Canberra solicitor Bernard Collaery has highlighted to foolishness of two aspects of legal practice in the ACT, and indeed, other parts of Australia. The first is the folly of having a profession split into barristers and solicitors. The second is the folly of lawyers dressing up in wigs and gowns.
The ACT is technically a fused profession because solicitors can appear as advocates in the superior courts. In the past only barristers, instructed by a solicitor who must sit at the Bar table in court, could appear in the superior courts.
Mr Collaery practises as a solicitor. Recently he appeared for an accused man before a Supreme Court with a jury. The Crown was represented by a barrister bedecked in wig and gown. Mr Collaery correctly thought he should not allow his client to be at a disadvantage and put a wig and gown on himself. But he did not have an instructing solicitor. This earned him some questioning from Chief Justice Jeffrey Miles who said the court’s preference was for solicitor advocates not to wear wigs and gowns, but if the solicitor insisted there was nothing the court could do about it because the solicitor had a legal right of appearance.
The fusing of the profession largely came about under pressure from the Industry Commission and others who said, rightly, that it was inefficient and restrictive to require someone to hire a barrister as well as a solicitor. But the fusion has been only half-hearted. Separate professional bodies exist for barristers and solicitors. The fusion should be completed, so we have just a legal professions whose members can specialise how they want. Getting rid of wigs and gowns which are a fatuous, unnecessary anachronism would be a step in that direction as well as having its own merit.