The Legal Profession Topic 4. Development of Profession English legal profession develops to serve developing courts English legal profession develops

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  • Slide 1
  • The Legal Profession Topic 4
  • Slide 2
  • Development of Profession English legal profession develops to serve developing courts English legal profession develops to serve developing courts Attorneys and pleaders Attorneys and pleaders Development of Inns of Court Development of Inns of Court Practical focus of training Practical focus of training Solicitors commercial focus Solicitors commercial focus
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  • The Compleat Solicitor 1683
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  • Scale costs: will
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  • Reform of Australian profession Law Council of Australia: Blueprint for the Structure of the Legal Profession: A National Market for Legal Services. It Law Council of Australia: Blueprint for the Structure of the Legal Profession: A National Market for Legal Services. It Mutual Recognition Act 1992 (Cth) Mutual Recognition Act 1992 (Cth)
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  • Referral of powers S51(xxxvii) 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 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
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  • 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. (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.
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  • Common admission Legal Profession Reform Act 1993 (NSW) Legal Profession Reform Act 1993 (NSW) Moves towards admission as an Australian lawyer, rather than State based admission Moves towards admission as an Australian lawyer, rather than State based admission SCAG reference 2001 COAG process SCAG reference 2001 COAG process Legal Profession Act 2004 (NSW) Legal Profession Act 2004 (NSW)
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  • Towards a national profession September 2011 agreement reached by NSW, Victoria, Qld and NT September 2011 agreement reached by NSW, Victoria, Qld and NT Legal Profession National Law Legal Profession National Law Link to draft legislation Link to draft legislation http://www.ag.gov.au/www/agd/agd.nsf/Pag e/Consultationsreformsandreviews_CouncilofA ustralianGovernments(COAG)NationalLegalPro fessionReform http://www.ag.gov.au/www/agd/agd.nsf/Pag e/Consultationsreformsandreviews_CouncilofA ustralianGovernments(COAG)NationalLegalPro fessionReform http://www.ag.gov.au/www/agd/agd.nsf/Pag e/Consultationsreformsandreviews_CouncilofA ustralianGovernments(COAG)NationalLegalPro fessionReform http://www.ag.gov.au/www/agd/agd.nsf/Pag e/Consultationsreformsandreviews_CouncilofA ustralianGovernments(COAG)NationalLegalPro fessionReform
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  • Application Scheme Victoria host legislation Victoria host legislation 1.1.2Commencement 1.1.2Commencement This Law commences in a jurisdiction as provided by the Act of that jurisdiction that applies this Law as a law of that jurisdiction.
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  • Objectives...promote the administration of justice and an efficient and effective Australian legal profession, by: (a)...national consistency... (a)...national consistency... (b)ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (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... (c)...protection of clients...and the...public... (d)...nformed choices about [legal]...services... (d)...nformed choices about [legal]...services... (e)promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and (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. (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.
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  • Where are we now? Victoria will host legislation Victoria will host legislation NSW will host National Legal Services Board and National Legal Services Commissioner NSW will host National Legal Services Board and National Legal Services Commissioner Implementation goal: Implementation goal: July 2013 July 2013 But, legislation not yet introduced But, legislation not yet introduced
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  • Where are we now? Australian Solicitors Conduct Rules Australian Solicitors Conduct Rules SA and Qld no other jurisdiction 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 http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=D997CD53- 92D0-1795-82F7-5436F67E9BCD&siteName=lca http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=D997CD53- 92D0-1795-82F7-5436F67E9BCD&siteName=lca http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=D997CD53- 92D0-1795-82F7-5436F67E9BCD&siteName=lca October 2012 October 2012 Qld government withdraws support Qld government withdraws support http://statements.qld.gov.au/Statement/2012/10/3/queensland-not-signing-up-to-national- legal-profession-reform http://statements.qld.gov.au/Statement/2012/10/3/queensland-not-signing-up-to-national- legal-profession-reform http://statements.qld.gov.au/Statement/2012/10/3/queensland-not-signing-up-to-national- legal-profession-reform 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 De Jersey CJ speech: http://www.hearsay.org.au/index.php?option=com_content&task=view&id=782&Itemid=4 http://www.hearsay.org.au/index.php?option=com_content&task=view&id=782&Itemid=4
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  • Australian lawyer Section 5 of the LEGAL PROFESSION ACT 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,
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  • Legal Profession Act 2004 (NSW) Governs the profession Governs the profession Uniform legislation to move towards a national profession with national admission and national right to practice 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) Maintains common admission but functional separation of earlier Legal Profession Reform Act 1993 (NSW)
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  • 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.
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  • NSW Bar Association NSW Bar Rules NSW Bar Rules http://www.nswbar.asn.au/docs/professio nal/legislation/Rules_april2001.pdf http://www.nswbar.asn.au/docs/professio nal/legislation/Rules_april2001.pdf htt