Regulation of the Queensland Legal Profession: The Quinquennium of Change

Article excerpt

I THE CHANGE AGENDA

Members of the legal profession are accustomed to change. They need to be. Whether it be the constant stream of statutory change, or the increasing number of cases decided by the courts (especially with its newfound electronic accessibility), there is little in legal practice that remains static. As a focus of this article is change, it heralds no new experience for the practising lawyer. But here the change relates to matters at the core of the lawyer's practice, because in 2007 Queensland saw the enactment of the Legal Profession Act 2007 ('the 2007 Act') and the commencement of the Legal Profession (Solicitors) Rule 2007 ('the 2007 Rule'). Various aspects of these documents were not new; indeed, in some respects the 2007 Act essentially replicated what had been law under a 2004 Act of the same name. Yet it also addressed important topics previously located in other legislation, which it had proven premature to include in its 2004 counterpart. The 2007 Rule represents a more marked shift, if perhaps more in form that in ultimate substance.

Together, in any case, these enactments represent what is arguably the most significant single regulatory impact on the Queensland legal profession, certainly in recent times. It is therefore apt to give some consideration each of them. In so doing, this article does not go through the Act and the Rule in meticulous detail. Instead, it makes various general observations regarding the role and effect of both the Act and the Rule, on occasion illustrated by the specific.

II LEGAL PROFESSION ACT 2007--WHAT'S THE DEAL?

Five general observations regarding the Legal Profession Act 2007 may assist in placing the Act in a context, both from an historical and a policy perspective.

A The National Model--Uniformity is Good!

Attempts to creating a 'national legal profession' are not new. Yet it was not until relatively recent times that concrete endeavours to this end came to any real fruition. Although the Law Council of Australia had recognised the value of such an initiative back in 1994, the real impetus for the 2007 Act (and its 2004 predecessor, as well as recent Acts in most other Australian jurisdictions) was the resolution by the Standing Committee of Attorneys-General (SCAG) in 2001 to develop model laws. This prompted a lengthy consultation process, which in April 2004 resulted in the release by SCAG of Model Laws. In late July 2005 followed Model Regulations.

In July 2006 SCAG released a second, revised and re-arranged, edition of the Model Laws (with altered section numbering), the general structure of which (but not the section numbering) forms the basis of the 2007 Act.

The intention was for the Model Laws to form the foundation for 'uniform' legislation regulating the legal profession in each Australian state and territory. Recognising the likely insurmountable challenges to each jurisdiction passing identical legislation, the Model Laws did not strive for identity between jurisdictions, but envisaged scope for diversity, and in some contexts considerable diversity. The Laws sought to do so by promulgating three types of provisions: 'core uniform' (CU) provisions, which require textual uniformity; 'core non-uniform' (CNU) provisions, which do not require textual uniformity; and 'non-core' (NC) provisions. The SCAG focus was to achieve uniformity in specific areas, which were thus punctuated with CU and CNU provisions. To a substantial, though not complete, degree, this initiative met with legislative success, generating considerable uniformity across Australia in the following areas:

* standards for admission to practice;

* a national practising certificate scheme;

* rules for trust accounts and fidelity funds;

* definitions of misconduct;

* the regulation of incorporated legal practices and multi-disciplinary partnerships;

* requirements for the disclosure of information on costs to clients; and

* the system governing the entitlements of foreign lawyers to practice the law of their home country within Australia. …