legal-terms australia lawyer definition barristers
How does Australia split its legal profession?
<p>I just got an interesting edit suggestion to <a href="https://law.stackexchange.com/questions/77060/why-did-christopher-tran-warn-judge-kelly-about-the-minister-for-immigrations-p">my recent question</a> by someone who <em>just</em> registered (perhaps for the purpose of this edit suggestion).</p>
<p>It proposes that &quot;lawyer&quot; is replaced with &quot;junior barrister&quot; because:</p>
<blockquote>
<p>australia splits its legal profession, so &quot;lawyer&quot; is wrong</p>
</blockquote>
<p>It also injects a link to the professional profile of the person cited in the question.</p>
<p><a href="https://i.stack.imgur.com/GAwm6.png" rel="noreferrer"><img src="https://i.stack.imgur.com/GAwm6.png" alt="enter image description here" /></a></p>
<p>What is the deal with the splitting of the legal profession in Australia?</p>
<p>Is that just barristers and solicitors, pretty much like in New Zealand? Or something else? Is it actually wrong to call members of the legal profession in Australia lawyers?</p>
<p>I would guess that &quot;lawyer&quot; is just a general term, and the lack of specificity does not make it wrong. Am I wrong?</p>
<p>(I presume the actual purpose of the suggested edit is to inject the link and could speculate on who the user is, but that is irrelevant to this question.)</p>

<p>In many Common Law nations, the distinction between solicitor and barrister is that the solicitors traditionally have direct access to clients and do much of the paperwork and discuss the planning with the clients. In some jurisdictions it was/is common practice that the barrister is not hired by the client but appointed by the judge. The barrister in turn works with the solicitor and presents the case in the court and has little to no access to the client.</p>
<p>Historically, the division was much more stark, with solicitors working in the Court of Equity and barristers working in the Court of Common Law. Around the mid-1800s, the Court of Equity became defunct in the Common Law Legal system with the Court of Common Law fulfilling its duties and many Common Law nations changing how the split among lawyers now functions (often requiring separate tests to be a solicitor and a barrister).</p>
<p>The split remains in England, Wales, Scotland, three states in Australia (New South Wales, Queensland, and Victoria), Ireland (both the Republic and Northern Ireland), and Hong Kong. In these jurisdictions, a lawyer will hold only one title. In jurisdictions where lawyers may, or even are expected to, hold both titles, the system is called a “fused system”. Here, lawyers start their careers as one of the two and pick up the license to act in the other capacity later if they choose. This covers the jurisdictions of Canada, Malaysia, Singapore, New Zealand, and the remaining Australian states. (Because Australia has a mix of fused and separated systems and state reciprocation, the three states with a separated system will reciprocate for states that allow for fusion. The reverse is not necessary, as fused states would only allow them for the license they already have.)</p>
<p>The United States is fully fused and all lawyers are solicitor-barristers, for comparison’s sake. This is why the U.S. uses “attorney” and “lawyer” interchangeably despite the former being another term for barrister in certain jurisdictions (namely Scotland) while the latter term refers to solicitors and barristers collectively. The U.S. did previously have a separate system, but completely fused when Courts of Equity disappeared in the 1850s and, therefore, the term “solicitor” is still used in the legal profession, though these days it tends to be an artefact title for an office or position that predated the fusion (e.g., The Solicitor General of the United States a.k.a. the lawyer whose office represents the federal government in the Supreme Court). Modern usage of “solicitor” tends to refer to a government lawyer, and most of the states with Solicitor offices are one of the Original 13 States (not all of them, though). Only three states that were not part of the original 13 use the term (Ohio, West Virginia (likely a hold over from when it was part of Virginia, which no longer uses the term), and Oklahoma). It should be noted the average U.S. Citizens associate the word <em>solicitor</em> with traveling salesman or door-to-door evangelizers, and generally use the term in signage forbidding the practice on private property.</p>

<p>According to <a href="https://lawpath.com.au/blog/what-is-the-difference-between-a-lawyer-and-a-barrister" rel="noreferrer">this Australian source</a> the terms have the same meaning as every other jurisdiction I am familiar with:</p>
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<p>Barristers are lawyers, but not all lawyers are barristers.</p>
</blockquote>

<h2>Lawyer is perfectly fine</h2>
<p>Lawyer is a catch-all term for both <a href="https://en.wikipedia.org/wiki/Barrister" rel="noreferrer">barristers</a> and <a href="https://en.wikipedia.org/wiki/Solicitor" rel="noreferrer">solicitors</a>.</p>

<p>The Australian legal profession is separately regulated in each State and Territory.</p>
<p>Each State and Territory has a de facto split profession, in that there is a group of lawyers known as the independent bar of that jurisdiction, who practise exclusively as barristers and conduct the majority of litigation in the higher courts.</p>
<p>Each State and Territory has a de jure fused profession, in that all lawyers are required to be admitted to the legal profession by a State or Territory Supreme Court, and all practising lawyers are entitled to appear in the higher courts, although in practice this work is mostly done by barristers.</p>
<p>There are differences in the specific rules and practices that apply to barristers in each jurisdiction, which causes debate and confusion about whether the Australian legal profession is split or fused. The relevant differences are:</p>
<ul>
<li><p>In NSW, Victoria and Queensland, lawyers are required to pass bar exams administered by the local bar association in order to call themselves barristers.</p>
</li>
<li><p>In NSW and Queensland, the local bar association (like the Inns of Court) is also the regulatory body that issues practising certificates and investigates and disciplines barristers.</p>
</li>
<li><p>In the smaller jurisdictions, membership of the bar association, and other professional obligations of barristers such as self-employment, may not be legally required to use the title of barrister. While there is an independent bar consisting of members of the bar association who voluntarily comply with the professional obligations of barristers, lawyers employed by law firms
and the government conduct a greater proportion of the advocacy in these jurisdictions.</p>
</li>
</ul>
