Position Statement - Inclusion of Public Defenders on the Roll of Counsel

14Nov2019

The Victorian Bar Council (Bar Council) has considered the status of public defenders employed by Victoria Legal Aid (VLA) on the Roll of Counsel, and in particular, whether the presence of public defenders on the Roll of Counsel is in breach of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the Conduct Rules), the Constitution of the Bar (the Constitution) or the Legal Profession Uniform Law (the Uniform Law).

  1. The Victorian Bar Council (Bar Council) has considered the status of public defenders employed by Victoria Legal Aid (VLA) on the Roll of Counsel, and in particular, whether the presence of public defenders on the Roll of Counsel is in breach of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the Conduct Rules), the Constitution of the Bar (the Constitution) or the Legal Profession Uniform Law (the Uniform Law).
  2. Before arriving at the position set out in this statement, the Bar Council obtained advice from senior counsel. The Bar Council also consulted with VLA and invited it to provide submissions. VLA did so and those submissions have been considered by the Bar Council.
  3. Rule 12 of the Conduct Rules provides that a barrister must be a sole practitioner and must not practise as the employee of any person. By r 6(c), a barrister who is employed by the Crown or who holds statutory office is exempt from that prohibition. Public defenders do not hold statutory office. Accordingly, whether the exemption applies to public defenders turns on whether they are employees of ‘the Crown’. The Bar Council recognises this is a complex legal issue. Having carefully considered the advice obtained from senior counsel, the relevant authorities and the submissions received from VLA, the Bar Council considers that the better view is that public defenders who are employed by VLA are not employed by the Crown and are accordingly not entitled to the exemption in r 6(c).
  4. Further, by s 12 of the Uniform Law, read with r 3 of the Legal Profession Uniform General Rules 2015, Australian legal practitioners are only entitled to take or use the title ‘barrister’ when they hold a practising certificate that authorises them to engage in legal practice ‘as or in the manner of a barrister only.’ Given that they hold practising certificates that authorise them to practise as government lawyers, it would be a breach of s 12 of the Uniform Law for a public defender to take or use the title ‘barrister’.
  5. Because the Bar Council considers that public defenders employed by VLA are not ‘barristers’ within the meaning of the Conduct Rules, and are not entitled to take or use the title ‘barrister’ by operation of s 12 of the Uniform Law, it resolved, at its meeting on 15 August 2019, that it will not grant any future applications by public defenders for entry in Division A, Part II of the Bar Roll, and will write to all public defenders whose names are presently on the Bar Roll to seek their consent for removal of their names from the Roll.
  6. The Bar Council will advise VLA, each of the public defenders whose names are presently entered in Division A, Part II of the Bar Roll, and the Victorian Legal Services Commissioner of these conclusions.