My 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)  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.
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