Other actors in the story of law

Other Actors in the Story of Law

How do they support sustainable governance?

1

Identify and critically evaluate the legal system’s other legal actors

2The Village Lawyer, c 1621, by Pieter Brueghel the Younger

Origins of the profession

Attorney: to stand in one’s

place

Solicitors (15th C): solicited

info from client

Barrister: oral argument

from the bar

3

Fashion in court

4

‘Sit down girlie!’‘It would appear that combination of the coloured hair and the patterned tights was thought to have improperly eroticised the Family Court.’

Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession, 225

5

Consider the role of the profession in light of…

Adversarial system

Complex legal system

Common law system

6

Structure of the profession

Courts

Solicitors

Barristers

7

‘Legal practice’

Transactions Advocacy

8

Scope of role governed by law

Barristers Conduct Rules 2011, r15

Barristers Conduct Rules 2011, r17

9

The path to practice

LLBPLT

(+bar exam)Admission Roll Practising

certificate

10

Step 1 Step 2

Step 1: Admission

eligibility

suitability

Admission as a legal practitione

r

11

Eligibility: s30, LPA

Person over 18

Approved academic

qualifications

Approved PLT

12

Approved academic, practical training

PLT: prescribed practice areas

skills values

knowledge

skills

values

LLB: ‘Priestley 11’

13

Suitability: ss9, 31, LPA

Fit and proper person

Good fame & character

Convictions

Charged/investigated

14

Disciplinary action

InsolventOther

matters…

15

What does this mean for

youas an

individual? As a student?

Admission to practice: take the oath

16https://www.chapman.edu/law/

Step 2

To practise, a lawyer must have a current practising certificate (issued annually)

What does this mean? How does it support the justice system?

17

The legal profession

Admission

Solicitors

Barristers

lawyers

+ practising certificate

18

Legal practitioner

Solicitors’ skills include

Drafting Advocacy Negotiation

Interviewing Problem solving Management

19

Barristers’ skills include

Advocacy Research

Dispute resolution

Problem solving

20

(One) career path

Articles

•Commercial law rotation

•Property law rotation

Solicitor – private practice

•Property law (metropolitan)

•Move to regional practice

•Community legal service

•Start LLM (property law)

NGO

• Native title practice

• Start lecturing property law

• Service roles

Academic

• Start PhD (property law)

• Service roles

21

Career trajectory for women?

60%

Law graduates

45%

Profession 1-5yr PAE

20%

Partners

<10%

Silk

22Figures taken from various Australian sources, 2011-2013

Regulation of the profession

Profession

Court

ParliamentProfessional bodies

23

Professional ethics

A professional exercises judgment in the performance of occupational tasks and follows relevant professional standards.A code of ethics...prescribes how professionals are to pursue their common ideal so that each may do the best they can at a minimal cost to themself and those they care about (including the public...).

24http://ethics.iit.edu/teaching/professional-ethics

The legal practitioner’s paramount duty is to the court

25

Ipp J, 'Lawyers' Duties to the Court' (1998) 114 Law Quarterly Review 63

general duty of disclosure owed to the court

general duty not to abuse the court's process

general duty to conduct cases efficiently and

expeditiously

general duty not to corrupt the administration of

justice

Paramount duty to the

court

26

Regulation of the profession

Traditional - autonomy

Entry

Self-regulation• ‘Caesar Judging Caesar’• Suitability vs

competence

Fiduciary, other equitable obligations

Contemporary - responsive

Consumer care, quality•Negligence•Contract

Consumer complaints•Grafted to disciplinary controls

Consumer empowerment•disclosure

Competition

27From: Christine Parker, ‘Regulation of the Ethics of Australian Legal Practice: Autonomy and Responsiveness’ (2002) UNSWLJ 676

OTHER LEGAL INSTITUTIONS AND ACTORS

28

Commission of Inquiry(Royal Commission)

Wherever a commission of inquiry is issued by the Governor, by and with the advice of the Executive Council of this State, under the Governor’s hand and the public seal of the State, the provisions of this Act shall apply to and with respect to the inquiryCommissions of Inquiry Act 1950 (Qld)

29

Commissions of inquiry

Statute (parli) establishes authority

Different frame of

reference; rules of

evidence, than court

Commissioned by

executive

30

Commission of inquiry

31

Royal Commission into Institutional Responses to Child

Sexual Abuse

32

http://www.childabuseroyalcommission.gov.au/

Law Reform Commission: at request of A-G:

Research Consultation Legal policy

Align law with contemporary

needs

Access to justice

Remove defects in law

Simplify law

33

Who is the Attorney-General?

34

A

DC

B

F

E

H G

Attorney-General’s portfolio (cth)

A-G (executive)

Security, law enforcement

Criminal intelligence &

info

Legal services, courts,

tribunals

Regulation & reform

A-G’s Dept Solicitor-General

35

See portfolio agencies: http://www.ag.gov.au/About/Pages/Portfolioagencies.aspx

First law officer

Second law officer

Justice agencies (Qld)

Statutory agencies eg

Anti-Discriminatio

n Commission

DPP Crown Law

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Does the media play a role in governance? In legitimacy?

Fitzgerald Report (1989)Consider the role of the media in governance and legitimacy of governance. Why is media ownership regulated in Australia? Since the Fitzgerald Inquiry, new media have changed the landscape significantly. What does this mean for governance?

http://www.austlii.edu.au/au/journals/CommLawB/1989/15.pdf

38

Review: what role do they play?

Profession

Professional

regulation

Inquiry

Law Reform Cmsn

Attorney-General

Crown Law

DPP

Media

39

Slide Image

22 (image 4)

http://www.smh.com.au/nsw/margaret-cunneens-icac-challenge-tests-limits-of-powers-20141104-11gu29.html Photo: Wolter Peeters | Image indicative only

31 http://www.abc.net.au/news/2015-05-05/qld-premier-announces-commission-of-inquiry-into-lockyer-valley/6445526

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