Specialisation

In Victoria, a person qualified and admitted to practice as "an Australian lawyer" who wishes to practise as a barrister will generally do so by becoming a member of the Victorian Bar. This requires their taking the Bar Readers Course - a 3 month full-time course in advocacy and barristers' practice and skills, ethics and rules - as well as serving pupillage or reading (a sort of apprenticeship) for 9 months with a barrister of at least 10 years' standing.

Most importantly, for this relates to their independence and specialisation, members of the Victorian Bar undertake not to practise otherwise than exclusively as a barrister,(1) and undertake to comply with the Constitution, practice rules and regulations. These rules and regulations are designed (amongst other things) to maintain the highest standards of professionalism and integrity amongst members of the Bar.

Many barristers specialise in particular jurisdictions and areas of law. Bar Associations further and support that specialisation in particular ares of practice; for example, the Commercial Bar Association, the Criminal Bar Association of Victoria, the Family Law Bar Association, the Children's Court Bar Association.

Independence and the "cab rank" rule

Each barrister practises alone as an individual. A barrister is not permitted to practise in partnership or as an employee, and is not permitted to practise as the employer of any legal practitioner in active practice.(2)

Legal practice is regulated by State and Territory Laws but Victorian barristers are entitled to, and do, practise throughout Australia

The practice of law in Australia is regulated by State and Territory laws. These laws are now largely uniform, and Victorian barristers are entitled to practise throughout Australia. The Victorian legal profession and, in particular, Victorian barristers, have long enjoyed a high reputation and been engaged to appear in courts in other States and Territories.

Terminology: barristers, solicitors and Australian legal practitioners

The terminology of lawyers in Victoria changed with the Legal Profession Act 2004, which came into operation in December 2005, and which currently regulates the practice of law in Victoria.

All Victorian practising lawyers are now both "local legal practitioners" and "Australian legal practitioners".(3) "Barrister" is defined as "an Australian legal practitioner who engages in legal practice solely as a barrister".(4) "Solicitor" is not defined, but the term is used in the Act (5), most relevantly to the distinction between a barrister and a solicitor, in a note to the provisions governing the required disclosure to a client of information concerning legal costs.(6)

The note to section 3.4.10 of the Legal Profession Act 2004 gives the example: "where a barrister is retained by a firm of solicitors on behalf of a client of the firm" - and that is the classic situation where it is the solicitor who engages the barrister on behalf of the client. In that situation, the client will usually pay the solicitor (lawyer) in advance for the services of the barrister, the solicitor (lawyer) holding the money in trust until the barrister has done the work.

The undertaking is that the barrister: "will not practise in Victoria or elsewhere otherwise than exclusively as counsel". "Counsel" is defined in the Constitution, clause 3.1 as: "persons whose names are for the time being on the Bar Roll". "Counsel" means the same as "barrister".

Notes

  1. The Victorian Bar Inc Practice Rules (effective 22 September 2009), Rule 114

  2. Legal Profession Act 2004 (Vic) section 1.2.3(a) & (b)

  3. Section 1.2.1(1)

  4. See sections 1.2.1(1) (definition of "admission to the legal profession" (b)(iv)-(vi)); 2.2.4(1)(c); 2.8.9(1)(d); 3.4.10 (note); 3.6.16(3); and Schedule 2 clause 2.1(3)

  5. Part 3.4 "Costs Disclosure and Review" - but only in the note to section 3.4.10.