’,  describes a barrister as ‘an independent specialist advocate and advisor’, to whom solicitors refer work requiring such a specialisation. The Victorian Bar also provides a handy page on ‘How to become a barrister‘. Long story short, these days it is necessary to sit and pass a closed-book examination to be eligible for an offer of a place in the 2-month bar reader’s course. The course is followed by more coursework and a readership.

So there are legislative, regulatory and accreditation requirements that set barristers apart from solicitors, and even though I was admitted as a ‘solicitor and barrister’ of the Supreme Court of Victoria (and have a lovely sealed certificate to prove it), I could not in all conscience describe myself as a barrister.

Side note: In Law Society of New South Wales v Ramalca Pty Ltd (t/as Flat Fee Conveyancing Service) [1984] 1 NSWLR 268, Helsham CJ sitting in Equity discussed the idea of ‘practising barristers’ and ‘non-practising barristers’ and their respective qualification to do solicitor work, under the provisions of the Legal Practitioners Act 1898 (NSW).

The 1996 Act under which I was admitted was repealed on 12 December 2005, and was replaced by the Legal Professional Act 2004 (Vic) (the LPA). Pursuant to section 8.2.1 Sched 2 cl 2.1 of the LPA’s transitional provisions, a:

person admitted to legal practice as a barrister and solicitor of the Supreme Court becomes a local lawyer as if he or she had been admitted to the legal profession under this Act

The LPA s 1.2.2 ‘Terms relating to lawyers’, states:

(a)  an Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law;

(b)  a local lawyer is a person who is admitted to the legal profession under this Act (whether or not the person is also admitted under a corresponding law)…

So I have ‘become’ a “local lawyer” and I am qualified to be “an Australian lawyer”. Further, because I  hold a practising certificate I can hold myself out as “an Australian legal practitioner”, by s 1.2.3, and section 8.2.1 Sched 2 cl 2.2 of the transitional provisions.

(Today, if you are admitted to practice in Victoria, the words used to move your admission include: ‘I appear to move that [person] be admitted to the legal profession as an Australian lawyer and as an officer of this Honourable Court…’.)

So that is why I think it is convenient and correct to call myself a “lawyer”.


* Update: In March 2012 I started full-time PhD candidature under an Australian postgraduate scholarship award – so I arranged to defer renewal of my practising certificate for the time being.

** Update: the Legal Services Council will be considering submissions to proposed new Uniform Admission rules during 2015. New South Wales and Victoria are likely to be the first to adopt these when finalised – I will check the information on this page when the situation is clear.
Subscribe to PleagleTrainer Blog by Email

Share

12 thoughts on “Solicitor, Barrister, Lawyer or …?”

  1. Hello, Fritz – thanks for your comment. First, a disclaimer: I’m unable to provide legal advice here, and given that your question relates to matters with legal and professional consequences, I encourage you to seek legal advice before taking any action. That said, I make the following general observations – different considerations might apply in the particular circumstances of each case:
    Supreme Court Civil Rules 2006 (SA) (“SCCR”) are made pursuant Section 72 of the Supreme Court Act 1935 (SA). Rule 4 SCCR defines “lawyer” as “a legal practitioner within the meaning of the Legal Practitioners Act 1981”.
    Section 5 Legal Practitioners Act 1981 (“LPA”) defines “legal practitioner” as:
    “(a) a person duly admitted and enrolled as a barrister and solicitor of the Supreme Court; or
    (ab) an interstate legal practitioner who practises the profession of the law in this State”.
    Section 21 LPA reserves the right to practice or hold oneself out as a lawyer:
    “(1) A natural person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless the person—
    (a) is a local legal practitioner; or
    (b) is an interstate legal practitioner.”
    Part 5 SCCR describes requirements for applications by interstate practitioners for registration in South Australia pursuant to the Mutual Recognition Act 1992 (Cth).
    My understanding is that essentially, an interstate practitioner is required to register in South Australia in order to practice law, or hold out they are entitled to practice. At first glance, the web page references to “law” and “lawyer” that you describe amount to holding out an entitlement to practice, which would not be permitted unless registration under Mutual Recognition is complete.
    The Law Society of South Australia provides a Guide to Mutual Recognition here:
    https://www.lawsocietysa.asn.au/pdf/GuidetoMutualRecognition.pdf

  2. HI All,
    I am admitted in NSW. I currently hold a NSW restricted Practising Certificate for 1 year now. I am not an employee to any law practice and, I do not provide any legal services.

    I am a Registered Migration Agent running a business in South Australia providing immigration advice and assistance as per s 276 of the Migration Act. I do not provide immigration legal advice as required by s 277. My website includes “law” and “Lawyer.”

    I have received a Letter from the Law Society of SA to the effect that i remove the words “law” and “lawyer” from my website because i may be in breach of s 21 of the LPA for Professional Misconduct.

    I said in the content of my website that i am bound by both the Australian Solicitors Conduct Rules and the Code of Conduct for Registered Migration Agents. (The LSSSA says i remove the words ” Bound by the Australian Solicitors Conduct Rules” otherwise, i will be in breach of s 21).

    The further said as i am operating as a Registered Migration Agent and not a Lawyer, i should remove the word “Lawyer” for i may be in breach of s 21 and professional misconduct.

    I said i can assists clients in the Federal Circuit Court and although all my clients who have Judicial Review matters, i have referred them to a Solicitor who represents them in Court. They said i should remove the words” can assists clients in the FCC”.

    I further included that “communications are confidential and privileged”. They said i should remove these words as it could breach s 21 and result in professional misconduct.

    DO I NEED TO REMOVE ALL THOSE WORDINGS DESPITE THE FACT THAT I AM A LAWYER AND A LEGAL PRACTITIONER IN THEORY?

    Regards
    Fritz (Ph.D (Law), LL.M. LL.B. GDLP, GCMLP
    Email: en.fritz@yahoo.co,.au

  3. Thanks very much Kris. Exactly what I needed. I’d like to acknowledge your help in my foreword but only with your permission. I should add that it isn’t the usual ‘lawyer’ book, but rather a romance where the heroine happens to be a lawyer.

  4. Hi Chris, it is quite possible for a lawyer in a country town to be in a generalist practitioner, and might do small criminal matters as well as wills and estates work. Legal practice is becoming increasingly specialised, but sole practitioners in smaller towns have to take the work as it comes. That said, different practice areas tend to cluster together – not unusual to see practitioners in small firms focusing on criminal and family law, whereas property, business structures (companies, trusts, partnerships) and estate work can overlap. Best wishes for the novel!

  5. I’m writing a novel about a young lawyer in a country town in Victoria with her own small practice. Am I right in thinking she can handle both wills etc., as well as appearing in court to defend clients on criminal charges, or must she specialize in one or the other?

  6. My understanding is that from 1 July 2015 in NSW and Victoria (and other jurisdictions that adopt the uniform legislation), a person holding a practising certificate (an Australian Legal Practitioner) is entitled to state they are “barrister and solicitor”, unless the individual’s practising certificate is limited to “barrister” – see the table at rule 9, Legal Profession Uniform General Rules 2015. I will need to revise the blog post in light of the new rules.

  7. So, nowadays there is no way for an Australian lawyer to represent himself as a “barrister and solicitor”? While such self-representation may not be important in Australia, in some foreign jurisdictions where an Australian lawyer may like to wrk – being able to represent himself as am Australian “barrister and solicitor” may be quite useful – is there any way to do this, without violating any laws or regulations?
    Thank you for any clarification.

  8. What follows are general observations and not supplied as legal advice. It is strongly recommended that readers obtain personal legal advice if they have questions or concerns about admission procedures and the right to practice law.

    Admission to the legal profession in the Supreme Court is a separate step to issue of a practising certificate from a state regulator.

    Admission to the profession is within the jurisdiction of the Supreme Court, but is also regulated by the relevant legal profession Act and admission rules. A candidate must complete legal education and practical legal training and make an application to the admitting authority. The application will usually be supported by affidavit material concerning completion of the requisite education and training, disclosures concerning any matter that might affect the decision of an admitting authority as to whether the applicant is a fit and proper person to be admitted to the profession, character affidavits, police checks, and academic conduct records from the applicant’s university and practical legal training provider. If the application is approved by the admitting authority, it will issue a certificate to that effect, and nominate a day and time for the applicant’s admission to be ‘moved’ at a sitting of the Supreme Court.

    These days admission to the profession is usually as an “Australian Lawyer”, rather than an as “barrister and solicitor” – the terminology was changed by legislation in about 2004.

    Once the applicant is admitted to the profession and has signed the court roll, the Court will issue a certificate of admission. Anyone properly admitted in this way would be entitled to describe themselves as an “Australian Lawyer”.

    To engage in legal practice, however, requires a further step. The lawyer must apply to the local regulator for issue of a practising certificate. That application will involve completing a form, making a declaration regarding suitability for practice, and paying an annual fee. The lawyer’s employer must also obtain professional indemnity insurance cover. All being well, the regulator will issue a practising certificate. Engaging in legal practice without a practising certificate is an offence under the state Act.

    A person holding a practising certificate would be entitled to describe themselves as an “Australian Legal Practitioner”.

    The terms, “Australian Lawyer” and “Australian Legal Practitioner”, are defined within the relevant state’s Act.

  9. Hi,
    Sorry to trouble you but if someone has been admitted to the legal profession as a “barrister and solicitor” and officer of the Supreme Court of NSW (Australia),
    and pronouce to the court and others that they are a “barrister and solicitor” and they do not hold a practising certificate….
    Do you think that this person misrepresents theirself?
    Sorry to take your time up. I am slightly confused….

  10. Great article, speaks directly to the point and very informative, I am a law student though and have recently considered a possiblity of going to the bar some day. After reading this I think I will.

    Cheers

Comments are closed.