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VLRC: Solicitors lead the way

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Cite as: October 2009 83(10) LIJ, p80

The VLRC has cited the LIV's specialist accreditation scheme as a model the Victorian Bar could follow to ensure barristers gain necessary expertise.

The Victorian Bar Council has been invited to consider whether barristers who appear in criminal trials should be able to seek specialist accreditation.

This invitation is one of the many recommendations in the Victorian Law Reform Commission's (VLRC) report on jury directions tabled in Parliament in July.

This proposal arose out of concerns expressed to the VLRC during consultation for its report that some barristers are appearing in criminal cases for which they do not have the necessary experience or expertise.

While it is not possible to measure whether these concerns are correct, the VLRC believes that enhanced skills training for trial counsel and judicial officers is important.

Specialist accreditation is nothing new for Victorian solicitors. The LIV introduced a scheme in 1989 that was the first of its kind in Australia and is now offered in 13 areas of practice, including criminal law.

Only solicitors who complete an LIV course of assessment can call themselves an accredited specialist.

The LIV states that the "best lawyers in their field of expertise" become accredited specialists because of the stringent eligibility and examination requirements. It appears about 65 per cent of candidates pass the accreditation assessment each year.

According to the LIV's 2007-08 Annual Report, about 6 per cent of solicitors in Victoria - or 770 out of 12,530 - are accredited specialists.

Specialist accreditation has become an important "selling point" for individual solicitors and law firms. There is a widely held perception that specialists possess superior knowledge and skills in their area of expertise, which results in an increased level of service to clients.

Barristers are not required to meet practice eligibility criteria or pass accreditation examinations in order to hold themselves out to the public as specialists in criminal law, or any other branch of legal practice.

Given the significance and difficulty of the task of appearing as counsel in a criminal trial and the apparent success of the specialist accreditation scheme for solicitors, the VLRC suggested the Victorian Bar Council consider whether there should be a similar scheme for criminal trial counsel.

A step of this magnitude would need to be supported, devised and implemented by the leaders of the Bar in order to succeed.

Accreditation in criminal trial advocacy would be an effective way of promoting high standards and of encouraging solicitors to brief counsel who have demonstrated their competence in criminal trials by passing assessable exercises.

By way of comparison, the VLRC considered the training and continuing professional development requirements for three medical specialisations: surgery, obstetrics and gynaecology, and psychiatry.

To obtain general registration with the Medical Board of Victoria - the medical equivalent of admission to practice - medical practitioners must complete a five or six-year undergraduate medical degree (or a four-year postgraduate medical degree) and one year of supervised hospital internship. To become a specialist in surgery, obstetrics and gynaecology, or psychiatry, they must participate in at least five years additional training after general registration.

Once accepted into a specialist training program, medical practitioners must pass exams, which quite a few people fail.

Of the 3648 Australian vocational registrars who sat a college final examination in 2006, only 73.1 per cent passed. Thus, nearly 27 per cent of vocational registrars failed their final exams after a minimum of five years specialist training.

The training requirements for barristers are not so stringent. A person who has completed a four-year law degree (or a three-year post graduate law degree), a one-year traineeship (or equivalent), a 10-week "Bar readers' course" (with no exams) and nine months "reading" in the chambers of a senior barrister is qualified to represent a person in a criminal trial.

As the VLRC acknowledges in its report, the demise of the "two counsel rule" has deprived new barristers of the opportunity to learn the difficult craft of criminal trial advocacy by working as a junior to experienced counsel. It is time to consider other means of obtaining that expertise.

The VLRC hopes that the recommendation in the Jury Directions Final Report concerning specialist accreditation for barristers will stimulate debate within the legal profession.

With 20 years of experience in specialist accreditation, Victoria's solicitors are well placed to participate in those deliberations.


Contributed by the VICTORIAN LAW REFORM COMMISSION. For further information, ph 8619 8619 or visit the website www.lawreform.vic.gov.au.

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