16 Jan 2015

New proposed Barrister Rules limit on-line practice

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From early in 2015, a “common legal market” will be established for Australian legal practitioners through the introduction of a new Legal Profession Uniform Law, at first involving only NSW and Victoria, but these two states hold over 70% of all lawyers.

The Uniform Law, is intended to simplify and standardise regulatory obligations and will replace the existing Legal Profession Act 2004 (Vic) and the Legal Profession Act 2004 (NSW).

At the same time, new legal profession conduct rules are being developed, which will provide the operating principles that will underpin the Uniform Law. The proposed new Barrister Conduct Rules are available here: Rules

At a time when ALL of the major courts have moved to an on-line practice environment (in NSW the Online Registry, in Victoria the CITEC Confirm electronic lodgment service and in the Family Court, Federal Court and Federal Circuit Court, eFiling through the Commonwealth Courts Portal) the ABA has proposed Barrister Conduct Rules which create new limitations on the ability of a barrister to operate in an on-line environment and provide direct access services.

In its submission to the Productivity Commission’s issues paper, Access to Justice Arrangements, the NSW Bar Association strongly supported the direct briefing of barristers, saying:

“[There has been] judicial authority for the proposition that, where appropriate, the early and direct briefing of counsel is a cost-effective option for litigants, improving access to justice, both in terms of cost benefits for parties, and efficiencies for the civil justice system. Direct briefing is highly effective in circumstances involving sophisticated clients, such as in-house counsel.

The removal of external solicitors from the litigation process can save legal costs. The New South Wales Barristers’ Rules in some circumstances facilitate the direct briefing of the bar by clients, and set additional professional standards for barristers in these circumstances.

The Bar Association has in recent times been examining the advantages, in appropriate cases, of in-house counsel (both corporate and government) briefing members of the bar directly without having to brief an external solicitor to provide instructions to the barrister as well. Any in-house lawyer with a current practising certificate can brief a barrister directly.

Such arrangements have the potential to greatly reduce legal costs in suitable cases.

The advantages of direct briefing are numerous. Direct briefing provides access to specialist expertise in every area of the law. Strategic, early and direct involvement of a barrister can save time and money.”

However, in a failure to appreciate how the electronic filing systems actually work, the ABA has proposed and the NSW Bar Association has adopted, a change in the Barrister Rules which will prevent barristers from filing documents using these new systems. This will directly result in less access, increased costs to consumers and inhibit barristers from expanding their practice outside of their state.


Change in the Rules

Previously the New South Wales Barristers’ Rule 17(f) of 8 August 2011, dealing with The work of a Barrister, provided that a barrister must not:

serve any process of any court

However, in the proposed ABA Uniform Legal Profession Conduct Rules: Barristers (of 24 November 2014) Rule 17(f) has been changed to prohibit:

commence proceedings or file or serve any process of any court;

This change has already been adopted by the NSW Bar Association in its Barristers’ Rules of 6 January 2014. See Change in Rules

Generally, unless a legal practitioner can file a document electronically, they cannot be added to the “electronic file” created for that case. As barristers will no longer be able to file documents, under this amended Rule 17(f), all of the benefits of these e-filing systems will be unavailable to barristers conducting direct access work.

It is unfortunate that submissions have been sought from the legal profession at a time when traditionally many lawyers usually take a lengthy vacation. The closing date for comments and submissions on the ABA’s proposed Uniform Rules is Friday, 16 January 2015.

Read AUSTBAR’s submissions.