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Produced and published by the School of Historical & Philosophical Studies, The University of Melbourne
Published July 2008
Published July 2008
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The legal profession consists principally of barristers and solicitors in private practice, normally prepared to carry out legal work for anyone who seeks their assistance. It also includes members of the judiciary and the magistracy who have usually practised for many years as a barrister or, less commonly, as a solicitor; and barristers and solicitors who work as members of a tribunal or as employees of a government or corporation or association.
Judges and magistrates determine disputes in the courts according to rules of law, and members of tribunals operate similarly. Other members of the profession assist their clients or employers by giving legal advice, preparing legal documents, preparing cases for hearing before a court or tribunal, and examining witnesses and presenting legal argument. Barristers tend to concentrate on court or court-related work and do not ordinarily prepare legal documents, while solicitors tend to do more office than court work.
In recent years the profession has been characterised by increased specialisation and the growth of large firms of city solicitors. In July 2004 there were in Victoria approximately 1500 members of the Victorian Bar (a voluntary organisation of those practising exclusively as barristers, founded in 1900) and approximately 10 500 solicitors, many of whom were employees. Those figures include about 200 Queen's Counsel (no longer appointed) or Senior Counsel (first appointed in November 2000), almost all at the Bar. Barristers usually have their chambers in the legal precinct: 674 firms of solicitors have their offices in the city.
Ordinarily, barristers only act for a client when briefed by a solicitor. Some people argue that the division of the profession into barristers and solicitors, which originated in England and has always operated in Melbourne, leads to waste of time and more expense for litigants than would otherwise be the case. Others stress the advantages of specialisation and independence. In 1891 the Victorian Parliament passed legislation entitling barristers to practise as solicitors, solicitors to practise as barristers, and those admitted subsequently to practise as both. Nevertheless, most practitioners still choose to practise as one or the other.
William Meek, Melbourne's first attorney or solicitor, arrived in September 1838, followed in January 1839 by Robert Deane. Three barristers - E.J. Brewster, James Croke and Redmond Barry - arrived in November 1839. Mr Justice Willis, the first Resident Judge at Port Phillip of the Supreme Court of New South Wales, admitted six barristers to practise on 12 April 1841 and fourteen attorneys on 8 May.
In 1853 rules of the Supreme Court provided for the admission of locally trained applicants. All those admitted previously, and many admitted subsequently, qualified originally in England, Scotland or Ireland. At the University of Melbourne, law was first taught, in preparation for admission, in 1857; at Monash University in 1964; at La Trobe and Deakin universities in 1992; and at Victoria University in 2001. Since 1903 the qualifications for admission to practise have been determined by a statutory body, the Council of Legal Education. Most candidates qualify by completing a law degree, and then either serving for twelve months as an articled clerk in a solicitor's office or completing a six months' course of practical training at the Leo Cussen Institute (founded 1972) or Monash University.
It is an offence to engage in legal practice unless admitted by the Supreme Court, and the court only admits those who have satisfied the requirements of the Council. The court has an inherent power to discipline the profession. The Law Institute of Victoria, formed in 1859, regulated the professional conduct of solicitors until 1996, as did the Victorian Bar that of its members. Legislation passed in 1996 established a Legal Profession Tribunal to deal with more serious or difficult cases and provided for a Legal Ombudsman and a Legal Practice Board to which complaints may be taken as an alternative to the Law Institute or the Bar.