The legal profession | Hot Topics 79: Australian legal system

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The legal profession

In NSW the legal profession is made up of two types of legal practitioners: solicitors
and barristers.
In order to be allowed to practice law in NSW, a person must either:
be admitted as a legal practitioner in another state or territory of Australia; or
have a qualification in the study of law, gain experience of legal practice by
completing a period of practical legal training, have their qualification and
experience approved by the Legal Profession Admission Board, and be
admitted to the legal profession by the Supreme Court of NSW. [15]
In NSW, a solicitor is a person who holds a NSW practising certificate that allows them
to practice as a solicitor and barrister, and a barrister is a person who holds a NSW
practising certificate that allows them to practice only as a barrister.
Most people who become legal practitioners have got their legal qualification by
completing an approved law degree at a university. It is also possible for a person to
get their legal qualification in NSW through a completing a Diploma in Law under the
management of the Legal Profession Admission Board.

SOLICITORS
By contrast, solicitors are legal practitioners whose main work is giving legal advice,
checking and preparing legal documents, such as contracts and leases, negotiating on
behalf of clients, and preparing cases for hearing.
In NSW, legal practitioners are employed as solicitors in a wide range of organisations
including:

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Legal Aid NSW;

private law firms;
community legal centres;
government departments and agencies with a legal focus, eg the NSW Attorney
Generals Department, the NSW Crown Solicitors Office, the NSW Office of the
Director of Public Prosecutions, the NSW Anti-Discrimination Board, the
Australian Human Rights Commission, and the NSW Police Force;
other government departments and agencies, such as the Sydney office of the
Australian Taxation Office, the Australian Securities and Investments
Commission, Ageing, Disability and Home Care, and NSW Fair Trading; and
law departments in other organisations, such as private companies and not-forprofit organisations.
Only a very small amount of the work of solicitors involves going to court. Solicitors do
most of their work in their own office.
When a solicitor is involved in a court case, they will usually work with a barrister by
giving the barrister a document detailing the case and all the evidence available and
engaging the barrister to present the case in court. The document detailing the case
and evidence is called a brief. Solicitors are allowed to present cases in courts and
tribunals, but in NSW are not allowed to wear a wig and gown.

BARRISTERS
Generally, the term barrister is used to refer to legal practitioners who are
self-employed and whose main work is presenting cases in court and other tribunals. In
NSW, barristers are often required to wear a black gown over their usual clothing and a
short white curly wig. This is not required in all courts and tribunals.
For a person to become a barrister in NSW, they must be admitted as a legal
practitioner and have completed the NSW Bar Associations Reading Programme (or
be given an exemption). This involves completing exams the Bar Exams and a
period of reading under the guidance of a barrister.

Hot Tip Senior counsel

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The letters QC and SC after a barristers name indicate that the barrister has
been appointed as a senior barrister. Until 1993, all such senior counsel were
appointed as Queens Counsel, or QC by the NSW Governor (on advice from
the NSW Attorney General). Since then, the President of the NSW Bar
Association has appointed barristers of suitable seniority and eminence as
Senior Counsel or SC. A barrister cannot simply use these letters after their
name, they must have been formally appointed as QC or SC. Historically, the
position was one of advisor to the monarch.
Senior Counsel are sometimes referred to as silks because they are permitted
to wear a black silk version of the usual barristers black gown. They are also
permitted to wear a different wig, which is called a full-bottomed wig, but tend
to only do so at ceremonial occasions.

WHO PAYS FOR SOLICITORS AND BARRISTERS?

Usually the work of solicitors and barristers is paid for by their clients. However, there
are some services that do not charge their clients for the legal work they do, or only
charge in limited situations.
So, for example, if a person is eligible for a grant of legal aid, they may not have to
pay anything for the legal help they get, or they may pay a reduced fee. Community
legal centres generally do not charge their clients for the legal services they provide.
[16]
Sometimes a barrister or a lawyer in a private law firm will do legal work for free this
is called pro bono [17] if the person needing the legal service cant afford to pay the
legal fees and cant get a grant of legal aid. Some legal practitioners or firms limit their
pro bono work to cases that are in the public interest.
Sometimes lawyers enter conditional fee arrangements with their clients, commonly
known as no win, no fee arrangements. In this situation, the risk of the litigation
shifts to the legal practitioner.
Although the awarding of costs is in the discretion of the court, the usual rule in
relation to legal costs is that costs follow the event. This means that if a person loses
a case, they have to pay the legal costs of the other side, in addition to their own legal

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costs. In some matters, such as personal injury and workers compensation matters, a
partys insurance company will pay these costs.
Some jurisdictions are no cost. This means that generally each party bears their own
legal costs. For example, each side usually pays their own costs in family law matters.
In addition to the professional fees of solicitors and barristers, they may also charge
disbursements. These are expenses such as search fees.
15. In NSW, solicitors and barristers are admitted to the legal profession by the Legal Profession
Admission Board under the Legal Profession Act 2004 (NSW). There are now laws across Australia that
allow a person admitted to legal practice in one state or territory to practice law in another state or
territory.
16. Legal Aid NSW is able to provide free legal services because this work is paid for by the Federal
and NSW governments. Community legal centres are able to provide free legal services because they
get money from government and other organisations to do this work.
17. Pro bono is short for the Latin term pro bono publico which means in English, for the public
good.

Hot Topics 79: Australian legal system. Hot Topics is intended as an

introductory guide only and should not be interpreted as legal advice. Whilst every
effort is made to provide the most accurate and up-to-date information, the Legal
Information Access Centre does not assume responsibility for any errors or
omissions.
Library Council of New South Wales 2011. All rights reserved. Copyright in Hot
Topics is owned by the Library Council of New South Wales (the governing body of
the State Library of New South Wales). Apart from any use permitted by the
Copyright Act (including fair dealing for research or study) this publication may not
be reproduced without written permission from the Legal Information Access Centre.

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State Library of New South Wales 2015 | Last updated: Sunday, 19 February 2012 12:39

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