LEGAL PRACTICE BILL [B20 – 2012]

1. LEGAL PRACTICE BILL [B20 – 2012] Comparative Perspectives: Australia, Ireland, India, Namibia, Nigeria, United States of America and Zimbabwe (5 June 2013)

2. Introduction • Comparative documents have been prepared and distributed for England and Wales (8 March 2013); India, Zimbabwe, Namibia and Nigeria (24 May 2013); Ireland (24 May 213); and USA and Australia (3 June 2013). Countries chosen at request of Committee. • Approach has been broadly to describe the regulatory bodies and disciplinary structures, as well as to note developments. • Note: The Department has already presented an overview of the position in England and Wales. Also, deals with the USA in its document dated 20 March 2013. • Propose to outline India, Zimbabwe, Namibia and Nigeria but focus on Ireland and Australia as these are in the process of undergoing/considering regulatory reform.

3. India Regulatory regime: • Advocates Act 1961 governs the legal profession. • Promotes self-regulation. • Fuses roles of solicitors and barristers. Recognises only advocates. Can be either senior or junior advocates. Seniority on basis of ability (standing at the Bar, special knowledge or experience in law). • Two structures: Bar Council of India and State Bar Councils.

4. India Bar Councilof India • Apex statutory body. • Sets standards of professional conduct and etiquette, as well as procedures for disciplinary committees; safeguards the rights, privileges and interests of advocates’; promotes law reform; deals with referred matters from State Bar Councils; provides legal aid for poor. • Regulates legal education (content, syllabi, and duration of law degree), although universities have some role. • (Profession determines matters such as admission, practice, ethics, privileges, regulations, discipline and improvements to the profession. Notably, profession largely responsible for law reform too.) • Composition: Made up of members elected from each State Bar Council. Attorney General and Solicitor-General ex officio members. • Legal Education: Assisted by Legal Education Committee with 5 members of Bar Council and 5 co-opted (academics). Has established a Directorate.

5. India State Bar Councils: • Composition: Between 15-25 advocates elected as council members; Advocate-General ex officio member. • Term: 5 years. • Powers and functions: Admissions, prepare and maintain roll, discipline, ‘safeguard the rights, privileges and interests of advocates’; promote law reform. • Admission: Advocates require LLB degree and fee – certificate of enrolment with a state bar council. Can appear before all courts/tribunals. • Discipline: Committees (x3 members) hear complaints of professional misconduct. Appear to Bar Council and, finally, to the Supreme Court.

6. India Reform • Prompted by concerns, among others, discipline and legal education: • Supreme Court states Bar Council of India ‘ineffective’, complains courts are victims because of these lawyers. Approximately 4000 pending cases (2013). • 2010, Bar Council introduced All India Bar Examination to improve standards of entrants to profession.

7. India State-driven reform: • Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interests of Clients and Promoting the Rule of Law Bill (2010 draft bill) • Along lines of UK. Proposes a Legal Services Board and ombudsman, as well as duty of legal practitioners to provide pro bono services. • Response – opposition to government appointees to proposed Legal Services Board (undermine independence); should strengthen Bar Councils and existing systems instead of creating a super-regulator above the Bar Council India; opposition to power of a Legal Services Board to censure the bar councils (undermine faith in legal profession); powers of ombudsman questioned; need greater clarity on pro bono work; Consumer Protection legislation should apply; not enough consideration given to the impact of multi-disciplinary services’. • Higher Education and Research Bill (2012). • Prompted widespread opposition (1.7 million lawyers held a 2-day strike).

8. Zimbabwe • Legal Practitioners Act, 1981, fused profession. • Transformation of profession – 99% of advocates were white, only advocates could appear in superior courts. Also to reduce legal costs. • Registered Legal Practitioners can appear in courts. • Conveyancers and notaries must be registered to practice.

9. Zimbabwe Regulatory bodies: • Law Society: • Statutory body – independent and self-regulating to which every legal practitioner can belong. • Council: • Manages the Law Society • Composition: No less than 11 members – 9 elected by Society, 2 are ministerial appointees and 2 more co-opted by Council (external).

10. Zimbabwe • Powers and functions: • Keeps registers of legal practitioners. • Represents views of the legal profession and maintains its integrity and status. • Defines and enforces correct and uniform practice and discipline among legal practitioners. • Promotes social intercourse between legal practitioners. • Considers and deals with all matters affecting the professional interests of the legal practitioners. • Promotes study of law and jurisprudence and provides means of securing efficiency and responsibility on the part of those seeking registration. • Makes recommendations on training.

11. Zimbabwe • Discipline: • Carried out by Disciplinary Tribunal. • Composition: Chair and Deputy are judges, appointed by CJ; 2 others members from panel of 10 legal practitioners (Council submits names). • Legal Education: • Council of Legal Education • Composition: Chair and 7 other members. The Chair nominated by the Chief Justice and appointed by the Minister of Justice.

12. Nigeria • Legal Practitioners Act, 2004. • Fused profession but seem to retain both solicitors and advocates • Regulatory bodies: • Bar Council (Attorney-General (Federation) President of the Council); the Attorneys-General of the States; and twenty members of the Nigerian Bar association • Body of Benchers (The Chief Justice of Nigeria and all the Justices of the Supreme Court; the President of the Court of Appeal; the Attorney-General of the Federation and Minister of Justice; the Presiding Justices of Court of Appeal Divisions; the Chief Judge of the Federal High Court; the Chief Judge of the Federal Capital Territory, Abuja; the Chief Judges of the States of the Federation; the Attorneys-General of the States of the Federation; the Chairman of the Council of Legal Education; the President of the Nigerian Bar Association; and thirty legal practitioners nominated by the Nigerian Bar Association; and persons, not exceeding ten, who appear to the Body of Benchers to be eminent members of the legal profession in Nigeria of not less than 15 years post-call standing.) (Seems to be responsible for admission). • Nigerian Bar Association – although non-statutory, is recognised in legislation and appoints members to supervisory bodies.

13. Nigeria • Discipline • Legal Practitioners Disciplinary Committee of Body of Benchers. • Appeal to Appeal Committee: Body of Benchers. • Then to Supreme Court (final, also original jurisdiction). • Legal Education: • Council of Legal Education is the supervisory body responsible for the accreditation, control and management of legal education in Nigeria. The Council established under the Legal Education (Consolidation) Act, 2004. In charge of the Nigerian Law School. Must do LLB first.

14. Nigeria • Reform • Need for compulsory practicing certificates (issued yearly on payment of fees). • Need fully-staffed independent professional standards office in each state of the federation to deal with complaints against lawyers and bring disciplinary action against them before an independent disciplinary tribunal.

15. Namibia Regulatory regime: • Legal Practitioners Act 15 of 1995 (controversial at time) • Fuses profession but referral rule remains. Society of Advocates continues as de facto bar (voluntary association) with pupilage and admittance programme. • [Exemption certificates: allows practitioners to practice without Fidelity Fund certificate]. Regulatory bodies: • Law Society of Namibia: • Statutory body , made up of legal practitioners. • Powers and functions: • Maintaining and enhancing the standards of conduct and integrity of all members of the legal profession. • Presenting the views of the legal profession. • Encouraging and promoting efficiency and responsibility in the legal profession. • Defining and enforcing correct and uniform practice. • Assisting implementation of any legal aid scheme. • Discipline

16. Namibia • Council of the Law Society: • Composition: Elected by Law Society (9 members). • Powers and functions, include: • Fixing the subscriptions, fees, levies or other charges payable to the Law Society by the members of the Law Society. • Enrolment. • Fees and expenses for non-litigious work. Also between legal practitioners, including foreign lawyers. Permitting members of the Law Society to form associations, to be known as regional circles; and determine their duties, functions and powers. • Making rules in respect of the method of the investigation of complaints against legal practitioners; the accounts and records to be kept in relation to the affairs and assets of the Law Society; the procedure to be followed and the requirements to be satisfied by a member who wishes to obtain the recommendation of the Law Society for his or her appointment as Senior Counsel; the conditions under which and activities for which persons other than legal practitioners may be employed by legal practitioners to assist them in their practices and any other matters. (These rules shall be made with the approval of the Chief Justice.)

17. Namibia Legal Education: • Law Faculty of the University of Namibia (statutory) – gives practical training for universities. • Board for Legal Education (statutory) – Provides curriculum and moderates qualifying exam. Discipline: • Disciplinary Committee of the Law Society and the High Court (consist of 4 Council and 1 ministerial appointees) • Minister makes rules.

18. Ireland • Regulatory reform driven by: • Increasing pressure on the legal profession to remove restrictive/ uncompetitive practices from 1980’s onwards. • The economic meltdown in the European Union (EU) and the subsequent collapse of the Irish economy in 2010. • Retains split profession with Law Society and Bar Council. • Retains referral rule although solicitors can appear in all Irish Courts. • Self –regulatory. • Profession criticised for overcharging, unfair restrictions and anti-competitive practices. • Various reports produced on anti-competitive practices [Restrictive Practices Commission report, 1982, – conveyancing; Fair Trade Commission (FTC) report 1990 – advocates fused bar as inefficient and costly; need for review of legal education, especially Law Society’s role in admission exam; opposed mandatory fees scales as become fixed charges; OECD report on regulatory reform in Ireland, 2001, advocated reforms to increase competition for conveyancing to allow banks/financial institutions]

19. Ireland • Competition Authority Report 2006, highlighted following issues that limit access, choice and value for money for both those entering the profession and those purchasing services: • Unnecessary restrictions on becoming a solicitor/ barrister, including monopolies on training. • Limitations on access to barristers for legal advice and a ban on barristers forming partnerships or chambers. • Failure to provide consumers with information to help them choose suitable services. • Charging of proportional and percentage fees. Limited information available to consumers about fees and costs before they engage a lawyer makes it difficult for consumers to shop around for legal services. The lack of information available to consumers led to the retention of a number of anti-consumer practices. • The method of awarding the title of Senior Counsel questioned. The Competition Authority recommended that the government establish objective criteria for awarding the title of SC, with a procedure for monitoring work and removing the title if necessary. It also recommended that solicitors - who have a right of advocacy in every court in Ireland - should be entitled to hold the title of SC. • Severe limitations on advertising by barristers and unnecessary restrictions on solicitor advertising. • Rigid business models.

20. Ireland Key recommendations: • Legislation – a comprehensive Legal Services Bill • Establish an independent Legal Services Commission to oversee the regulation of legal services, involving "a wider group of stakeholders than the current model of self-regulation". “ although the Law Society and the Bar Council would still have a role to play in the regulation of the profession but would be required to separate this role completely and distinctly from that of representing their members. • Establish an independent body to set standards for solicitor and barrister training and approve institutions to provide such training. The Minister for Justice, Equality and Law Reform should transfer the Law Society’s role of setting standards for legal education to an independent body, such as the Legal Services Commission. The Law Society and any other institution that wished to provide training for solicitors should have to apply to the Legal Services Commission for approval to do so.

21. Ireland Key recommendations continued: • Remove unnecessary barriers to switching between the branches of solicitor and barrister. • Allow qualified non-solicitors to provide conveyancing services. Anyone who wanted to provide conveyancing services should have to be registered as a conveyancer by a Conveyancers’ Council of Ireland which would have responsibility for regulating their training, qualification and operation. Conveyancers should have to abide by a code of ethics, to have professional indemnity insurance and to contribute to a compensation fund. • Allow unlimited direct access to barristers for legal advice. • Establish objective criteria for appointing Senior Counsel. • Require solicitors and barristers to issue 'meaningful' fee or fee estimate letters and outline a 'meaningful sanction' for solicitors who fail to provide such letters • Allow non-solicitors to assess legal costs. Appropriately qualified people should be eligible for appointment to the proposed Legal Costs Assessment Office.

22. Ireland Response from Profession • Bar Council argued lack of research evidence to support conclusions. Also partnership and direct access recommendations would increase costs. BUT did introduce certain reforms (mandatory fee estimates in cases; advertising and the abolition of a practice whereby junior counsel marked two thirds of senior counsel’s fee). Response from Government: • Rejected the recommendations from the Irish Competition Authority that it introduce an English-style arrangement, with an oversight regulator and full separation of regulatory and representative functions within the Law Society and Bar Council. Did introduce the Legal Services Ombudsman Act (2009) but never appointed an ombudsman.

23. Ireland • After the economic meltdown, drive for reform increases to address toxic triadic relationship (IMF driven): • Legal Services Regulation Bill (no consultation) • Establishes: • Legal Services Regulatory Authority (LRSA), consisting of 11 persons, with a lay majority, 2 nominees Bar Council, 2 nominees Law Society, 1 ministerial nominee and 1 legal costs accountant. To take over regulation from the Law Society and Bar Council of Ireland, who will pay for it through a levy. • Independent complaints structure to deal with complaints about professional misconduct which will be supported by a Legal Practitioners Disciplinary Tribunal. • Office of the Legal Costs Adjudicator (the OLCA) with requirement that lawyers provide far greater transparency over their costs. • Also, LRSA must make proposals to advance more complex issues”, such as unification of the two branches of the legal profession; a separate profession of ‘conveyancers’; direct access to barristers and barrister partnerships; partnerships between barristers and solicitors and multi-disciplinary practices.’

24. Ireland • Legal Services Regulatory Authority (LRSA) • Regulates the provision of legal services by legalpractitioners and ensure the maintenance and improvement of standards in the provision of such services. • Objectives: • Protecting and promoting the public interest. • Supporting the proper and effective administration of justice. • Protecting and promoting the interests of consumers relating to the provision of legal services. • Promoting competition in the provision of legal services in the state. • Encouraging an independent, strong and effective legal profession. • Promoting and maintaining adherence to the professional principles.

25. Ireland • Discipline • The LSRA to establish a Complaints Committee (lay persons majority). ADR methods. • Escalated to an independent Legal Practitioner’s disciplinary tribunal – members appointed by government with majority of lay persons.

26. Ireland Fees • Bill establishes Office of Legal Costs Adjudicator (former Taxing Master) • Sets out legal costs principles applicable to both Barristers and solicitors.

27. Ireland • Criticism: • The Bill as published contains ‘a blueprint for the control of the legal profession.’ In particular, the government’s power to appoint members of the Legal Service Regulatory Authority and also to remove a member at any time when the removal ‘appears to be necessary for the effective performance of the function of the Authority’ seems to be at the heart of the criticisms. • Potential cost of the proposed new regulator and that the establishment of a new authority will substantially increase regulatory costs. • Law Society maintains that some of the fair procedures in relation to complaints, which are built into the current system, appear to have been omitted from the Bill. • No Regulatory Impact Assessment was carried out before the Bill was published. No consultation or research has been conducted into many of the proposals in the Bill.

28. Australia • Has 9 systems – 1 federal and 8 state and territory systems. • Formal division retained in NSW, Victoria, Queensland and the Australian Capital Territory with Bar Councils and Law Societies. • Even so, distinction is unclear as the Bars in Australia never held monopoly of right of appearance. (For example, solicitors in New South Wales have practising certificates issued as "solicitors and barristers" and are free to provide advocacy services and promote themselves as such). • Since 1960, independent Bars have also emerged in Western Australia, South Australia, Tasmania and the Northern Territory, where the profession is formally fused.

29. Australia • Reform (Phase 1- the Model Law Project): • Reforms unfolding for more than a decade in Australia ended self-regulation by the legal profession, replacing it with a co-regulatory system that separated regulatory from representative functions and created a series of more independent disciplinary agencies operating closer to government than to the profession.

30. Australia • Reform (Phase 2 – the National Legal Professional Reform Project) – 2009 onwards • Draft National Law 2011 • Has following objectives:: • Provide and promote national consistency • Ensure lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and • Enhance the protection of clients of law practices and the protection of the public generally; and • Empower clients of law practices to make informed choices about the services they access and the costs involved; and • Promote regulation of the legal profession that is efficient, effective, targeted and proportionate; and • Provide a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained. • Establishes and National Legal Services Board and Standing Committee

31. Australia • Standing Committee (Attorney-Generals): • Role: • A general supervisory role in relation to the Board and the Commissioner. • The Committee may request reports from the Board and the Commissioner regarding specified aspects of their operation. • The Committee may receive and consider annual and other reports from the Board and the Commissioner. • Considers National Rules.

32. Australia • National Legal Services Board • Composition: 7 members appointed as follows: • 2 members appointed by the host Attorney-General on the recommendation of the Law Council of Australia; • 1 member appointed by the host Attorney-General on the recommendation of the Australian Bar Association; • 3 members appointed by the host Attorney-General on the recommendation of the Standing Committee on the basis of their expertise in one or more of the following areas: the practice of law; the protection of consumers; the regulation of the legal profession; financial management; • 1 member appointed as the Chair by the host Attorney-General on the recommendation of the Standing Committee.

33. Australia • Legal Professional National Rules: • Board makes Rules on: • The professional conduct of Australian legal practitioners, Australian-registered foreign lawyers and law practices; and • The National Rules may contain provisions designated as Continuing Professional Development Rules. • The Bill also provides for the issue of Legal Costs.

34. Australia • Legal Costs • Provides for legal costs. • Objectives are: • to ensure that clients of law practices are able to make informed choices about their legal options and the costs associated with pursuing those options; and • to provide that law practices must not charge more than fair and reasonable amounts for legal costs; and • to provide a framework for assessment of legal costs. • Costs must be fair and reasonable (sets out what that entails).

35. Australia • Discipline: • National Legal Services Commissioner appointed on the recommendation of the Standing Committee and with the concurrence of the Board. • Objectives of the Office of the National Legal Services Commissioner are: • to ensure that complaints against law practices, Australian legal practitioners, Australian-registered foreign lawyers and other lawyers and disputes and other issues involving law practices are dealt with in a timely and effective manner; and • to ensure compliance with requirements of this Law and the National Rules by law practices, Australian legal practitioners, Australian-registered foreign lawyers and other lawyers as referred to; and • to educate the legal profession about issues of concern to the profession and to clients of law practices; and • to educate the community about legal issues and obligations that flow from the client-practitioner relationship; and • to promote national consistency in the application of this Law and the National Rules to the Australian legal profession. • Supreme Court retains jurisdiction.

36. Way forward/concluding remarks • Documents descriptive and broad. • A next step, research on specific issues identified by Committee would perhaps be useful.