A Practical Comparative Analysis of the Queensland and Singaporean Legal Profession
When New South Wales was established as a colonial subject of the British Empire in 1788, it inherited not only the English common law, but also the divided structure of their legal profession.[1] Likewise, Queensland maintained this regime after splitting from New South Wales as a separate colony.[2] To this day, despite a departmental discussion paper calling for reform,[3] a Green paper proposing fusion of the profession,[4] and a policy review raising concerns about competition within a divided profession,[5] Queensland maintains a legal profession which is divided both in form and in function.[6] Nevertheless, arguments for or against the current Queensland model are immaterial if fusion would have no practical effect on practitioners, consumers, or the administration of justice. Accordingly, this paper will seek to compare and contrast the Queensland legal profession juxtaposed against the Singaporean legal profession and critically analyse any practical implications for key stakeholders.
What is a Split or Fused Legal Profession?
Extensive debate surrounds what precisely constitutes a fused or divided legal profession and how this can be objectively determined.[7] A useful mechanism for labelling the structure of a legal profession is an indicia based approach;[8] if practitioners are commonly admitted and regulated by the same authoritative body and professional rules, it is likely the profession is fused.[9] Whereas, if practitioners are admitted separately and are governed by different regulatory bodies and professional rules, it is likely the profession is divided.[10] Importantly, it must be noted that the mere existence of common admission to the profession does not, of itself, conclusively determine that a profession is fused.[11] In the case of Queensland, for example, practitioners are commonly admitted but regulated by separate bodies and professional rules. Where this ‘mix’ occurs, it will depend on the specific circumstances within the jurisdiction to determine whether the profession is fused or divided.[12]
The Legal Profession in Queensland
Practitioners within the Queensland legal profession are divided into two distinct branches:
· Lawyers granted a practising certificate entitling them to practise as barristers; and
· Lawyers granted a practising certificate entitling them to practise as solicitors.[13]
Both branches are admitted as Australian Lawyers[14] by the Supreme Court of Queensland into a common roll.[15] To practise as either a Barrister or Solicitor, Australian Legal Practitioners[16] must obtain a valid practicing certificate.[17] This serves to maintain the divide between Barristers and Solicitors, as each branch is governed by distinct professional rules and regulatory bodies.[18] The Queensland Law Society issues practising certificates for solicitors[19] and administers the Australian Solicitors Conduct Rules,[20]while the Queensland Bar Association issues practising certificates for barristers and administers the Barristers Conduct Rules.[21] These factors, along with the statutory rule that Australian Lawyers may not hold a Solicitors and Barristers practising certificate concurrently,[22] establish a de jure divide in the Queensland legal profession.[23]
The Legal Profession in Singapore
Unlike Queensland, Singapore’s legal profession is fused both in form and function.[24] All Singaporean lawyers called to the bar are permitted to practice as ‘advocates and solicitors’ and possess full rights of audience before courts in Singapore.[25] Admitted practitioners in Singapore are regulated by the Law Society of Singapore[26] and governed by the Legal Profession Conduct Rules 2015.[27] Despite the clear evidence of fusion within the Singaporean legal profession, a de facto divide exists between specialist advocates and other practitioners.[28]
What are the implications of Fusion or Division for:
Practitioners?
Opponents of Queensland’s divided profession argue that the restrictive rules governing barristers’ conduct along with high barriers to entry harm practitioners and restrict competition.[29] Principally, barristers act as advocates in courts, mediation, or arbitration.[30] But, Queensland solicitors have unrestricted rights of audience,[31] meaning in practice, they can operate in the same manner as a barrister. Unlike solicitors, barristers must adhere to the cab rank rule,[32] restrictions forcing them to operate as sole traders,[33] requirements not to hold trust funds,[34] and restrictions limiting the scope of their practice.[35] Moreover, to be granted a barristers’ practising certificate barristers must sit additional exams and complete a one-year readership program.[36] Consequently, there are higher barriers to entry for barristers which entrench them in an ‘economic moat’.[37] Accordingly, some have asserted that a divided legal profession drives solicitors out of the advocacy market by restricting competition. [38] Underlying this assertion is the notion that consumers within a free market would not rationally pay a higher reward to more experienced or skilled advocates, regardless of their title. [39] Based on this model, a Queensland solicitor, or Singaporean legal practitioner who specialises in advocacy would command the same fee as a barrister, without the corresponding restrictions. Thus, if rational choice theory is to be accepted, Singaporean legal practitioners and solicitors would possess a competitive advantage over barristers. Why then do Queensland advocates still flock to the Bar and is this a positive thing for the profession? A likely answer to is the positive reputation of the bar and their track record of resolving matters quickly, efficiently, and effectively. [40] This allows barristers to command higher fees for their specialist advocacy services than solicitors.[41] However, it is still feasible that a solicitor with an equally grand reputation could command similar fees as barristers if free-market economics is to be adopted. Nevertheless, the reputation and continued use of the bar, in practice, economically marginalises equally skilled solicitor advocates.[42] In Singapore, however, there are no de jure hurdles for advocates, arguably encouraging competition and benefiting the profession as a whole.
Some argue the divided system in Queensland provides for a convenient division of labour between barristers and solicitors. A qualitative study of solicitors found that solicitors had no desire to engage in advocacy and their typical duties.[43] An explanation for this is the infinitely complex nature of the law, which makes it impossible for an individual to master all fields of practice.[44] Moreover, in MK v Victoria Legal Aid,[45] the case was adjourned on the basis that counsel would not be able to provide their client adequate representation without the support of a solicitor. Accordingly, there can be no dispute that specialist advocates are desired and required, but, in Singapore, they have organically developed without any de jure division in the profession.[46]
Administration of Justice?
Responding to the Queensland Governments Green Paper,[47] justices of the Supreme Court of Queensland strongly argued for maintaining a divided legal profession.[48] They reasoned that barristers had served the courts well, proposing that any incursion into the independence of the bar would force courts to take a more active role in hearings than necessary.[49] This, according to the justices, would cause delays, extra costs and require additional appointments to handle the workload.[50] However, this assertion relies on the assumption that fused jurisdictions like Singapore do not have practitioners who specialise in advocacy. The reality is that Singapore retains an even smaller group of specialist advocates than Queensland,[51] who have proven their steel on an international scale.[52] Accordingly, any assertion that removing the role of barrister would diminish the quality of counsel should be approached with scepticism.
A more convincing argument against a fused profession relies on conflicting duties of legal practitioners between the source of their income and the courts. In both Singapore and Queensland, legal practitioners are subject to a paramount duty to the court and the administration of justice.[53] In practice, however, solicitors and Singaporean legal practitioners are subject to pressures from their employers or clients, which may cause a conflict of interest. [54] As clients and employers are these practitioners’ income sources, their ethical duties to the court may be abrogated to support financial self-interests, which would cause undue delay, costs, and injustices within the court.[55] For Barristers, however, who are forced to advocate under the sole practice rule,[56] these conflicting interests are less pronounced.[57] Their independent judgement and expertise ensures barristers are more than a ‘tinkling echo’ of instructing solicitors and will place the interests of the courts first.[58] However, as solicitors provide briefs to barristers, barristers may still be pressured by to resolve cases contrary to ethical requirements, but as a whole, the sole practitioner rule likely reduces this risk.
Consumers?
One of the more widely supported arguments against the divided legal profession is that it increases costs for consumers. Because barristers and solicitors must both exercise their independent judgment over a case, this necessarily creates a duplication of labour, causing a rise in the cost of litigation.[59] The Queensland Bar Association argues that rather than a duplication of labour, there is a convenient division of labour, which allows for conflict-free outside scrutiny of a client’s case.[60] In effect, they argue barristers serve as quality control for the solicitor’s work, ensuring that clients are delivered the highest quality legal services. The purported cost is that litigation is more expensive, which creates access to justice issues for low socioeconomic groups.[61] While both sides present logical arguments, they both rely on the presumption that a practitioner within a fused profession, like Singapore, would not seek counsel for a litigation matter, which, as discussed, is not likely.[62] Thus, divided profession or not, a division of labour will most likely always be present,[63] meaning there would be no substantive advantage or disadvantage for clients concerning costs. Some also argue that the title barrister clearly identifies skilled advocates to clients, however, in practice, solicitors brief most barristers, and consumers are not aware of the distinction.[64]
The most pertinent argument against a fused profession is its creation of access to justice issues for consumers. The cab rank rule requires barristers to accept all briefs in an area of law in which they practice,[65] except for limited circumstances where there is a conflict.[66] The effect of the cab rank rule is that all consumers, even rapists and murderers, have their day in court represented by a competent advocate, benefitting them and the administration of justice. As advocates are not bound by the cab rank rule in Singapore, Singaporean consumers may not be able to find adequate representation which causes delays, extra costs, and power imbalances.[67] A fused legal profession also presents challenges for consumers who seek remedies against large institutions, especially in smaller jurisdictions like Singapore.[68] Pre-2012, due to the relatively small number of specialist advocates in Singapore, a shrewd large financial institution could conflict out the best advocates in the country[69] by engaging all major Singaporean law firms for minor transactional work.[70] Moreover, senior advocates often refused to take on cases against large institutions due to fear of reprimand from their employer.[71] A survey of High Court cases in Singapore found that in 80% of cases against these institutions they were represented by Senior Counsel and large firms, while the other party was represented by firms with 20 lawyers or less.[72] Chan J called for urgent action from the legislature, asserting that imbalances in the quality of representation would curtail foreign investment in Singapore.[73] On this basis, the Singapore Ministry of Law proposed granting further rights to appear to Senior Counsel and Queen’s Counsel from international jurisdictions,[74] which became law in 2012.[75] While this did resolve the access to justice issue, it substantially raised the costs of litigation for consumers in Singapore.[76] A more practical solution would have been for Singapore to divide the profession and implement the sole practitioner rule for advocates.[77]
The debate for and against fusion, while remaining untouched in Queensland for 16 years provides useful insights into the ideal structure of the legal profession for key stakeholders. Although many of the arguments supporting or opposing fusion erroneously neglect to imagine specialisation in a fused profession, the restrictions and obligations imposed on barristers, especially the cab rank rule and the sole practitioner rule, create net benefits for consumers and the administration of justice. While division may be prohibitive for prospective advocates who seek to enter the market, the notion of rational choice theory suggests that a solicitor who is skilled in advocacy would generate equivalent income to a barrister. Accordingly, the legislatures decision not to fuse the Queensland legal profession was likely correct and the divided profession should be maintained.
Bibliography
A. Articles/Books/Reports
Collins, Elizabeth et al, Why Moats Matter: The Morningstar Approach to Stock Investing (Wiley, 1st ed, 2014)
Disney, Julian et al, Lawyers, (The Law Book Company, 2nd ed, 1986)
Hanlon, Jackson G., ‘Last orders at the bar? Competition, choice and justice for all - the impact of solicitor-advocacy’ (1999) 19(4) Oxford Journal of Legal Studies 555
Kerridge, Rodger, and Gwynn Davis, ‘Reform of the Legal Profession: An Alternative ‘Way Ahead’’, (1999) 62(6) Modern Law Review 807
Lau K. Ho, ‘Creating Access to Quality Legal Representation – The Queen’s Counsel (Re)Appears in Singapore’ (2012) 42 Hong Kong Law Journal 481
Maute, Judtih L., ‘Alice's Adventures in Wonderland: Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.)’ (2003) 71(4) Fordham Law Review 1357
Mindes, Marvin W., ‘Proliferation, specialization and certification: the splitting of the bar (symposium on insights into the legal profession in the 1980’s) (1980) 11(2) The University of Toledo Law Review 273
Upperton-Evans, Nichola, ‘Cost of Litigation’, 26(7) Credit Control 12
White, Michael, ‘The Development of the Divided Legal Profession in Queensland’ (2004) 23 University of Queensland Law Journal 296
Xu, Daryl, ‘Abandoning the Fetishisation of the Courtroom Advocate’ (2019) 25 Singapore Academy of Law Practitioner 1
B. Cases
Bolkiah v KPMG [1999] 2 AC 222
Giannarelli v Wraith (1988) 165 CLR 543
MK v Victoria Legal Aid (2013) 40 VR 378
C. Legislation
Legal Profession (Amendment) Act 2012 (Singapore)
Legal Profession Act (Singapore, cap 161, 2009 rev ed)
Legal Profession Act 2007 (QLD)
Supreme Court of Queensland Act 1991 (QLD)
D. Other
Queensland Department of Justice and Attorney-General, Legal Profession Reform (Discussion Paper, December 1998)
Queensland Department of Justice and Attorney-General, Legal Profession Reform (Green Paper, June 1999)
Queensland Department of Justice and Attorney-General, National Competition Policy Review: Regulation of Legal Profession, (Issues Paper, November 2001)
Law Council of Australia, 2010: Challenges for the Legal Profession (Discussion Paper, September 2001)
Green, Cathy, ‘Legal Profession Reform in Queensland: changing the divide between barristers and solicitors?’ (Research Brief No 2002/16, Parliamentary Library, Parliament of Queensland, May 2002)
New South Wales Law Reform Commission, First Report on the Legal Profession: General Regulation and Structure, (Report No 31, 1982)
Bar Association of Queensland, Barristers’ Conduct Rules (at 23 February 2018)
Bar Association of Queensland, Administration Rules of the Bar Association of Queensland Made Pursuant to Section 231 of the Legal Profession Act 2007 (at 19 June 2010)
Judges of the Supreme Court of Queensland, Response of the Judges of the Supreme Court of Queensland to the Queensland Government Green Paper on Legal Profession Reform, (Position Paper, August 1999)
Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012)
Professional Conduct Council, Legal Profession (Professional Conduct) Rules 2015 (at 18 November 2015)
Bar Association of Queensland, Submission in Response to the Queensland Department of Justice and Attorney-General on its Discussion Paper on Legal Profession Reform, (August 1999)
Singapore, Parliamentary Debates, 14 February 2012, vol 88, col 26, 27 (Michael Hwang SC)
Chan Sek Keong, ‘Response of Chief Justice Chan Sek Keong’ (Speech, Opening of the Legal Year 2011, Singapore, 7 Jan 2011)
Singapore Ministry of Law, Proposed Licensing Scheme for Independent Counsel, (Consultation Paper, May 2011)
[1] Michael White, ‘The Development of the Divided Legal Profession in Queensland’ (2004) 23 University of Queensland Law Journal 296, 301-3.
[2] Ibid. 304-305.
[3] Queensland Department of Justice and Attorney-General, Legal Profession Reform (Discussion Paper, December 1998) 2.
[4] Queensland Department of Justice and Attorney-General, Legal Profession Reform (Green Paper, June 1999) 14-15.
[5] Queensland Department of Justice and Attorney-General, National Competition Policy Review: Regulation of Legal Profession, (Issues Paper, November 2001).
[6] Julian Disney et al, Lawyers, (The Law Book Company, 2nd ed, 1986) 93.
[7] Law Council of Australia, 2010: Challenges for the Legal Profession (Discussion Paper, September 2001) 8.
[8] Cathy Green, ‘Legal Profession Reform in Queensland: changing the divide between barristers and solicitors?’ (Research Brief No 2002/16, Parliamentary Library, Parliament of Queensland, May 2002) 22; Disney (n 6) 93.
[9] Judith L. Maute, ‘Alice's Adventures in Wonderland: Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.)’ (2003) 71(4) Fordham Law Review 1357, 1359, 1365-8; Disney (n 6) 93; Green (n 8) 2-3; New South Wales Law Reform Commission, First Report on the Legal Profession: General Regulation and Structure, (Report No 31, 1982), 59-73.
[10] Green (n 8) 2-3.
[11] Law Council of Australia, 2010: Challenges for the Legal Profession (Discussion Paper, September 2001).
[12] Green (n 8) 2.
[13] Green (n 8) 1.
[14] Legal Profession Act 2007 (QLD) s 5(1) (‘LPA’).
[15] LPA ss 13(1), 34(1), 37.
[16] LPA s 6(1).
[17] LPA ss 21(1)(a),34-8 620, 658, sch 2 (definition of ‘Solicitor’), (definition of ‘Barrister’).
[18] LPA ss 219(1), 220(1).
[19] LPA s 49(1).
[20] LPA s 419(1).
[21] LPA s 420(1).
[22] LPA s 45(3).
[23] Green (n 8) 2; Disney (n 6) 92-3; Marvin W. Mindes, ‘Proliferation, specialization and certification: the splitting of the bar (symposium on insights into the legal profession in the 1980’s) (1980) 11(2) The University of Toledo Law Review 273, 278-280.
[24] Mindes (n 23) 278-280.
[25] Legal Profession Act (Singapore, cap 161, 2009 rev ed) s 29(1).
[26] Ibid s 38.
[27] Ibid ss 58, 59.
[28] Daryl Xu, ‘Abandoning the Fetishisation of the Courtroom Advocate’ (2019) 25 Singapore Academy of Law Practitioner 1; Mindes (n 23) 278-280; Lau K. Ho, ‘Creating Access to Quality Legal Representation – The Queen’s Counsel (Re)Appears in Singapore’ (2012) 42 Hong Kong Law Journal 481, 485-6.
[29] Green (n 8) 7.
[30] Ibid 4-5; Bar Association of Queensland, Barristers’ Conduct Rules (at 23 February 2018) r 15 (‘BCR’).
[31] Supreme Court of Queensland Act 1991 (QLD) (definition of ‘Lawyer’), s 90(1)(a).
[32] BCR rr 21-4.
[33] BCR r 16.
[34] BCR r 17(h).
[35] BCR r 17.
[36] Bar Association of Queensland, Administration Rules of the Bar Association of Queensland Made Pursuant to Section 231 of the Legal Profession Act 2007 (at 19 June 2010).
[37] Elizabeth Collins et al, Why Moats Matter: The Morningstar Approach to Stock Investing (Wiley, 1st ed, 2014).
[38] Queensland Department of Justice and Attorney-General, Legal Profession Reform (Discussion Paper, December 1998) 2- 3.
[39] Ibid.
[40] Jackson G Hanlon, ‘Last orders at the bar? Competition, choice and justice for all - the impact of solicitor-advocacy’ (1999) 19(4) Oxford Journal of Legal Studies 555, 564-8; Green (n 8) 5.
[41] Hanlon (n 40) 564-8; Green (n 8) 5.
[42] Disney (n 6) 107.
[43] Roger Kerridge and Gwynn Davis, ‘Reform of the Legal Profession: An Alternative ‘Way Ahead’’, (1999) 62(6) Modern Law Review 807, 811-3.
[44] Disney (n 6) 100.
[45] (2013) 40 VR 378.
[46] Xu (n 28); Ho (n 28) 485-6.
[47] Queensland Department of Justice and Attorney-General, Legal Profession Reform (Green Paper, June 1999) 14-15.
[48] Green (8) 13.
[49] Judges of the Supreme Court of Queensland, Response of the Judges of the Supreme Court of Queensland to the Queensland Government Green Paper on Legal Profession Reform, (Position Paper, August 1999) 3- 4.
[50] Ibid.
[51] Xu (n 28); Ho (n 28) 485-6.
[52] Xu (n 28); Ho (n 28) 485-6.
[53] Queensland Law Society, Australian Solicitors Conduct Rules (at 1 June 2012) r 3; BCR r 25; Professional Conduct Council, Legal Profession (Professional Conduct) Rules 2015 (at 18 November 2015) r 4(a).
[54] Bar Association of Queensland, Submission in Response to the Queensland Department of Justice and Attorney-General on its Discussion Paper on Legal Profession Reform, (August 1999) 26.
[55] Ibid; Hanlon (n 40) 572; Maute (n 9) 1365-8.
[56] BCR r 16.
[57] Bar Association of Queensland, Submission in Response to the Queensland Department of Justice and Attorney-General on its Discussion Paper on Legal Profession Reform, (August 1999) 26.
[58] Giannarelli v Wraith (1988) 165 CLR 543, 556.
[59] Disney (n 6) 110-111.
[60] Bar Association of Queensland, Submission in Response to the Queensland Department of Justice and Attorney-General on its Discussion Paper on Legal Profession Reform, (August 1999) 26.
[61] Nichola Upperton-Evans, ‘Cost of Litigation’, 26(7) Credit Control 12, 12-3.
[62] Disney (n 6) 100; Xu (N 28); Ho (n 28) 485-6.
[63] Mindes (n 23) 278-280.
[64] Queensland Department of Justice and Attorney-General, National Competition Policy Review: Regulation of Legal Profession, (Issues Paper, November 2001).
[65] BCR r 21(a).
[66] BCR rr 21(b), 95, 97.
[67] Green (n 8) 4-7.
[68] Ho (n 29).
[69] Professional Conduct Council, Legal Profession (Professional Conduct) Rules 2015 (at 18 November 2015) r 30(1); Bolkiah v KPMG [1999] 2 AC 222, 234.
[70] Ho (n 28) 481-5.
[71] Singapore, Parliamentary Debates, 14 February 2012, vol 88, col 26, 27 (Michael Hwang SC).
[72] Ho (n 28) 487-9.
[73] Chan Sek Keong, ‘Response of Chief Justice Chan Sek Keong’ (Speech, Opening of the Legal Year 2011, Singapore, 7 Jan 2011).
[74] Singapore Ministry of Law, Proposed Licensing Scheme for Independent Counsel, (Consultation Paper, May 2011).
[75] Legal Profession (Amendment) Act 2012 (Singapore).
[76] Ho (n 28) 523.
[77] Ho (n 28) 490.