Mobility of the Legal Profession
Qualification and Practice in Multiple Jurisdictions
The Mobility of the legal profession?
The legal profession is, by definition, fairly conservative. So:-
What do we mean by "mobility of the legal profession"?
Whilst the main part of this topic is seen as relating to jurisdictional transfers of ability to practice and the ability to practice in more than one jurisdiction, there are a number of other types of "mobility" which I should not ignore but mention briefly, as relevant, possibly even more relevant to day to day practitioner operations.
They include: –
1. transfer from the "private profession" to the "public sector";
2. transfer from the "advocacy" to "solicitor" branch of the profession;
3. transfer from "firm" practice to in-house corporate practice;
4. transfer from "employee" to "principal" status; and
5. transfer from practitioner to (and sometimes from) "judicial" status;
6. transition from one level in the professional hierarchy to another.
Obviously these six examples do not attract as much attention as jurisdictional transfers or multiple jurisdiction practice but they raise not insignificant issues, some of which also resonate in consideration of issues relating to jurisdictional transfers and multiple jurisdiction practice.
In the ancient history of the last millennium, when I started practice in New South Wales, a graduate lawyer in New South Wales intending to become a Solicitor would do Articles of Clerkship or the practical training course at the College of Law (or equivalent). Thereafter, a graduate would commonly work with private firms or the public service. If you might have gone to the Bar, though usually only after a period of Solicitor practice in which they built up connections from which they hoped to be briefed.
At that time, working "in house" as a "corporate lawyer" was not that common for junior lawyers.
In those dim dark ages, an initially admitted NSW solicitor would have a "conditional" practising certificate which would need to be upgraded to a "full" practising certificate as if and when that person became a principal of law firm or the principal of corporate or government employer (in which case having a "full" Practising Certificate was, effectively, necessary to allow one to be the solicitor on record in any court proceedings, except to the extent that State all relevant Federal legislation relating to their employment exempted them from the requirement to hold a practising certificate).
There is, also mobility in the context of moving from a private profession to the public sector and vice versa though that is not the primary subject in my preparation of this paper. I, myself, have done that a couple of times. However it is an issue in New South Wales where there is an unfortunate perception amongst some that public sector lawyers are somehow inferior to private sector lawyers. Having been both a private sector lawyer and a public sector lawyer, I can only say that the perception is too stereotypical.
Unfortunately, it is one which the Australian National Profession Legal Reform proposals of 2010 in place at the time of writing the 2011 version of this paper might be seen as reinforcing, if the proposals are implemented in their then current form. However, those proposals were the subject of further review and whilst now the "national" profession only applies to 2 states (NSW and Victoria), the worst aspects of the definitions concerning public sector lawyers have been somewhat ameliorated.
Anecdotally and in my perception, that inadvertently led to some "class" distinction between Public Sector lawyers, in-house counsel and their private practice equivalents.
Historically, at least in the jurisdictions with which I have had most experience, the above six categories of legal practice mobility might be seen as vertical and to a lesser extent horizontal as well as geographically peripatetic
However, with greater ease of air travel and the development of current technology methods, some of which almost make the actual location of a practising lawyer all but irrelevant, it is inter-jurisdictional legal profession mobility and/or multiple jurisdiction practice that attracts most attention. Notwithstanding that I am a great user of electric and technological toys to assist in practice, I do not see technological advances and tools is really dealing with the issue inherent in the concept of mobility of the legal profession.
Plus ca change plus sa meme chose ??
Whilst we in the legal profession within the Commonwealth of Nations in 2015 celebrating the 800th anniversary of Magna Carta, by our sharing of a "common law tradition", might be said to have a slightly different and more flexible perspective on the point, most legal systems, in my opinion, have relevant local origins to which there is a very strong nexus which should not be too lightly ignored in facilitating multi-jurisdictional practice.
Even within particular Commonwealth countries it is common for the Legal Profession to be locally based. Obvious examples include the provinces of Canada and the States of India, Australia, and Nigeria, representatives of three of which are on the panel today.
There is, in my view, an unavoidable nexus between the practising lawyer and the place in which legal services provided are to be effective and effected.
Legal services are, in my understanding, more an art than a science. Legal Services do not operate in isolation but in context of the cultural milieu of the situation at hand.
This cultural nexus makes it difficult, if not impossible, for the very high degree of legal profession mobility propounded by some "Free Trade" advocates to be too freely permitted, especially if proper regard to the societal and cultural needs of the society to be served by the legal practitioner is to be a relevant criterion.
The United Kingdom, of course, has somewhat different legal systems for Scotland and England and has only in recent years even devolved Parliamentary responsibility, within certain bands, to Scotland and Wales. I am sure all present today from outside the United Kingdom watched with interest last year's referendum on the mooted secession of Scotland from the United Kingdom..
As a resident of a Federation, and I acknowledge that I have Scottish ancestors, I have to say I was intrigued by the debate leading to the Scottish secession referendum and I note the result of that appears to be leading to further devolution of powers to Scotland, the details of which will become known in time.
In discussing mobility of the legal profession, we should consider whether and to what extent the local/regional nature of legal practice, and particularly some types of legal practice has been a cause or an effect of the relative perception of lack of mobility of the Legal Profession.
In schedule B to this paper, I set out links to a number of articles which deal with a range of issues relevant to the mobility or immobility of lawyers, though they are not the issues I address in the paper.
No doubt increases and simplification of travel, international trade, communication and computer research over the last 30 years have contributed to the increased drive for mobility of the profession, but they are not the answer.
However, does that increased ability to deliver services to and from particular places almost instantaneously really support, of itself, increased or improved ability to serving the needs of society as well as it should?
In considering this topic, I bring to it my many years of considering applications for waiver of Academic and/or Practical Experience requirements and Practising Certificate applications in New South Wales. This experience necessarily influenced my thinking on this increasingly important topic. I also bring to this topic my experience of working with lawyers from a number of countries on Australian projects and or issues in their countries.
Many of my comments and queries reflect practical concerns and issues to do with mobility as well as whether the needs of legal services consumers are properly considered.
I have to wonder whether the idea of having a mobile Legal Profession itself involves some change in the nature of what practising the law is about, such that it would become something more akin to a trade than what has historically been considered a “profession”?
From time to time, I see references to "legal services" being propounded as something the mobility of which should be facilitated under Free Trade agreements and the like.
I hope I'm not being a legal dinosaur by expressing the view but I have real doubts whether too free a liberalisation of legal services is not only inconsistent with the nature of the practice of the law being a "profession" but also something of "dumbing down" of lawyers and what professional legal practice is, whether driven by commoditisation of "legal services" or otherwise and whether that will properly serve the legal services needs of legal services consumers across the many jurisdictions in which we practice..
If we adopt the view that the phrase or words "legal profession" is something more than "a job", does too free a "mobility of the legal profession" involve the possibility of great problems for the average legal services consumer? I believe that to be a real potential risk.
To believe otherwise seems in my view to smack of the idea that admission to practice is some inalienable right, rather than a privilege conferred by a society, through its admission authorities. It also, in my opinion, fails to recognise that the proper provision of legal services is very much dependent upon the particular practitioner being adequately familiar with the social melieu in which the relevant legal services are to be provided
I offer the following brief examination of the more recent changes to the concept of mobility of the profession in an Australian context as well as some comments, observations and suggestions of mine, which have been formed in the many years I have been involved in the administration of admission requirements in New South Wales.
Trite though it may sound, jurisdictions rightly and necessarily must have academic and practical experience requirements tailored to their own situation and needs.
No two jurisdictions are, in my view exactly alike.
Accordingly, I find it hard to see how the idea of a fully mobile [if not itinerant] legal professional can be supported so as best to serve the needs of the societies in which legal practitioners operate by the totally mobile legal professional envisaged by some.
Lawyers and Forms
One aspect of the sundry applications for admission that I see and find both amusing and concerning is that to do with the frequency with which applicants fail properly to complete an application or “copy” verbatim the application of another.
The New South Wales Legal Profession Admission Board application forms (links to the current versions of which appear in schedule A to this paper) request applicants to address the relevant criteria by providing evidence, in documentary form, clearly demonstrating compliance with the various admission requirements.
When I started practice, if you failed to complete forms correctly, particularly Court forms, they were summarily rejected at the Court registry (or worse, if the relevant form actually found its way before a judge).
I do not understand why applicants seeking to be admitted as lawyers should not be treated the same way.
Do not intending applicants, who are sloppy in completing the forms, not demonstrate an inadequate attitude with the privilege of “profession” aspect having reduced in importance?
We had one example, a husband and wife, whose applications were word for word the same, other than their names. When queried, the response was to the effect that the error was that of the ‘secretary’, not the two lawyers seeking admission in Australia. More recently I have observed applications from one or more people within the same large firm which are similarly "common", perhaps an example of "if the template works use it".
The Slow March to Mobility
Canada and Australia have shared what I see as a slow and cautious approach to the implementation of mobility across province and state borders.
Canada, of course, has Quebec province where the local law is French based civil law rather than common law based.
But now, by virtue of three agreements; --
the National Mobility Agreement;
the Territorial Mobility Agreement; and the Quebec Mobility Agreement
Canadian lawyers of one province can generally practice in another with relative ease.
That Quebec was a civil law jurisdiction warranted different thinking in respect of the implementation of mobility than was applicable in the "common law" provinces of Canada.
Whilst I obviously leave detailed exposition of the Canadian legal practitioner mobility issues to Canadian lawyers, such as Tom Conway, as I understand the Canadian arrangements, practitioners can have temporary or permanent mobility under the three agreements but they have to liaise with the relevant Law Society of the province or territory in question. In respect of temporary mobility, lawyers can practice in a jurisdiction which is a party to the National Mobility agreement where that jurisdiction has implemented the agreement, provided the lawyer has prescribed insurances and there are no relevant
criminal or disciplinary proceedings or the like in place in respect of the relevant lawyer. Under temporary arrangements they can practice up to a hundred days but if they establish what is referred to as an "economic nexus" within a jurisdiction the lawyer in question must apply to transfer to the jurisdiction on a permanent basis.
The permanent mobility arrangements allow lawyers to practice in participating jurisdictions that have implemented the National Mobility Agreement provided they are of good character they may transfer without transfer examinations but must certify they have reviewed and understood specified in prescribed reading materials for the jurisdiction to which they wish to transfer.
Whilst I obviously leave detailed exposition of the Canadian legal practitioner mobility issues to Canadian lawyers, such as Tom Conway, as I understand the Canadian arrangements,
Brief History of Australian Situation
The Commonwealth of Australia is a federation comprised of six states and two territories1. The six States all have their origin as colonies of the United Kingdom. Each State existed and had its own court system prior to the inauguration of the Commonwealth of Australia in 1901.
The Commonwealth of Australia Act left the States and State Court systems in place, provided for the setting up of the High Court of Australia, vested various matters including bankruptcy jurisdiction in the Commonwealth of Australia [which led to the Federal Bankruptcy Court which became part of the Federal Court of Australia when that Court was created in the late 20th century].
When the two internal territories, the Northern Territory and the Australian Capital Territory, were set up they were given the Court system which was part of the Australian Federal structure.
Conceptually, admission to a State Supreme Court did not automatically entitle a lawyer to appear or practice in another State Court or Federal Court without further application.
A lawyer admitted in a State Court really only needed to file applications to be entitled to appear in a High and/or Federal Court but interstate practice within the Federation of the Commonwealth of Australia raised more significant issues because they involved also having to be admitted to the State Courts of the country, as well as the States having different insurance and other requirements for legal practice.
There was a time when at least one State had provisions under which its legal practitioners were protected from competition by interstate practitioners by requiring residence within the State as a condition of admission. That position was eliminated in 19892 when the High Court of Australia found such provisions inconsistent with a provision of the Australian Constitution.
As such, those in an Australian context have historically had a state-based admission. An ability to practice elsewhere within Australia could be problematic.
1 There are also a couple of external territories, one example being Norfolk Island (NI) which has had an unusual history and one in which its law is, in part, based on English common law dating from about 1828 as an adjunct of the British colonisation of Australia. The NI law is the English law of 1828, as amended by its own legislation and those Acts of the Australian Parliament which are specifically expressed to extend to Norfolk Island, and the common law. Query whether it is the common law of England as at 1828 or the common law, as it has developed over the years.
2 Street v Queensland Bar Association  HCA 53; (1989) 168 CLR 461.
Reflective of these arrangements, the development of National Law firms was slow but it did occur. National Law firms necessarily had to have their administrative arrangements in each State comply with the local law.
Reciprocity of admission arrangements was effectively introduced in Australian Commonwealth legislation, such as the Mutual Recognition Act 1992 (Cth) which was adopted by the States and Territories. This was supplemented by Australia/New Zealand mutual recognition effected by the Trans-Tasman Mutual Recognition Act 1997 (Cth).
In most States and Territories of Australia, New Zealand practitioners are not considered foreign lawyers [except when they talk about Rugby or Cricket], but they must register under the Trans-Tasman Mutual Recognition Scheme.
For a number of legal commercial and insurance-based reasons, members of the Australian legal profession have for 20 or more years been seeking to create an Australia wide legal profession.
In early 2010, the Council of Australian governments (COAG) published, for consideration and feedback, proposals including draft legislation related to a national legal profession for Australia. They included provision for a type of conditional admission of “foreign“ lawyers in Australia practising “foreign” law.
Many, many submissions were received by Government by the time for closing of submissions in August 2010, just prior to a Federal election. Progress was very slow. There were many submissions as to revision. In the end, the Australian "National Profession" which is presently scheduled to start at the end of this year only includes Victoria and New South Wales.
At the time of writing this paper, the New South Wales requirements for legal profession and admission flow from the new National Profession legislation, Legal Profession Act of New South Wales, the Legal Profession Regulations of New South Wales and the Uniform Principles created by LACC 3 [the link to which appears in schedule A]. Other than the reference to the National profession legislation, roughly corresponding provisions apply in the other Australian jurisdictions.
The LACC principles were effectively, in my view, an exercise in the long and slow development of uniform admission requirements.
Their negotiation has been long and hard and at the time of writing this paper, it is not yet over.
They deal with both internal and external applications, as do the draft National Profession arrangements.
On a practical /procedural level, I find it surprising how often lawyers, whether with 0, 10, 15 or 20 and more years of experience, see it as ‘satisfactory’ to complete the application forms used in New South Wales for their applications for admission to the New South Wales Courts with words to the effect that "see my attached curriculum vitae".
They then attach often 50 or more pages of their professional life history. The information does not directly satisfy, let alone demonstrate, the matters sought by the NSW application forms. Applicants expect those administering the applications (often judges, academics and senior practitioners from both the Solicitor branch of the profession and the NSW Bar who provide their time on a voluntary basis) to wade through the many pages with a view to being expected to elicit information relevant to the admission requirements to be satisfied so as to permit admission to a Court.
Some seek admission in Australia intending to migrate and some tangentially to their practice in some other jurisdiction or jurisdictions in which they live and work
3 Law Admissions Consultative Committee
It would seem, to me, to be a most unusual and, in my view, unacceptable development to allow aspiring admittees to be able to make an application for admission to a Court, which would be accepted and then acted upon without the relevant admittees completing the form correctly.
What does that say of the applicant’s ability as a practitioner and attitude to the Law , the Courts and clients? What does it say of the applicants’ attitude to the society and culture of the intending place of admission and practice.
One can only wonder how an individual, who cannot complete the application form correctly, can be expected properly to serve the needs of a client by expressing the clients’ needs in documentation whether contractual, litigation related or otherwise.
That attitude seems disrespectful to the Courts and to have little or no regard to “clients”.
Ubiquitous Insurance issues
Needless to say, lawyers seeking to practice in more than one jurisdiction will have to pay attention to insurance cover, whether one policy can cover practice in more than one jurisdiction or whether a number of policies are needed.
NSW Admission Statistics for the Last Four Years:
The following table sets out the number of applications received by the NSW Legal Profession Admission Board in the last few years4.
Form 10 1838
Form 11 146
Form 10 1851
Form 11 154
Form 10 1721
Form 11 117
Form 10 1709
Form 11 121
Form 10 1,710
Form 11 83
Form 10 1,949
Form 11 97
Form 12 1 (re-admission)
2013 (to date)
Form 10 2,043
Form 11 88
2014 (to date*)
Form 10 1,444
Form 11 68
4 Form 10 – Local Form 11 -- Previously admitted overseas the new 2014/15 form will have to be checked and attached
From my observations over the years the number of applications vary almost cyclically, not surprisingly somewhat reflective of the ebb and flow of economic circumstances and sometimes political circumstances in various countries.
Long, long ago [some time last millennium], when I was a junior lawyer we were trained in the completion of relevant forms required by the Courts, particularly Bankruptcy courts, as it then was. If each and all the details required by the form was not correctly set out it could not be filed with the court, let alone considered by the Court.
Personally, I do not see the right to admission to practice in any jurisdiction as simply being an exercise in academic study with a bit of practical legal experience. It is a privilege carrying with it particular responsibilities to the Courts, the Law and clients.
It seems trite to say but, a good practitioner must have an understanding of the cultural norms of the jurisdiction or jurisdictions and clients in which he or she seeks to practice and be adequately fluent in the language(s) of the society and Courts in which she or he is to practise. Some Commonwealth countries deal with that issue better than others. Unfortunately I do not consider my own jurisdiction to be one that deals with that issue well. Too often have I had senior practitioners and even the occasional judge complain to me that some lawyer was appearing in Court who could not properly express themselves, let alone properly express the needs and wants of their client,
Multi-Jurisdictional Practice and Insurance
From my discussions with a representative of LawCover NSW [the organisation which looks after the compulsory level professional negligence insurance in respect of New South Wales practising Solicitors], that there is another aspect of practising in multiple jurisdictions (or even within one jurisdiction but with categories of client of the relevant society whose mother tongue is other than the language of the Courts of the relevant jurisdiction) which is of concern.
In New South Wales, it has been found that a significant number of negligence claims have been made against practitioners where, once examined, it has been found that the lack of facility with English by the Solicitor, whose main client base are persons of particular cultural/linguistic background, contributed to the circumstances leading to the claim.
My firm recently had the experience of acting in workplace relations matter for some Chinese clients. Their employer, the defendant in the proceedings, was also Chinese. The Court proceedings were before English-speaking judge and facilitated by the use of the translator appointed by the Court.
Thankfully the young lawyer from our office, of Chinese Vietnamese background, understood sufficient Cantonese to suspect that the translator was not simply translating but conversing with the employer witness as to how best to say certain things. She was able to doublecheck that with our client and make an appropriate submission to the Court in respect of the translators conduct
In Australia, whilst the society seeks to be "multicultural", the relevant cultural milieu against which and under which the Law operates is that of an English speaking Judaeo-Christian, but secular, society.
I do not seek to deal with the issue of how solicitors perceived by the statutory insurer as not having adequate facility with the English-language can have been admitted in New South Wales, other than to note that the new National Profession proposals for participating states of Australia envisage an English language proficiency being demonstrated prior to admission to practice.
Even within Australia one can often find that English is used slightly differently amongst the different States. Similarly, various local societal norms vary in a way which can impact on the law its operation and implementation. An ability of the profession will necessarily require a greater recognition of this phenomenon.
Unfortunately, the experience of our Lawcover insurer is that, in a number of instances, the lack of facility in use of English, which bases the vast bulk of legal issues in New South Wales and Australia, has been a real cause of or contributor to the alleged negligence of some relevant solicitors.
Similarly, the lack of English language skills by some Solicitors against whom certain negligence claims have been made has itself been such as to hinder the proper defence of those Solicitors by Lawcover.
That has potential to increase premiums for professional negligence cover and, consequentially, fees charged to clients.
Also relevant to the issue of a mobile practitioner is that, at least in my main jurisdiction (New South Wales), the required skill set of a Solicitor and the skills that of a Barrister, are different.
Some years ago, this difference of skills led to an interesting incident in respect of one English Barrister who sought admission in New South Wales.
The application was being considered by one of the relevant committees.
The application was being considered by reference to the set NSW criteria. A number of members of the committee found difficulty with whether the Barrister had satisfied some particular New South Wales Solicitor requirements by reference to the Barrister’s practice in Britain. The majority of members of the committee were concerned that one or two aspects of the New South Wales Solicitor requirements could not be seen as satisfied.
One member of the committee argued, simply, that because the Barrister had been admitted in Britain and been in practice for some years, the applicant would automatically receive all relevant skills and there was no need for the New South Wales requirements to be considered.
That was challenged by members of the committee.
That maybe a bit sad, but it does reflect the proper seriousness with which members of the relevant committee approach the task before them.
An aspect of Australia's move to a National Legal Profession includes a degree of standardisation of legal studies at universities and other institutions which provide relevant academic courses.
Similarly there are proposals for uniformity of key of competency standards in a practical legal training sense. That uniformity requirement is one which may not be facilitated by too free use of the idea of mobility of the profession.
This is not to suggest all law degrees in Australia will be the same but that minimum agreed topics will be required.
That resonates in the context of multi jurisdictional practice and I know a number of Universities are now offering courses structured to satisfy admission requirements in a number of jurisdictions, including some other Commonwealth countries. Law students will have to be increasingly careful to ensure that any law course they undertake is one which, academically, covers all the required fields of the admission authorities from time to time
In early 2010 the Australian Federal Government established Tertiary Education Quality and Standards Agency (TEQSA) which, is to evaluate performance of Universities against standard criteria.
These criteria include the ‘academic standards’ that govern relevant disciplines (professional bodies, employers, regulators, academics and students) nationally agree represent the core ‘Threshold Learning Outcomes’(TLOs) for graduates, whatever their institution of study.
In Law, the most attention is on Bachelor of Laws (LLB) courses and the Academic Standards Statement developed is to represent the minimum that an LLB graduate is expected to know, understand and be able to do as a result of their learning.
In 2010 A report was delivered by the Australian Learning and Teaching Council to the relevant Australian Government Department (being the Department of Education, Employment and Workplace Relations). S LLB Standards developed after an extensive consultation process with the assistance of the judiciary, academics, regulators, professional bodies, practitioners and students.
The Expert Advisory and Discipline Reference Groups established to oversight the project include representatives from:
◇ the Judiciary;
◇ the Law Council of Australia;
◇ the Law Admissions Consultative Committee (LACC);
◇ the Council of Australian Law Deans (CALD);
◇ the COAG Standing Committee on Legal Practice and Relations with the Legal Profession;
◇ the Australian Young Lawyers Committee; and
◇ the Australasian Professional Legal Education Council (APLEC).
The Academic Standards Statement for the LLB contains six TLOs dealing with:
◇ ethics and professionalism;
◇ thinking skills;
◇ research skills;
◇ communication and collaboration; and
◇ self management.
The TLOs are intended to be clear, achievable and have legitimacy. They make it possible for Law Schools to meet concurrent requirements of the Australian Government, the professional Admitting Authorities, CALD’s proposed Law Schools Standards Committee, and individual universities.
They have also drawn on relevant developments in parallel processes in the United Kingdom (Quality Assurance Agency Benchmark Statements), Europe (Tuning), Latin America (Tuning) and the standards developed by the American Bar Association.
The Horse and Cart
In a sense, I sometimes wonder whether or not, by increasing the concept of mobility of the profession, we are putting the horse before the cart or the horse before the cart.
In that sense, the question is really whether are we serving or ignoring the proper needs of the legal services consumer?
Whilst the concept of mobility of the legal profession no doubt had its origins long ago, partly in the context of migration and partly in the context of now outdated colonial concepts of lawyers from the "home country" or "mother country" having some automatic right of appearance before Courts in any jurisdiction, we have all moved past that.
Globalisation of trade and industry, developing technology and communication as well as ease of travel seem to drive the move to inter-jurisdictional transfers of ability to practice and the ability to practice e in more than one jurisdiction.
However, technology is only a tool.
It must be used to improve the Legal Profession’s ability to service the needs of legal services consumers.
In my view, except in particular circumstances to so warrant, technology should not be allowed to lower professional service standard, nor allow “admission” to practice independent of an intending lawyer’s reasonably acceptable academic qualifications and familiarity with the main language and culture of the jurisdiction(s) in which she or he intends to practice.
EAKIN McCAFFERY COX