At some stage in our lives, most of us will have a legal issue or problem. It may be as a result of buying or selling property, starting or ending a relationship, having an accident, organising a will or administering an estate. This may mean that you need to consult a lawyer for legal advice or assistance. Many people feel intimidated by the law, which often appears daunting and difficult to understand.
This publication is intended to provide a framework to help you understand the role of a lawyer, so that you can work together to resolve your legal problem and get the best outcome. It focuses on the relationship between you and your lawyer and includes practical information about how to work together, lawyers’ duties and ethics, costs and complaints. It also explains how you can find out about the area of the law you are dealing with.
The relationship between you and your lawyer is based on an agreement under which you both have certain obligations. Lawyers have a professional responsibility to use all the available information to further your cause.
One of the most important aspects of any successful working relationship is communication. Being prepared is one of the best ways of ensuring good communication.
One of the common areas of difficulty is the cost of legal services. In 1994, changes to the law were introduced in NSW under the Legal Profession Reform Act 1993, which mean that in most cases, lawyers have to give you an estimate of their costs before they begin work. The introduction of the Legal Profession Uniform Law (NSW) (LPUL), which commenced on 1 July 2015, continues this requirement except in circumstances where the total legal costs (excluding GST and disbursements) are not likely to exceed $750.
The Office of the Legal Services Commissioner was established as an independent body with the power to investigate complaints and attempt to resolve disputes in conjunction with lawyers’ professional associations.
The legal profession
The term ‘lawyer’ is a general one, which refers to certain people with legal qualifications, including solicitors and barristers. Some lawyers work in private practice. Others work in research or policy in places like tertiary institutions, political organisations, government departments, corporations or community organisations on an ‘in-house’ basis and do not deal with clients on their own behalf.
What qualifications do lawyers have?
In order to qualify as a lawyer, you need to have a Bachelor or Masters of Law degree from a university or to have completed the Legal Practitioners Admission Board examinations. In order to be eligible to practice as a solicitor or barrister, it is then necessary to complete a program of practical legal training.
It is common for students to combine a law degree with another qualification (eg, Bachelor of Arts or Commerce). There is also an increasing number of law and legal studies courses which are not intended to be for people who want to be legal practitioners, but for those who want to work in areas which require legal knowledge (eg, accountants, administrators or social workers).
In Australia, in order to become a solicitor, you must be ‘admitted’ to the Supreme Court of your state as a lawyer. Solicitors work as legal practitioners in a range of different organisations in private practice, government departments or the community sector.
Solicitors handle a range of legal matters including giving legal advice, drafting legal documents and preparing for court cases. Solicitors often appear as representatives of their clients in the courts, particularly the Local and District Courts and the Family Court.
Solicitors who work in private practice may work as sole practitioners, in partnership with other solicitors in large law firms, or in incorporated legal practices. Within a law practice, there are principals who usually share ownership of the practice, and employed solicitors. The bulk of work conducted by most solicitors in small firms involves wills and probate (estates), summary offences, conveyancing (property) and family law matters. In the larger firms, solicitors may specialise in particular areas of commercial law, such as copyright, professional negligence, corporations law or property development. Increasingly, solicitors are employed by corporations as in-house advisors. This means that their client is also their employer.
Many solicitors work in the public sector as legal or policy advisors with government departments (particularly the Department of Justice) and with statutory authorities. Others work in organisations such as Legal Aid NSW, which provides free legal advice and assistance to people in need.
Some solicitors work in the community sector in Community Legal Centres or Aboriginal Legal Services. These services provide free legal advice and assistance and in some instances will provide legal representation.
In order to become a barrister in NSW, you must be ‘admitted’ to the Supreme Court as a lawyer and have a practising certificate issued by the NSW Bar Association. Barristers specialise in representing people in court. They also give advice on the best way to present a case. They present evidence and ask questions of witnesses. In their court work, barristers are advocates for clients, in association with solicitors. They are retained by the solicitor, rather than by the client directly, although in some circumstances barristers can agree to direct access by the client without the intervention of a solicitor. Advocacy means arguing a case by presenting the facts in a particular way.
As a group, barristers are referred to as the ‘Bar’ or, individually, as ‘counsel’. When appearing in some of the higher courts, barristers are required to wear wigs and black gowns. Barristers are independent and work for themselves, usually alone in professional rooms called ‘chambers’.
Barristers are eligible to be appointed as Senior Counsel and to become judges (sometimes solicitors and academics are also appointed as judges).
Hot Tip – Senior counsel
The letters ‘QC’ and ‘SC’ after a barrister’s name indicate that the barrister has been appointed as a senior barrister. Until 1993, all such senior counsel were appointed as ‘Queen’s Counsel’, or ‘QC’ by the NSW Governor (on advice from the NSW Attorney General). Since then, the President of the NSW Bar Association has appointed barristers of suitable seniority and eminence as ‘Senior Counsel’ or ‘SC’. A barrister cannot simply use these letters after their name, they must have been formally appointed as QC or SC. Historically, the position was one of advisor to the monarch.
Senior Counsel are sometimes referred to as ‘silks’ because they are permitted to wear a black silk version of the usual barrister’s black gown. They are also permitted to wear a different wig, which is called a ‘full-bottomed’ wig, but tend to only do so at ceremonial occasions.