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	Murdoch University Electronic Journal of Law

SPECIALISATION, ACCREDITATION AND THE LEGAL PROFESSION IN AUSTRALIA AND CANADA

1. INTRODUCTION

The question of access to legal services has been the subject of much debate by legal practitioners, academics and the general public. These discussions have escalated both in frequency and intensity in the past decade as new areas of law have emerged and existing fields of practice have become increasingly complex.

Members of the public are often discouraged from pursuing claims or seeking legal advice because they do not know how to obtain the services of a suitable and competent lawyer.  Referral services and advertising provide prospective clients with the names of lawyers and law firms, along with indications of their areas of practice, but offer little or no guidance as to their level of competence or expertise.    

Specialisation by lawyers has existed for some time but until recently, the public was largely unaware of the identities of these lawyers, as claims of specialty by way of advertising or other means was largely prohibited and, even where permitted, the lack of formal regulation of claims of specialty meant that there was no guarantee of the competence of lawyers advertising themselves as specialists. Also, the advertisement of areas of practice could be misconstrued as representations of expertise.

The past several years have seen a change, with the advent of formal specialist accreditation programs in Australia and Canada. These programs allow accredited practitioners to advertise the fact of their specialisation and accreditation, after having passed a rigorous assessment procedure, and are aimed at improving public access to legal services, while protecting the public against false claims of expertise by ensuring that lawyers advertising in this way in fact have a certain level of skill.

However, there has been considerable argument as to the merits of accreditation. This paper will seek to compare the accreditation and specialisation programs within Australia and Canada and to discuss the views for and against their implementation in relation to issues of the public interest and access to legal services, including possible effects on advertising practices.

2. THE MEANING OF "SPECIALISATION"

Before commencing a study of accreditation and specialisation, it is necessary to establish in what context the word "specialisation" and its derivatives will be used within this paper.

"Specialisation" has often been used to denote a substantial concentration of activity within a particular field of practice. Alternatively, and more significantly, it has been used to indicate competence or expertise within the field.  Concentration alone is not a satisfactory indicator of specialisation, as it does not necessarily produce competence or expertise, although this is the usual result. A solicitor may devote a great deal of time to a particular area of law, yet still be less proficient than another solicitor who spends relatively little time in the same area.  The problem of arriving at a suitable definition is a difficult one, but rather than becoming embroiled in a complex discussion of terminology, "specialisation" in this paper will be used as a general term to include both concentration and expertise.

3. THE EXISTENCE OF "DE FACTO" SPECIALISATION

It is generally well-known that many lawyers only accept work in certain limited fields of practice, or spend the majority of their time working in particular areas.

This can be partially attributed to the increasing volume and complexity of the law and the appearance of new areas of practice, which makes it extremely difficult to keep abreast of developments in more than a small number of fields. Currently, there are over 150 different areas of legal practice in existence in Australia(1) and new developments and procedures are constantly being generated within these areas. It would be unrealistic to expect a lawyer to have a thorough - or even superficial - understanding of even a tenth of these fields.  Even those lawyers who categorise themselves as "general practitioners" in fact concentrate more on certain areas than others - generally family law, civil litigation or conveyancing(2). The broadening range of legal services has thus resulted in "de facto specialisation", or specialisation in fact.

Once the existence of de facto specialisation was acknowledged, attention turned towards the formal recognition of specialisation - how to make the transition from de facto specialisation to specialisation de jure.  

The arguments in favour of formal recognition have centred around three main factors - access to legal services, cost and competence.

A recurring argument was that the formal recognition of specialisation would increase access to legal services, as it would enable the public to identify who the specialists were.  The problem with unregulated de facto specialisation was that the majority of the public was unaware of its existence and therefore still had great difficulty in obtaining access to appropriate legal services.

Formal recognition would also assist the profession by facilitating consultations and referrals between solicitors in various fields of practice, as those solicitors practicing in certain areas could be easily identified.  Often solicitors themselves are unaware of the identity of de facto specialists(3) - explicit recognition of these specialists would remedy this to some extent.

Clients would receive the best possible assistance at a relatively low cost, as a specialist - being reasonably proficient and experienced in the area - would not need to spend as many hours researching the relevant law before being in a position to advise a client satisfactorily. Nor would the solicitor need to employ research staff to investigate the law.

 Specialisation was also claimed to raise the practice standards of the profession as a whole(4), as specialists would be expected to be aware of recent developments in their particular areas of practice through Continuing Legal Education programs and the like.

Also, due to increased familiarity with the area, a specialist is less likely to misinterpret the relevant law or to overlook material issues. An intimate understanding of procedures in the area is also beneficial to the client in terms of cost, efficiency and quality of service. The number of matters proceeding to court would also be expected to decrease as a result of increased competency in case management(5).

The consideration of these assertions resulted in proposals for specialisation schemes with varying requirements of objective qualification. These were described as low-level, medium-level and high-level schemes. The essential features of each are as follows:

Low Level A low level scheme is basically a self-designation scheme, whereby a solicitor may represent himself or herself as a specialist in a particular field of practice. The public is not given any assurance of the solicitor's competence in this field, although abuse of self-designation, for example, by fraudulent misrepresentation, may result in penalties against the offending solicitor, including the possibility of being struck off the roll of practitioners(6) and liability to civil suit at the instance of the client.  

Medium Level  In a medium level scheme, a regulatory body is responsible for the establishment of a Specialisation Board and associated Sub-Committees which, in turn, establish standards for the recognition of lawyers as specialists in particular fields of practice. Lawyers qualifying as specialists under these standards are issued with certificates attesting to the fact of their recognition as specialists.

Applicants for certification/accreditation would be required to satisfy certain standards relating to - for example - minimum periods of practice, substantial involvement in the particular field, continuing legal education requirements, peer review and a formal (written or oral) examination.

High Level  A high level scheme is substantially the same as a medium level scheme, except that the standards to be satisfied for accreditation are higher.

The primary advantage of a low level scheme is that access by the public to legal services in appropriate practice areas will probably be greater. The costs involved in bringing such a program into existence are minimal, thus enabling it to be established much more rapidly than a medium or high level scheme. Also, the absence of formal assessment will invariably result in participation by a greater number of lawyers, which would increase competition and thereby decrease costs.

However, the lack of formal regulation of lawyers identifying themselves as specialists is a major cause for concern.

Even if additional criteria are imposed - for example, a requirement that a lawyer designating himself or herself as a specialist must spend a minimum percentage of time practising in the field - this is not a sufficient precaution, as concentration is not always synonymous with expertise. Despite its advantages in terms of low cost, ease of establishment and rate of potential participation, the uncertainties associated with a low level scheme may be too much of an inconvenience to be worthwhile.

Advertising by lawyers of "preferred" and "restricted" areas of practice rather than advertising as "specialists" may alleviate this problem to some extent but may still be misconstrued by the public as representations of expertise in the particular field.

The medium and high level schemes may involve a certain amount of expenditure but both the public and the profession (referring solicitors) would be spared the unpredictability that is an inevitable element of self-designation.

The major attraction of the medium and high level schemes is that the public is guaranteed that a solicitor who advertises himself or herself as a specialist does in fact have a certain level of expertise.

The establishment of requirements for re-accreditation in the medium and high level schemes also serves to assure the continuing competence of the solicitor, as failure to comply with these requirements will result in the revocation of status as an accredited specialist.

4. ADVERTISING

A matter that is closely related to specialisation is the advertising of legal services. During the early 1980s the hitherto strict advertising restrictions were relaxed, allowing lawyers to advertise widely in print and other media.

This relaxation of advertising controls focused attention on the issue of the protection of the public against misleading advertising. There was considerable concern that unqualified lawyers would use the opportunity to advertise to hold themselves out as specialists. Some means of preventing this was considered to be necessary.

One possible course of action was the limitation of the ability to advertise as "specialists" to those practitioners accredited by a medium or high level specialisation scheme or, in the absence of - or in addition to - such a scheme, to restrict the advertising of fields of practice.

Examples of both these approaches are present in Canada and Australia. Accreditation programs have existed in parts of both countries since 1987 and all provinces, states and territories - whether with or without accreditation programs - have established regulations in relation to the advertising of areas of practice by lawyers.

What follows is a comparison of the specialisation/accreditation programs and advertising restrictions in the common law Canadian provinces and the Australian states and territories:

5. SPECIALISATION AND ACCREDITATION IN CANADA

Legal specialisation has been the subject of considerable debate throughout Canada since the late 1960s but it is only in the past fifteen years that these discussions have acquired greater momentum, culminating in the introduction of a medium-high level accreditation program in Ontario in 1986.

Ontario remains the only province to formally recognise legal specialists but there have been previous - albeit unsuccessful - attempts to introduce specialist accreditation programs elsewhere, notably a proposal by the Law Society of British Columbia in 1977. However, the other provinces do permit the advertising of areas of practice by lawyers, subject to certain restrictions. The Canadian Bar Association proposed the introduction of a national accreditation scheme in 1983 but this was rejected by the law societies of each province as they were unwilling to relinquish control of any changes affecting - or likely to affect - the rules of professional conduct and regulation in their jurisdictions(7).

5.1 Newfoundland Newfoundland does not have an accreditation program and "does not allow specialisation"(8). Presumably, this means that no claims of specialisation are permitted in advertisements of preferred areas of practice.

5.2 New Brunswick New Brunswick has no accreditation program(9). Lawyers may advertise a maximum of three preferred areas of practice but must have worked within these areas for at least three years before they are permitted to do so(10).

5.3 Nova Scotia Nova Scotia also has no accreditation program. Lawyers may advertise a maximum of three preferred areas of practice in telephone directories and any other form of advertising that the Barristers' Society permits(11). It was recommended by the Barristers' Society that advertisements of preferred areas of practice should contain a disclaimer stating that the listing of preferred areas was exclusively the choice of the advertising lawyer and did not indicate any recognised degree of expertise(12) but the current status of this requirement is unclear.

5.4 Prince Edward Island Owing to the small size of the Bar, there have been no attempts to introduce a specialist accreditation program in Prince Edward Island, although lawyers are permitted to advertise a preferred area of practice(13).

5.5 Saskatchewan No accreditation scheme exists in Saskatchewan. Nor are claims of specialty or other expertise permitted(14).

Lawyers may advertise preferred areas of practice if they have practised law for at least three years(15). Any lawyer wishing to advertise in this manner is also obliged to file an annual undertaking that s/he actually practises in the stated areas for a minimum of 20% of normal full time practice and has done so for the past three years(16). Claims of specialty and expertise are expressly prohibited(17).

5.6 Alberta In 1983, the advertising of preferred areas of practice in the Yellow Pages was authorised by the Law Society of Alberta.  However, it soon became apparent that some practitioners were making improper use of this privilege in that they were advertising themselves under most - or in some cases, all - of the preferred areas of practice. The Benchers of the Law Society were understandably concerned by this turn of events, as they perceived that some sections of the public would mistakenly interpret the advertisement of preferred areas as areas of expertise, or areas in which the advertising lawyer had specialist qualifications. As a result, the right to advertise preferred areas of practice in the Yellow Pages was revoked in June 1983(18) and lawyers are still prohibited from doing so(19).

Today, lawyers in Alberta may advertise a maximum of two "restricted" areas of practice(20), although claims of specialty and expertise are disallowed(21). However, a lawyer who chooses to advertise restricted areas of practice may not practice in any other areas and must also give a written undertaking to the Secretary of the Law Society to this effect for as long as s/he continues to use this designation(22).  This rule applies to firms as well as to individual lawyers(23).  

Law firms and individual practitioners may also represent themselves as general practitioners(24). Lawyers advertising in this way may list up to three areas of law in which they work(25).

Lawyers are not permitted to list fields of practice in any manner that does not comply with the requirements in the Professional Conduct Rules(26) and, when advertising, must include a disclaimer stating that no expertise or specialty is claimed in relation to any of the areas advertised(27).

5.7 British Columbia A detailed accreditation proposal was formulated in 1977 by a Special Joint Committee of the British Columbia branch of the Canadian Bar Association and the Law Society of British Columbia.

This proposal suggested that accreditation be made available to lawyers in the areas of criminal law, family law, immigration law and wills and trusts(28). The proposed accreditation requirements for criminal law varied slightly from those of the other fields of practice but, generally, the plan was generally of a medium level, directed more towards improving access to legal services through the identification of existing de-facto specialists(29) rather than the development or assurance of a certain level of competence or expertise in those specialists obtaining accreditation under the scheme(30).

Although the reasons for the rejection of this proposal are unclear, it is likely that its non-acceptance could be attributed to the relatively low standard and vagueness of the accreditation requirements.

The criteria to be satisfied by applicants for accreditation in criminal law were a length of practice standard and a peer review requirement, with a supplementary written examination if the Specialisation Committee was not satisfied with the information relating to the first two elements(31).

Applicants for accreditation in the other areas of practice were required to satisfy a length of practice and (unspecified) substantial involvement standard, as well as a mandatory written examination. Provision was also made for a supplementary "special education standard"(32), although exactly what this entailed was also unclear.

This proposal provides an early illustration of the difficulties associated with the selection of appropriate standards for accreditation - a complex issue which all provinces, states and territories seeking to introduce accreditation must contend with, and which will be addressed in more detail later. The lack of definition and stringency in the British Columbia plan left open a real possibility of the accreditation of mediocre lawyers, with the consequence that members of the public may have been encouraged to place considerable reliance on lawyers who should not in truth be qualified as "specialists".  

In any event, the proposal was shelved for unspecified reasons; instead, new advertising regulations were implemented, although the original intention of the Law Society was to introduce new advertising rules based upon an established accreditation scheme(33). These advertising guidelines provided that lawyers could list as areas of preferred practice any of 41 fields specified in Rule 2(1)(h) of Part C of the Professional Conduct Handbook of the Law Society of British Columbia. However, the use of "specialist" or "specializing" or other words suggesting any specialist qualifications or status was expressly prohibited.

Under the current guidelines, which came into effect in May 1993, lawyers in British Columbia may advertise preferred areas of practice if they have practised law for a minimum of three years(34). Lawyers advertising preferred areas of practice must regularly work in those areas(35) and are required to have practised in each area for a minimum of 20% of normal, full-time practice in their most recent three-year period of practice(36).

The Handbook also states that "A lawyer whose practice is restricted may state in any marketing activity the fields of law to which the practice is restricted"(37). Unfortunately, the Handbook does not explain the meaning of 'restricted' areas of practice, although as a matter of interpretation,  'restricted' may be understood to suggest that the lawyer will not accept work beyond the designated areas, whereas lawyers advertising 'preferred' areas may be willing to accept matters in other fields.

Claims of specialty or accreditation are prohibited unless authorised by the Legal Profession Act 1987 or the Benchers of the Law Society of British Columbia(38) and are required to "take all reasonable steps" to discourage similar claims by other lawyers(39), although lawyers who have been accredited as family mediators by the Law Society may advertise the fact of their accreditation(40).

5.8 Manitoba Although considerable attention has been given to specialisation in Manitoba, a specialist accreditation scheme has yet to be introduced. Currently, the Law Society is observing the progress of the accreditation scheme in Ontario before making a decision as to whether or not to introduce a similar program in Manitoba(41).

However, Manitoba was the first province to permit lawyer advertising and continues to be the most flexible in its regulation of such advertising: lawyers may advertise fees and preferred and restricted areas of practice in any medium, subject only to the standard conditions that advertising is accurate, dignified and does not claim superiority over any other practitioner(42). In addition, claims of specialty or words suggesting accreditation or any recognised specialist status are not permitted(43).

5.9 Ontario Ontario is the only province to have instituted an accreditation program. This occurred in the northern spring of 1986 and accreditation is currently available in six fields of practice(44):

Civil and/or Criminal Litigation    June 1987
 Family Law               October 1989
 Immigration Law            November 1991
 Intellectual Property Law       April 1992
 patents/trademarks/copyright
 Workers' Compensation Law       early 1993
 Labour Law               July 1993

Specialisation Committees have also been established in the areas of bankruptcy and insolvency law, entertainment law and environmental law(45).

5.9.1 General Requirements - Application Procedure for Accreditation Although there are variations in some of the requirements in the different specialty areas, there are certain general requirements which must be satisfied by all applicants, regardless of the area in which accreditation is sought.  The following is a simplified account of the application procedure for accreditation as a specialist in Ontario:

5.9.1.1 Length of Practice(46) Applicants are required to have practiced law full time in Ontario for a minimum period of seven years. They are expected to have had five years of recent experience in full time practice, two years of which must immediately precede the date of application.

5.9.1.2 Substantial Involvement(47) During the five year period of recent experience, applicants are required to have practised within the proposed specialty area for a minimum of 50% of their normal full-time practice(48).

5.9.1.3 Task Performance This requirement may be included under "substantial involvement" or may be viewed separately. It refers to "the complexity and frequency of matters required to be handled by the applicant in the relevant field prior to recognition as a specialist"(49).  An example is that an applicant for accreditation in civil litigation must have acted as lead counsel or participated as associate counsel in at least twenty contested hearings(50).  The Law Society provides comprehensive details of the task performance requirements in each field of practice to lawyers applying for accreditation in those fields.

5.9.1.4 Continuing Legal Education (CLE) Requirements(51) Applicants are required to have participated in at least fifteen hours of CLE in each of the five years of recent experience in the length of practice requirement. These CLE courses must be directly related to the area of law in which accreditation is sought. The Specialty Committee will also consider any works published, speeches given or courses taught by the applicant on topics directly related to that area.

5.9.1.5 Peer Review Applicants must accompany their applications with the names of four to six lawyers as referees(52). One of these referees must be an accredited specialist in the proposed area of accreditation and at least four must be resident in Ontario(53). All referees are expected to have personal knowledge of the applicant's work.

The following individuals are disqualified from acting as referees(54):       - Judges               - Partners                 - Members of the Specialist Certification Board       - Members of the Relevant Specialist Committee       - Tribunal Members       - Associates

5.9.1.6 Accreditation Fee(55) Currently, the fees are as follows:       - C$160.50         Application fee       - C$374.50         Administrative fee                       (payable                     upon accreditation)       - C$107.00         Annual fee

5.9.1.7 Examination There is no examination requirement.

5.9.2 Re-Accreditation Procedure(56) Accreditation lasts for five years. After this period of time, the accreditation lapses automatically. Re-accreditation may be sought, if so desired. Applications for re-accreditation are assessed in the same manner as initial applications.

5.9.3 Advertising as a Specialist Rule 12(8) of the Professional Conduct Handbook of the Law Society of Upper Canada states that:

     "[A] lawyer may indicate that the lawyer is a       specialist in a particular area of law only if the       lawyer has been so certified by the Law Society."

An accredited practitioner may advertise himself or herself in the following manner(57): - English: "Certified by the Law Society as a Specialist in..." - French: "Reconnu(e) par le Barreau du Haut-Canada comme specialiste en..."

Neither of these formulations may be abbreviated. If used outside Ontario, the lawyer must use the words "Certified by the Law Society of Upper Canada as a specialist in..." if there is a possibility that the public may be confused by the shorter denomination. However, as inter-provincial mobility is uncommon and, in any event, the advertising rules of most of the other provinces prohibit any claims of specialty, this extended version is likely to be used only very rarely.

5.9.4 Advertising as a Non-Specialist Non-accredited practitioners may not advertise themselves as specialists but are permitted to advertise that they practice in certain areas of law or that they "restrict" their work to certain areas of law(58). Lawyers may also indicate that they are in general practice. However, they may not advertise preferred areas of practice, as this may be misunderstood as a representation of expertise by the advertising lawyer(59).

6. SPECIALISATION AND ACCREDITATION IN AUSTRALIA

6.1 Tasmania Tasmania has no accreditation program but solicitors are permitted to advertise preferred areas of practice(60).

6.2 The Northern Territory The Northern Territory also has no accreditation program.  Solicitors may advertise preferred areas of practice but the use of the word "specialist" is prohibited(61).

6.3 The Australian Capital Territory and South Australia Although neither South Australia, nor the ACT have implemented an accreditation scheme, solicitors may represent themselves to the public as specialists. However, solicitors claiming to be specialists bear the onus of proving that their claims are not "false, misleading or deceptive"(62) if required to do so.

Factors to be considered in an assessment of the validity of such a claim include(63):       - academic qualifications              - peer review                  - any interstate accreditation              - the level of success achieved in the field       - the amount of experience in the field of practice       - the importance or significance of the matters in         the field in which the practitioner has been        involved       - substantial involvement in the field       - CLE attendance

6.4 Victoria Victoria was the first Australian jurisdiction to introduce an accreditation program. The Victorian accreditation proposal was approved in March 1985 and the first specialists (in family law) were accredited in 1989. Accreditation is currently available in eight fields of practice(64):

      - Family Law             1989       - Environmental, Planning and Local Government Law                             1990       - Small Business Law         1991       - Immigration Law          1992       - Alternative Dispute Resolution   1993         - in the areas of mediation and/or arbitration       - Commercial Litigation       1993       - Personal Injury Litigation     1993       - Wills and Estates         1993

6.5 Western Australia  The Law Society of Western Australia approved the introduction of an accreditation plan in 1988 but the first specialists (in family law) were not accredited until 1992. Family law remains the sole area in which accreditation is available in Western Australia.

6.6 New South Wales In November 1990 the Council of the Law Society of New South Wales approved a proposal for the implementation of a specialist accreditation plan in New South Wales. In June 1993 the first specialists were accredited in four fields of practice:       - criminal law       - family law       - personal injury law       - small business law

Accreditation was recently introduced in three additional areas:(65)       - employment and industrial law       - real property law       - taxation law

Also, accreditation in immigration law is expected to be available in late 1994/1995(65a).

6.6.1 General Requirements - Application Process for Accreditation The standards for accreditation in Victoria, Western Australia and New South Wales are generally uniform. The reason for this is that the accreditation programs in Western Australia and New South Wales were largely modelled on the Victorian scheme, with some minor modifications.

The following is a brief account of the accreditation requirements in the three states(66).

6.6.1.1 Length of Practice(67) All applicants are required to have practised law for a minimum of five years, although there is no requirement that the years of practice be consecutive.

6.6.1.2 Substantial Involvement(68) Applicants must establish that they have practised in the area of specialty for at least 25% of normal full-time practice in the three years immediately prior to the date of application.

6.6.1.3 Peer Review(69) In Victoria, applicants must provide the names of three referees from whom testimonials will be obtained. In New South Wales and Western Australia applicants must provide the names of at least five referees, of whom three will be contacted.  The Handbooks of each state have set out additional guidelines with regard to who may or may not act as a referee.

6.6.1.4 CLE Requirements(70) The CLE requirements in Victoria and Western Australia are unspecified - the emphasis is more on a qualitative rather than quantitative assessment of competence and participation.  Applicants in New South Wales, however, are required to complete at least 20 hours of CLE per year, 10 hours of which must be in the area of accreditation.

6.6.1.5 Examinations   The method of formal assessment varies from state to state, but a common element is a written examination, although the format of the examination differs in each state.

6.6.1.6 Grandfathering The only state to have initially considered grandfathering is New South Wales. The Specialisation Board of New South Wales was to be given a discretion, during the first year of the accreditation program, to waive the formal qualification procedure in order to accredit experienced practitioners who were widely considered by their peers to be specialists in their field(71). However, the New South Wales grandfathering provision has been removed and has never been applied(72).

6.6.1.7 Advertising(73)  Accredited practitioners in Victoria are permitted to use the words "specialist", "specialisation" and their derivatives in advertising. Non-accredited practitioners are prohibited from using these designations.

The Law Society of Western Australia has prohibited the use of the word "specialist". Instead, practitioners who satisfy the requirements under the accreditation program may advertise themselves as "accredited" in the particular field of law.

Some accredited practitioners in Western Australia have applied to the Law Society to use the word "specialist" rather than "accredited" and to use the abbreviated "Acc. Fam. Law." rather than "Accredited Family Lawyer"(74). However, neither of these issues has been fully considered by the Law Society.

Any practitioner in New South Wales may claim specialist status as long as this claim is not misleading and deceptive(75), although only accredited practitioners may represent themselves to the public as "accredited".

6.6.2 Re-accreditation Procedure Re-accreditation must be obtained annually in New South Wales and every three years in Victoria and Western Australia.  Applications for re-accreditation are assessed in the same manner as initial applications.

6.7 Queensland  Queensland is currently considering proposals for the introduction of an accreditation scheme in 1994(76).

If the Law Society of Queensland decides to institute a medium-high level accreditation plan similar to those already in existence in Ontario, Victoria, New South Wales and Western Australia, it will be confronted with the same difficulties as these jurisdictions, namely: the determination of the standards required for accreditation, and a consideration of the possible consequences of the introduction of an accreditation program.  

7. REQUIREMENTS FOR QUALIFICATION AS AN ACCREDITED SPECIALIST

The two primary objectives of an accreditation plan are to improve public access to legal services and to increase the competence of practitioners. Therefore, the determination of appropriate requirements for qualification as an accredited specialist must take into consideration both of these objectives, and attempt to achieve a satisfactory balance between the two(77). Standards must be sufficiently high to ensure a certain minimum level of competence but not excessively so.  

An extremely rigorous accreditation process with considerable emphasis on the attainment of a high level of expertise may deter participation by practitioners; conversely, if there is too great a concentration on access to legal services in order to attract practitioner involvement, qualification standards may be so low that there will be no point in introducing an accreditation program at all, as there will be no assurance of true competence on the part of the accredited solicitors.

This portion of the paper will examine and evaluate each of the requirements for accreditation currently in use in Australia and Canada, with a view to considering the merits of each, based on the success (or otherwise) experienced in the accreditation programs in New South Wales, Victoria, Western Australia and Ontario.

7.1 The Leng th of Practice Requirement Australian applicants are required to have practised law for at least five years before becoming eligible for accreditation; Ontario lawyers must have practised for a minimum of seven years.

This requirement is said to have a number of advantages(78):  Firstly, it is considered undesirable for lawyers to seek to specialise immediately after graduation or completion of their articles. Rather, graduates are advised to acquire a general understanding and familiarity with the legal process and to gain some experience of the different fields of practice available before making a decision to concentrate in a particular area or areas.

A five to seven year length of practice requirement is sufficiently long to allow graduates to acquire such an awareness of the law and to develop skills in communication and research but is not so prolonged as to discourage recent graduates from the idea of specialisation.

Also, increased familiarity with the legal system will hopefully lead to a greater understanding of the ethical principles and restrictions within it.

Any criticism that this requirement discriminates against young lawyers is unfounded: it would be far worse to allow young, inexperienced lawyers to specialise immediately after graduation, without the necessary experience in dealing with clients and the legal process in general.   This is the primary justification for the length of practice requirement. As solicitors provide a service to the public,

the ability to interact successfully with clients and other individuals is essential. A thorough knowledge of legal principles is important but this is worthless if the solicitor does not have good verbal and written communication skills, which can only be gained through experience in handling clients. Although law schools attempt to teach these skills in the context of courses dealing with legal practice and procedure, the conditions in which these skills are taught will always have some element of artificiality, as students will generally be interacting with teachers or other students in simulated interviews and other role-playing exercises, rather than real clients with real problems.

As for the allegation that young solicitors may feel pressured to specialise from the start of their careers, this may be true but presently, there are only a small number of fields of practice in which accreditation is offered and not all young lawyers will choose to enter an area of law simply because of the availability of accreditation. Many graduates will choose to enter other areas of law, in which accreditation is currently unavailable, such as intellectual property law or administrative law.

In any event, the current dearth of employment opportunities means that many graduates will accept whatever work is available, which may not necessarily be in an area in which they are truly interested - and, therefore, considering specialising - in. Graduates no longer have the luxury of "picking and choosing" the area in which they wish to work and it is this ability to pick and choose that may lead to pressure to specialise.  

7.2 Substantial Involvement in the Field of Practice The inclusion of a substantial involvement requirement in the standards for accreditation is in recognition of the fact that concentration of practice within a particular field usually results in increased competence within that field.

However, the greatest criticism of substantial requirement as an appropriate standard for accreditation is that concentration is not always synonymous with expertise: a practitioner may devote considerable time to a particular field, yet - as a result of personal inability or repetitive, simple work(79) - still be less proficient in handling difficult matters within the field than another lawyer who may spend relatively little time in the area, yet be especially skilled.

This poses certain problems: an insufficiently competent solicitor may be able to obtain accreditation as a result of satisfaction of the substantial involvement standard but may not be properly qualified as a specialist in the true sense of the word. Allowing the accreditation of these solicitors as specialists is undesirable and should be avoided where possible.

One way to prevent this is to use the substantial involvement standard in conjunction with additional requirements which emphasise competence rather than concentration, such as peer review and examinations. However, these additional requirements have also been the subject of criticism and perhaps it is not possible to completely exclude the likelihood of the accreditation of unqualified solicitors, despite the presence of additional standards.

What of the solicitor who exhibits considerable competence in the field but does not satisfy the 25% or 50% substantial involvement standard?  This is a lesser problem - all of the accreditation programs provide that the Specialisation Boards and Committees may exercise their discretion and waive or alter any of the formal accreditation requirements in special circumstances(80). In New South Wales this waiver or alteration must be accompanied by reasons for so doing(81).    7.3 Peer Review Individuals acting as referees are requested to complete a standard form requesting information about the applicant and his or her competence in the proposed area of specialty.  It is desirable that the referees have acted on the opposite side to the applicant in some matters. Referrals are not required from clients. Some examples of information which referees are requested to provide include:         - period of acquaintance with the applicant       - an opinion of the applicant's competence in the        relevant field of practice       - reasons for this opinion       - relationship to the applicant

Referees are encouraged to be candid in their assessment of the competence of the applying solicitor.  If they have any reservations as to the applicant's expertise, they should state them. The peer review system in the United States has worked well(82) but the quality of references thus far received in Victoria, at least, has been unsatisfactory.  

Applicants in Victoria are required to give the names of three referees, all of whom will be contacted for the provision of referral statements. However, the referral statements obtained have been described as "uniformly bland"(83) and as failing to provide an adequate appraisal of the applicant's competence.  The Law Institute of Victoria has also noticed the appearance of a standard response from some solicitors who provided referral statements for different applicants(84).

The greatest difficulty with peer review as a measure of competence is the solicitation of testimonials: if an applicant is permitted to view any of the referral statements, this may act as a deterrent, as referees may not express their true opinions about the applicant, for fear of potential loss of friendship and libel suits(85).  

New South Wales and Western Australia have attempted to ameliorate this somewhat by requesting the names of at least five referees, from which three will be chosen. This provides some degree of anonymity but it may be argued that it is largely fallacious as, even if the names of the referees making the statements remain confidential, the applicant will be aware that the statements of reference have originated from the five persons consenting to act as referees. The recognition of this factor by the referees may inhibit candid statements of opinion regarding the perceived ability (or otherwise) of the applicant.

The procedure for peer review in Ontario appears to be the most effective. As well as requiring the provision of the names of four to six referees, the names of all applicants are listed in the Ontario Reports and other practitioners may submit opinions as to their competence in the thirty days following publicati on(86). The identities of the practitioners providing these comments are confidential but the applicant is provided with a composite summary of the testimonials.

The Canadian system is preferable to those currently operation in Australia because there is a high degree of confidentiality and, therefore, those practitioners electing to give opinions on the applicant's perceived competence (or incompetence) are encouraged to provide honest evaluations without fear of legal action or loss of friendship. At the same time, the applicant is given the opportunity to examine the referral statements made on his or her behalf.

This approach also provides some degree of 'independent' appraisal in that it reduces the possibility of an 'old boy' network, in which applicants will provide each other with references simply as a favour to a friend or acquaintance.

One potential drawback of the Canadian system is that some practitioners may deliberately supply unfavourable opinions if an applicant is disliked.  Unfortunately, this may be impossible to prevent but it is to be hoped that it occurs rarely. Even if it does occur, the effect of one or two unfavourable statements may well be neutralised by an abundance of favourable opinions. In the event of the appearance of a large number of unfavourable comments, the suitability of the applicant for accreditation must be seriously questioned.  

7.4 Examinations The examination requirement is the most criticised of all the standards for accreditation. Australian applicants are required to pass a compulsory written examination in the area of proposed specialty, while there is no examination requirement in Ontario.

Several aspersions have been cast on examinations as a standard for accreditation. These include the following arguments:  that it favours young lawyers and disadvantages older lawyers who have not done examinations for many years(87); large numbers of solicitors will be unwilling to sit the examination(88) and practitioners who are widely recognised by their peers as specialists should not be required to sit an exam(89). There is also considerable dissatisfaction with the failure rate due to the high mark(90) required to pass the examination.

However, these concerns about the examinations are, in the author's view, largely unfounded. The examinations are designed by Advisory Committees in the relevant area of specialty, and heavy emphasis is placed on problems which solicitors are likely to face in practice(91). Therefore, older and more experienced practitioners are unlikely to be disadvantaged - on the contrary, they may have an advantage over younger or academically-inclined lawyers as a result of their longer period in practice and familiarity with the area of law, although younger solicitors may have some advantage by virtue of their greater familiarity with examination conditions.

Examinations may also assist in recognising the ability of younger lawyers who have not yet had the opportunity to acquire a reputation within the profession.

As for complaints concerning the high failure rate, it is to be expected that a specialisation scheme will have stringent qualification standards to ensure that only those solicitors who are worthy of specialist status are in fact accredited.  Examinations provide an objective standard for the evaluation of knowledge and its application to specific situations. They are also one of the only methods available to properly assess the understanding of information disseminated in CLE programs and also provide a means by which to verify testimonials as to competence obtained from referees.

It is true that Ontario has no examination requirement and seems to be doing well without it However, the other accreditation requirements in Ontario are far more rigorous than those in Australia. As a result, it may be more difficult to qualify for accreditation under the Canadian standards, despite the absence of an examination.

The Australian accreditation schemes - and this is probably also true of the Ontario plan - are designed to enable the accreditation of a solicitor who is reasonably competent in his or her field of practice. The standards are not so high that the achievement of the status of an accredited practitioner is nearly impossible. Obviously, the schemes are aimed at the identification of solicitors of greater than average ability in the relevant area of law but entry is not limited to solicitors of extraordinary expertise. A solicitor who is reasonably skilled in the area should be able to obtain accreditation without undue difficulty.

Having said this, it may be that a 'hybrid' approach, such as  the scheme currently operating in NSW is preferable to  assessment consisting only of one examination.  Assessment in NSW varies, according to the area in which accreditation is sought, but performance is measured by taking account of such  things as mock trial presentations, the applicant's curriculum vitae, a mock file and exercises such as a simulated client  interview(91a) in addition to an oral or written test. This may be a more balanced means of assessment which some may consider to be fairer than an examination.

7.5 'Grandfathering' Provisions

'Grandfathering' refers to:

"the exemption of a practitioner from having to complete a formal accreditation program or to pass assessments to qualify as a specialist in a particular field, due to the practitioner's acknowledged or perceived expertise in that field and his or her seniority in the profession in general."(92)

A limited period of grandfathering after the introduction of an accreditation program may be convenient to establish the scheme and to encourage the participation and acceptance of practitioners who are recognised within the profession as specialists and who may object to a requirement to comply with accreditation. However, an extended period or permanent provision for grandfathering is undesirable because of the perception that it discriminates against younger solicitors and there may be considerable reluctance to accredit solicitors solely on the basis of reputation, without any objective means of assessment.

Although the inclusion of grandfathering provisions in an accreditation program may be beneficial in that it may garner some support for the program from senior practitioners, the question of necessity must be raised: Will grandfathering provisions contribute to the success of an accreditation scheme? Will they in fact encourage senior lawyers to become involved in the scheme?

It appears that the answer to these questions must be in the negative. Grandfathering provisions may encourage participation by senior practitioners, but often these practitioners may already have a considerable workload and may be unwilling to accept any more cases. Consequently, even if grandfathering is offered as a substitute for a formal accreditation process, the number of practitioners taking advantage of the opportunity to become accredited may be small.

Also, there is a possibility that grandfathering provisions may lead to an abuse of process, as some practitioners who already have a considerable volume of work may take advantage of the provisions to obtain accreditation simply for the sake of gaining "free" qualifications but may be unwilling to accept the enlarged caseload that is a likely result of greater public demand for services arising from increased recognition by the public as an accredited specialist.

As one of the primary objectives of accreditation is to improve public access to legal services, the granting of accreditation in these circumstances would be largely futile, as access will not be improved if accredited practitioners refuse to accept work on the basis that they are already have more work than they can handle.  Grandfathering may amount to no more than an opportunity for practitioners to gain more credentials purely out of self interest and not from any desire to serve a greater number of clients and may also operate as a sanction for the further raising of fees by solicitors who may already charge a substantial amount, although the requirement to pay an annual re-accreditation fee may constitute a deterrent.

7.6 CLE Requirements The benefits of mandatory CLE are unchallenged. However, three potential problems are a possible lack of assessment, the arbitrariness of the number of hours and expense.

Accredited specialists in New South Wales and Victoria are required to submit an annual report of participation in CLE courses to the Specialisation Board(93). In addition, the New South Wales Specialisation Board will interview selected accredited specialists each year to ensure that the reports give an accurate indication of the solicitor's CLE involvement and his or her understanding of the subjects discussed. This is an effective method of assessment, especially if it is conducted randomly, and also provides an opportunity for an appraisal of the quality of the CLE courses available to solicitors in the areas in which accreditation is offered(94).

As for the criticism of the arbitrariness of the number of hours, one suggestion is the introduction of a curriculum of CLE courses to be formulated by the State Specialisation Boards or Advisory Committees(95). In addition, understanding of the topics covered in the curriculum may be tested by a written or oral examination upon their completion.

However, a substantial drawback may be the cost of administration and participation in CLE courses. Compliance with the CLE requirements for accreditation or re-accreditation may necessitate frequent interstate travel in order to attend seminars and conferences, especially if the particular scheme requires a substantial number of CLE hours per year. A curriculum of subjects organised by the accredited solicitor's state of residence(96) would alleviate this somewhat but the introduction of such a curriculum would still involve considerable capital outlay. As funding available to the Law Societies in each state is restricted(97), this is unlikely to occur.

7.7 Adequacy of the Accreditation Process It has been suggested(98) that the current accreditation plans in Australia may still result in the recognition of mediocre solicitors as accredited specialists, who may qualify simply because:

- they can satisfy the length of practice and substantial involvement standards required for accreditation but actually exhibit very little competence in the area - they have good examination techniques - they have at least five friends who are willing to attest to the required level of competence, whether or not this testimony is truthful(99).

However, in reality, the probability of this occurring is very small. If a scheme is introduced in which only one or two of the accreditation standards are implemented, then there is a greater possibility of an abuse of the system but where the qualification requirements are so numerous, it will be very difficult for a mediocre solicitor to acquire the status of an  accredited specialist.

Admittedly, the current system of peer review is ineffective and should be changed, so as to give a more accurate indication of an applicant's ability, but the other accreditation standards are generally satisfactory and do not seem to require substantial alteration.

8. CONSEQUENCES OF ACCREDITATION

8.1 Improved Access to Legal Services This issue has already been addressed at the start of this paper, with reference to specialisation, and it is not proposed to discuss it further here, except to re-emphasise that accreditation will serve to reassure the public of the competence of specialist solicitors in a way that public referral systems, law almanacs and directories and "unregulated" advertising do not.

8.2 Selection of Areas for Accreditation In Victoria(100) and Western Australia(101) the selection of areas in which to offer accreditation is largely left to the profession: it is the lawyers practising in the particular area who propose that accreditation be made available in that area.

This approach contrasts with that in New South Wales - the NSW Specialisation Board selects the areas in which accreditation will be introduced, in accordance with certain considerations(102), such as:

    - public demand - the need for the public      identification of specialists in the area      - demand from the profession - the extent to which      solicitors practising in the particular area want it     - value to the profession - will it assist or      facilitate referrals between solicitors?     - the availability of CLE

The approach in New South Wales is preferable to those in the other states. In Victoria and Western Australia, the fact that the selection of the areas for accreditation is primarily practitioner-driven, without input from the public raises some doubts as to whether accreditation has been introduced principally in the interests of the profession in terms of increased work and remuneration, since the introduction of accreditation in a particular area will almost inevitably result in greater benefits for those solicitors who qualify as accredited specialists.

This is a difficult - perhaps impossible - argument to refute, as any decision by solicitors to propose their area of practice for accreditation must at least partly be attributed to self-interest as much as any desire to improve public access to legal services. However, it is to be hoped that such proposals are motivated by more than just an expectation of personal gain.  

8.3 Cost Factors It is common knowledge that most - if not all - solicitors charge their clients on a time-spent basis.  However, the greatest drawback of this system is that unproductive and incompetent solicitors may derive substantially greater income than solicitors who handle their work expediently. This may lead to clients being forced to pay a great deal for poor quality legal services, as well as experiencing considerable delay in the resolution of disputes.

Legal specialisation remedies this to some extent: if a solicitor specialises in a particular area of law, s/he will be able to work more efficiently, as a result of greater familiarity and experience in the area. The solicitor will need to spend fewer hours researching unfamiliar legal principles and recent developments in the field than a solicitor who does not specialise in the area. Specialisation will result in greater efficiency and, therefore, economy for both the lawyer and client in terms of both time and money.

However, it is frequently argued that accreditation will act as a means of justification for the raising of fees by a solicitor(103) and will increase costs above a level that the average client can afford to pay. Although this may - and probably does - occur(104), the client still benefits. Although the hourly fee may increase, often the accredited specialist will be able to handle the dispute more expeditiously, such that the matter is resolved in a shorter period of time, thus resulting in the fee to the client being equal to or less than the fee charged by a non-specialist who spends more time on the case.

Also, as specialisation generally improves the quality of legal services, an increase in fees may be counter-balanced by the advantages of attaining a successful end to a dispute in circumstances in which a non-specialist may not have the necessary skills to procure a favourable outcome.

8.4 Fragmentation of the Profession A recurring objection against accreditation is that it will result in the fragmentation of the legal profession, as a form of elitism may emerge, separating accredited and non-accredited practitioners.  

This area may be divided into several interrelated areas for discussion:

      - monopoly by accredited specialists       - general practitioners, voluntariness and pressure         to specialise       - referral security       - effect on country and suburban lawyers       - effect on young solicitors

8.4.1 Monopoly by Accredited Specialists A major area of concern is the possibility that accredited specialists may gain a monopoly in the area of accreditation, resulting in the exclusion of non-accredited lawyers. Small groups of accredited solicitors may gain substantial power with respect to the regulation of such matters as the number of solicitors working in the field(105), fees charged, professional conduct rules(106) and other institutional arrangements relating to the area.

The greatest fear is that accreditation encourages elitism - the creation of a two-tiered profession in which solicitors are labelled either as "specialists" or "generalists" - which may in turn result in attempts by accredited specialists to restrict the number of solicitors working in particular fields to a small number of accredited practitioners and an increase the costs of specialist legal services above a level which the majority of the general public can afford.  

It is suggested that accreditation may lead to an isolation of accredited practitioners(107), in the sense that interaction with non-accredited solicitors may decline substantially.  An inevitable consequence of a close working relationship is the development of particular techniques, procedures and 'language', all of which may gradually create a special 'identity' among accredited specialists and work to exclude non-accredited practitioners from having any influence at all on matters relating to the area of practice.

The result is something of a vicious circle: the only way non-accredited practitioners will be able to practise in the areas in which accreditation is available is to acquire accreditation but most will be prevented from doing this because of the monopoly by the existing accredited specialists, who will admit very few solicitors into their select circle, so as to maintain substantial control over the field of practice.

Another possible repercussion is the diversion of much of the available work in the area to the accredited specialists. As a result, non-accredited practitioners may be unable even to gain the practical experience necessary to satisfy the length of practice or substantial involvement requirements which appear to be standard elements of medium and high level accreditation programs.

However, it is submitted that this is unlikely to eventuate, so long as the Law Society or Law Institute of each jurisdiction continues to act as the main administrative body of the accreditation plans. Fragmentation may well result if accreditation is organised by several discrete groups within the profession, such as a Family Lawyers' Association or a Property Lawyers' Association, but control by a central regulatory body such as the Law Society should exclude (or at least reduce) the possibility of this occurring.

8.4.2 General Practitioners, Voluntariness and Pressure to Specialise The aim of an accreditation scheme is not to bar non-accredited practitioners from practising in the areas in which accreditation is available - there is no restriction whatever on non-accredited solicitors practising in these areas under any of the Canadian or Australian schemes(108). The importance of general practitioners - especially the value of a long-standing relationship between a general practitioner and his or her client - is regularly emphasised in the literature concerning accreditation and specialisation.  

While some degree of competition is desirable, and may result in improved standards and quality of service in the profession as a whole, there is some concern that, as more solicitors become accredited, non-accredited lawyers - especially general practitioners - may feel pressured to specialise in order to maintain a steady level of work and income. What was originally intended to be a voluntary program will no longer be so.  

Another suggestion is that accreditation may lead to a loss of skills on the part of non-accredited solicitors, as much of their work will be diverted to accredited practitioners and their abilities in the areas in which accreditation is available will deteriorate from lack of use.

There may be some truth in both of these submissions but, upon its introduction, it was envisaged that accreditation would only be of direct concern to a relatively small number of solicitors - one estimate suggested that only 10% of all Australian solicitors would become accredited by 1995-6(109).  Many solicitors may choose not to become accredited - they may have enough to do and have no desire for more work, or they may not wish to undergo the rigorous accreditation process, or to commit themselves to the specified (and usually substantial) amounts of CLE required for re-accreditation.

With regard to general practitioners in particular, they have been described as those solicitors who

     "[specialise] in integrating areas appropriate to       [their] clientele...Many practitioners, in supplying       legal services to their surrounding communities,       come to specialise in matters unique to those        communities."(110)

If this is an accurate characterisation, then there may be no desire or pressure for general practitioners to become accredited, as they will have tailored their skills to the needs of the surrounding community and be completely satisfied with their status as a non-accredited practitioner.

In any event, a survey conducted in New South Wales(111) indicated that a large proportion of solicitors who considered themselves to be general practitioners in fact concentrated on one area of practice. This would enable these solicitors to satisfy the substantial involvement requirement, should they wish to become accredited. The 25% time commitment enables a general practitioner to achieve a high level of expertise and become accredited in one field of practice, while providing their clients with services in other areas.

General practice has also been proposed as a possible area for accreditation from time to time but the obvious difficulty is how to define what constitutes "general practice" and the formulation of appropriate standards for accreditation.

Another issue is that often clients may continue to be unable to obtain the services of an appropriate specialist, despite the presence of advertising, because of the factual or legal complexity of their problem. In some circumstances, clients may be unable to determine in which area of law their problem lies and, therefore, may be uncertain as to what type of specialist to consult.  Even if the client does approach a specialist on his or her own initiative, if the problem relates to a number of different areas of law, the client may be faced with multiple referrals between several accredited specialists.  This may be extremely inefficient, both in terms of pecuniary costs and time.

It is in circumstances such as these that the services of a general practitioner are of great value: a solicitor who is familiar with a wide range of fields of practice will be able to identify the relevant issues and which specialists to consult or whom to refer the client, should s/he be unable to handle the matter alone.

8.4.3 Referrals A related issue is that of improved referral services between general practitioners and accredited specialists. This was generally unavailable prior to the introduction of accreditation. In fact, one of the aims of accreditation is to encourage and facilitate referrals among solicitors in order to achieve greater efficiency.  Before the introduction of accreditation, solicitors confronted with a matter outside their area(s) of expertise often had difficulty in identifying proficient solicitors to whom they could refer clients or consult for an advisory opinion. Accreditation enables general practitioners to easily identify specialists in appropriate areas.

However, one concern is the security of the referring solicitor. The relationship between a solicitor and client is extremely important and should not be jeopardised in any way.  Accreditation brings the possibility that an accredited specialist to whom a client is referred may "poach" the client, with the effect that the client would approach the specialist directly in relation to any subsequent matters in the area, rather than again consulting the referring general practitioner.

One method by which this could be avoided is to allow accredited practitioners to accept work only on a referral basis. However, this would defeat one primary purpose of accreditation, which is to increase access to legal services by the public through the identification of specialists in particular areas of law by allowing these specialists to advertise themselves as such.

However, it is not disputed that the relationship between a solicitor and client is extremely important and should not be jeopardised in any way.

Another proposal is to require an accredited specialist who subsequently handles other matters for a referred client to pay a commission to the referring solicitor(112). However, this is an area of considerable controversy and has yet to be resolved.

The Specialisation Boards in New South Wales and Victoria have imposed regulations pertaining to accredited specialists which include a duty on accredited practitioners who accept work on referral to protect the interests of the referring solicitor(113). This duty involves a number of elements:

- an accredited specialist must ensure that a referred client returns to the referring solicitor in respect of any subsequent matters(114) - the specialist must inform the client of this (in writing) upon meeting the client for the first time(115) - if the referred client returns to the specialist, the specialist may only handle the matter if s/he obtains the express approval of the referring solicitor(116)

The effectiveness of this approach has not yet been assessed but as the penalty for contravention of the criteria for continued accreditation is the revocation of status as an accredited specialist, and one criterion for re-accreditation is satisfactory professional conduct, this will almost certainly deter accredited solicitors from "stealing" clients and/or engaging in other forms of unprofessional conduct.

8.4.4 Country and Suburban Lawyers It has been asserted on many occasions that accreditation favours practitioners in large city firms and disadvantages country and suburban lawyers.  However, this assertion has been contradicted by observations indicating that accreditation has been accepted more enthusiastically by country and suburban solicitors working in small firms than by solicitors practising in large metropolitan firms, although there has been considerable interest shown by both groups.  

One illustration of the approval with which accreditation has been received by country practitioners is provided by an observation of the method implemented by the Law Institute of Victoria to announce the accreditation of its first specialists(117).

In late October 1989, the Law Institute arranged for the distribution to all country, suburban and metropolitan newspapers and radio and television stations of press releases concerning the accreditation of the first family law specialists in Victoria.   

The Melbourne newspapers did not devote a great deal of attention to the subject - it was addressed only briefly and the names of the accredited solicitors were not published.  However, the reception in the country and suburban regions of Victoria was extraordinary. Accredited solicitors in these areas received considerable publicity - regional newspapers carried feature articles, profiles, interviews and photographs of local accredited specialists, with the result that several of these practitioners took advantage of the opportunity arising from the extensive media coverage concerning the introduction of accreditation to launch successful advertising campaigns and have continued to do so.

Subsequently, there have been observations that increases in work have been larger in country and suburban areas than in metropolitan areas(118), so any concern that country and suburban lawyers will be disadvantaged by accreditation appears to be unfounded.

8.4.5 Young Lawyers The effect of accreditation on young lawyers has already been discussed with reference to requirements for accreditation and, specifically, the length of practice standards. It is not proposed to address these issues further.

8.5 Over-specialisation and Micro-specialisation While specialisation and concentration of practice in particular fields may assist solicitors to achieve greater competence in these areas, there is a danger that the fields of specialty may become excessively narrow, such that it may be possible for a solicitor to become accredited in, for example, "Family Law (Property Disputes)"(119).  This has been, or may be, referred to as 'micro-specialisation'.

As many clients' problems do not fall exclusively into one field of practice, an overwhelming concern is that a high level of concentration may result in a deterioration of the quality of legal services and a reduction of the specialist solicitor's competence to handle a variety of matters.  At worst, a solicitor who practises in too narrow a field may fail to recognise the relevance or existence of related legal issues and concerns outside his or her particular area.

Over-specialisation could also result in multiple referrals between several specialists, each practising in a narrow area of law, with the inevitable result of delays, increased fees and dissatisfied clients, when the problem could really have been solved by one solicitor with broader competence.

Specialists could also develop "rigid and preconceived notions"(120) of matters in the area of specialty, and be unable or unwilling to consider attempting "novel and fresh approaches"(121) to these matters.

The recognition of micro-specialisation is clearly not in the interests of the public, as it will almost certainly result in inefficiency and, possibly, ignorance of matters outside a solicitor's area of specialty. Rather, an accreditation scheme should provide accreditation in broadly-defined fields of practice, so as to allow public identification of appropriate specialists while avoiding the possibility, and consequent dangers, of over-specialisation.

Further, narrow specialisation is not in the interest of the profession: a solicitor who specialises to an extremely high degree is unlikely to have a successful practice, as the number of clients seeking his or her services will be small.  Consequently, over-specialisation may be impractical both for specialists and their clients.

8.6 Professional Liability It is suggested that accreditation may result in the imposition of a higher standard of care for specialists, as has occurred in other professions, notably medicine.

However, as at October 1992, no complaints have been received from the public in relation to accredited specialists in Victoria, at least(122), and in the United States of America, specialisation has not resulted in increased claims against practitioners(123).

The question of professional liability in relation to accreditation has not been addressed in Australia at length but it has received some attention in Canada and the United States.

The Canadian case of Central & Eastern Trust Co v Rafuse and Gordon(124) concerned a dispute as to whether legal specialists should be held to a higher standard of care than 'ordinary' practitioners.  At first instance, it was decided that a higher standard of care would be required from specialists but the case was dismissed on the ground that the judge did not consider the defendant solicitors to be specialists.  However, the Appeals Division of the Nova Scotia Supreme Court overturned the trial judge's decision(125).

Changes to the standard of care of general practitioners may also result. The American case of Horne v Peckham(126) addressed this issue. In this case, the defendant solicitor had attempted to create a trust that would have provided his client with a tax advantage, had it been successful. The client was dissatisfied with the solicitor's handling of the matter and brought an action in negligence against him. The defendant argued that, in the light of his experience, he had handled the matter passably and was not obliged to have referred the client to a specialist.

The court held that:

"It is the duty of a general practitioner to "refer his client to a specialist or recommend the assistance of a specialist if, under the circumstances, a reasonably careful and skilful practitioner would do so. If he fails to perform that duty and undertakes to perform professional services without the aid of a specialist, it is his further duty to have the knowledge and skill ordinarily possessed, and exercise the care and skill ordinarily used by specialists in good standing...under the same circumstances. A failure to perform any such duty is negligence."(127)

In other words, a general practitioner will be held to a higher standard if s/he fails to recommend a client to a specialist in circumstances in which a reasonably careful practitioner would do so, but elects to handle the matter in dispute alone.  

This decision does not mean that a general practitioner will always be held to the higher standard of care. A higher standard is only imposed if a generalist has failed to satisfy the standards expected of a general practitioner - the solicitor must recognise the point at which specialist assistance is needed. If s/he does not, and continues to handle the matter alone, then a higher standard of care corresponding to the level expected of a specialist is imposed.  Failure to meet this higher standard will result in a finding of negligence against the general practitioner.

Professional liability in relation to accreditation is an important issue and further investigations should be conducted in this area.  It is to be expected that a higher standard of care will be imposed on accredited specialists but since there have been no claims against accredited practitioners in Australia to date, the courts have yet to formulate a position on this matter.

8.7 Advertising As Specialists Since one of the primary objectives of accreditation is to improve public access to legal services, it is undisputed that accredited specialists should be allowed to advertise the fact of their accreditation in print and other media. However, there is some variance of opinion on the subject of whether or not accredited practitioners should be permitted to use such words as "specialist" and "specialisation".

Victoria(128) and New South Wales(129) allow representations of specialty to be made only by accredited practitioners and allow the use of the word "specialist" and its derivatives.  Western Australia does not. Accredited practitioners may advertise themselves as "Accredited in (x) Law" or "Accredited (x) Lawyer". There have been some applications to use "specialist" in place of "accredited lawyer"(130) but this issue has not been fully considered by the Law Society of Western Australia.

The arguments against the use of the word "specialist" focus mainly on objections to claims of specialty status or expertise, which are criticised as distasteful and potentially deceptive, although it is difficult to see how they could be misleading, given the stringency of the accreditation process and re-accreditation requirements, which are of a sufficiently high standard to ensure that accredited practitioners maintain a certain level of expertise.  There does not appear to be any valid reason to deny accredited practitioners the privilege of representing themselves to be public as "specialists". Having satisfied the accreditation requirements, they should be allowed the opportunity to do so.

8.8 Interstate Recognition of Status as an Accredited Specialist 8.8.1 Can lawyers practising in other jurisdictions become accredited in New South Wales, Victoria or Western Australia?

In order to apply for accreditation in New South Wales, Victoria or Western Australia, a practitioner must hold a current practising certificate in the state in which the application is made(131). As a practitioner can only obtain a practising certificate if s/he has been admitted to practise in the particular state, it is necessary to briefly review the general requirements for admission of interstate practitioners within Australia.

Admission to practise interstate involves a consideration of several factors by the Law Society or Law Institute of the state in which application is made. These include academic qualifications(132), practical legal experience in the jurisdiction(133) and knowledge of the law of the jurisdiction(133). However, in New South Wales, Victoria and Western Australia residence is not a prerequisite for admission(135), so a practitioner who resides in another jurisdiction may be admitted and obtain a certificate of practice in these states.

The granting of a certificate of practice may not occur automatically upon admission. In Western Australia a practising certificate must be granted to a lawyer who has successfully been admitted, provided that the required fee is paid(136).  However, section 71 of the Legal Profession Act 1898 (NSW) and section 84 of the Legal Profession Practice Act 1958 (Vic) specify certain grounds upon which a refusal to grant a certificate may be based, including conviction, bankruptcy and dishonesty on the part of the applicant. However, a practitioner who has a satisfactory record of professional conduct should be able to obtain a practising certificate without undue difficulty once s/he has been admitted to practise in the state in question.  

These observations indicate that it is possible for an out-of-state lawyer to obtain accreditation in New South Wales, Victoria or Western Australia. However, the expenditure involved in applying for and maintaining interstate accreditation may be a significant deterrent to many lawyers.  Essentially, the expenses would consist of the payment of a fee upon initial admission and certification, two sets of annual certification fees (to maintain current practising certificates in the practitioner's state or territory of residence and the state of accreditation) the application fee for accreditation and re-accreditation fees, in addition to travel costs.  

Obtaining interstate accreditation would not be a worthwhile exercise unless the accredited practitioner is then able to advertise the fact of his or her accreditation in his or her state or territory of residence.  Given the expenses involved, there is little point in a lawyer becoming accredited in another state if s/he is then unable to publicise his or her accredited status in his or her home jurisdiction.  The only way in which a practitioner can recoup the costs involved in obtaining interstate admission and accreditation is by advertising the fact of his or her accreditation, so as to (hopefully) acquire more clients.  It is not economically viable for a lawyer to obtain interstate accreditation if his or her state of residence does not allow public representations of expertise or specialty. Neither will the objective of improved public access to legal services be achieved.

Currently, only South Australia and the Australian Capital Territory permit explicit representations of specialist status.

Such representations are allowed, provided that the advertising solicitor is able to substantiate his or her claim. Therefore, interstate accreditation would only be feasible to lawyers in these jurisdictions and, even so, the expenditure required may be so great as to discourage all but a small number of practitioners from seeking accreditation.

8.8.2 Ontario Applicants for accreditation are required to be residents of Ontario(137).

8.8.3 Reciprocal Recognition of Accredited Status in New South Wales, Victoria and Western Australia The question of reciprocal recognition of accreditation between New South Wales, Victoria and Western Australia is yet to be resolved, although the Law Society of New South Wales and the Law Institute of Victoria have discussed the matter regularly(138) and have taken steps to develop a uniform scheme with a view to reciprocal recognition in the future(139).

8.9 The Barrister-Solicitor Division Of all the Australian states which currently offer accreditation, only New South Wales has a divided profession.  Accreditation in New South Wales is only available to solicitors.

In Western Australia and Victoria lawyers are admitted as 'barristers and solicitors'. Consequently, any practitioner may apply for accreditation. However, in both states there are many lawyers who choose to practise solely as barristers(139).  As a result, accreditation will only be of direct relevance and interest to those lawyers who practise primarily as solicitors, or as both barristers and solicitors, although Victoria does offer accreditation in commercial and personal injury litigation.

The position in Ontario is slightly different.  Lawyers are admitted as 'barristers and solicitors' although, like Western Australia and Victoria, there are some practitioners who practise solely as barristers. However, lawyers who practice in this manner are relatively scarce and are not generally referred to as 'barristers'(140).  Therefore, as in Victoria and Western Australia, all practitioners in Ontario may become accredited but accreditation will generally only interest those lawyers who do not practise only as barristers.  However,  accreditation is available in the areas of civil and/or criminal litigation. In addition, lawyers who obtain accreditation in the area of intellectual property may elect to become accredited as 'barristers', 'solicitors' or 'barristers and solicitors'(141).

It has been suggested that the existence of barristers obviates the need for accreditation of solicitors(142). It is not disputed that many barristers are regarded by the profession as specialists in particular areas of law and that "the Bar provides a valuable system of specialisation which should be preserved"(143). However, it is also important to acknowledge that there are many solicitors who have a high level of expertise in their fields of practice and this expertise should be recognised.

Also, as barristers do not accept work directly from clients, it is necessary for a client to be able to identify a competent solicitor to consult about his or her legal problem. The solicitor will generally be equipped to secure the services of an appropriate barrister.  

Should the accreditation program be extended to include barristers?

The inability of barristers to approach clients directly seems to make the extension of accreditation unnecessary. Although accreditation may increase the competence of barristers - it will do nothing to improve public access to their services, as it is the solicitor and not the client who will generally approach a barrister in respect of legal matters. One suggestion is that, if accreditation is extended to barristers, they should be permitted to advertise the fact of this accreditation in law journals and other legal publications that are limited to circulation within the profession(144).

However, in New South Wales, the current situation in relation to barristers and solicitors may be on the verge of a substantial change. In June 1993, the Attorney-General's Department drafted the Legal Profession Reform Bill 1993. If passed, this Bill will bring about significant reforms to the regulation of the legal profession in New South Wales.

Clause 48E of the Bill provides that solicitors and barristers will be permitted to advertise themselves as specialists, provided that they are able to substantiate any claims of specialty:

    "A barrister or solicitor may advertise or hold himself      or herself out as being a specialist or as offering      specialist services, but only if the barrister or      solicitor:      (a) has appropriate expertise and experience; or      (b) is appropriately accredited under an accreditation        scheme conducted by the         Bar Council or the Law Society Council"

In addition, all lawyers will be entitled to advertise their services in any way they consider appropriate(145), subject to certain conditions(146) and the Bill proposes that barristers should be permitted to approach clients directly for the first time.  This in itself will be a radical change, and may alter the roles of barristers and solicitors to some extent, in that clients may have the opportunity to engage barristers without first consulting a solicitor. As the legal profession in New South Wales is divided, the effect of this particular reform will be to break down the divisions between solicitors and barristers and pave the way for a fused profession, as currently exists in all states and territories with the exception of New South Wales and Queensland. This was in fact envisaged, as clause 4 of the Bill provides for the common admission of all individuals as "legal practitioners", although barristers and solicitors will continue to be issued with separate certificates of practice(147).

These changes may also necessitate a reconsideration of the current accreditation process in New South Wales: In the first place, cl 48E appears to be a step backwards: currently, only accredited practitioners may advertise themselves as specialists. This ensures that solicitors who represent themselves as specialists in fact have a certain level of expertise and reduces the probability of deception of the public as a result of misleading advertising. However, cl 48E(a) will enable any lawyer to claim a specialty and, although it does require a lawyer advertising himself or herself as such to be able to prove that he or she has the necessary experience and qualifications to justify the use of the "specialist" designation, the process is not as reliable or as satisfactory as the limitation of the ability to advertise as a "specialist" to those solicitors who have passed a rigorous accreditation process.

Also, cl 48E(b) envisages the introduction of accreditation schemes by the New South Wales Bar Council and the New South Wales Law Society Council. The Law Society has already introduced an accreditation plan. Does this clause visualise the existence of two separate programs - one administered by the Law Society, and the other by the Bar Council? If so, this may well lead to a fragmentation of the profession as discussed earlier in this paper, although in these circumstances, the split would not only be between accredited and non-accredited solicitors but between accredited barristers and accredited solicitors(148) who would be competing for a limited number of clients. The level of competition may increase to cut-throat levels, which may segment the profession even further. This would be an extremely undesirable consequence of a reform proposal that is intended to improve the efficiency of the legal profession.

9. CONCLUSION

The benefits of accreditation to the public and the profession generally outweigh any conceivable disadvantages. However, the success of individual accreditation programs is contingent on their structure and organisation.

Although this will depend a great deal on the mechanics and needs of the particular social and legal environment in which the scheme will operate, there are several elements that should be common to all accreditation programs:

1. A single, central regulatory body, so as to avoid fragmentation of the profession

2. A length of practice standard and a substantial involvement standard, for the reasons already discussed

3. A continuing legal education requirement, which preferably incorporates some form of assessment

4. Some objective form of assessment, such as an examination and/or a method of peer review along the lines of the system currently in operation in Ontario

The greatest danger in the implementation of any accreditation program is the possibility of the accreditation of mediocre solicitors who are not worthy of the status of an accredited specialist. Therefore, it is important to include a comprehensive range of standards against which to measure the abilities of the applicants, so as to ensure - as far as possible - that the solicitors qualifying for accreditation are sufficiently competent to be represented to the public as specialists.  

In this way, as well as accomplishing the desired objective of increased access to legal services by way of the identification of solicitors practising in various fields of law, the program will also assure the public that those solicitors who qualify and advertise as accredited practitioners in fact have a certain level of expertise that justifies their "accredited" or "specialist" status.   

NOTES

1.  Charles Kovess, "Specialisation, Value Billing and Successful Legal Practice" (1992) 66(10) Law Institute Journal 895 at 895

2.  Ian Dunn, "Accreditation of Specialists - the Victorian Experience" (1991) Law Council of Australia - Legal Education Conference - p. 11 (hereafter, 'Dunn, "Accreditation"')

3.  Rick Cullen, "Specialisation Proposals for WA. Lawyers"  (1987) Brief, March 1987, 16

4. Norman O'Bryan, "Specialisation in the Victorian Legal Profession" (1989) 63(10) Law Institute Journal 947 at 947 (hereafter, 'O'Bryan, "Specialisation"')

5.  Alvin Esau, "Specialisation and the Legal Profession"  (1979) 9 Manitoba Law Journal 255 at 265

6.  W.R. Davison, "Specialisation, Certification and Continuing Legal Education" (1980) 54(10) Australian Law Journal 575 at 577 (hereafter, 'Davison, "Certification"')

7. David A.A. Stager, with Harry W. Arthurs, Lawyers in Canada (Toronto: University of Toronto Press, 1990)

8. Ronald G. Penney, Executive Director of the Law Society of Newfoundland, Personal Communication [correspondence] with the author, 15 June 1993

9. Michel Carrier, Secretary of the Law Society of New Brunswick, Personal Communication [correspondence] with the author, 25 June 1993

10. Michael J Trebilcock - "Competitive Advertising" (hereafter,'Trebilcock, "Competitive Advertising"') - in Robert G. Evans & Michael J . Trebilcock, Lawyers and The Consumer Interest - Regulating the Market For Legal Services  (Toronto & Vancouver: Butterworths, 1982) - p. 144

11. The Canadian Bar Association, Special Committee on Specialization in the Legal Profession - The Unknown Experts:  Legal Specialists in Canada Today (August 15, 1983) - p. 44  (hereafter, 'CBA Report')

12. Ibid

13. Beverly Mills Stetson, Secretary-Treasurer of the Law Society of Prince Edward Island, Personal Communication [correspondence] with the author, 15 July 1993

14. A. Kirsten Logan, Secretary of the Law Society of Saskatchewan, Personal Communication [correspondence] with the author, 21 June 1993

15. Professional Conduct Handbook of the Law Society of Saskatchewan - Part 19, Rule 1612

16. Ibid

17. Supra, note 15 - Part 19, Rule 1615(1)

18. CBA Report, supra, note 11 - p. 30

19. Professional Conduct Rules of the Law Society of Alberta - Rule 3.5

20. Gerald L. Gall, The Canadian Legal System (3rd ed., Toronto: Carswell, 1990) - p. 412

21. Ibid

22. Supra, note 19 - Rule 3.5.1(c)

23. Supra, note 19 - Rule 3.5.2

24. Supra, note 19 - Rule 3.5.3

25. Supra, note 19 - Rule 3.5.3(a)

26. Supra, note 19 - Rule 3.5.3(b)

27. Supra, note 19 - Rule 3.5.3(c)

28. CBA Report, supra, note 11 - p. 303

29. The proposed accreditation requirements were not very stringent

30. CBA Report, supra, note 11 - p. 304

31. CBA Report, supra, note 11 - p. 303

32. Ibid

33. Alvin Esau, "Recent Developments in Specialization Regulation of the Legal Profession" (1981) 11 (2) Manitoba Law Journal 133 at 170

34. Professional Conduct Handbook of the Law Society of British Columbia - Rule 16(a)

35. Supra, note 34 - Rule 16(b)

36. Supra, note 34 - Rule 16(c)

37. Supra, note 34 - Rule 17

38. Supra, note 34 - Rule 18

39. Ibid

40. Supra, note 34 - Rule 19

41. Deborah J. McCawley, Chief Executive Officer of the Law Society of Manitoba, Personal Communication [correspondence] with the author, 14 June 1993  42. Trebilcock, "Competitive Advertising", supra, note 10 - p.

144

43. Ibid

44. Sarah Thomson, Administrator - Specialist Certification Program of the Law Society of Upper Canada, Personal Communication [correspondence] with the author, 22 June 1993  45. Ibid

46. The Law Society of Upper Canada, Civil and/or Criminal Litigation Specialists - Standards for Certification - June

1993 - p. 1 (hereafter, 'Ontario - Certification Standards - Litigation')

47. Ibid

48. 90% for dual accreditation in criminal and civil litigation, or accreditation in more than one area of intellectual property law. For example, if a solicitor applies for dual accreditation in trade mark and patent law, s/he must have devoted at least 90% of his or her time to these areas or, alternatively, s/he must have devoted at least 90% of his or her time to the practice of intellectual property law in general.

49. Alan A. Paterson, "Specialisation and the Legal Profession - I" New Law Journal (25 July 1986) 697 at 698 (hereafter, 'Paterson, "Specialisation"')

50. Ontario - Certification Standards - Litigation, supra, note 46 - p. 2

51. Ibid

52. Ontario - Certification Standards - Litigation, supra, note 46 - p. 3

53. Ibid

54. Ibid

55. The Law Society of Upper Canada - General Information for Specialist Applicants (April 1993) p. 10-11 (hereafter, 'Ontario - General Information')

56. Supra, note 55 - p. 11

57. Supra, note 55 - p. 12

58. Professional Conduct Handbook - the Law Society of Upper Canada, as amended to July 10, 1992 - Rule 12(8)

59. Ibid

60. A.J. McMahon, Executive Director of the Law Society of Tasmania, Personal Communication [correspondence] with the author, 7 June 1993

61. Professional Conduct Rules of the Law Society of the Northern Territory - Rule 3.1

62. Professional Conduct Rules of South Australia - Rule 3.2    Professional Conduct Rules of the Australian Capital Territory - Rule 19.2

63. Ibid

64. Graeme Mills, Manager of Professional Development of the Law Institute of Victoria, Personal Communication [correspondence] with the author, 31 May 1993

65. Specialist Accreditation Board (NSW), Specialist Accreditation Handbook 1994 Policy, Procedures and Regulations, p. 1

65a. Cynthia Palmer, Executive Officer of the Specialist Accreditation Board (NSW), Personal Communication [correspondence] with the author, 21 April 1994

66. All accreditation requirements are set out in the Handbooks of each state. For convenience, these footnotes will refer to each state and the relevant page number of that State's Specialisation Handbook

67. The Specialisation Board: Law Institute of Victoria - Specialisation Scheme Handbook (June 1992) p. 5 (hereafter, 'Vic Handbook')   The Law Society of New South Wales - Specialist Accreditation Handbook (February 1993) p. 42 (hereafter, 'NSW Handbook')    The Law Society of Western Australia - Accreditation Scheme - Family Law (Western Australia) (March 1992) p. 2 (hereafter, 'WA Scheme')

68. Vic Handbook - p. 5; NSW Handbook - p. 42; WA Scheme - p. 2

69. Ibid

70. Vic Handbook - p. 7; WA Scheme - p. 3; NSW Handbook - p. 43

71. Trevor Atherton - Qualifying Legal Specialists (unpublished paper) Bond University, Queensland, 1992 - p. 20 (hereafter, 'Atherton, Qualifying')

72. Cynthia Palmer, Executive Officer, Specialist Accreditation Board of NSW, Personal Communication [correspondence] with the author, 2 December 1993

73. Vic Handbook - p. 4; WA Scheme - p. 4; NSW Handbook - p. 14

74. Ilberry Barblett, Personal Communication [correspondence] to the Law Society of Western Australia, 15 January 1993 (hereafter, 'Ilberry Barblett - correspondence')

75. Supra, note 72

76. Law Society of Queensland, Personal Communication [correspondence] with the author, 17 May 1993

77. Ian Dunn, "Controversial Areas in the Specialisation Debate" (August 1986) The Law Society of Western Australia:  Country Conference - p. 5

78. Supra, note 68 - p. 8

79. Peter L. Mackey, "A Seal of Disapproval" (1986) 60(7) Law Institute Journal 674 at 675 (hereafter, 'Mackey, "Disapproval"')

80. NSW Handbook - p. 44; WA Accreditation Scheme - p. 3;     The position in Victoria is reported by the Law Society of NSW in its Discussion Paper entitled 'Policy Review - Specialist Accreditation' (1991) - p. 6 (hereafter, 'Policy Review')

81. NSW Handbook - p. 44

82. Dunn, "Accreditation", supra, note 2 - p. 6

83. as reported in Policy Review, supra, note 79 - p. 17

84. Ibid

85. CBA Report, supra, note 11 - p. 74

86. Ontario - General Information, supra, note 55 - p. 10

87. "The Victorian Experience: Rising Professional Standards" - interview with Ron Beazley (Chairman of the Victorian accreditation scheme) (1992) 30(9) Law Society Journal 36 at

37 (hereafter, 'Beazley, "Victorian Experience"')

88. Ian Dunn, "The Law Institute and Specialisation" (1985)

59(11) Law Institute Journal 1161 at 1162 (hereafter, 'Dunn,  Law Institute"')

89. Ibid

90. 75% in the family law examinations in WA and Victoria

91. Beazley, "Victorian Experience", supra, note 87 - p. 37

91a. NSW Handbook pp. 7-8, 19-20, 24-5, 38-9

92. "Specialist Accreditation for Queensland Solicitors" - Report of the Specialisation Committee (1987) 7(9) The Proctor 7 at 8 (hereafter, '"Accreditation Queensland"')

93. Vic Handbook - p. 7

94. Ibid

95. Paterson, "Specialisation", supra, note 49 - p. 698

96. Ibid

97. Geraldine Byrne, Law Society of Western Australia, personal communication [personal conversation] with the author, 29 June

1993

98. Mackey, "Disapproval", supra, note 79 - p. 675

99. This objection has often been raised in meetings. However, each time that an objector has been asked if s/he would support an application for accreditation by a solicitor who s/he considers to lack the competence required of an accredited specialist, the answer has been in the negative.  - Davison, "Certification", supra, note 6 - p. 7

100. Policy Review, supra, note 83 - p. 5

101. J.A. Chaney - "Accreditation of Specialists - the Western Australian Position" (1986), Law Society of Western Australia: Country Conference - p. 2

102. NSW Handbook - p. 1

103. Atherton, Qualifying, supra, note 71 - p. 19

104. lthough a 1991 survey conducted by the Law Society of Upper Canada indicated that 98% of lawyers did not raise their fees upon obtaining accreditation - The Law Society of Upper Canada, Specialist Certification Program (draft brochure) - p. 2 (hereafter ' Law Society of Upper Canada - "Draft Brochure"')

105. Julian Disney, Paul Redmond, John Basten & Stan Ross, Lawyers (2nd ed., Sydney: The Law Book Company Ltd, 1986),

164 (hereafter, 'Disney, et. al., Lawyers')

106. Ibid

107. Marvin W. Mindes, "Lawyer Specialty Certification: the Monopoly Game" (1975) 61 American Bar Association Journal 42 at 45 (hereafter, 'Mindes, "Lawyer Specialty Certification"')

108. O'Bryan, "Specialisation", supra, note 4 - p. 2

109. "Specialisation" - interview with Ian Dunn (Chairman of the Victorian Specialisation Board) (1989) 63(11) Law Institute Journal 1090 at 1091 (hereafter, 'Dunn, "Specialisation"')

110. CBA Report, supra, note 11 - p. 11

111. Dunn, "Accreditation", supra, note 2 - p. 11

112. Ibid

113. The accreditation regulations in Western Australia and Ontario do not specify whether lawyers accredited under their schemes must comply with a similar requirement

114. "Institute-Accredited Specialists get Council Approval" (1987) 61(4) Law Institute Journal 273 at 274

115. "Accreditation, Queensland", supra, note 92 - p. 4

116. Ibid

117. Dunn, "Accreditation", supra, note 2 - p. 8

118. Ibid

119. Dunn, "Specialisation", supra, note 109 - p. 1091

120. South Australia Attorney-General's Department - A Green Paper - The Legal Profession (October 1990) - p. 30

121. Ibid

122. Beazley, "Victorian Experience", supra, note 87 - p. 37

123. CBA Report, supra, note 11 - p. 77

124. (1982) 52 NSR (2d) 69

125. (1983) 147 DLR (3d) 260

126. (1979) 158 Cal Rptr 714

127. as quoted in Jeffrey L. Rensberger, "Legal Specialists:  What Standard of Care?" (1990) 26(5) Trial 24 at 28

128. as reported in Policy Review, supra, note 80 - p. 4

129. NSW Handbook - p. 45

130. Ilberry Barblett - correspondence, supra, note 74

131. NSW Handbook - p. 42; Vic Handbook - p. 5; WA Scheme - p. 3

132. Disney, et. al., Lawyers, supra, note 105 - p. 295

133. Ibid

134. Disney, et. al., Lawyers, supra, note 105 - p. 294

135. Queensland, however, does specify residence as a prerequisite for admission (Disney, et. al., Lawyers, supra, note 105 - p. 296). The consequence of this is that if Queensland decides to introduce an accreditation programme with a similar structure to those currently operating in NSW, Victoria and WA, accreditation will only be available to lawyers living and practising in Queensland, as only these lawyers will be able to become admitted and obtain a certificate of practice.

136. Disney, et. al., Lawyers, supra, note 105 - p. 298

137. Law Society of Upper Canada, "Draft Brochure" - Supra, note 104 - p. 1

138. Cynthia Palmer, Executive Officer of the Specialist Accreditation Board (NSW), Personal Communication [correspondence] with the author, 16 August 1993

139. Supra, note 65a

140. and are specifically referred to as 'barristers'

141. Disney, et. al., Lawyers, supra, note 105 - p. 97

142. The Law Society of Upper Canada - Intellectual Property Law Specialists - Standards for Certification - August 1992 - p. 5

143. Dunn, "Accreditation", supra, note 2 - p. 10

144. Davison, "Certification", supra, note 6 - p. 576

145. Disney, et. al., Lawyers, supra, note 105 - p. 381

146. Attorney-General's Department of New South Wales, Legal Profession Reform Bill 1993 (NSW) - cl. 48D(1)

147. Supra, note 146 - cl 48D(2)

148. Supra, note 146 - p. 2 (commentary)

149. and, to some extent, between non-accredited and accredited practitioners in general, whether they are barristers or solicitors