The basic qualification for all lawyers is the Bachelor of Laws degree (LLB). In Victoria, Monash University offers an LLB course combined with another degree, usually a Bachelor of Jurisprudence, over five years. Instead of Jurisprudence, other degrees, such as Arts or Economics, can be undertaken with the LLB. The University of Melbourne offers a four-year LLB course, although it is common to combine a law degree course with a degree in Arts, Science or Commerce. La Trobe, Deakin and Victoria universities also offer LLB courses. Students entering the La Trobe course are first required to complete two years of a general undergraduate degree, such as Arts. The LLB course includes a series of compulsory subjects that must be completed before the graduate can practise law.
Before they could be admitted to practise as an Australian lawyer (previously referred to as a "barrister" or a "solicitor"), graduates needed to also complete either:
- a practical training course of 31 weeks at the Leo Cussen Institute;
- a 39-week practical skills course at Monash;
- a 15-week full-time or 30-week part-time course at the College of Law; or
- articles of clerkship, a form of apprenticeship lasting 12 months.
From 1 July 2008, in place of the previous articles regime, there are new requirements and rules for admission to practice. Graduates must complete either 12 months of Supervised Workplace Training (a Traineeship) or a Practical Legal Training course. Further details are available on the LIV website at www.careers.liv.asn.au/clerkship.asp. (Also see the Legal Profession (Admission) Rules 2008 (Vic).)
In addition, on obtaining their first practising certificate, all solicitors are subject to a period of supervised legal practice of either 18 months or two years (s.2.4.18(1) LP Act).
Graduates of the Leo Cussen Institute's practical training course are required to work as an employee of another solicitor for at least 18 months after admission before they may practise as principals in a legal practice.
The legal profession in Victoria is, in practice, divided into two distinct branches that are organised differently. On the one hand there are solicitors, who are the "office lawyers". They will usually have initial contact with the client. Solicitors deal with all types of legal work. If court representation is required, it may be handled by either a solicitor or a barrister.
Barristers' work mostly involves appearances in court. A member of the public is not generally permitted to go directly to a barrister. However, the LP Act allows barristers to agree to act for clients without the intervention of a solicitor in a limited type of work, such as advice and appearance in minor criminal cases before the courts. Otherwise, the person must first go to a solicitor, who will then "brief" a barrister to appear on the client's behalf. Before being allowed to practise as a barrister at the Victorian Bar, a lawyer must undertake a three-month course on advocacy skills and evidence, followed by a further period of apprenticeship (called "reading") to a more senior barrister.
Where the term "lawyer" is used in this chapter, it refers to both barristers and solicitors. Reference to either a "barrister" or a "solicitor" means only that branch of the profession, not all lawyers.
Both branches of the profession are regulated by the LP Act. The Act sets out standards of conduct and gives responsibility for the maintenance of those standards to a variety of persons or bodies. For solicitors, the main body is the LIV; barristers are members of the Victorian Bar. Until the introduction of the LP Act, these organisations issued certificates allowing their members to conduct legal practice, but it will now be for the Legal Services Board to determine who issues practising certificates in the future. The Legal Services Board has the power to delegate this function to a person who is a member of a class that is prescribed by the Regulations, such as the LIV or the Victorian Bar.
Most lawyers work as either barristers or solicitors in private law firms, but increasing numbers of lawyers now work for legal aid offices, corporations, the government, universities and in many other fields.
Contact details for both the LIV and Victoria Bar can be found in "Advice and assistance", at the end of this chapter.
Solicitors may advertise their services (within limits set by practice rules) in any media, and may advertise their fees. Solicitors may not describe themselves as "specialists" in any field unless they have been accredited as such by the Law Institute. This can make finding an appropriate solicitor difficult. While a number of solicitors operate general practices, the majority practise in specialised areas of law within firms which can offer clients a range of services.
LIV now accredits specialist solicitors in a number of areas, including criminal law, family law, environmental, town planning and local government law, tax law, commercial tenancy, business, property, wills and estates, mediation, commercial litigation, personal injury and immigration, and will be creating more areas for accreditation of specialists over the next few years. To become accredited as a specialist, a solicitor must have at least five years experience in the relevant area and pass a written examination. In some areas, such as mediation, oral or role play examinations form part of the specialist accreditation process.
LIV can provide referrals to general and specialist practitioners, as can any legal aid organisation (see: Chapters 2*3 Legal Aid, and 2*4 Advice Directory). In the Yellow Pages under "Solicitors" there is a locality guide. A quote for costs should be obtained before instructing a lawyer to act for you.
Many problems can arise because of poor communications between lawyer and client, as a result of which the client develops false expectations about what the lawyer can achieve or should be doing, while the lawyer may regard the client as unnecessarily concerned or even troublesome.
Although the quality of legal education is slowly improving, lawyers still receive a narrow training that does not encourage them to treat clients as equal partners in a co-operative relationship. Unfortunately, many problems arise because the lawyer tries to solve the problem without involving the client as much as required, and because many clients have unrealistic expectations about what a lawyer can do. Lawyers are not magicians, but they may be able to help a person who has a legal problem, and that person has a right to give instructions as to what they require and to be kept informed as to what is done.
To avoid problems, clients should adopt the following rules from the first consultation.
- Tell the lawyer that you want to be informed about progress and involved in decision-making at all stages.
- Do not wait for the lawyer to contact you; ring them up if you have a question, and do not be put off until you receive an answer. Keep in mind, however, that your lawyer can charge you for time spent talking to you, so it is important to be clear about what information you need.
- Tell your lawyer you want to be advised of the options as well as the best course to adopt. If in doubt, it is your right to seek a second opinion.
Lawyers, like any other providers of services, have obligations to the consumers of those services. These obligations are imposed in several different ways.
In the first instance, they are imposed by the market in which lawyers operate: a dissatisfied client can theoretically take their business elsewhere. However, this is not always possible, because many disputes arise in the middle of a matter, for example, before a court action has reached a hearing or before a conveyancing transaction is completed.
A new lawyer will be reluctant to take on a case halfway through without seeing the file maintained by the previous lawyer, so as to find out precisely what steps have already been taken. A client who wishes to obtain their file from the lawyer must first pay any outstanding costs due. This is because a lawyer has a lien over any deed, paper, or personal chattel that is the property of the client, i.e. the lawyer can retain any such documents until costs have been paid. This means a client must pay a lawyer's bill before collecting a file that is to be assessed for a second opinion or for determining the reasonableness or otherwise of the fees charged.
A range of further obligations is imposed in the LP Act, in Regulations and Rules made under that Act, and in a body of uncodified professional standards or ethical rules.
The LP Act and the Professional Conduct and Practice Rules 2005 oblige a solicitor:
- to use their best endeavours to complete any work on behalf of the client as soon as is reasonably possible (r.2);
- to provide, generally within 60 days of being requested in writing to do so by a client, a detailed bill of costs (r.38; s.3.4.36 LP Act);
- not to borrow money from their client unless the client is in the business of lending money to the public or the solicitor can show that the client's interests were fully protected (r.11);
- in certain circumstances, not to act for parties to a transaction where a conflict of interest may arise (r.8);
- to communicate effectively and promptly with the client (r.39);
- subject to exceptions set out in section 3.4.12 of the Act, to provide written advice of the estimated costs and disbursement or their method of calculation (s.3.4.9 LP Act);
- to inform the client of any entitlement to legal aid (r.39); and
- to advise in writing, prior to the settlement of a court case, of the minimum net amount the client will receive on settlement (r.39).
The Trust Account Practice Rules have been incorporated into the Legal Profession Regulations 2005 ("LP Regulations"), which came into operation on 12 December 2005. The LP Regulations 2005 and the Trust Account Practice Rules (including amendments as at 1 November 2003) impose obligations in relation to the holding of practising certificates and the financial aspects of a solicitor's practice, and in particular on the handling of trust money (money held on behalf of other people). The Regulations and Rules impose stringent requirements in relation to the receipting, banking, record-keeping and auditing of trust account. Solicitors are prohibited from dealing with money on behalf of clients who use false names and from drawing cash from their trust accounts, even if the client requests it.
Other obligations arise because lawyers are expected to act according to appropriate professional standards. Among other things, a lawyer:
- is bound to follow instructions given by the client, at least to the extent that they are consistent with the law;
- must not act for a person when there is a conflict of interest between the person and the lawyer or a client of the lawyer; and
- must undertake work with reasonable care and attention.
These obligations may, if breached by the lawyer, give rise to a claim for negligence or breach of contract if the client suffers loss or damage as a result.
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SOLICITORS AND BARRISTERS :: Last updated: Wed Jul 1st 2009