The tortured path to the Bar's adoption of direct professional access was littered with drama and betrayal ... It's the early 1990s and the NSW Bar was being dragged into the twentieth century ... Fusion, co-advocacy and access to barristers all in the melting pot as the government hatches the Legal Profession Reform Act ... Spin doctors and melting faxes all part of the furious battle to resist change
The NSW Bar council has had one of its worst years in memory.
From over a year ago when barristers came under attack from the large law firms the Bar council has been on the back foot. It has largely ignored calls to set its own agenda of reform and it has rejected most of the government's proposals for change.
The Bar council has wasted time and money on a pointless campaign against the Law Society council, has fumbled the main policy issues and now only has a clouded vision of its future.
It campaigned against the Law Society council's policy of Direct Professional Access, and then four months later, feeling confused and pressured, adopted precisely the same policy for itself.
There have been mutterings of insurrection in the corridors of chambers - calling for an extraordinary general meeting and even getting rid of the President John Coombs.
Coombs tells his members that, "We have done a magnificent job. We've saved you from fusion".
The following report traces the recent history of the souring relationship between the Bar Association and the Law Society, the pressure put on by the NSW government, the growing splits within the Bar membership and the fierce internal campaign waged for Direct Professional Access.
Fear and loathing
IN February this year (1993) the heat was well and truly on the council of the Law Society. A campaign of fear and loathing, not to say buckets of disinformation, was under way.
At stake was the council of the Law Society's policy of:
- a fused profession,
- barristers being able to practise in partnership with solicitors, or as employees of solicitors,
- barristers being able to advertise their specialities,
- the title of QC not being retained (in fact the government announced last year that it would not be recommending the appointment of any further QCs),
- an end to the perpetuation of the formally revoked two counsel rule,
- direct client and direct professional instruction,
- barristers being able to appear as fellow advocates with solicitors,
- the abolition of rules which inhibit attendance at solicitors' offices,
- court dress to go.
This was formulated in response to the Attorney General's Department's Issues Paper on structure and regulation of the legal profession, and went in the same direction as the proposals put together by the Sydney mega-firms a year earlier.
The council's policy was attacked as being a takeover of the advisory and advocacy role of the Bar by the mega-firms. The specialist boutiques and the small country and suburban firms would lose access to an independent bar, and more and more work would drift to the large firms. The Bar's clarion call was the protection of "the public interest".
Colleague, indeed!
IN February Coombs was sending letters to all NSW solicitors urging them to lobby against their council's policy.
Strategy meetings of barristers who appear on circuit and are regularly briefed by country and suburban solicitors were held, and standard-form letters for solicitors to write to the Attorney General were distributed by the Bar.
Letters from Coombs to his membership were whipping everyone into a real lather.
Unable to restrain himself, Coombs went a bit over the top:
"The government, in conjunction with the Law Society has embarked on a course that I believe is designed to eliminate the independent Bar ... It is clear that the government (or at least the Premier) has already determined its course.
I urge (all barristers) to get involved and use your influence. Contact solicitors, politicians and members of the public. Inform them about the plans to increase the cost of legal services and enlist their support ... This is a battle that we must all fight."
Attorney General Hannaford was not amused. He wrote to all NSW barristers a letter which began "Dear Colleague". He denied there was any foundation to Coombs' claims that the government had already made up its mind what to do.
He also accused Coombs of being "mischievous" in claiming that there was a proposal to replace the Bar with employed advocates, and added, "I can assure you that any changes proposed for the profession in the future will be measured, reasonable, and only determined after consultation".
Ian Barker QC wrote to Hannaford saying he did not want to be addressed as "Dear Colleague" by him.
There was also a change of presidents at the Law Society on January 1. With John Nelson replacing John Marsden, the "fusion option" went out the window.
The Law Society never really pushed for full fusion once the new leadership took over.
Never let the fax get in the way of a good story
THERE was a special meeting of the Bar Association on February 16, 1993 at the auditorium of the Teachers Federation, and between 400 and 500 members attended.
Coombs addressed the meeting saying the Bar council had been on the job since the future of the profession has become an issue. The membership would be pleased to know what a tremendous effort was being made on its behalf, and that the Bar council would prevail. If there were going to be changes, those changes would be acceptable to the broad membership and "in the public interest".
John Spender took the floor. He said that the Bar was not playing this issue in the right way. He suggested that some proposals for change be put together and presented to the government as a vision of the way forward.
He was howled down.
Coombs said that the Bar was taking many important initiatives. For instance, he declared that the executive has taken the lead on the issue of direct professional access.
John Dowd, the former Liberal Attorney General, also spoke and carried the meeting with his flat contradiction of the conciliatory approach adopted by Spender. He said that he knew what the government was up to and the Bar must fight and not give an inch.
There was a rallying call from Coombs to "melt down another fax machine at the Law Society".
A country practice
BY now many of the regional law societies were up in arms. Support was mounting for an extraordinary general meeting of the Law Society.
Trades and Labour councils in Newcastle, Wollongong and Sydney had also been lobbied and the Bar was claiming that they had the workers on side. The Newcastle Law Society passed a series of motions critical of the LS council in Sydney and calling for a meeting.
The new President of the Law Society wrote to Coombs on February 13, saying he was "dismayed and offended by what appears to be a campaign by your association designed to prejudice any fair assessment of the issues by members of the Law Society".
He explained the Law Society's position in the context of the development of acceptable common national standards as required by national mutual recognition legislation.
Some of the big firms were also trying to soothe the frazzled nerves of the Bar council. Hugh Jamieson, senior partner of Allens, told Coombs in a carefully worded letter:
"Allen Allen & Hemsley has no plans to establish a specialist advocacy unit as has been suggested in recent times. As a significant user of the skills of the Bar we see that it is in the public interest that the members of the Bar continue to operate independently as specialist advocates."
Allens was later joined by Freehills, Minters, Phillips Fox and Tress Cocks & Maddox in saying they did not want to get into the advocacy business.
They did not remind everyone that they competed with barristers in the specialist advice business. However, they said that the Law Society's response to the Issues Paper ...
"was the result of recognition by solicitors generally that flexibility and competition within the profession are not only demanded by the community we serve but are in the best interests of the profession itself."
This would have cheered the Bar up enormously.
Towards the end of last February the Law Society and the Bar Association started to talk again.
The idea was that a common position could possibly be hammered out to present to the government. John Nelson had disassociated the Law Society from a statement made by his predecessor, John Marsden.
Marsden was quoted in The Sun-Herald in early February as saying:
"The Law Society has finally moved a million years forward and taken on the Bar. It's a giant leap forward because you don't need two people to do one person's job."
The rule of law, no less
ON February 22 Coombs, the Bar's senior vice-president Murray Tobias, and the treasurer Rick Burbidge met with Nelson, David Fairley and Ron Heinrich from the Society. They all agreed to produce a joint statement.
According to the Bar this statement was to make clear that the Law Society did not really support fusion, only common admission, and that it supported the continuance of an independent and separate Bar.
In the Bar council's view, an independent Bar was defined by barristers who were sole practitioners, bound by the cab rank rule, instructed only by solicitors (subject to proposals for direct professional access) and governed by the NSW Bar Association.
Coombs added a little flourish at the end, "the public interest, the rule of law and the independence of the profession demand no less".
The Law Society council responded with a draft statement which did not endorse this definition of independence. In fact, it was so strange a definition that even some of Coombs' own members thought it was a bit of a joke.
The Bar council drafted a new proposed joint statement and requested a response from the Law Society by Friday, February 26.
However, on that day Nelson rang Coombs to say that an extraordinary general meeting of members of the Law Society was being called for March 31. He said the issue was now in the hands of the membership. The joint statement was dead.
Coombs whipped off another memo to his members:
"The implication is clear, the council of the Law Society does not accept the fundamentals of an independent Bar. The agenda of at least some on the Law Society council includes the absorption of barristers into the Society and the Law Society control of them, which would in short order extinguish the Bar as we know it."
Just before this memo went out the Bar council amended the cab rank rule and removed the "perceived remnants" of the two counsel rule.
The Bar council also brought in new rules which sought to make it clearer that the attendance of instructing solicitors is not always necessary; that barristers may attend solicitors offices "when appropriate", and that limited forms of advertising by barristers were now permitted.
This was the Bar council's rather minimalist reform package with which it sought to regain the initiative.
On Ash Wednesday State Parliament opened, with a speech from the Governor which said that the government would, "reform the legal profession to eliminate restrictive practices, promote greater competition and accountability within the profession and greater choice for consumers".
These words were welcomed in a rousing editorial in The Sydney Morning Herald, saying that that both Premier Fahey and Attorney General Hannaford "know that the Bar Association's bullying demand that the government do nothing without consultation is really a demand that it do nothing ever".
With friends like these ...
THE Bar knew it had few friends among politicians or the public. There was only one group that it thought could save it: the solicitors. And it was working on them full bore.
Three significant solicitors who were dead against the society's response to the government Issues Paper led the campaign.
They were: Ian Dunlop, who had served on the Law Society council and has a country practice at Singleton, Geoffrey Hughes who was the only member of the current council who voted against the society's submission on structural reform, and Robin Speed of the city boutique Speed & Stracey – a successful tax and commercial practice.
The council of the Law Society was strangely reticent about campaigning to gather support for its position. For instance, the President did not take proxy forms with him when he went to regional meetings. The council also agreed to distribute not only a case "for" it's submission but the arguments "against" its position.
It provided the Bar Association and Geoffrey Hughes with a label run of the names and addresses of its members.
Speed faxed or wrote to every solicitor in the State urging them to support the rescission of the council's resolutions. He said:
"As well as fusion, the council also resolved in favour of clients and accountants directly briefing barristers -without any involvement of a solicitor.
The council resolutions are not in the interests of the public - only increased costs and delays will result – without any real public benefit.
Mega law and accounting firms will be created and will be the only ones to benefit."
One small grenade that was lobbed early in the campaign was the leaking of a story that was meant to damage the Premier. The Bar council says the story was not leaked by any of its members, but the source was nonetheless from the Bar.
The story published in the Financial Review on March 10, 1993, claimed that the Premier was a defendant in a case brought by clients of his former law firm. Someone gave the Financial Review a copy of the statement of claim in the case and there was no doubt that the purpose of the inspired leak was to wreak a bit of vengeance on the Premier.
The Premier has taken a dim view of the Bar leadership and is bitter about the Bar's political lobbyist, Ian Kortland, who he feels has tried to destabilise his position.
Former turkey farmer, dentist and Liberal insider, John Harvey, was also engaged to do media liaison work for the Bar. At one stage he was chief of staff for Andrew Peacock!
Cough up
IN an effort to get members of the Bar Association to open their wallets to pay for all of this Coombs issued another excitable missive to his membership.
He said that the private assurances of the Law Society that noting had been settled with the Premier on fusion could be relied on, and that some councillors of the society supported a plan to absorb the Bar into the Law Society.
Nelson fired off a response to Coombs saying that the president of the Bar was being extremely offensive, that the Law Society supported the maintenance of "a separate advocacy Bar", and that Law Society members should be allowed to consider the issues "uninfluenced by alarmist rumours".
Coombs shot back saying that he regretted Nelson found his letter offensive, but because the Law Society would not accept his definition of an independent Bar the Bar was still at risk of absorption into the Law Society.
And the Premier got in with another blast at the Bar Association, accusing it of conducting a "campaign of misinformation" over the government's plan for reform. His spokesman added that if the Premier was in fact being criticised by the Bar, then he would find it "grossly insulting and objectionable".
But the Bar's fighting fund was not doing terribly well. "Patchy" was the official word. Treasurer Burbidge had to pen a more strongly worded reminder to members that "the problem" will not just go away.
"This is not a matter to be dealt with by your neighbour. It is a matter to be dealt with by all of us. If you have not contributed to the Bar's fighting fund, I ask you to do so immediately."
Marsden predicts
ROBIN Speed's rotating fax machine has also been working overtime right up to the eve of the Law Society's extraordinary general meeting.
He has spent a small fortune on the campaign and had gathered an enormous number of proxies to oppose the council of the Law Society. Some solicitors had also received the same proxy form from as many as five different barristers.
A number of country solicitors had the view that the council should resign, as a matter of principle, if it lost the vote. There was talk that the CEO of the Law Society, Frank Riley, should take a walk, because, after all, he was responsible for drafting the response to the Issues Paper.
The PR people at the Law Society were saying that by the time the proxies had been counted there would be no result for at least a fortnight but that in any event the vote would be "close".
President Nelson said that the vote was a "healthy, democratic, calm, rational and intelligent" thing to do. And so why should the council be tossed out?
John Marsden predicted that the Bar (i.e. regional law societies) was 150 proxies ahead of the Law Society council.
Extraordinary
BY 2.30pm on March 31 the Salvation Army's Sydney Congress Hall was starting to fill-up.
John Nelson opened the extraordinary general meeting and what everyone suspected soon became apparent -the requisitionists had the numbers. There were over 900 in attendance, and 3,976 proxies, of which 3,903 were valid.
There was widespread applause for calls to change the style of those at the top of the Law Society and for more consultation with the membership.
After declamations that included the battlers' hero C. Murphy and the Golden Greek A. Vrisakis, it was agreed by the meeting that the council's submission of January 28, 1993 to the Attorney General's Issues Paper be withdrawn and a committee be set up to investigate and report within three months on reforming and restructuring the legal profession.
The committee was instruct to liaise with all and sundry and frame some questions to be submitted to a poll of the membership. A new submission would then go to the Attorney General.
The committee consisted of three from the requisitionist's side (Ian Dunlop, Geoff Hughes and Gordon Salier) and three representing the council (John Nelson, David Castle and Phillip King, with David Fairlie being the president's nominee). The chairman was former President Don Mackay.
The pre-meeting negotiations brokered by Phillip King from Allens to achieve an accommodation of the two camps had been successful. Angry Bolshevik plots for the council to resign came to nought.
It soon emerged that another deal, or possibly an "understanding", had been hatched, one between the Bar council and the Speed forces. It was to upset many members of the Bar Association.
Of course, none of this has had any impact on the government's impetus.
The Attorney General responded to the outcome of the EGM by saying:
"If any (submissions) come in before I make my decision I will be happy to consider them but if not the government will push on regardless ... Reform is needed and reform will occur."
Famous last words
PR man Ian Kortlang sent out a jubilant statement on behalf of the Bar Association, welcoming the withdrawal of the Law Society's submission to the government. Coombs said:
"The majority of solicitors in NSW have expressed their dissatisfaction with the council's initial stance on the issue of fusion. [Presumably he used the word 'initial' because as he knew by then the council was now not advocating fusion at all, but common admission.]
Today's result sends a clear signal that the profession does not believe fusion is I the best interests of the people of NSW.
We welcome the end to the debate on fusion and look forward to working with both the Attorney General and the Law Society to address the real issues, which are cost and delay in the legal system."
Coombs also put out a bulletin to his members:
"I believe there is little likelihood that the EGM committee will recommend measures which could infringe the integrity of the independent Bar. The Bar council ... believes that the current debate on reform will now proceed in an orderly, constructive and co-operative manner."
If only life had worked out so sweetly for Coombs and the Bar council. In fact, now that the time-consuming, expensive, distracting and politically irrelevant campaign to get the State's solicitors to censure their council was over, the pressure rather quickly swung back to the Bar council itself.
By now there was a growing number of barristers expressing disenchantment with Coombs and his council.
And Direct Professional Access was the issue that had captured their imagination.
Even though Coombs had stood-up at the meeting of barristers at the Teachers Federation in February and said the Bar was at the forefront of reform on this question, it was now apparent that the Bar council had always considered DPA only a bargaining chip.
It had just spent the last month urging solicitors to sign a proxy form that had pre-marked crosses against the questions: should barristers to be permitted to accept instructions from clients, and members of professional associations.
The irony was yet to unfold that the Bar council was ultimately to adopt unanimously DPA in an effort to stave off Direct Client Access.
Papist plot
BRYAN Pape is a barrister who had developed a firm view that DPA would be good for his practice, and for many like his.
He has accountancy qualifications, as well as law, and had worked at Price Waterhouse.
He saw that the big practitioners of tax work were the accounting firms. They dwarfed the largest law firms when it came to tax.
In 1989 he read about a joint memo on direct professional access put out by the Revenue Bar Association of England and Wales and the Tax Committee of the Institute of Chartered Accountants.
It outlined the advantages of DPA, how it was supported by the Law Society in England and that it was going to be introduced the following April or May. It involved instruction of barristers for advice and tribunal work without the intervention of solicitors.
Pape went to the Bar council on his own volition to see whether he could get it to embrace DPA as a policy.
The reaction was to have nothing to do with it. According to the council it would upset solicitors and the example of Neil Forsyth, the Melbourne silk who at that stage had been charged with tax related offences, was suggested as showing what happens when a barrister gets too close to a client.
That was a spurious example because Forsyth's problems had nothing to do with DPA.
Subsequently, in March 1991 the taxation specialist Geoffrey Lehmann wrote a scarifying article in Australian Business about the Bar council missing a golden opportunity. He really went to town on the council for not running with the DPA ball.
Pape was accused by some on the Bar council of feeing information to Lehmann and was threatened with disciplinary action by the then Bar president, B. O'Keefe.
In any event the council eventually decided to make a move and in February 1992 a committee was established under Arthur Emmett and included Pape, Bret Walker and Chris Bevan of the Bar.
By the middle of May 1992 the committee concluded that DPA would be a good thing for the Bar if introduced in a controlled way and applied only to accountants, valuers, town planners, architects, engineers, actuaries, patent attorneys and tax agents.
They would have the right to approach barristers directly for advice or for the purpose of instructing them to attend before tribunals. DPA would not apply to court work.
The report said:
"While there are policy considerations which point to retention of the existing exclusivity for solicitors in obtaining access to barristers, the considerations in favour of permitting direct professional access for non-solicitor professionals outweigh the advantages of requiring the intervention of a solicitor in the giving of instructions to advise."
The report also included draft Bar rules which would allow the policy to be implemented quickly.
The Emmett committee drew heavily on the recent English experience, which allows barristers to be briefed by an even wider body of professionals.
Life is great in the sunshine state
In April this year (1993) another blow was struck for DPA.
The Queensland Bar declared that as of May 1 it would permit its members to be briefed for advice and tribunal work by accountants, architects, engineers and town planners from anywhere in Australia.
In fact, the Queensland Bar went it alone for fear that it would be indefinitely quagmired in no man's land if it waited for the development of a national ruling.
However, the whole enterprise was poo-pooed in Sydney by members of the Bar council. Treasurer Burbidge said the whole thing was a, "storm in a tea cup" and in England, where it had been introduced in 1989, there had been "no perceptible difference".
This, it must be remembered, was the same issue on which the Bar council was leading the way, according to president Coombs at an earlier moment of time.
Fuse is lit on the big bunger
ANOTHER tax barrister, Michael Inglis, by this stage had his ire aroused. He started proselytising the cause of DPA and enthused John Garnsey, a silk on his floor at Blackstone Chambers, that the Bar council should do something about it.
Garnsey had written to Coombs in February on the issue, but had not received a reply.
This time Garnsey penned a much more urgent and attention-grabbing letter to Coombs, dated April 23, 1993. This was the letter which lit the fuse which would ultimately lead to DPA being adopted.
"The NSW Bar council has a duty to its constituents to approve direct professional access forthwith ...
The continuing failure of the Bar council to approve DPA is a betrayal of the interests of a substantial number of members of the Bar ...
If DPA is not approved forthwith (I mean immediately, within seven days) in accordance with the proposals of the Emmett Committee, I am sure there would not be lacking sufficient members of the association who are prepared to consider both requisitioning an extraordinary general meeting of the association to bring about this necessary change and the formation of a Commercial Bar Association to ensure that relevant interests are properly represented and advanced."
This letter was copied to about 100 barristers in Sydney and also found its way to the Attorney General and the Premier.
The Bar council executive went absolutely ape.
Burbidge spoke to Garnsey and said the solicitors who had supported the Bar's position at the Law Society EGM would regard any concession on DPA as a major betrayal. He added that Queensland, in introducing the policy, was in breach of an agreement with the Australian Bar Association.
Sandy Street, another member of the Bar council, also tried to hose Garnsey down. He said Coombs and vice-president Tobias had just about stitched-up a deal with the government, that it was inappropriate to rock the boat at this delicate stage, and showing divisions in the Bar would not produce successful negotiations.
Did someone mention Kate Wentworth?
The conditions now existed for a long and troublesome fight within the Bar over DPA. A number of old friendships were to be irreparably damaged and the leadership of the Bar subjected to scathing criticism.
Meetings of the pro-PDA barristers privately accused the Bar leaders of losing the plot, of ignoring the rumblings of reform that had come from the solicitors for over a year, of being fixated on the property woes of Counsels Chambers Pty Ltd and deals for cheap Bar Association accommodation, and of having their energy distracted by trying to stop Katherine Wentworth from joining the Bar.
The Bar council did not do enough to prepare for the rising tide of discontent and the pressure for change.
Part of the difficulty was of the Bar council's own making. It felt obligated to continue to oppose DPA because of the "understanding" that existed with Robin Speed and Geoffrey Hughes.
The basis of it was that in return for the support offered by these solicitors against fusion the Bar would do nothing to interfere with the solicitors monopoly access to barristers.
Constantly there was a refrain from Coombs and Tobias that the Bar council would not be introducing DPA without the support and consent of the solicitors.
Mayday
ON the first weekend of May 1993 the government announced details of its new legal fees-settling procedures.
Talks about a new fees regime had been going on for many months between the government and the two professional bodies. Everyone knew that fees would be part of the package of reforms, but most were surprised at the path chosen by the government.
Clearly the professional bodies lost control of the negotiations somewhere in the process because they ended-up with a benchmark fee arrangement, which has been the subject of much beefing from both the Bar and the Law Society ever since. Both professional bodies are at one on this issue.
The proposal is to have an independent board of experts set a benchmark fee for legal costs.
The benchmark fee (or "punitive fee", as the Law Society calls it) will be chargeable in the absence of a fee agreement with the client. It will be horribly low, representing the recovery of lawyers' basic costs.
It is designed to force lawyers to negotiate written fee agreements with clients. There must be full and proper disclosure of the fees in the agreement and they can be set aside if not fair and reasonable. Clients will also be entitled to progress reports on the costs involved.
Norman turns in his grave
BY now the policy statements were coming thick and fast from the government. On May 6 Premier Fahey delivered the eighth Norman Cowper Memorial Oration at a Parliament House lunch organised by the Australian Institute of Political Science.
He spelled out the structural reforms that would be in the Legal Profession Reform Bill. In effect, he was announcing the government's White Paper on structure and regulation.
Fahey made a number of points which should be borne in mind when reading the subsequently released Legal Profession Reform Bill, 1993. He said:
• The Bar council will be required to make rules that require access to the Bar by solicitors, and/or by nominated professionals and/or members of the public. Direct access has been advocated by many members of the Bar including senior counsel in submissions to the government. The government will encourage barristers to see clients direct.
• The government will ensure that the Bar moves to abolish the rule that prevents barristers appearing with solicitors as advocated.
• The increased entry of solicitors into the advocacy field is basic to improving consumer choice, as is improved knowledge about the existence of this option. Consumers must be able to choose the level of experience and expertise which they believe is suited to the problem, be that the Rolls Royce or the Holden Commodore version.
• The government sees no real point enforcing a merger or fusion of the professions or of getting rid of wigs and gowns ... There will be common admission requirements and common standards for practice including a continuing legal education ... It may turn out better for consumers to have two associations competing with each other rather than a single professional association with a monopoly.
• The Attorney General will have the power to disallow rules or practices that undermine competition and consumer choice.
• It seems inevitable that we should have a national approach to competition policy.
The Premier also put out a press release after his speech. In that he made it clear his view of the future of the Bar:
"Breaking down the historic barriers between services provided by barristers and solicitors will lead to greater consumer choice and cheaper services. There should be minimal impediments to all lawyers acting as advocates ...
The independent Bar will continue by allowing the Bar Association to require its members to operate only as sole practitioners."
In other words, the government's clear message was that if you want to practice in the style of a barrister, but don't want to be restricted by the Bar Association's forms, then feel free to join the Law Society, which has a more flexible attitude.
In effect, the Premier was signalling that the game was up. Direct client access and co-advocacy were really recipes for fusion by another method.
The Bar Council was livid. What Fahey announced was outside the Cabinet decision, and not what was agreed between the government and the Bar. That was the message being put around by Bar council people.
The whispering campaign against Fahey's political position also went up a notch.
"According to Kortlang, Fahey's position is very weak," one member of the council told a colleague.
"I hope you didn't pay for that advice," was the response from the startled barrister.
Someone else overheard the former Attorney General, Terry Sheahan, make a sage observation, along the lines:
In the last year there have been momentous changes in the whole political landscape of Europe, nations have come and gone and people have largely accepted those changes. What then is so earth-shattering about reforming the legal profession in NSW?
The official statement on Fahey's speech from President Coombs was that the Bar Association ...
"welcomes the government's recognition of the principles which ensure the continuance of an independent and self-regulatory Bar in the public interest ...
The current system of solicitors referring clients to barristers when necessary, and only when necessary, ensures that clients do not waste time and money on unnecessary specialist advocacy services. The bar does not believe that direct access by clients to barristers would be in the public interest."
The Kelly gang rides again
INTERESTINGLY, within hours of Fahey's policy speech, Graham Kelly, the managing partner of Freehills, released a copy of his firm's submission to the Attorney General's Department's Issues Paper.
Kelly is even less popular in Phillip Street than Financial Review journalist Michael Stutchbury, and his submission was largely in line with the government's approach.
Freehills submitted:
• The current divided nature of the profession inhibits it from dealing effectively with many issues, a situation that has hindered the implementation of constructive reforms from within.
• The argument that common admission will see large firms "swallow the Bar" is flawed. The work of the Bar is not such that it can be efficiently undertaken by larger commercial firms.
• Common national admission standards and mutual recognition for all lawyers whatever their State is required.
• Appropriate standards of legal education and practical training need to be met so that quality is maintained, but unjustifiable barriers to entry are not created.
• Joint advocacy between barristers and solicitors would be competitively beneficial.
Heads meet to discuss terrible dreams
AS far as direct client access and joint advocacy were concerned the Bar council's worst dreams have come true.
A meeting of heads of chambers and the Bar council was convened for Wednesday May 12 to discuss the government's White Paper.
David Nelson, an experience barrister and a former solicitor who attended this gathering, wrote a report about the meeting to his colleagues at the ninth floor of Garfield Barwick Chambers.
From the tone of Coombs' remarks Nelson thought that the Bar council regarded, "the Canberra type of (professional) arrangement as possible and is concentrating on a judicious campaign advised upon by Kortlang Associates and the fact that he (Coombs), Tobias and Bennett will be on drafting committees".
His report provided an insight into current attitudes and developments:
• "Doug Milne said at the meeting that he believed that the Bar council was mistaken in believing that all barristers were opposed to public access. He suggested a rapid and simple survey. He was dealt with curtly by the President.
• The AG has been seen (by the Bar council) and says that there will be no departure from the right or joint appearance or conferences at solicitors' offices.
• Coombs said that direct access is vehemently opposed by those very solicitors who overturned the Law Society decision and 'the Bar should be careful about comity', but no deal had been made.
• Interstate mutual recognition is said to be driving much of what is being done.
• There was not one mention of what the proper design of the Bar ought to be in the new economic circumstances or for the next decades.
• My impression is that the Bar council does not want to know what the junior Bar thinks and will move to protect what they can of silk's privileges. The general impression is of a restricted club of the 1930s and that there is a general want of imagination, virtually no political understanding and a defending of the impossible to the last; just like many insurance advocates to.
• I think the real agenda of the government is that the Law Society will offer junior advocates a lower rate and wider privileges than the Bar council will and that practitioners will refuse to change when the join chambers. (i.e. solicitors practising in chambers).
• Contrary to what the majority of heads of chambers appear to believe, the right of public access, as distinct from its frequent use, may be the competitive tool the Bar needs to survive as a separate institution."
Nelson said in his report that he stayed on after the meeting for about 20 minutes chatting to counsel who until then had been largely silent.
"There was the opinion that the Bar council, having lost may battles recently, due to inept intellectual and political equipment, was also losing the war. There may be a very good case for the formation of another group which is not a quango, or linked to patronage or a judicial authority, and does not have an unfortunate history of commitments and can bring original thinking to the service of the institution of the Bar."
Other information indicates that Grieve QC asked Coombs at the heads of chambers meeting whether the Bar council had a policy on direct professional access, and if so what was it.
Coombs said there was no policy because there was an agreement with Speed and the anti-fusion solicitors not to push it.
Sweeney QC asked what were the terms of this agreement.
Coombs said there was no agreement as such, just an understanding.
However, the matter could not be explored further because Coombs excused himself from the meeting. He had to attend a drinks function for Bob Hulme who was off to the Supreme Court.
Understand this
HOWEVER, there was no doubt about the "understanding". Another barrister got a letter from Tobias dated the same day as the heads of chambers meeting. The letter said:
"We have not pursued the matter (DPA) with vigour over the last couple of months as we were informed by the country and suburban solicitors that they were indeed unhappy about DPA and they may well withdraw their support of the Bar's position on fusion if the Bar proceeded with direct access. For that reason we have been going quietly on the issue."
Tobias suggested in the letter that now the government had a policy in favour of DPA the Bar council could go along with the work of the Task Force, which had just been resurrected with representatives of the Law Society, the Bar Association and the government to look at DPA. He said:
"I anticipate that appropriate rules relating to DPA will be worked out in the next month or so by the Task Force and will then be implemented ... The matter needs to be discussed on a national level with the constituent members of the Australian Bar Association in light of the national rules which the council is soon to adopt."
The letter puzzled the pro-DPA faction because a set of rules quite suitable for the NSW Bar already existed. The Emmett committee had drafted rules on DPA a year earlier, and if it was now government policy why couldn't they be introduced forthwith?
Barristers interested in DPA formed a committee and on May 13 drafted a strongly worded letter to Coombs.
The DPA committee believed that conflicting signals on this policy were coming from the council. There had been statements from both Burbidge and Coombs opposed to DPA. Indeed Coombs' contribution in Stop Press (the Bar's newsletter) made it clear that inherent in his concept of an independent Bar was the fact that barristers could only be briefed by solicitors.
Maybe the real situation was that the Bar council wanted to appear to be reluctantly forced into DPA so as to keep faith with Speed & co.
The committee's letter said:
"Now that the government had made plain its position concerning DPA, and given the successful English experience with DPA for more than four years and the introduction of DPA in Queensland from May 1, 1993, we consider that the NSW Bar council can no long credibly oppose DPA in this State ...
We request that you convene a meeting of the Bar council to enable immediate adoption of the DPA rules so sensibly suggested by the Emmett Committee of the NSW Bar in May 1992."
The letter was signed by John Spender, Don Grieve, Bruce Connell, Alan Ransom, Tony Slater, Michael Zammit, John Garnsey, Michael W. Inglis, Ian Gzell, John Durak, Ian Bailey, Frank Lever, Peter Gray, Tom Blackburn, Mark Southwick, Brian Camilleri, Bryan Pape, George Masterman, Philip Sutherland, Chris Bevan, Robert Gordon, John Whittle, John Dowd and Charles Sweeney.
Copies were sent to all members of the Bar council and to the Premier and Attorney General.
The DPA committee also passed a resolution that consideration be given to requisitioning an extraordinary general meeting of the Bar Association, with the object of calling upon the President to report on the negotiations and position of the council in relation to the government policy on structure and fees.
The letter that Coombs should not have sent
THE executive of the Bar council, once again, was back to its favourite response - fury.
Burbidge and Tobias hit the telephones to hose down some of the signatories , while Coombs sent out a shrill letter to others at the meeting.
The main concern of the executive was the fact that the letter signed by the 24 went to the Premier and the Attorney General.
The most grumpy part of Coombs' letter read:
"The changes which the government is seeking to impose on the Bar are far-reaching and complex. The consultative process between the government representatives and the Bar is on-going and time-consuming. I regard it as most regrettable that a small group within the Bar has chosen to intervene in this complex process without any reference to me and without any apparent consideration of the interests of the public and the Bar as a whole. This seems to me to be selfish and thoughtless. There can be no objection to individual members of the Bar advancing their views through conventional channels. This will normally mean the Bar council, which is the body elected by the Bar to represent it. Direct action without consultation of the kind your group has undertaken is personally insulting to me and seriously undermines the authority of the council in general and myself in particular in my ongoing discussions with the solicitors and the government on a number of delicate issues such as public access. What use the Premier will make of your letter remains to be seen, but I am sure that you have done the Bar a grave disservice.
My personal feelings are of course quite unimportant but for what it is worth you have made me very angry."
A number of barristers reacted strongly to Coombs' outburst.
Garnsey replied in detail. He told Coombs that his letter should not have been written by a president of the Bar. It did not deal with the issues raised in the letter of May 13, was a personal attack, was intemperate and was calculated to intimidate:
"The letter of 13 May contained no personal criticism or you nor any other person. It criticised policy and performance. Your letter should not have been written to members of the junior Bar if, indeed, to any members of the Bar and should be the subject of an apology.
Your letter is an improper attempt, by the use of personal attacks and threats, to silence criticism of the apparent policy and performance of yourself and of the Bar council which I and the other signatories of the letter are entitled to make and have been compelled to make as we did. I, for one, will not be intimidated by your regrettable endeavour to avoid the issues."
He went on to say that the Bar should be consulted on direct client access. "It cannot be assumed that the predominant view is against direct client access."
He also criticised the Bar council for its failure to play an effective role in influencing the agenda for change:
"There does not seem to have been any policy directed to preserving the institution of the Bar as an institution respected by and acceptable to politicians and to the community as an essential part of the administration of justice and of the functioning of the legal system. The manner in which DPA has been dealt with is one example of such detrimental inaction and passivity."
He accused the council of doing nothing to rebut complaints about the Bar in the Law Society's accessible justice seminar in July last year or the resolutions of the managing partners of some of the largest law firms in the county.
"The Bar council oscillated from apathy and neglect to hysteria," Garnsey said.
Spender picked up much the same theme in his letter to Coombs. He described Coombs' conduct in response to the tide of events moving against the Bar's status quo as a "shift from apathy to anger".
"With foresight and good judgment and some basic appreciation of the nature of the public debate and the forces supporting change, the Bar council in 1992 could have placed itself in a position where it could have led and channelled the debate on reform and by so doing have significantly influenced the outcome. And, incidentally, saved the Bar from wasting money on political and public relations advisers - whoever they may be. Instead, the council found itself fighting a rearguard action on the platform of opposing all change – a perfectly futile stand.
Since your letter of February 5 it has become only too plain that the Bar under your presidency lacks influence with, or the respect of, the government.
You seem to thank that all members of the Bar should leave to you and your executive the expression of views on the matters that concern the Bar, and concern the public, and that we should all speak with one voice, regardless of our individual views on those issues. This kind of moral and intellectual straightjacket is one which any self-respecting professional should reject out of hand."
Michael W. Inglis, another of the DPA Committee, was also incensed by Coombs' letter.
"I reject completely all of the criticisms you direct towards me in your letter. They are without foundation and obviously so. I only wish to add that, as many people senior to me in the profession have already observed, it was a despicable and totally unworthy act for you to write such an intemperate, abusive and threatening letter to a number of very junior members of the Bar."
John Dowd was furious about Coombs's letter and was heard to say:
"If Coombs thinks I'm going to take this shit, he's mistaken."
Coombs withdrew his comments insofar as they related to those who signed the May 12 letter on DPA, but did not know copies were being sent to the Premier and the Attorney General.
Coombs revealed that his explosive letter of May 17 was settled by all available members of the executive, including the senior vice-president and the chairman of the media and communications committee, and was endorsed unanimously by the Bar council at its meeting of May 19.
He said he had no quarrel with members expressing their views on any issue, "but there needs to be some discretion exercised as to when those views are promulgated depending on the circumstances".
Coombs proposed that all correspondence be put in the past and that a meeting be held on May 31 with interested members and the executive to discuss the issues that had been raised.
At its meeting on May 20 the Bar council, "resolved unanimously to vigorously oppose Direct Public Access to members of the Bar and appearances by barristers with solicitors as advocates".
As far as DPA was concerned the council postponed its decision so that it could consult with the Law Society's EGM committee and the requisitioning solicitors.
The truth was that the junior Bar was spitting chips about co-advocacy and the Bar council had to fight it otherwise it would have been lynched.
Morrice piped ashore
AS the May 31 meeting between members of the DPA committee and the Bar council got underway, Coombs announced that the registrar of the Bar Association, Captain JO Morrice, had resigned - unexpectedly.
Coombs seemed quite unsettled by his resignation.
Apart from the president those from the Bar council attending were: Tobias, Bennett, Toner, Street, McColl and the acting registrar, Phil Greenwood.
Those interested in DPA who went were A. Slater, J. Dowd, J. Spender, D. Grieve, C. Sweeney, J. Garnsey, B. Walker, B. Camilleri, B. Pape, M.W. Inglis, R. Gordon, C. Bevan and A. Ransom.
The meeting went for two hours and a lot of time was taken up by the Bar council saying, "Look what a wonderful job we've done for you!"
The meeting was told that the Law Society's EGM committee was split on the issue of DPA and was having trouble formulating its questions to put to the membership.
In fact the EGM committee was so divided that it was quite beyond it to produce a report, as had been initially envisaged.
Tobias said that it had to be appreciated that when the Bar council commissioned the Emmett report on DPA it did so as a bargaining chip to be played against the mega-firms which at the stage had formulated their proposals to end the Bar's restrictive practices.
It came as a surprise to many that the Emmett report was merely a Bar council stick to wave at the big firms.
Coombs said that DPA would only be introduced subject to arrangements with the solicitors.
Sweeney crystallised the issues by saying:
"Everyone on the Bar council says they're in favour of DPA, that it's a good thing for the Bar and the public, so why not introduce it tomorrow?"
Coombs responded that DPA was a bargaining chip and that there should be no hasty moves.
Sweeney then said to Coombs:
"Imagine you're on the 7.30 Report and you were asked the same question by Quentin Dempster. Answer the question directly, as you would on TV."
Coombs said he was not on TV so it didn't apply.
The meeting was also told that the Trade Practices Commission felt it was getting less than full access to the Bar council, and that it had to ask other sources for a copy of the Emmett committee report.
Boofy criminal barristers flex their muscles.
AT its meeting on June 3, 1993 the Bar council did something significant. It amended rule 26 of the Bar Association Rules.
This amendment allowed barristers to undertake criminal trials through the Legal Aid Commission without an instructing solicitor.
The new rule 26b now provides that a barrister shall not act in a professional capacity without the intervention of a solicitor except where:
"A barrister is requested by the Legal Aid Commission to appear for a legally assisted person in a criminal trial without an instructing solicitor, and he or she is satisfied that no prejudice will be suffered either by the barrister or by the client due to the absence of such solicitor."
At that time it was probably the most significant exception to the rules that enforce the solicitors' briefing monopoly.
The Bar council permitted this amendment because of the muscle of the criminal barristers, who obviously aren't as "poofy", as one member of the Bar so delicately put it, as the revenue barristers.
However, this change to the rules gave the DPA committee just the chink it needed.
By now a draft copy of the Legal Profession Reform Bill had been circulated to the executives of the Law Society and the Bar council.
Some of the Law Society thought the draft legislation was a complete back down by Fahey and Hannaford.
They wanted fusion, they wanted a complete end to the Bar's privileges.
Some stories started to appear saying that the legislation would allow a system of appointing de facto QC's, and the Leader of the Opposition, Bob Carr, said the legislation squibbed the hard issues.
There was muttering from within the Law Society about getting the Independents to toughen up the legislation. However, it turned out that this was the first of five drafts.
Fahey and Hannaford expose themselves
ON Friday June 11 Attorney General Hannaford released copies of an "exposure draft" of the Legal Profession Reform Bill.
By now there were no big surprises left because most of the contents had been spelled out in government position papers on fees and structure and the Premier's Norman Cowper oration.
The Bill also picked up the recommendations in February this year of the NSW Law Reform Commission on Scrutiny of the Legal Profession - Complaints Against Lawyers.
Most horrible moments confirmed for the Bar in the Bill were:
• Barristers to be permitted a choice of practice. Either briefing by solicitors, and/or direct professional briefing and/or direct client briefing.
• Co-advocacy with solicitors. The proviso that an advocate may decline to appear if the other advocate has insufficient experience or ability amounts to nothing. No senior barrister is going to throw over a big case because Allens insist that some of its associates come in as juniors.
Tobias responded by saying that there could be serious abuses by the mega-firms if co-advocacy is introduced.
To start with, he said, the big firms cannot provide advocacy services as cheaply as the Bar. Partners of big firms who come to the Bar find that their hourly rate drops by two-thirds. Also the co-advocacy rule is really the reintroduction of the two counsel or three counsel rule.
• Direct client access. The Bar council is ambivalent on direct professional access, at least at this stage, but is dead against direct client access. Tobias says no barrister wants to handle clients' money and they don't want to do all the preparatory work because they have no staff.
• Benchmark fees which apply where there is no fee agreement. The Bar thinks this stinks and won't work.
The rest of it the Bar can live with.
The Law Society council is most anxious about:
• Benchmark fees; and
• The operation in relation to discipline and bondage of the Legal Services Commissioner. In the legislation the commissioner can receive and assess complaints, which the Law Society says is a wasteful duplication of its functions.
Importantly, the Bill also provided for a review of Bar and Law Society rules by each council within 12 months of the commencement of the Act. The Legal Profession Advisory Council can also review the rules and report to the AG as to whether it considers any rule imposes restrictive or anti-competition practices which are not in the public interest.
The AG may declare any rule inoperative. In other words, a number of traditional structural rules will disappear altogether.
Apart from the review mechanism there is another device in the legislation which could bring about a more rapid imposition of government policy.
The legislation redefines barristers' rules and solicitors' rules as "rules made under the Act" by the Bar council or the Law Society council.
No rules of the Bar Association or the Law Society can be inconsistent with the Act or its regulations. To have their existing rules designated as "barristers' rules" and "solicitors' rules" both councils must have them gazetted.
Once existing rules are gazetted they are taken to be rules made under the new Act, and the Act applies to those rules accordingly (including s57E which says no rule can be inconsistent with the Act or the regulations).
One senior counsel advised that unless Bar and Law Society rules are gazetted, then they have no force under (and to the extent they are consisted with) this legislation.
Grieve rules
DON Grieve QC immediately started drafting out some rules to submit to the Bar council, rules that he thought would be within the spirit of the new competitive, public interest requirements.
For instance, he proposed:
Before a barrister accepts instructions direct from a client, the barrister must be satisfied it is in the interests of the client so to do.
And in relation to joint advocacy, the proviso to this new rule should be:
Senior counsel can only accept a solicitor junior if that junior is not charged out by the solicitor's firm at anything greater than the charge for a junior counsel.
The Bar council has held seminars on the Bill dealing with co-advocacy, access to barristers and costs and fees.
The Law Society's EGM questionnaire on structure and regulation went out, with the responses back by July 22.
This gave the society eight days to collate the responses and work out a submission to the Attorney General by the deadline of July 30.
The Bar council did not mount a campaign to direct the solicitors' vote on the questionnaire, nor did Speed and his compatriots.
There'll be no fax machines working overnight, no telephone campaign and no jockeying for questionnaire proxies.
Oh what a feeling!
HOWEVER, the Bar council executive had a meeting on June 18 with the anti DPA solicitors. Among those present were Geoff Hughes and Speed's partner, Bruce Stracey.
Some of the pro-DPA barristers were also there, namely Spender and Dowd.
Tobias told the solicitors that the Bar was implacably opposed to co-advocacy.
Spender said that there was overwhelming support for DPA at the Bar and it should be introduced forthwith. It was also indicated there was also a lot of support at the Bar for direct client access.
Following that meeting a barrister "not without influence on the Bar council" was reported in the Financial Review as saying that for the Bar to oppose DPA was a reasonable price to pay for solicitor support against co-advocacy.
Another barrister was quoted in the same paper as saying, "Country solicitors, here we come again; one more time with feeling".
It was agreed that Speed produce a paper outlining the arguments against DPA and that Spender organise a paper in favour of DPA. These papers were considered at the Bar council meeting on July 15.
Bevan, Ransom, Garnsey, Camilleri, Gordon, Pape and Inglis signed a letter dated June 29 to all members of the Bar council which said:
"DPA is an issue quite distinct from co-advocacy and should be treated as such. Trading what are in effect public rights to professional access between two professional bodies is a collusive and anti-competitive practice. We urge the Bar council to have nothing to do with such a 'deal'."
Let them become solicitors
BY now Robin Speed's paper against DPA was being handed about, but it was apparent that it did not have the persuasive firepower that was needed if he wanted to save the day.
He described barristers as "judicial specialists" and declared that without them it was doubtful whether the community could function. His other significant points were:
• To survive barristers must provide a service at a cost and at a standard better than that provided by solicitors. It is in the public interest that barristers should be required to remain in this position.
• It would be inefficient to remove solicitors as the filters for barristers.
• If barristers are briefed by other professionals, how can barristers know who is competent as a solicitor to instruct them.
• Advice from a judicial specialist is "magnified if given to a legally qualified person". This is in the public interest. "When advice is given to a non-legally qualified person inefficiencies will result".
• Costs will not be saved by allowing DPA, and if barristers act without solicitors, they will become indistinguishable from solicitors. "As a result the Bar may then disintegrate as an independent group."
• DPA is contrary to the public interest.
• "Let those barristers who want to take instructions from persons who are not legally qualified become solicitors."
Garnsey and Pape prepared the pro-DPA case.
They thought that Speed was just plain wrong:
"Mr Speed assumes that solicitors are the only professionals in need of the Bar's cost effective and skilled advice and competent to perform the 'filtering process'.
To the contrary, other professionals are as in need of the Bars' cost effective advice and, as experience demonstrates, as capable of, and as skilled in the 'filtering process' as those solicitors, ever decreasing in number, who bother to instruct counsel properly."
Their paper also argued the DPA was unquestionably in the public interest. More than 20 professional associations have indicated support for DPA, and it's been a considerable success in England.
Following the amendment of Rule 26 "logic and principle require the introduction of DPA (which only applies to referral work in non-contentious matters) where any difficulties and risks are minute by comparison".
However, the most telling argument dealt with the potential for the Bar to be marginalised:
"In many respects, solicitors are and have been for some time competitors of the Bar. The Bar no longer enjoys the esteem and respect it once enjoyed from solicitors and the community. Solicitors no longer readily direct to the Bar non-contentious advice work, nor much contentious work in many areas. Alternative dispute resolution especially in commercial matters is controlled and monopolised by solicitors. Economic pressure on solicitors, especially the medium to large firms, will compel them to retain in-house and to withhold from the Bar as much non-contentious work and specialist advocacy work as possible, if they can do so by the use or abuse of anti-competitive rules.
Consequently in the decade of the nineties, the Bar runs the risk of being marginalised into irrelevancy by the diminution in the work flowing to it especially in non-contentious work and specialist advocacy areas such as land and environment. DPA is an important factor in reversing this tendency ...
There is no sensible reason for resisting DPA any longer. To do so is to contribute to the marginalisation of the Bar."
By now the Bar council must have been going quite spare over the whole issue. Tobias told one colleague that he was sick of DPA, that he was going away for a fortnight and that when he came back the council would have adopted it. Full stop.
When in Rome
THE Bar's co-advocacy seminar was chaired by junior vice president David Bennett. Coombs kicked off with his familiar rallying call: The Law Society and the government are bent on complete fusion, and we prevented it, and we did a brilliant job.
As to co-advocacy, the interstate situation took up quite some time. How does a QC like Bennett cope when he goes to Adelaide or Perth for a case and the local instructing solicitors provide a junior for him, from the firm? How does this gel with the council's opposition to co-advocacy?
Well, Bennett, said where the rules are inconsistent between the States just do in Rome what the Romans do.
He said if the rules provide that you appear in court naked and standing on your head, then that is what you do.
This had something to do with comity.
Bennett added that anyone who wished to speak in favour of co-advocacy had 15 seconds.
On Thursday July 15, 1993 the Bar council met and decided to accept DPA, in principle. However, it did not want to flag it too vigorously until after the seminar scheduled for the following Monday.
Come the Monday Burbidge was in charge of the session and told the 50 or so barristers who turned-up that the Bar council really had no good reason to oppose DPA, although it was against full blooded Direct Client Access.
He said he would appreciate unanimous support as this would greatly assist the council. Obviously, it would be of comfort to the council in explaining to Speed and other solicitors that it was ditching the "understanding".
A number of the barristers wanted to know what was this Emmett report, and where could they get a copy. One barrister even asked, what is DPA anyway?
Importantly, Burbidge explained, not only had the council formed a firm view in favour of DPA, but it wanted to introduce it immediately. "Can I take it nobody is against the position?" he asked.
Nobody was.
It was a different kettle of fish when it came to Direct Client Access. The only person who spoke in favour of it for any length of time was George Masterman, and his line was that it was not a good idea for a professional group to be engaged in restrictive practices. He also mentioned something to do with the theory of countervailing power (i.e. if we have to have co-advocacy, why shouldn't we have direct access?).
He was howled down. But, oddly enough, when it was put to the vote there was nothing much between the numbers for client access and against.
Most abstained, of course.
David Nelson again penned a summary of the meeting for his floor at Garfield Barwick Chambers. He reported that while the Emmett Report was not confidential many people had never heard of it.
"From what he (Burbidge) said it appeared that the Bar council had been hoping that the issue would go away, but adopted the report with alacrity when the pressure from the government came on."
Other points made by Nelson were:
• "Many barristers of all levels of seniority expressed trenchant qualification of the Bar Council's attitude.
• Burbidge made it quite clear that it is Bar council policy to hold the institution of the Bar as near to its historic form as possible by tactics of obstruction.
• He made it quite clear that the Bar council was unconcerned about the fact that a fraction of barristers may be forced to leave the Bar ...
• The people speaking, however, made it clear that in the area of commercial advice the Bar is being shifted aside by the big firms, that every solicitor who possibly can is doing everything he possibly can himself or herself and that great attrition of work may occur."
Denouement
Speed and the other solicitors who, at the beginning of the year, had been so helpful to the Bar were deserted.
For so long Coombs and the other Bar leaders had been saying that they could not betray the solicitors who stuck by them.
Now at its meeting on July 22 the Bar council resolved to change its rules to allow DPA in non-litigious matters.
Four months ago in the hurly burley of the campaign against the Law Society leadership it would have been impossible to imagine the Bar council issuing a press release which said:
"Professionals such as accountants, valuers, engineers, architects, actuaries and town planners acting in their field of expertise will be able to retain a barrister to advise on behalf of their lay clients.
Mr John Coombs QC ... said 'The Bar Association recognises the DPA will be of benefit to those professions and to their clients. Direct access to the Bar by professional organisations for opinions and advice will reduce duplication of services and avoid the delays ...
'DPA has now been canvassed with the government, solicitors and our members and we believe it can be introduced without impairing the efficiency of the division of specialist services currently provided by the Bar in conjunction with our solicitor colleagues.
'This move is no reflection on the professionalism of solicitors - it is simply an acknowledgement of the diversity and changing requirements in the marketplace for legal services.
'We are committed to the reduction of costs and delays, and the efficient delivery of services. DPA is in step with those objectives,' Mr Coombs said."
The Bar's Rules Committee is busily drawing up the fine details, and the whole scheme will come into effect on August 23, 1993.
And what of the Law Society?
By now the results of the questionnaire were in. Of the responses there was overwhelming encouragement for the thrust of the government's reform legislation.
Away from the hysteria that surrounded the society's EGM there was strong support for DPA, common admission and joint advocacy. Direct client access and DPA for contentious issues were not supported by the majority in the survey.
Any hopes by the Bar council for joint opposition to co-advocacy in return for it not introducing DPA were dashed.
The definition of a contentious matter now becomes most important.
According to the English experience contentious issues are those which are fought in the courts. Non-contentious matters, however, extend to hearings before tribunals, inquiries and commissions. It is likely that the Bar rules will extend DPA to those expanding non-curial jurisdictions.
In any event Law Society president John Nelson was delighted.
The results of the questionnaire were a ringing victory for his council, which, with a few exceptions, had the main ingredients of its original submission to the government accepted by the membership.
The Law Society council was not so out of touch with its membership after all. The same could not be said of the Bar council.
The President of the Law Society sent out a message:
"It is pleasing that NSW solicitors, having considered the issues carefully, accept that structure must change as a necessary step towards a national profession which Mutual Recognition legislation is designed to produce."
So there we are. That's the story of how the Bar embraced Direct Professional Access, a policy it had earlier so bitterly fought in its campaign against the Law Society council.
Policy making at its finest!