NEW ZEALAND LAW SOCIETY

PROPOSAL FOR A SPECIALISATION SCHEME

REPORT ON THE FEASIBILITY STUDY

prepared by Christopher Roper, The College of Law Alliance

July 2002

Contents

 

Abbreviations & synonyms *

Footnoting *

Acknowledgements *

Executive Summary *

Chapter 1 This feasibility study: background, aim and approach *

1.1 Background to the study *

1.2 Aim and outcome of the study *

1.3 The approach taken in this report *

1.4 The tasks involved in the feasibility study *

Chapter 2 Specialisation schemes and specialists *

2.1 Specialisation schemes *

2.2 What is meant by the term ‘specialist’? *

2.3 Contrasting lawyers’ specialisation schemes with those for medical practitioners *

2.4 Other terms which are used *

Chapter 3 Other specialisation schemes *

3.1 The scheme in England for solicitors *

3.2 The specialist certification program in Ontario, Canada *

3.3 The numerous schemes in the United States of America *

3.4 The four schemes in Australia *

3.5 The scheme in Scotland *

3.6 Costs of membership of these schemes *

3.7 Specialisation schemes for accountants in Australia *

3.8 Jurisdictions in which schemes have been rejected or considered but not yet introduced *

3.8.1 England (barristers) *

3.8.2 The Province of Alberta, Canada *

3.8.3 Hong Kong *

3.8.4 South Australia *

Chapter 4 The views and reactions of New Zealand lawyers to the proposal *

4.1 Openness to the concept *

4.2 City and provincial views *

4.3 A concern about standards *

4.4 Setting the bar at the right level *

4.5 Mixed views as to what should be meant by the term ‘specialist’ *

4.6 The effect of specialist accreditation on a lawyer’s work in other areas of practice *

4.7 The cost of becoming and being a specialist *

4.8 Whether the public’s perception would be that specialisation leads to higher fees *

4.9 Some scepticism that the Law Society is pushing the scheme for its own interests *

4.10 Whether a specialisation scheme would disadvantage or discriminate against some within the profession *

4.11 Could a scheme act as a restraint of trade? *

4.12 Concerns about future deregulation of the profession *

4.13 How broad should the areas of specialist practice be? *

4.14 The one-stop shop approach *

4.15 Are there better alternatives? *

4.16 Specialisation as a career path *

4.17 Are there enough lawyers to support a scheme? *

4.18 Questions as to whether the benefits have been proven *

4.19 Whether specialisation gets to the root of the problem *

4.20 Whether specialisation would be divisive within the profession *

4.21 Interest in other specialisation models *

4.22 Could specialisation be an unforeseen straightjacket? *

Chapter 5 The possible implications on a specialisation scheme of the proposed changes to the structure and regulation of the legal profession *

5.1 Proposals from within the profession *

5.2 Proposals from government *

5.3 Implications for the profession and for a specialisation scheme *

Chapter 6 Whether to introduce a specialisation scheme or not *

6.1 The basic issue – not whether there should be specialisation in the profession but whether there should be a scheme *

6.2 Should the Law Society be encouraging specialisation within the profession? *

6.3 Is the best option for the Law Society to formalise an existing reality by means of a specialisation scheme? *

6.4 Would a specialisation scheme disadvantage others in the profession who are not members of the scheme? *

6.5 Would a specialisation scheme benefit the public? *

6.6 Would a specialisation scheme contribute to the maintenance and enhancement of professional standards? *

6.7 Would a specialisation scheme be an effective strategy for many lawyers who wish to maintain and develop their practices? *

6.8 Might a specialisation scheme lead to an increase in the cost of legal services? *

6.9 Could a scheme have negative impacts on the profession – elitism, monopolisation or fragmentation? *

6.10 Can the profession afford to establish a specialisation scheme? *

6.11 Are there better alternatives to a specialisation scheme? *

6.12 Would the introduction of a scheme possibly result in increased liability? *

6.13 Could the establishment of a scheme have the unintended consequence of opening up some areas of legal work to non-lawyers? *

6.14 Are there any restraint of trade issues? *

6.15 Taking all things into consideration, should New Zealand have a specialisation scheme? *

Chapter 7 Issues to be considered if a scheme were introduced *

7.1 What should the designation "specialist" mean? *

7.2 What type of scheme should be adopted? *

7.2.1 A medium level specialisation scheme *

7.2.2 A higher level specialisation scheme *

7.2.3 A compromise: a tiered scheme *

7.2.4 A parallel-entry scheme *

7.3 How should referrals from one lawyer to another be handled? *

7.4 How to ensure that the scheme does not result in an overall loss of work for accredited specialists *

7.5 What should be done about Rule 4.02? *

7.6 How would a scheme fit in with the Legal Services Agency’s scheme for work in criminal law? *

7.7 The initial specialty areas – how many and how should they be chosen? *

7.8 Is there a risk that the scheme will not embraced by the profession? *

7.9 Should the concept and use of performance standards be adopted? *

7.10 What sort of assessment regime should be used? *

7.11 What should be required for maintaining accreditation? *

7.12 Should there be ‘grandparenting? *

7.13 How should the scheme be controlled and managed? *

Chapter 8 The best proposal for a scheme *

8.1 Suggested best proposal *

8.2 A review after three years *

Chapter 9 Implementation and conduct of the scheme *

9.1 Implementation Action Plan *

9.2 Establishment of the Specialist Board and its committees *

9.3 Choosing the initial specialist areas *

9.4 Developing the performance standards and assessments *

9.5 Marketing and promotion of the scheme *

9.6 The Professional Conduct Rules *

9.7 Making of the Rules *

9.8 Staffing of the scheme *

9.9 Budget *

9.9.1 Implementation budget *

9.9.2 Recurrent budget *

Bibliography *

Annexure A Consultation paper *

Annexure B Invitation to members of the profession to take part in the consultations *

Annexure C Those consulted in May 2002 *

Annexure D Extract from performance standards for the Property Law specialty in Queensland *

Annexure E Extract from the statement of knowledge in the core areas which underpins the performance standards for the Property Law specialty in Queensland *

Annexure F Summary of the main characteristics of schemes already in place *

 

Abbreviations & synonyms

                                           

                                ABA - American Bar Association    

AMINZ - Arbitrators’ and Mediators’ Institute of New Zealand

CPD - continuing professional development

CLE - continuing legal education

LSA - Legal Services Agency

NSW - New South Wales

NZLF - New Zealand Law Foundation

NZLS - New Zealand Law Society

the Society - New Zealand Law Society

Footnoting

The so-called Harvard Method of footnoting is used in this report. After the first full citation, only the author’s name and date of publication is shown in footnotes, together with the page number to which reference is being made. The full citation is shown in the Bibliography.

Acknowledgements

 

This report would not have been as comprehensive and, hopefully, informative had it not been for Kate Massy-Greene’s invaluable assistance with the extensive research which has accompanied the preparation for writing of this report. Her initiative and perception has been of great help.

Thanks too to Jane Probert, the Executive Officer of the New South Wales scheme for taking part in a long interview with Kate Massy-Greene.

A number of others, including those involved in other schemes, have readily provided information – Michael Barstow of The Law Society of England & Wales, Barry Fitzgerald of the Law Society of South Australia, Margaret Hill of the Law Society of Hong Kong, Linsey Lewin of the Law Society of Scotland, Murray Paterson of the Law Institute of Victoria, Gill Richardson of the Queensland Law Society, Mark Stobbs of the General Council of the Bar, Ursula Stojanowicz of the Law Society of the Upper Canada, Tori Jo Wible of the American Bar Association and Maggie Winterson of the Law Society of Western Australia.

Sir Francis Price, Bt. kindly responded to my request for background information on the current situation with the Law Society of Alberta’s scheme.

I acknowledge the New Zealand Law Foundation for their recognition of the need for this study and the funding they provided to enable it to proceed.

Finally, special thanks to Sarah Spears and all at the New Zealand Law Society for their ready and thoughtful help throughout all of this study. They helped make it possible.

Executive Summary

 

The New Zealand Law Society is considering whether it should introduce a specialisation scheme and has decided to examine its feasibility. Specialisation schemes for lawyers are now to be found in a number of other common law jurisdictions, and the Law Society has decided to consider the suitability of such a scheme for New Zealand.

The aim of this feasibility study is to enable the Law Society to make this decision in an informed way and, if it so decides, to make the best decision as to what form the scheme should take.

Specialisation and specialisation schemes

Specialisation schemes are schemes, usually established by legal professional bodies, which designate certain members of the profession as specialists. In all cases individuals are accredited, not firms. Although practitioners in a number of jurisdictions may, and do, self-designate themselves as specialists, specialisation schemes confer the designation on the basis of certain prerequisites or criteria being satisfied.

The terms ‘specialist’ and ‘expert’ can often be used interchangeably in discussions about specialisation schemes. This lack of precision in the use of the term ‘specialist’ has resulted in some confusion as to what a specialisation scheme is really seeking to be.

Other specialisation schemes

There are schemes in a number of other common law jurisdictions, in particular in England, for solicitors but not for barristers, Ontario, many of the States of the United States, four of the Australian States and Scotland. The possibility of introducing schemes has been considered in Alberta, Hong Kong and South Australia but rejected, at least for the time being. The General Council of the Bar in England has recently circulated a consultation paper but deferred further consideration as the initial reaction has not been particularly positive.

The views of New Zealand lawyers

From 13th to 22nd May 2002 meetings were held throughout New Zealand in order to obtain the views and reactions of lawyers to the proposal to establish a specialisation scheme. In summary their views and reactions were –

The impact of the proposed restructuring of the legal profession on specialisation

Proposals for changes to the structure and regulation of the legal profession emanate from within the profession itself and from the Government. Whilst there have been some specific proposals from within the profession there are not, as yet, any published proposals from the Government.

Over the last decade or so there have been two New Zealand Law Society reports which have examined the structure and role of the legal profession – "Time for a Change" published in 1994 and the E-DEC Report, published in 1997. In 1998 a model was proposed, known as the Haynes model.

It is understood that the Government has proposals for the reform of the legal profession although no bill has yet been published so it is not known what specific proposals might emerge. Some decisions made in 2000 by the Cabinet of the Clark Government are, however, known. In particular, it is proposed to encourage greater diversity in the range of legal services currently available and from a wider range of providers, and to create a more competitive environment by establishing a more level playing field between different providers of legal services. In particular, the areas of work explicitly reserved to lawyers are spelt out.

Essentially it is possible that these proposals could mean that the marketplace in which legal practitioners would find themselves would be far more competitive.

The generally accepted wisdom is that, given this situation, legal practitioners would be better able to compete by highlighting, certifying and ‘branding’ their particular and superior expertise. Whilst this strategy would be in the interests of the specialists themselves it can be persuasively argued that it would also be in the public interest – giving the public a genuine choice which could be made in full knowledge of the factors involved in making that choice.

Whether there should be a specialisation scheme

Whether to go ahead and introduce a specialisation scheme is the essential core question. In making a decision to go ahead or not, a number of issues need to be considered and resolved one way.

The fact is that many, if not most, lawyers already specialise to varying degrees.

If the Law Society proceeds to establish a specialist scheme it will have, in effect, accepted that this diversity within the profession should be acknowledged and indeed encouraged. But should it? The answer to this question depends on whether it is decided that there are benefits to the practitioners themselves, to the profession and to the general public.

Specialisation is a rational and obvious way to cope with the increasing complexity of practising law as a result of the proliferation of information and law. The Law Society could well conclude that there was no good reason, in the interests of ensuring the delivery of the best quality services, that it should not encourage it.

As a proportion of the legal profession is already de facto specialists, a specialisation scheme would give the Law Society the opportunity to create common standards for this practice and make the specialists better known to the public. .

But how does the Law Society balance its dual roles of encouraging the development of the profession by supporting those who wish to strategically positioning themselves for success in practice, and yet protecting those who, for one reason or another, are not able or willing to change their way of practice in order to survive and grow, eg. by taking part in a specialisation scheme? In particular would a scheme disadvantage women practitioners, junior practitioners and general practitioners?

The fact is that the schemes in other jurisdictions do not appear to have had a discernible negative impact on those outside the schemes. Having said this, it must be acknowledged that there is no research from these other jurisdictions on the effect of the schemes on non-specialist lawyers, one way or the other. And, of course, it should be acknowledged that this competitive situation exists in New Zealand already, partly because of Rule 4.02, and there is no apparent negative impact.

The benefits for the public of a specialist scheme are generally considered to be –

The real issue is not whether a scheme would make lawyers more accessible (that is probably sufficiently achieved already) but whether there is sufficient value in providing reliable access to those with proven expertise to justify the establishment of a scheme.

There is general agreement that the need to set, maintain, and indeed enhance, professional standards is a core and ongoing issue for the profession. The question for the Law Society is whether a specialisation scheme would substantially contribute to achievement of this goal. Specialisation should enhance and maintain the overall level of competence in the profession by virtue of the existence of specialists working throughout the profession. But it has to be said that there is no empirical evidence linking specialisation to improved overall competency within the profession.

There is general agreement that, for many lawyers, the environment in which law is practised is an increasingly competitive and difficult one. Given this, it could well be argued that it is appropriate, and perhaps even incumbent, on the Law Society to explore ways to assist lawyers, particularly those in smaller general practices, to survive and thrive. Specialisation would appear to be a way whereby they could confine their practices in a recognised way and direct their energies into areas which interest them.

In regard to whether the introduction of a scheme would lead to higher fees, the fact is that specialisation schemes in the legal profession almost always recognise an existing specialty. Accordingly, it could well be that a practitioner already had a higher charge-out rate before becoming accredited as a specialist under a scheme.

There could be a concern that a specialisation scheme could lead to elitism, monopolisation of some areas of work, or a fragmentation of the legal profession.

There is also a question as to whether the profession can afford to establish a specialisation scheme. The basic issue is whether a scheme can be of an appropriately high standard and yet be sufficiently affordable, and hence attract a sufficient number of practitioners to its membership.

The only source of ongoing income for the scheme would be the fees for accreditation and re-accreditation, so there would be no other way of keeping costs (to members) down. There might be some initial subsidisation in order to give the scheme a kick start. But at some point the scheme needs sufficient practitioners joining it, and maintaining their membership through re-accreditation, to enable the fees to be sufficiently low to attract practitioners to the scheme. This would require a fine balancing of costs and fees and could expose the Law Society to some risk.

Another question is whether there are better alternatives to a specialisation scheme, such as mandatory CLE, better marketing of the existing Law Society Sections, multidisciplinary practices or better advertising of legal services to the public. But the issue really is not whether there are alternatives, but whether one or more of those alternatives is so much more preferable, that it should be followed and a specialisation scheme should not be pursued.

A further question is whether specialists accredited under a scheme might have an elevated duty of care. Could a scheme lead to a greater risk of litigation if a specialist did not meet the standard of performance expected of an accredited specialist?

Could the establishment of a scheme have the unintended consequence of opening up some areas of legal work to non-lawyers? The question is just how likely this situation is to arise, and/or whether a specialisation scheme might do no more than hasten a development which is already occurring.

A question also arises as to whether there are any restraint of trade issues. It would appear that there are no such issues.

Taking all things into consideration, the Law Society might accept an argument that –

then the NZLS should go ahead and establish a scheme.

Issues to be considered if a scheme were introduced

There is a range of issues to be considered should the decision be made to introduce a scheme, including –

The best proposal for a scheme

The suggested best proposal is a medium level scheme (as described below). The principal reason why the other options are not being recommended is that the scheme is more likely to be successfully introduced if –

Its essential elements would be –

  1. Name

    The scheme would be known as the New Zealand Law Society Specialist Scheme.

  2. Specialist Board

    The scheme would be administered by a Specialist Board, established by the Law Society. The members of the Specialist Board would be appointed by the Council of the Law Society. The members of the practice area committees of the Specialist Board would be appointed by the Board, after consultation with any Law Society Section in the same area of practice.

  3. Prerequisites for accreditation

    3.1 A practitioner would need to have been in practice for the equivalent of five years full time before being eligible to apply for accreditation.

    3.2 During the immediately preceding three years (or equivalent) the practitioner would have to have spent at least 25% of his/her practising time in the area of specialisation.

    1. Be in good standing with the Law Society.
  4. Performance standards

Performance standards for each area of practice for which a specialist scheme was established would be developed and they would –

  1. Requirements and procedures for accreditation

    Practitioners seeking accreditation would be required to –

    5.1 Undertake an assessment process, comprising an open book written examination and at least two other forms of assessment which required performance, as detailed in the performance standards.

    5.2 Submit a description of their practice in the area of specialisation, in terms not breaching client confidentiality, which showed that it encompassed the area of specialisation as defined in the performance standards

    5.3 Submit the names of five referees who could vouch to the applicant’s specialist competence in terms of the performance standards.

  2. Period of accreditation

    Accreditation would be initially for three years, and thereafter for periods of five years.

  3. Requirements and procedures for continued accreditation

To maintain accreditation a specialist would need –

    1. To continue to practise, for at least 25% of their practising time, in the area of specialisation.
    2. Engage each year in at least ten hours of face-to-face CLE in the area of specialisation, or satisfy the Specialist Board that he/she had done the equivalent, eg. presented at a CLE seminar or a conference, or written an article in the specialist area.

It would be appropriate that the scheme be reviewed after three years in order to identify whether it has been a success, has met the expectations of it, whether changes should be made to improve it, and indeed whether it should continue. As the Law Society Council may not wish to dismiss other possible options permanently, this would be an appropriate time to revisit the other options outlined and consider any other options which may then be apparent.

Implementation and conduct of the scheme

Obviously, until the exact nature of the scheme is decided upon, its fine detail cannot be determined. But it is possible to discuss in general terms the things that would need to be done to design, implement and conduct the scheme.

The first step would be to write an Implementation Action Plan. This would list every action that needed to be carried out, provide a time line, show who would be responsible and any costs involved.

Given that a decision was made that the scheme should have its own board, with responsibility for its own budget and administrative arrangements but answerable to the NZLS Council, some subsidiary questions arise. How would that board be constituted? Would there be an advisory committee for each specialist area? If the areas of specialty overlap with areas covered by NZLS Sections, should there be linkages or even significant overlap?

The choice of the initial specialist areas will be an important early decision as it will determine, amongst other things, who will be involved in the decision making and planning in the early stages. The process will not simply be a choice of areas but a defining of their boundaries.

A further step will be the development of the performance standards and the assessments.

Basing each specialist area on a formal description of its scope and of the nature of specialist competence is recommended, in order to provide a firm foundation for a number of aspects of the scheme. The assessments can then be designed so that they appropriately assess whether a practitioner can match the performance standards and hence qualify for specialist status.

The scheme will need to be promoted with the profession and to the general public.

A decision will need to be made as to what should be done, if anything, about R4.02. Should there be a new sub-rule for specialists accredited under the scheme? Should the existing rule remain unchanged or should it now only permit accredited specialists to take advantage of it?

Once all broad and specific decisions are made, rules will presumably need to be written for the scheme.

A decision will need to be made as to how the scheme will be staffed.

An initial implementation budget and an ongoing recurrent budget will need to be prepared.

 

 

Chapter 1 - This feasibility study: background, aim and approach

 

1.1 Background to the study

The New Zealand Law Society (the Law Society or NZLS) is considering whether it should introduce a specialisation scheme and has decided to examine its feasibility. Specialisation schemes for lawyers are now to be found in a number of other common law jurisdictions and the Law Society has decided to consider the suitability of such a scheme for New Zealand. A Specialisation Working Party has been established to oversee a study of the feasibility of this development.

Some of the impetus for this development has come from the Family Law Section of the Law Society. The Section’s interest in specialisation begins in 1994 when the competency of counsel in the Family Court was very much in focus. As a result, the Family Law Committee considered the issue of specialisation/accreditation, but at that time the development of a profession-wide specialisation scheme was not a priority. At the same time there were very preliminary discussions regarding the formation of a Family Law Section. Some four years later the Family Law Section was implemented after discussion and consultation both within New Zealand and with the Australian Family Law Section. It had always been considered that one of the purposes of having a Family Law Section would be to enhance the competencies of lawyers practising in the family law area. Specialisation was seen as an option, but it would be voluntary and would require those seeking the ‘badge’ of specialisation to meet given competencies.

Because of the current mooted changes to the structure of the profession, now is seen as the appropriate time to consult with the profession as to whether or not there should be the development of a profession-wide specialisation scheme.

In this context, the Law Society has appointed this consultant to undertake a feasibility study for a specialisation scheme.

1.2 Aim and outcome of the study

The aim of the feasibility study is to enable the Law Society to make a decision in an informed way and, if it so decides, to make the best decision as to what form the scheme should take.

The Law Society’s letter of appointment requests that the outcome of the feasibility study be a report which –

A later stage of the study will encompass the drafting of a set of rules for the scheme, a budget for the implementation and ongoing management of the scheme, and the preparation of an action plan and timetable for its implementation.

1.3 The approach taken in this report

The approach taken in this report is to address the various issues in a slightly different order to that set out above and instead to think through the issues by asking –

Accordingly, the report is structured in the following way –

Chapter 2 A discussion of what is meant by ‘specialisation’ and of the terminology used in this report

Chapter 3 A consideration of a number of specialisation schemes in other common law countries and of the situation in some jurisdictions where the decision has been made not to introduce a scheme

Chapter 4 A recording of the views and reactions of New Zealand lawyers to the proposal, indicating the implications to be drawn therefrom and the likely take-up of the scheme

Chapter 5 A consideration of the possible impact on a scheme of the proposed changes to the structure and regulation of the profession.

Chapter 6 A discussion of the issues to be considered in deciding whether to go ahead with a scheme or not

Chapter 7 A discussion of the issues to be addressed if the decision were made to go ahead with a scheme

Chapter 8 A best proposal for a scheme, including a discussion of possible pitfalls and how they might be avoided

Chapter 9 A description, in some detail, of what would need to be done to –

1.4 The tasks involved in the feasibility study

The tasks involved in the feasibility study were –

  1. Compilation of information on selected specialisation schemes in other countries and analysis of various aspects of them.
  2. Liaison, by correspondence, with those involved in schemes in a number of other jurisdictions, to obtain details of them and to identify pitfalls encountered during their implementation and ongoing management.
  3. The preparation of a consultation paper which was circulated, in advance, to those consulted in New Zealand in May 2002.
  4. Consultations in New Zealand in May 2002 with the profession and other appropriate people or organisations, in Wellington, Palmerston North, Napier, Auckland, Hamilton, Dunedin, Christchurch and Nelson
  5. Writing of the report.

A copy of the consultation paper is in Annexure A. A list of those consulted in the various meetings in May 2002, and subsequently in other jurisdictions, is found in Annexure B. The invitation from the NZLS, dated 30th April 2002 and distributed throughout the profession inviting members to participate in the consultations, is in Annexure C.

Chapter 2 - Specialisation schemes and specialists

 

This chapter deals with the first of the questions set out in section 1.3 – what are we talking about? It does this by seeking to give meaning to the concepts and terms which arise when specialisation schemes are considered.

 

2.1 Specialisation schemes

Specialisation schemes are schemes, usually established by legal professional bodies, which designate certain members of the profession as specialists. Whilst it would be possible for other bodies to do this, eg. a privately established group of practitioners in a particular area of practice, in fact it has been the legal professional bodies which have almost invariably initiated these schemes. In all cases individuals are accredited, not firms.

Although practitioners in a number of jurisdictions may, and do, self-designate themselves as specialists, specialisation schemes confer the designation on the basis of certain prerequisites or criteria being satisfied.

Specialisation is typically in fields of practice rather than a particular area of law – although in many cases these may be essentially identical.

Specialisation schemes are to be found in England, Scotland, Canada, the United States and Australia. The earliest schemes were established in the United States in the 1960s. In England the first scheme was established in 1983, and the earliest scheme in Australia was established in the late eighties. The scheme was established in Ontario in 1986 and in Scotland in the early nineties.

2.2 What is meant by the term ‘specialist’?

There are two meanings which can be attached to the term ‘specialist’. One is that a practitioner works especially in a particular area of practice, ie. there is "a substantial concentration of activity within a particular field of practice". That area of practice occupies a significant proportion of the practitioner’s working life, measured in terms of time spent and/or the intellectual effort involved. Thus a lawyer who says, "I specialise in criminal law" might well be simply saying that he/she spends a lot of time or even energy working in that area of the law.

But there is another understanding of the term, and that is that the person has special competence or expertise in the area. The general public’s understanding of the term, as applied to professionals, presumably is grounded in its perception of what the term means in medical practice. Specialist doctors work in just one area but, more significantly, they are proven experts in their field of medicine.

Concentration.alone, therefore, is not a sufficient indicator of specialisation; it does not necessarily produce competence or expertise, even though this may well be the usual result. In all of the specialisation schemes for lawyers the term is used to connote both concentration and expertise.

This, of course, leaves open the questions – what degree of concentration and what degree of expertise? These important questions are dealt with later in this report.

The terms ‘specialist’ and ‘expert’ can often be used interchangeably in discussions about specialisation schemes. This lack of precision in the use of the term ‘specialist’ has resulted in some confusion as to what a specialisation scheme is really seeking to be.

2.3 Contrasting lawyers’ specialisation schemes with those for medical practitioners

The model for specialisation in the legal profession can be contrasted with the model adopted by the medical profession. The medical profession uses specialisation in order to qualify professionals for higher duties (eg, thoracic surgery or gastro-enterology). Specialisation in the medical profession has four elements –

  1. There is an extensive and demanding training and examining process, spread over a number of years.
  2. Medical practitioners usually commence this process soon after their initial qualifications.
  3. Only those who satisfy this process and become specialists are entitled to practise in the area of specialty; conversely practitioners who have not acquired the requisite level of specialisation are not entitled to provide the relevant services.
  4. Specialists practise only in their area of specialty; they do not practise in other specialist areas or as general practitioners.

This has not been the approach in those legal professions which have adopted specialisation schemes. In fact, in respect of all four of these elements, the situation is different. None of the specialisation schemes has programmes of training or other forms of preparation on a scale similar to that for specialists in medicine. As specialisation schemes for legal practitioners generally recognise established specialisation, they require a minimum number of years in practice and in work in the area of specialisation before a person is eligible to be considered for recognition or accreditation. Specialists in the legal professions do not have conferred on them any exclusive rights of practice in the specialist area. Finally, many specialists in the legal profession practise in some areas other than their area of recognised specialisation.

The medical model creates expertise and gives the specialists exclusive rights of practice in the area; the legal model recognises existing specialisation but does not prevent others working in the area of practice.

2.4 Other terms which are used

There are a number of other terms which are used in the context of specialisation schemes for lawyers. It is useful, at this early stage, to ensure a common understanding of what is meant by them.

Accredited and accreditation

In Australia and England the term ‘accredited’ is used to describe the specialists recognised by the various schemes. The term could be taken to mean that only those practitioners who were accredited had the right to practise in the particular area or appear in a particular court. But, as indicated above, the concept of accreditation does not encompass the right of exclusive practice in an area. This is not the case in England or Australia. Rather the term ‘accredited’ has simply been used in these jurisdictions to mean, in effect, ‘recognised’. It is an official recognition of existing specialisation but does not give the specialists any exclusive rights of practice.

Where the term ‘accredited’ is used in this report to refer to specialists, it does not imply that a right of exclusive practice exists.

Warranted

In Scotland a term used is ‘warranted’. This, however, is not used in the context of a specialisation scheme but rather in the context of practice management standards. Firms that are warranted have met certain standards in regard to their management – something akin to ISO standards. If the use of the term ‘accredited’ were seen to be undesirable in the New Zealand context, the word ‘warranted’ might be a suitable alternative.

Certified and certification

In Ontario and in some States of the United States the term adopted has been ‘certification’ of specialists. The terms ‘certification’ and ‘accreditation’ are essentially interchangeable but ‘certified’ might not be a suitable descriptor in New Zealand because of its mental health connotations.

Chapter 3 - Other specialisation schemes

 

This chapter continues the discussion of the question – what are we talking about? It does this principally by describing specialisation schemes found elsewhere in the common law world. A summary of some aspects of these schemes is found in Annexure F. Two schemes for accountants in Australia are also considered. It should not go unrecognised that some jurisdictions have considered specialisation schemes and decided not to introduce them. They too are considered.

These schemes in other common law jurisdictions provide examples of what might be possible for New Zealand. By examining them, possible pitfalls can be detected and generally their suitability for New Zealand explored. It would have been useful to have gone beyond what is available in documentary form and explored with those who have formed or who manage the schemes the motivations for the schemes’ establishment and what benefits have been derived from them. It would also have been useful to discover more about those who have not joined the schemes – why they have not done so and what effect the schemes have had upon them (as non-participants).

Unfortunately, the scope of this feasibility study does not extend that far. As there appears to be almost no studies or research on existing schemes in other jurisdictions, it has not been possible to refer to work done by others in researching these schemes. Thus this chapter essentially reports on the information which is available in documentary form in regard to other schemes.

3.1 The scheme in England for solicitors

It is interesting to note that in 1979, when the Royal Commission on Legal Services in England (the Benson Commission) recommended that a specialist scheme for solicitors in some fields be introduced, it was opposed by The Law Society of England & Wales. But since then there has clearly been a change of view and a very active scheme now exists in England. It dates from 1983. Initially accreditation schemes were only set up where there was a statutory requirement (insolvency) or there was a public interest involving the protection of vulnerable clients (mental health and children). However, over the years the policy has been adapted to take account of greater expectations, on the part of the public and other users of legal services, in regard to the quality of legal services.

The overall name for the scheme appears to be "Professional Accreditation". Those accredited are placed on what are called ‘panels’. The areas of practice are called ‘specialisms’.

Interestingly, in 1991 the Council of the Law Society decided that it did not wish to introduce further accreditation schemes in mainstream areas of law. But, in fact, subsequent developments resulted in demands from practitioners for the establishment of further schemes, and this has occurred. Those developments were –

It is reported that The Law Society of England & Wales’ re-emergent interest in specialisation was primarily in response to calls that it secure control of the quality and standards agenda.

There are 11 panels, in the following areas of practice –

No. of members

Family law

- ordinary 3,671

- advanced 367

Personal injury 2,362

Clinical negligence 241

Children 2,074

Mental Health Review Tribunal 432

Immigration law 100

Criminal litigation 5,202

Family mediation 124

Planning 182

Insolvency 163

Rights of audience in the higher courts 1,494

Police station accreditation (for non-lawyers) 3,000

Civil/commercial mediation 11

Total 19,423

 

These numbers represent about 20% of the English solicitors’ profession, which numbers about 90,000. This suggests that the scheme has clearly ‘taken root’ in England.

The Law Society’s stated policy is to develop 12 further schemes over the next two years, to include mainly publicly funded areas of work such as housing, welfare and employment.

There is no published statement which sets out the overall purpose of the accreditation scheme. The Fact Sheet for the scheme, on the Law Society’s website, has as its ‘motto’ "Working Together To Promote High Standards by Professional Accreditation". Some indication of the purpose of the scheme can also be gleaned from the information provided for each of the panels. The statements vary according to the particular skills and knowledge considered relevant for each panel. The criteria, in general terms, are "experience", "training" and/or "suitability". For a number of the panels, the word used when describing an applicant’s eligibility is simply "experience". The objective of one of the panels is "to provide competent representation" before a tribunal. For another panel, the objective is to provide, for the profession and the public, a list of practitioners who have had "extensive experience".

The lack of consistency in the terminology used suggests that the scheme seeks, as would be expected, to recognise both concentration and expertise without much apparent consistency in giving further meaning to these concepts. In fact, unlike other jurisdictions, the panels, in most cases, can include senior legal executives and, in a few cases, extend to non-solicitors. This suggests that the scheme in England is basically about competent representation rather than identifying a group of high level experts.

The entry criteria vary from panel to panel, but the most common are –

In addition, in a number of cases, training prior to entry to the panel is prescribed. In this respect the scheme for solicitors in England differs from those in some other jurisdictions.

The assessors who mark and make recommendations on applications are appointed by The Law Society.

Successful applicants are made members of the appropriate Panel and may use the designation "Law Society xxx Law Accredited" by their name on their letterhead and in other sanctioned publicity. There does not appear to be a logo.

The training required and assessments for the various panels are as shown on the following page –

Training required and assessment process for Law Society of England & Wales specialist scheme

Panel

Training required beforehand

Assessment process

Family Law

Nil

Normally by detailed portfolio, alternatively by questionnaire and examination.

Personal injury

Attendance at appropriate training courses, including at least one day specific training on risk assessment, over the three years preceding the date of application.

By detailed portfolio.

Clinical negligence

Attendance at at least one major conference on clinical negligence and one medical course for lawyers devoted specifically to enhancing the lawyers’ understanding of medicine generally, in the three years preceding the date of application.

By detailed portfolio.

Children

Attendance at a specifically approved three day training course.

All applicants by detailed portfolio and references. Applicants for Children Representative must attend for interview.

Mental Health Review Tribunal

A two day approved training course.

By detailed portfolio and peer review.

Immigration law

None

By detailed portfolio.

Criminal litigation

(duty solicitor scheme)

Police Station Qualification and Magistrates’ Court Qualification. (but it is not clear what these are)

By detailed assessed portfolio and practical assessment tests

Family mediation

General member – attendance at an approved Family Mediation induction training course.

Practitioner member – attendance at an approved induction training and been assessed by the Legal Services Commission as being competent in all issues.

By application form and references.

Planning

None

By application form, assessment and references.

Insolvency

The Joint Insolvency Examination

By portfolio, examination and references.

Rights of audience in the higher courts

None

Dependant on the type of application may be portfolio, references, interview or training and testing.

Police station accreditation

(non lawyers)

Yes, but not clear what.

By way of written examination, assessed portfolio and practical exercise assessment.

 

Members of panels are expected to keep themselves up to date by attending CPD appropriate to their area of work. The requirement is usually five or six hours per year.

All schemes, except the Rights of Audience qualification, have reselection procedures. Reselection is normally every five years. There is an assessment process and "fit and proper" checks are made. Practitioners are expected to have maintained a prescribed minimum of involvement in the area and undertaken relevant CPD. There is a re-accreditation fee.

In one of the panels, the Family mediation panel, there is a gradation of membership, namely –

General member – trained but inexperienced and not assessed.

Practitioner member – trained, experienced and assessed.

The application fees are normally either £400 or £200 (plus VAT). In a few cases there is compulsory pre-accreditation training and there is a charge for this training, eg. to join the Children Panel an applicant must undertake a three day approved course.

In the area of family law, there are two ways in which a solicitor can seek ‘validation’ in order to be made a member of the Family Law Panel – one known as the Direct Route and the other known as the Direct Route (Examination).

The eligibility criteria common to both are that the applicant is a solicitor who has been admitted for at least three years, holds a current practising certificate, and is a fit and proper person to become a member of the Family Law Panel. There is also an expectation that an applicant has a general knowledge of the law outside the area of family law including, for example, knowledge of the law relating to wills and transfers of property.

The specific criteria for both routes are as shown on the next page –

Criteria for both routes for the Family Law Panel

of the Law Society of England & Wales scheme

The Direct Route

The Direct Route (Examinations)

  1. To have carried out at least 350 chargeable hours of family law work in each of the last three years, and the family law work must be sufficiently broad to demonstrate knowledge of –

    Divorce, judicial separation and nullity

    Private Children Act proceedings

    Financial provisions disputes (including pensions), and including those concerning cohabitants

    The Child Support Agency jurisdiction and powers of enforcement

    The courts’ jurisdiction in domestic violence matters (including between cohabitants)

    Emergency remedies and enforcement

    Impact of taxation and welfare benefits

    Impact of legal aid

    The role and scope of mediation

    and awareness of –

    Adoption

    Child abduction

    Public law matters in Children Act proceedings.

  2. Completion of a detailed questionnaire which will examine the range and extent of the applicant’s family law practice.
  3. Provision of the names and addresses of two referees who have knowledge of and can comment on the applicant’s family law practice.
  4. If assessed by an assessor as being borderline, undertaking of an interview with two assessors, possibly with a requirement to attend with case files.
  1. To be a solicitor who has been admitted for at least three years and who holds a current practising certificate.
  2. Completion of a certificate of eligibility confirming that the applicant satisfies minimum experience criteria as follows:
  1. minimum general litigation experience – 1,000 chargeable hours carried out in the law of England and Wales within the previous three years, and
  2. minimum family post-qualification experience – 350 chargeable hours carried out in the law of England and Wales within the previous five years.
  1. Passing of a written examination, and/or other assessment method deemed appropriate.
  2. Provision of the names and addresses of two referees who have knowledge of, and can comment on, the applicant’s general litigation experience and family post-qualification experience.

3.2 The specialist certification program in Ontario, Canada

There is only one specialisation scheme in Canada, in the province of Ontario. It dates from 1986 and is conducted by the Law Society of Upper Canada, the law society for the province of Ontario. The introduction of the program, as it is called, reflected the Society's desire both to improve access to legal services for the public and to create a program designed to enhance lawyer competence. The view was that the setting of high standards of excellence for certification could also have the effect of raising the quality of all legal services offered.

The program now offers certification in nine practice areas –

Bankruptcy and insolvency law

Civil litigation

Construction law

Criminal law

Intellectual property

Labour law

Environmental law

Family law

Immigration law

Workplace safety and insurance law

Applicants are required to have satisfied the following –

These relatively more arduous criteria may be a reason for the low take-up of the program in Ontario.

The application process consists of three key steps –

Step 1: Professional Standards Review – All applicants are subject to a professional standards review which takes into consideration the applicant’s history related to claims, complaints, compensation fund, criminal proceedings, discipline, etc. Any applicant who has ever been found guilty of professional misconduct and/or conduct unbecoming may be denied certification for that reason alone.

 

Step 2: Evaluation by the Specialty Committee – There are no examinations or other forms of assessment. Rather, the scheme is basically reliant on references. The Specialty Committees seek to determine the applicant’s –

In order to assess the applicant’s suitability, the Specialty Committee may consider the nature of the legal work undertaken by the applicant in the specialty field, the number and type of matters handled within the five years preceding application, reputation for exercising skill and judgement, reputation for achieving satisfactory results on behalf of clients, reputation for professionalism and involvement in teaching in the specialty area.

For this purpose, applicants must submit with their application the names of four to six lawyers (or more), some of whom are currently certified specialists in the appropriate area, and who will have personal knowledge of the applicant’s work. The appropriate specialty committee and the Specialist Certification Board are at liberty to make inquiries of their own accord concerning the application.

The Board publishes the names of applicants in the Ontario Reports, inviting comments from the legal profession. This is a practice not found elsewhere in any other jurisdiction.

Applicants may be required to attend an interview if the Specialty Committee is not satisfied with the material it receives. The interview is in the form of an oral examination..

Step 3: Certification Board acts on Specialty Committee’s recommendations – The Certification Board is empowered to make further inquiries and will then accept or decline the applicant for certification.

xxxxCertification remains in effect for five years. Applicants for re-certification are required to –

  1. Be members in good standing of the Law Society
  2. Have a satisfactory professional standards record during the past certification period
  3. Have maintained substantial involvement in the specialty area during the past certification period
  4. Have maintained a full-time practice of law in Ontario during the past certification period
  5. Have participated in at least 12 hours of CLE or other forms of professional development directly related to their specialty area, in each of the five years of certification.

The take-up of the program has been limited, with only about 2% of the profession involved. The Law Society of Upper Canada is disappointed with this level of acceptance. Overall, the designation has been sought by lawyers in small to mid-sized firms with the exception of civil litigation specialists who tend to be located in Toronto and in firms of various sizes.

The scheme is described as essentially a "recognition program, not a developmental one", ie. it recognises specialists rather than develops them. The eligibility requirements talk of demonstration of ‘special ability’ but the subsequent description of what is required seems to suggest that special ability is equated with substantial experience in the relevant area. The focus on the evidencing of special ability by substantial experience is reflected in the prerequisites for certification. The period of work required for eligibility is seven years (longer than any other scheme), and the amount of involvement is more substantial – 50% compared to the English and Australian requirements of about 25%.

Unlike the scheme in England, there are no training programs for those seeking certification as a specialist and there are no assessments in the form of examinations or similar activities – but this may change.

The program is currently being reviewed, in the context of a review of the Law Society of Upper Canada’s ‘competence mandate’, with the prospect of its being fundamentally revised and an expanded program being put in place. A key proposal is the introduction of a revised certification model for specialisation based on a "developmental" program rather than the "recognition" program presently in place. Lawyers would satisfy the knowledge requirements for certification through study and assessment. This would contrast with the current requirement that a candidate concentrates his/her practice and establish broad experience in the field in which certification is sought. It is felt that the current requirement may exclude many lawyers.

The program would offer "a staged process in which members would continue to self-elect to pursue the designation of ‘specialist’, advancing along a continuum of requirements with increasing levels of required expertise, until all requirements are met to gain the final specialist designation credential".

The proposed new scheme has been accepted by the Convocation of the Law Society and a business plan for the introduction of this new "developmental" specialist program has been approved. Its key features will be –

1 Development of some new specialty areas, eg. immigration law and refugee law as subsections of Immigration Law, and the certification of general practitioners.

2 Restructuring of the application and renewal process for simplicity, transparency and consistency across specialties.

3 Development of staged educational and experience requirements.

4 Increased promotion of the program among the public and the profession, with a view to increasing the number of certified specialists from 2% to 10% by the end of 2006.

5 Continuation of the self-funding criterion.

 

3.3 The numerous schemes in the United States of America

Specialisation dates back to as early as the fifties, when the first schemes were formed. There are more than 25,000 lawyers holding specialty certificates in the United States. This is an increase of 41% since 1994, which was when statistics were first kept. Although a quite significant number, it is only a relatively small proportion of the legal profession in the United States.

Civil trial advocacy is by far the most popular, accounting for 25% of certifications. Criminal law and criminal trial advocacy are the next most popular, with 10% of the total.

As can be imagined, the number, range and variety of schemes in the United States is very large indeed, and it is not proposed to examine them in detail.

The specialisation schemes have been developed at the State level, although the American Bar Association (ABA) Standing Committee on Specialization has played a pivotal role. The Committee has developed a model plan of specialisation, names and definitions of individual specialty fields (27 in all), and model standards for each of the fields.

Although the requirements vary under the different schemes, the common requirements, reflecting the ABA Standards (outlined below) are –

Some aspects of these requirements differ from those of the schemes in other jurisdictions but in other respects are similar. Some other schemes have similar requirements but at a higher or lower level; others have additional requirements.

The ABA has a set of Standards for Specialty Certification Programs for Lawyers, which are voluntary standards for accreditation of specialisation schemes. Some aspects of those Standards provide helpful guidelines for this study, as follows –

ABA Standards for Specialty Certification Programs for Lawyers (extracts)

Purpose of the schemes – the identification of lawyers who possess an enhanced level of skill and expertise, and to the development and improvement of the professional competence of lawyers.

Certification requirements – the minimum requirements are:

Substantial involvement – during the immediately preceding three years, with substantial involvement being measured by the type and number of cases or matters handled and the amount of time spent practising the area (which is to be not less than 25% of total practice).

Peer review – which is undertaken by means of references from at least five attorneys or judges who are knowledgeable of the practice area and of the lawyer.

Written examination – to assess the lawyer’s "knowledge of the substantive and procedural law in the specialty area". The examination is to include professional responsibility and ethics as they relate to the specialty area.

Educational experience – a minimum of 36 hours of participation in CLE in the specialty area in the preceding three year period. Participation encompasses attendance, teaching, speaking or writing of books or articles.

Good standing – the lawyer must be "in good standing".

 

An ABA survey of members of ABA specialty sections, conducted in 1996, revealed that the members considered the value of certification as being primarily professional satisfaction, peer recognition and referrals. Other benefits included the availability of an acceptable marketing tool, the creation of a national roster of specialists and the establishment of uniform national standards.

Specialist certification and advertising are, of course, linked. In some States there are advertising restrictions on those who are not certified. For example, in Florida all attorneys may advertise but only certified attorneys may identify themselves as "Florida Bar Board-Certified" or "Specialists".

3.4 The four schemes in Australia

There are specialist accreditation schemes in four of the Australian States – New South Wales, Queensland, Victoria and Western Australia. The first scheme was introduced in Victoria in 1989. Family law was the first area chosen, as was also the case in the other States. The characteristics of the schemes in all four States are similar (deliberately so), and so they will be considered together.

All of the schemes have been established by State law societies. Mostly the profession is divided in these States, de jure or de facto, and generally the members are solicitors rather than barristers.

The areas in which accreditation is available, and the numbers accredited in each area, do however vary, as shown in the following table –

Areas in which accreditation is available in Australia, and numbers involved

Area

New South Wales

Queensland

Victoria

Western Australia

Advocacy

32

     

Business law

135

 

119

 

Business & personal tax law

       

Commercial litigation law

66

 

68

 

Commercial tenancy law

   

5

 

Criminal law

119

 

93

 

Employment & industrial law

26

     

Environmental/planning/local government

26

 

32

 

Family law

283

129

223

43

Immigration law

19

 

27

 

Income tax/tax law

   

11

 

Mediation

26

 

29

 

Personal injury law

427

124

96

 

Property law

162

Ö

86

 

Wills & estates (succession) law

36

Ö

59

 

TOTAL

1400

253

848

43

 

Total membership of profession – c.

16500

5500

8000

3000

Family law is the area common to all four States, and personal injury law, property law and wills & estates are the areas common to three of the States except Western Australia.

One of the reasons for the relatively low numbers in some areas compared to others is that a scheme in some of these areas has been established only in recent years, whereas others have been in existence for ten years or more.

The purpose of all four schemes is largely similar to that of the NSW scheme, which is to identify those practitioners who have substantial involvement in an area of practice and who have

sufficient knowledge of substantive law, procedure and practice, and sufficient skill, proficiency and experience in the area of practice for which accreditation is sought as is necessary to justify the representation of special competence to the public and to the legal profession. [emphasis added]

It is not really clear what is meant by ‘special competence’. In an article on the scheme the term used is ‘specialist competence’, which is described as that required of "experienced practitioners". Like the scheme in England, specialist competence seems to be equated with experience and competent performance. However, the website of the Specialist Accreditation Board uses the term, ‘proven expertise’, which could indicate a higher standard – that of the expert.

This approach is reflected in the stated aims of the scheme in Victoria, which are to offer the public and the profession a means of identifying solicitors with expertise in particular areas of practice and to provide an incentive and opportunity for solicitors to reach and maintain higher levels of competence in their chosen areas of practice. The emphasis is more on expertise, which appears to be equated with competence at a higher level, rather than experience.

Applicants for accreditation must in all States –

In Victoria and Western Australia, where membership of a law society is not compulsory, applicants must also be full members of the Law Institute of Victoria or the Law Society of Western Australia, respectively.

In all States applicants must lodge the names of referees – the number required varies between the States.

The requirements in regard to ‘good standing’ vary a little. In NSW the Specialist Accreditation Board may consider any adverse disciplinary finding made against the applicant. In Victoria, the Specialisation Board can decline to accept an application on the ground of misconduct or unsatisfactory professional misconduct, or on the ground of conduct which is likely to bring accredited specialists or the specialisation scheme into disrepute. In Western Australia, applicants must be "of good character".

The assessment process is very similar in all States. Underlying it are three components – the performance standards, the statement of core areas, and the statement of the knowledge which underpins the performance standards.

The performance standards

These are common to all Australian schemes, but are not to be found in the other jurisdictions already considered. These standards have been developed for each specialty area and serve three purposes. They are –

The process whereby these were developed in NSW is described as follows –

All advisory committees were introduced to the concepts of competency based assessment at a general introductory session. It was thought important that all committees be present at the same time to impress upon them that they were part of the same program.

Each committee then undertook an eight-hour workshop. Developing performance standards is a comparatively simple process and the committee members found the process interesting since they are not often given opportunity to reflect upon and discuss what they do. The development of performance standards involved the committee answering the questions ‘What do you do?’ and ‘How should it be done?’. The steps taken were:

As an example of what these performance standards look like, an extract from the performance standards for Property Law in Queensland are to be found in Annexure D.

Statements of core areas

These identify the extent of the area of specialty. For example, the property law specialty in Queensland is stated to comprise –

Conveyancing – including residential, commercial and body corporate

Mortgages and securities

Leasing (commercial and residential)

Property development

Statements of the knowledge which underpins the performance standards

These are quite extensive. Again, by way of illustration, an extract from the statement for Property Law in Queensland is to be found in Annexure E.

In almost all specialist areas at least three forms of assessment are used. The following table summarises those used in the various States. Not all methods are used in every specialty area; the methods chosen are those which most directly test the performance standards for the particular specialty.

Assessment methods used in Australian schemes

Requirements

NSW

Queensland

Victoria

Western Australia

Written examinations (open book)

Take-home mock file exercises or assignments

Interviews with a panel (peer interview)

 

Simulations (eg. interview with client or advocacy)

Drafting exercises

   

 

In Australia, to a large extent unlike other jurisdictions, considerable attention has been paid to the development of performance standards and to a multi-faceted process of assessment. This suggests that the schemes in Australia go close to seeking expertise, although that word is not generally used and rather the term used is generally ‘special competence’. This approach also reflects their intent to be rigorous so that the accreditation ‘counts for something’.

The family law scheme is the one scheme common to all four Australian States. It has a common nationwide assessment process, which takes place at the same time throughout Australia. It involves a mock file, a take home assignment, a 3½ hour written examination, and a 45 minute client interview, which is videotaped.

The fairly even take-up of the scheme in family law throughout the profession can be seen in NSW where 29% of the family law specialists are in the city, 40% in the suburbs and 34% in rural areas.

In all States, except Victoria, specialists are accredited annually. In Victoria, they are accredited every three years. The common requirements are –

In Victoria, the specialist must keep a CLE Report which is to be submitted annually if the specialist has been accredited for less than three years, and thereafter it is to be kept but only submitted on request. There is no similar requirement in NSW and Queensland but in Western Australia the practitioner must keep and file a statement of their CLE attendances.

In Western Australia the specific seminars and lectures for which points can be gained are specified by the Law Society and the Family Law Practitioners Association. In the other States there are no lists of approved activities. The specialist is free to determine which activities will help attain the objectives of satisfactory participation in CLE. The specialist should give proper weight to such matters as the experience and standing of institutions, appropriateness of the learning method employed, relevance to practice in the area in which accreditation is held, capacity to broaden the specialist’s field of expertise and the level at which the material or activity is pitched.

Just as professional misconduct and other similar behaviour can be a bar to accreditation, so too it can be a cause for accreditation being revoked.

3.5 The scheme in Scotland

The Law Society of Scotland Accredited Specialists Scheme has a relatively small number of specialists, only 298 lawyers, in the following so-called ‘specialisms’ –

Commercial law

Construction law

Crofting law

Employment law

Family law

Family law mediation

Insolvency law

Intellectual property

Liquor licensing

Medical negligency

Medical partnership agreements

Pensions law

Personal injuries

Planning law

Trust law

It is of interest that the scheme was initially established to identify specialists to whom other practitioners could refer work which required specialist expertise. It is even now regarded as almost exclusively a referral system for solicitors. However, in fact the general public are constantly seeking access to specialists and the panel lists are used by the Law Society of Scotland in responding to these requests.

With the exception of insolvency, accreditation is for a period of five years only. The fee for accreditation is £150 and for re-accreditation £75.

3.6 Costs of membership of these schemes

In all the schemes considered there is a reasonably significant cost involved in seeking accreditation or certification, and in continuing accreditation or certification. The situation is summarised in the following table –

Fees for accreditation and re-accreditation

Scheme

Accreditation

Re-accreditation

Notes

England

£400 or £200

 

plus VAT

Scotland

£150

£75

 

Ontario

$C300 + GST

$C200 + GST

 

New South Wales

$A 927

$A 297

This is made up of a $630 application fee and $297 for accreditation. Re-accreditation is every year.

Queensland

$A 1025

$A 275

This is made up of a $750 application fee and $275 for accreditation. Re-accreditation is every year.

Victoria

$A 385

$A 385

Re-accreditation is every three years

Western Australia

$A 632

$A 165

Re-accreditation is every year.

 

3.7 Specialisation schemes for accountants in Australia

The specialisation scheme of CPA Australia is described as being for certified public accountants (CPAs) "who have reached a level of competence significantly higher than that of general practitioners". There are two means of achieving specialist designation. CPAs must –

The areas of specialisation are auditing, external reporting, insolvency and reconstruction, management accounting, taxation, treasury and information technology.

The Institute of Chartered Accountants in Australia (ICAA) has a somewhat different approach. It has established special interest groups and chapters. Chapters are where the accredited specialists are to be found. At present there are two chapters – financial planning and information technology. Accredited specialists in the areas covered by these chapters can use the designation "CA-IT Specialist" or "CA-Financial Planning Specialist".

The criterion for specialist membership of the chapters is satisfaction of certain educational activities, experience and the provision of references (peer recognition).

In general it can be said that the accountants in Australia are developing schemes similar to those in the legal profession, although there is a somewhat greater emphasis on the use of postgraduate courses as an element of attaining eligibility for specialist status.

3.8 Jurisdictions in which schemes have been rejected or considered but not yet introduced

3.8.1 England (barristers)

The General Council of the Bar recently decided to consider whether the Bar should introduce accreditation schemes in defined areas of practice. A consultation document was circulated in November 2000. A final report has so far not been produced as the consultation process produced such a divergence of views that the matter has been put aside for consideration at a later time.

An accreditation scheme is described in the consultation document as one involving a formal procedure which results in a barrister "receiving recognition of expertise or experience in a given area of work". It is noticeable that the word "expertise" is used, whereas it appears to have generally been avoided in other schemes.

The consultation document suggests that the driving force for the introduction of such schemes is that they are seen as a means of ensuring standards.

The consultation document notes that, as a referral profession, the Bar has not, to date, considered it necessary to provide specialist accreditation on the basis that solicitors should reliably select appropriate barristers for any given work. A barrister who was not competent would be unlikely to receive sufficient work to continue in practice. The factors which have led to the adequacy of the existing situation being addressed are –

Within the Bar there was, understandably, both support and opposition, and the various arguments advanced in England were reflected in the consultations held around New Zealand in May 2002. Those in support in England, for example, saw it enhancing their competitive advantage. Those opposed doubted the need or were concerned about who would assess expertise and what criteria would be employed. There was also concern that a scheme could disadvantage the competent generalist.

The arguments advanced against a scheme’s applicability to the Bar were the rules that barristers can only receive work referred by a solicitor and that barristers must not hold themselves out to conduct work in fields in which they know they are not competent. But, as is pointed out in the consultation document, the second of these rules can only be enforced retrospectively if a complaint is laid; it cannot be enforced prospectively. Nor do the rules, as such, differentiate barristers who are experienced in an area of work. As the consultation paper points out, these types of rules might be seen as a somewhat heavy-handed way of approaching the question of improvement in quality standards.

It was argued that there is significant information available already to enable users of the Bar’s services to choose barristers. But, as was pointed out in the consultation document –

… the reliability, completeness and uniformity of the existing information may be open to question. It does not operate according to common or agreed standards, it is not comprehensive and it can be entirely subjective.

In the consultations, which took place prior to the distribution of the English Bar’s consultation paper, no general support was expressed for schemes which involved competence tests or independent peer review of actual work. The latter was seen as potentially raising confidentiality considerations, as well as questions of who would do the assessment and by what standards.

The Bar in England already has one accreditation scheme in place; for immigration practitioners. Its introduction reflected public concern about poorly qualified immigration practitioners, which found expression in a recommendation in 1998 from the Lord Chancellor’s Advisory Committee on Legal Education and Conduct. Under that scheme, a barrister’s application for accreditation must give details of –

There can also be an oral assessment before three experienced practitioners. Overall, the amount and extent of information required is considerable, although there is no assessment procedure, as in Australia.

The scheme is voluntary and there is no restriction on counsel not so accredited acting in immigration cases.

The Family Law Bar Association has recently proposed a scheme for barristers who practise in proceedings involving children law. Its aim is to establish and maintain appropriately high standards. The names of accredited barristers would be placed on a register, which would be available to solicitors and the public. It is proposed that the scheme has two levels – full accreditation and provisional accreditation. Full accreditation would require –

Provisional accreditation would be for those who had not yet been able to amass sufficient experience to present a sufficient portfolio of work but who nonetheless had a sufficient understanding of the relevant law and practice and showed a commitment to maintaining high professional standards. There would be continuing training requirements for those who were accredited. This would involve no fewer than ten hours of CPD each year at approved courses concerning children law or related interdisciplinary topics.

3.8.2 The Province of Alberta, Canada

In the early to mid nineties, a proposal was first considered by the Law Society of Alberta to certify specialists. A Specialization Committee prepared a report in 1996 and in that year the Benchers (ie. the Council) of the Law Society resolved to proceed with a pilot scheme for the criminal law and family law practice areas. It was expected that the scheme would be introduced in 1998. It had been envisaged that if these plans were introduced the Specialization Committee would then consider expanding the scheme into other areas of practice.

In fact, the scheme has not been introduced and indeed the Committee was disbanded in 2000. It is valuable to review the minutes of the Benchers’ meeting at which the decision was made not to proceed –

The committee was originally struck to deal with yellow pages advertising and trust in advertising. The committee looked at specialization programs and initiatives elsewhere and grappled with the need for infrastructure, creditation of certification and discipline. Ultimately the committee felt that generally interest from the bar was just not there. As a result the committee concluded, based on feedback from the profession, that specialization was not needed or wanted in this jurisdiction at this time. The problem appeared to be advertising and abuse in the yellow pages which specialization would not correct. Accordingly, the committee recommends …. the Benchers take the following approach:

    1. To protect the public the Law Society of Alberta must realize that expertise and specialization does exist within the profession.
    2. The Law Society must develop an approach to communicate to the members of the public that there are specialists in the profession.
    3. Find a means for members of the public to determine if their particular lawyer has the necessary specialist skills to handle their particular case. This could be done by a brochure or a full page ad in the yellow pages listing a number of factors members of the public should look for to determine if their lawyer has the necessary skills.

3.8.3 Hong Kong

The Law Society of Hong Kong established, several years ago, a working party to consider the possibility of a specialisation scheme for Hong Kong. The Working Party produced a detailed report recommending that a scheme be established. However, the Council of the Law Society did not approve the concept. It may, at some time in the future, be reconsidered.

3.8.4 South Australia

The possibility of a specialist scheme has been floated, or investigated by the Law Society, on several occasions. Usually the Council of the Law Society has been heavily influenced by the protests of smaller practitioner firms who saw specialisation as a marketing ploy rather than as a measure of increased competence. The additional cost of gaining and retaining accreditation has also been cited. As a result, no scheme has been introduced.

Chapter 4 - The views and reactions of New Zealand lawyers to the proposal

 

This chapter records the views and reactions of New Zealand lawyers to the proposal, indicating the implications to be drawn therefrom and to a limited extent suggesting the likely take-up of the scheme. These views are not discussed at this stage, but are simply recorded – although occasionally there is some brief examination.

From 13th to 22nd May 2002 a number of meetings were held throughout New Zealand in order to obtain the views and reactions of lawyers and a few others to the proposal to establish a specialisation scheme. In all, 16 formal consultation meetings were held, each of about 90 minutes, as well as a number of other private meetings. Those consulted by this process are listed in Annexure C. A total of 109 people were consulted by this means.

Several emails and one letter from a district law society were received either during or subsequent to the consultations. These inputs are included in the discussion in this chapter.

This chapter does not attempt to be minutes of all that was said at the meetings which were held. Instead, the principal themes which arose, and in many cases reoccurred, during the meetings, are recorded and discussed.

Not all of the discussions comprised simply the statement of views or reactions. Often questions were raised about schemes in other jurisdictions and information sought in regard to particular matters.

4.1 Openness to the concept

The first thing that can be said is that, overall, there was an apparent openness to the concept of a specialisation scheme in New Zealand and in many cases clear support. Some came to the meetings simply to learn of the proposal and either reserved their view or did not have one. But there were also, at a few of the meetings, those who were clearly and strongly opposed, for various reasons.

It is not really possible to treat the consultations as a plebiscite, but overall it can be said that, at least amongst those consulted, there was generally an openness to the establishment of a specialisation scheme. This does not mean that the arguments advanced by those opposed should not be addressed and do not have weight.

There was a diversity of reasons for this openness to the concept. By way of example, at one meeting it was stated that the pressures on general practitioners, as they try to work across a wide range of areas, are great and that some sole practitioners can hardly keep up. Specialist accreditation could be a boon for them. A number observed that a scheme would simply recognise what is happening already. Or, from a slightly different angle, one solicitor said, "it is a way I can legitimately say that I have expertise in an area".

4.2 City and provincial views

One a number of occasions it was discernible that the views of those consulted were, in part, informed by whether they practised in the major cities or in the provincial cities. An example of this is the point, made at one consultation, that in a city such as Napier or Nelson the profession is big enough to enable a degree of specialisation by many lawyers and yet small enough so that all lawyers know each other and know who are the specialists and the quality of their work. Some of those consulted suggested that this meant that a specialisation scheme would not add anything to this already existing informal practice. From the point of view of the public’s access to specialists, it was suggested that the existing practice was that lawyers readily referred on to specialists those of their clients whom they could not assist.

A study of the Yellow Pages in the various cities showed that many lawyers indicated that they worked in certain areas, or that they had a special interest in certain areas, or indeed that they specialised in certain areas. Hence the Yellow Pages, or the lists held by some of the district law societies, provide a means whereby members of the public or community groups are able to identify lawyers to work in particular areas. This having been said, it was noted that the existing informal arrangements do not provide any assurance that the lawyers or law firms do in fact have the degree of expertise they claim for themselves.

Another aspect of provincial practice was that lawyers in the provinces appeared to be busy, with more than enough work to do. Hence, the motivation for adopting specialisation as a survival mechanism for lawyers, in small practices in an increasingly difficult environment, may well not exist. At more than one consultation in smaller cities it was stated that lawyers are busy (if not particularly well reimbursed for their efforts), and so schemes such as this are not really needed. As well, as lawyers are happy to refer work on, the overall impact of a scheme may be minimal.

It was stated several times during the consultations that New Zealand has a quite widespread profession. There are lawyers in the rural areas who are generally doing a good job and meeting real needs. They usually pass on work they cannot handle. It would be unfortunate if a specialisation scheme were to alienate them.

4.3 A concern about standards

A recurring theme in a number of the consultations was that the profession must be profoundly concerned about maintaining and enhancing its standards. It was noted that having within the profession those with proven expertise through a specialisation scheme could provide a ‘leaven’ which could well act to drag standards up overall, and for this reason alone a scheme was worth introducing.

The discussion often then moved on to the level at which those standards would be set. Enquiries were made as to what the pass rate was in other schemes.

4.4 Setting the bar at the right level

This theme of standards was returned to a number of times and sometimes expressed as the need to set the bar at the right level. The argument in support of a high bar was that it would give the public more confidence – that "this person knows as much as anyone in this area". If the bar were too low it would not give the public assuredness that the person had special competence.

One senior practitioner expressed serious concern about legal education when compared to the system in medicine. His view was that the system failed the legal profession. He observed that, after qualification, a lawyer’s training depended on luck, ie. the type of firm in which the lawyer worked, where the firm was, the people the lawyer worked with, their willingness to help and indeed their competence. As a result, many practitioners have gaps in their experience, even in areas where they work regularly. This contrasts with the medical model under which the qualifications awarded are based on a rigorousness not known in the legal profession. He observed that a lawyer who specialises is not really a ‘specialist’ (ie. proven as such in the medical context) but simply one who did not get experience in other areas.

This lawyer went on to suggest that the starting point for a specialist scheme should be a specialty of general practice. Would-be specialists would need to put in place a broad range of skills and knowledge as a foundation for future specialisation. Indeed, as in the medical world, there could be a general practice specialty, just as there is a Royal College of General Practitioners. He suggested the course for this qualification should be a revamp of the existing three years restriction scheme. This might include a redesigned Institute of Professional Legal Studies (IPLS) course running into the first years of practice, or the development of a general practice specialty.

Another way in which this argument was put was that it was important to increase expertise in the profession, not dumb it down for marketing purposes.

4.5 Mixed views as to what should be meant by the term ‘specialist’

A related issue was what should be meant by the term ‘specialist’; a question which arose in many of the consultations. For example, at one meeting it was asked, if one starts with the concept that most lawyers are general practitioners, is a specialist simply a general practitioner who does a lot of work in an area of law? There should be a distinction between being a specialist and merely having a special interest in an area of practice.

Some of those at the consultations noted that in the medical field, and indeed in Europe for lawyers, there are models for specialisation which entail rigorous training. This suggests that the term should reflect a high level of expertise and to do otherwise would be to "hoodwink the public". On the other hand, it was said at one consultation that the distinction between doctors and lawyers is that medical specialists need extra skills and knowledge, whereas for lawyers specialisation is just a form of practice in one area. Whether this is true or not requires further consideration.

Those supportive of a high level scheme (to be described later) pointed out that, unless there are rigorous requirements, like the examinations required of surgeons, the scheme will not act to raise standards in the profession. Another said that for it to really mean something and be credible it would have to count for something, ie. be rigorous.

There was no clear support for either type of scheme. Many of those consulted supported a scheme requiring a fairly minimal level of prerequisites, and others argued for a more elitist type scheme which recognised a smaller, highly trained and qualified group of experts. One person said a scheme should be not too complex if it is to be put in place quickly. But another argued that a scheme "has to have integrity".

The question was raised several times as to whether practising in an area for only 25% of one’s working time was enough to make one a specialist. This very valid question is but one aspect of the uncertainty as to what should be meant by the term ‘specialist’.

4.6 The effect of specialist accreditation on a lawyer’s work in other areas of practice

At several of the consultations some lawyers indicated that they would see value in having their existing specialisation recognised under a specialisation scheme, but that they would not wish this to send a ‘message’ to existing or potential clients that they were no longer doing work in other areas in which they practised. In other words, there was a concern that the designation might be counter-productive as it could typecast the lawyer as only practising in the specialist area.

But it was also pointed out that the existing arrangements, such as the advertisements in the Yellow Pages, already have the potential to do this, but apparently do not. In the discussion on this issue which ensued, a number of lawyers suggested that this was not really a problem and could be managed. For example, it would be possible for an advertisement to list the areas in which instructions were received and then indicate that the firm had accredited specialists in one or more of these areas of practice.

4.7 The cost of becoming and being a specialist

A concern for some of those consulted was the cost of becoming and remaining a specialist. The level of fees in other jurisdictions was noted and discussed. As well, there would be the lost opportunity costs for time spent in preparing for accreditation and the ongoing CLE required. The question for some was whether there would be sufficient benefit to warrant the cost. The question was raised whether the fees could realistically be kept moderately low, given the likely costs of running such a scheme in a relatively small profession and thus the limited number of practitioners likely to seek to join the scheme and support it with their fees.

4.8 Whether the public’s perception would be that specialisation leads to higher fees

At a number of consultations the concern was expressed, both from the lawyers’ and the public’s perspectives, that a lawyer with specialist accreditation will be perceived as one who charges higher fees. But it was pointed out at one meeting that whilst clients and potential clients of course seeks reasonable fees, what is more important for them is value for money. As one lawyer said, "My clients want an expert, not the cheapest. They know they have only one chance.".

Hence it was recognised that a scheme which was able to give the public a true sense of assuredness that a particular lawyer would be able to do the job well, might well be acceptable to the public. It would be not just a matter of getting the job done as cheaply as possible, it would be a matter of getting true value for money – in terms of the quality and efficiency of the work, as well as the outcome. As one lawyer said, "It is a matter of public confidence; a feeling that they have the best person for the job."

On several occasions the point was made that the public’s interests should be paramount, ie. to be able to make an informed choice and to have the assuredness of knowing that the person they are consulting knows sufficient and is capable of doing what is required.

The point was made that if the only benefit would be that clients knew who to go to, a specialisation scheme would be a very expensive way to achieve this, and it could be achieved in other ways, such as changes in the advertising rule. But if the aim were also to build up public confidence and to raise standards, then there was often agreement that the effort would be worth it.

4.9 Some scepticism that the Law Society is pushing the scheme for its own interests

On a few occasions some scepticism was expressed as to the Law Society’s motives. Some suggested it was to give it a role in a post-deregulation situation. Others suggested it would automatically expand the Society’s CLE market. Although expressed by a few, these views were not widespread and generally, after further discussion, were accepted as carrying no weight. It was acknowledged that it was not inappropriate for the Law Society to be examining ways in which it could serve its members, and how the profession could survive and thrive, in a future deregulated environment.

 

4.10 Whether a specialisation scheme would disadvantage or discriminate against some within the profession

On a few occasions questions were raised as to whether a specialisation scheme would be discriminatory. For example, would it be discriminatory against junior lawyers, so that a person in their early years of practice might find it difficult to attract work when competing against a specialist? It was acknowledged that, although perhaps less attenuated, this situation exists already because of widespread de facto specialisation. Any junior lawyer has to struggle, as it were, in a market where others are more highly qualified through length of experience or expertise. The real concern was whether a scheme would transform this situation into one of significant discrimination against junior lawyers.

Another suggested that, if there were a prerequisite of five years in practice before becoming eligible to join the scheme, this would discriminate against those, especially women, who may be obliged to work part time in their early years in practice and hence it would be a long time before they could reach this threshold. As well, it was said, the direct and indirect costs of becoming and remaining a specialist would impinge more heavily on those in part-time work.

The Council of the Canterbury District Law Society expressed, in a written submission made after the consultation paper, its views on this and other issues. It asked whether the Law Society, which exists for the benefit of all its members, should be setting up a structure by which a small number might take advantage by being accredited in certain areas. It also pointed out that junior barristers may find it difficult to take advantage of the scheme because of its cost and their lack of experience. Indeed, the Council contended, the scheme could be a divisive influence insofar as the profession as a whole could resent the Society setting up a means by which a few might obtain a marketing benefit which was not available to, or wanted by, the rest of the profession, eg. those in general practice in rural towns.

The Council of the Canterbury District Law Society also argued that accreditation for a few might work to the disadvantage of many, insofar as accreditation as a specialist might be insisted upon by those in a position to allocate legal services, eg. the Legal Services Agency, Government departments or banks. Thus accreditation could make it harder to obtain instructions and this could create a barrier to successful practice for those who are more junior in the profession or are practising in a more generalist way.

Generally, the view of the Council of the Canterbury District Law Society was that the ability to obtain accreditation as a specialist in limited areas of law would be of benefit only to a few and that in a number of ways it would be of detriment to the rest of the profession. Hence, that Council saw it as neither necessary nor desirable.

 

4.11 Could a scheme act as a restraint of trade?

On several occasions, the question was raised whether a specialisation scheme could tend to act as a restraint on trade. For example, could specialisation be ‘captured’ by the larger firms, which could push their people through to specialisation, and use this as a marketing device to dominate the market? Could the initial group of accredited specialists make it difficult for others to become accredited and hence monopolise the market? The Council of the Canterbury District Law Society referred to this, arguing that accreditation as a specialist might come to be controlled or heavily influenced by those who were already accredited, as happens, in that Council’s view, in the medical profession.

It was recognised that any scheme would need to be so structured to ensure these situations were not able to arise.

4.12 Concerns about future deregulation of the profession

Some of those consulted could see a potential benefit in a scheme should the definition of reserved legal work be narrowed. It was noted that accreditation as a specialist might help a lawyer "stand out" as against, for example, an immigration agent or an employment advocate.

The strategy would be to emphasise that a client gets a recognised level of expertise if he/she goes to a lawyer, as against, for example, an immigration agent or employment advocate. The use of performance standards to delineate a higher level of expertise would be important in this context as they would help define what a client might expect.

One lawyer noted, however, that there could be a danger of an area of the law being, in his terms, "commoditised", such that the knowledge and skills specific to that narrow area could lead to it "breaking off" and developing its own rules and ways of doing things. Hence specialisation could, in fact, encourage non-legally qualified paralegals to develop the capacity to work effectively within the narrow area of specialty. Examples cited were counsellors in family law, town planning experts or conveyancers. The same person observed that people outside the profession are always likely to work hard at upskilling, and so, in his view, a specialisation scheme would inevitably always be a rearguard action.

Another person observed that encouraging specialisation in a particular area actually degrades the very thing which differentiates lawyers, ie generic legal skills. Hence, in his view, the strategy should be to enhance generic legal skills rather than narrow expertise in a particular area of practice.

This issue also raised the question as to whether the first areas chosen for specialisation should be those most under threat from deregulation. A related question was whether the areas chosen initially should be reasonably narrow, eg. family law mediator, as it would be in them that the competition would occur, rather than say in family law or property, which are fairly broad.

4.13 How broad should the areas of specialist practice be?

Indeed, an important matter discussed at a number of the consultations was how broadly a specialist area should be defined. For example, if family law were to be a specialist area, would a person need to display the required level of competence across the whole range of family law work in order to become an accredited specialist? Similarly, should the public be able to expect that a person designated as a specialist could competently practise in every area of family law, and would it be misleading if it were otherwise?

Some suggested that the areas of specialisation should be quite narrow, eg resource management. Others suggested this would not be necessary and that the public would appreciate and accept that the designation did not necessarily imply expertise across the whole range of the designated specialty. After all, it was pointed out, there are sub-specialties in medicine and the public understand that.

4.14 The one-stop shop approach

A few consulted suggested that a specialisation scheme would be contrary to a current trend to provide the public with a ‘one-stop shop’ of related professional services. They suggested that this is more what the public wants and needs, rather than increasing the fragmentation of the profession through specialisation.

It was said that multi-disciplinary practices are another option for general practitioners and possibly a better alternative. It was noted that in Germany multi-disciplinary practices are working best in small towns and villages. However, the same person pointed out that a single choice does not need to be made – that there could be different avenues for different sorts of people. But, this senior lawyer warned, lawyers who cannot or will not move their services in ways that are most suitable for clients will be an endangered species.

4.15 Are there better alternatives?

Some consulted suggested that the existing sections worked well and achieved most of what could be achieved by a specialisation scheme. Others queried whether the better approach would be to raise minimum standards by means of a mandatory CLE scheme rather than seek to drag standards up by a specialisation scheme.

Similarly it was suggested that the existing system in criminal law conducted by the Legal Services Agency (LSA), and the Counsel for the Child scheme of the Family Court, already achieve the benefits of specialisation in those areas. For example, the LSA scheme specifies five categories (generally known as levels) of criminal work. To get onto the first level, ie. to receive LSA funding for work in that category, it is necessary to do two training programs – the NZLS’s Introduction to Criminal Law Practice and the Duty Solicitor Training Programme. But thereafter, to move up to higher levels, it is necessary to establish that one has had experience in those areas, and that experience is recognised by the LSA by placing the practitioner on that level. Similarly, the Counsel for the Child scheme provides that a person cannot, in the Family Court, act for a child in proceedings unless one has been added to the Counsel for the Child list. To do that, a practitioner must now undertake a training programme and have gained some experience.

Other said, to return to a theme discussed above, that whilst the existing informal specialist and referral processes may work well, if they were to be formalised it would give them greater credibility in the eyes of the public and they could be marketed a such.

4.16 Specialisation as a career path

An interesting observation was made at one meeting. It was suggested that once specialisation were "part of the landscape", people would not be concerned about losing something and rather new members of the profession could choose a specialisation and set their career path accordingly. And so, it was suggested, immediate concerns should not affect decisions unduly if there are seen to be long term benefits. One person suggested that the profession should not be held back if a specialisation scheme would benefit it in the longer term.

In another meeting it was suggested that some firms might promote their young lawyers into areas of specialty, using the scheme. For those firms, it could be a recruitment tool.

4.17 Are there enough lawyers to support a scheme?

A senior member of the profession pointed out that the New Zealand legal profession comprises about 8,500 lawyers. Of these about 1,300 are corporate lawyers and about 1,400 are barristers. That leaves about 5,800 who might potentially be interested in the scheme. Of these, about 1,300 are in the large national firms, so that outside those firms there would be about 4,500 lawyers who might find the scheme valuable. Not all of these would be eligible, depending on the eligibility criteria. Would this be a sufficient number to support a specialisation scheme in a number of areas of practice? There would be a need for critical mass.

4.18 Questions as to whether the benefits have been proven

At many of the consultation meetings, questions were asked as to what had been the actual benefits of the schemes in Australia. It had to be acknowledged at those meetings that the fact is that there is almost no empirical research to identify take-up and retention rates as well as financial, marketing or work satisfaction benefits. But, as was mentioned at the consultations, there is anecdotal evidence of a steady take-up rate in many of the specialty areas in Australia and that the retention rate is very high. This suggests that specialists are satisfied with their membership of the schemes for whatever reason. Further, there does not appear to be any sustained or high profile opposition to the schemes from practitioners who have not joined them.

One person noted that some lawyers might simply regard the obtaining of specialist accreditation as a good discipline irrespective of whether it produced hip pocket results. Whether this would be a widespread attitude was not clear.

4.19 Whether specialisation gets to the root of the problem

Several of those consulted questioned whether specialisation would really get to the root of many of the problems in legal practice. One person suggested that accreditation would not necessarily mean that a lawyer had good work habits or good client relationship skills. These, it was said, are the things which lead to client dissatisfaction.

Another practitioner made the same point in a different way in a written submission –

The sole criterion for a client choosing a legal practitioner is, and always should be, reputation. Reputation takes into account specialist legal knowledge, but it also extends to personal qualities, practical experience (at law and in life in general), networks and most important, local knowledge. These latter qualities can never be assessed by reference to minimum standards because reputation is always a subjective assessment – by the client.

4.20 Whether specialisation would be divisive within the profession

A few of those consulted questioned whether a move towards specialisation, and indeed sections, was the appropriate response in a time of pressure on the profession. One person said it was a time to "huddle up together" rather than hive off. The same person said that a scheme could potentially be dangerous if it worked poorly, as it could be divisive when it was seen that some of those obtaining accreditation were seen by others to be undeserving of it. It was said that it would depend on how exclusive or all-embracing a scheme were. If it were only for the profession’s experts, only a few senior lawyers would qualify, and they would probably not find it necessary anyway.

Another practitioner saw a scheme as being potentially divisive from a different perspective, and said in a written submission –

Some specialists take such a technical approach to the application of the law, that such qualities as justice, fairness and practitioner ethics – qualities which bind us together as a profession – are considered to be irrelevant. I believe we all need to take responsibility for the social utility of lawyers: to ensure that the law is applied fairly for the benefit of the public.

4.21 Interest in other specialisation models

A number of those consulted were arbitrators or mediators and members of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ), or knew of the Institute. Others were members of LEADR, the association of professionals engaged in dispute resolution, or knew of LEADR. These practitioners suggested that these organisations might provide models of how a scheme could work. Both organisations have several tiers of membership which could be a way to structure a specialisation scheme for lawyers.

The tiered approach was seen as attractive by some but it was recognised that there was a danger of confusion and unnecessary complication, particularly early in the life of a scheme. However it was noted that it was a way for a person to ease into specialisation and it was also a way for those who could not meet the threshold of, say, 25% of practice not to be disadvantaged.

4.22 Could specialisation be an unforeseen straightjacket?

One person consulted suggested that a danger was that an area of law could change significantly and a specialist could find him/herself ‘high and dry’. For example, aspects of property law could change radically because of computerisation of land and other records, and a property law specialist could find him/herself branded with a brand that was no longer valuable. Or a lawyer might want to move on from his/her area of work, eg out of property law into say intellectual property law. In these situations, the specialist designation could be a constraint or straightjacket.

Chapter 5 - The possible implications on a specialisation scheme of the proposed changes to the structure and regulation of the legal profession

 

This chapter provides a wider context for considering the issue of whether a scheme should be introduced and, if so, what form it should take.

Proposals for changes to the structure and regulation of the legal profession emanate from within the profession itself and from the Government. Whilst there have been some specific proposals from within the profession there are not, as yet, any published proposals from the Government in the form, for example, of a draft bill. However, a number of decisions were made by the Cabinet (the Clark Government) in 2000 and hence the discussion in this chapter is based, in part, on those decisions.

5.1 Proposals from within the profession

Over the last decade or so there have been two NZLS reports which have examined the structure and role of the legal profession. The first of these reports, "Time for a Change" published in 1994, dealt primarily with how complaints and discipline should be handled and consequentially with the relationship between the NZLS and the district law societies. Subsequent to that report, an economist was engaged in 1995 to review the purposes and functions of the law societies and propose what structures should be employed to discharge the functions. This was known as the E-DEC Report which was published in 1997. It proposed that the NZLS be divided into two parts – one to deal with discipline and related matters and the other, for which membership would be voluntary, to provide services to its members.

This led in 1998 to a new model proposed by the then NZLS President, Ian Haynes, and this is the one currently under consideration. It proposes a single body, the NZLS, which would have both regulatory and representative functions. It would regulate all those who were holders of practising certificates would be subject to the mandatory regulatory regime, whether or not they were members of the NZLS. In the public interest, it would also have responsibility for complaints and discipline, a financial assurance scheme (ie. trust accounts inspections, etc), a fidelity fund and the funding of a complaints office.

The NZLS would have voluntary membership. The district law societies would probably become incorporated associations as they would no longer be statutorily based as at present. Membership of a district law society would automatically lead to membership of the NZLS.

Hence, arising out of these proposed reforms is the possibility that membership of a district law society, and hence of the NZLS, would not automatically equate with the entitlement to practise law. The NZLS, faced with possible voluntary membership, quite properly needs to examine how it can best provide services to its members and the public. A specialisation scheme is a perfectly proper and appropriate matter to consider in this context. This is especially so as it could not be said that it would be an artificial construct, putting in place something where there was nothing before, but rather regularising and potentially improving an existing and emerging situation in the legal profession.

Should these reforms occur, there would be a reshaping of the relationship between the NZLS and the district law societies, and of the relationship between the NZLS sections and the NZLS itself on the one hand and the district law societies on the other. The establishment of specialties, with the organisational framework that would inevitably arise, would add a further dimension to these reshaping relationships.

5.2 Proposals from government

No bill has yet been published by the Government and so, although it is not known what specific proposals might emerge, the details of the Cabinet decisions of 2000 are known. In particular, it is noteworthy that two objectives of a reformed regulatory regime would be to –

It has also been suggested in some quarters that there is a possibility that another change might be that the existing intervention rule, whereby a barrister can only receive instructions from another lawyer, would become voluntary. In effect, therefore, barristers could receive instructions direct from the general public. This would expand the overall size of the legal profession which was receiving instructions direct from the public, although not the total amount of work available to the current membership of the NZLS. This might possibly increase competition for work within the profession and could be an added incentive for some practitioners to differentiate themselves in order to be more attractive to clients. It also raises the question for barristers as to whether they would see it as in their own best interest to seek accreditation in areas in which they practised. From the public’s point of view, a scheme could help them in gaining access to barristers with assured competence in a particular field of practice.

There is the prospect of the areas of work at present reserved for legal practitioners being narrowed. The Cabinet decisions of 2000 were that the following work be explicitly reserved to lawyers –

But the decisions refer to no one being precluded from providing legal services in the areas of general legal advice (including litigation related advice) and drafting of legal documents (other than court documents).

A further possible proposal is to license certain people to work in defined narrow areas which are at present reserved for lawyers. Whilst not a restructuring of the legal profession, such a change would also have an impact on the profession. There is a proposal to license conveyancers, who would be able to compete with legal practitioners engaged in conveyancing work. There could also be a prospect of persons being licensed in other specified narrow areas of the law, such that they would compete for work in those areas at present undertaken exclusively by lawyers.

 

5.3 Implications for the profession and for a specialisation scheme

All of these proposals have a potential impact on the legal profession. Essentially they would mean that the marketplace in which legal practitioners, who were members of the NZLS, would find themselves would be far more competitive.

The generally accepted wisdom is that, given this situation, legal practitioners would be better able to compete by highlighting, certifying and ‘branding’ their particular and superior expertise. The major need would be to brand the legal profession as a whole and hence a specialisation scheme would probably not add to that. But so far as individual practitioners were concerned, the best option might be to be, and be seen to be, experts or specialists in areas where there would be competition for their services. By this means, legal practitioners would be able to hold themselves out as better qualified and with superior competence to carry out the work. They would place themselves at the ‘quality end of the market’ and seek their market share from that perspective.

Whilst this strategy would be in the interests of the specialists themselves it could be argued that it would also be in the public interest – giving the public a genuine choice which could be made in full knowledge of the factors involved in making that choice.

Chapter 6 - Whether to introduce a specialisation scheme or not

 

Whether to go ahead and introduce a specialisation scheme is the essential core question.

In making a decision to go ahead or not, a number of issues need to be considered and resolved one way or the other.

It might have been appropriate to approach this process by listing and discussing the reasons for establishing a specialisation scheme and then the reasons why not. But, in fact, most of the reasons, either for or against, have an opposite side to them. And so the approach in this chapter is to consider a range of issues, looking at them from all sides and then suggesting how they should be resolved in making a final decision.

6.1 The basic issue – not whether there should be specialisation in the profession but whether there should be a scheme

The fact is that many, if not most, lawyers specialise to varying degrees. The degree of specialisation may be into no more than litigious or non-litigious work, or it might be very specific, as is found in the large national firms. As has been said in Canada –

There is therefore really no issue as to whether specialization should exist in the profession, since it already does. It exists de facto.

The issue is not even whether this specialization should be encouraged, since it seems to be developing well apace even left to its own devices.

Really, the only issue is whether the specialization which now exists and is increasing should be formally recognized and regulated".

The Council of the Canterbury District Law Society agrees that the argument is not whether practitioners should specialise but asks whether the Law Society, which exists for the benefit of all its members, should be setting up a structure by which a small number may come to be accredited in certain areas. This question is similar to that posed in the 1983 Canadian report, where it is said –

An important issue with which the profession must deal is whether to continue as a body in which all lawyers appear to hold themselves out to the public to be equal or identical, or whether to adopt a concept that recognizes and monitors the diversity of practitioners within the profession.

The Report concludes that "whether one likes it or not, the legal profession is becoming a segmented profession due to the increasing diversity of areas of practice".

If the NZLS proceeds to establish a specialist scheme it will have, in effect, accepted that this diversity within the profession should be acknowledged and indeed encouraged.

6.2 Should the Law Society be encouraging specialisation within the profession?

The answer to this question depends on whether it is decided that there are benefits to the practitioners themselves, to the profession and to the general public.

The fact that non-formal specialisation is already a reality suggests that there are benefits in doing so insofar as the specialists themselves are concerned. The principal benefit to the practitioner is, in a sense, that the opposite is no longer bearable. It is probably impossible anymore to work across the whole range of the law. To try to do so creates a work burden which is impossible and can result in a lowered level of service to clients and a lower level of income.

To narrow one’s range of practice means that one can become more expert, work more productively and generate a higher rate of return. All of this should benefit one’s clients as it should result in better quality work, performed more efficiently.

Specialisation is a rational and obvious way to cope with the increasing complexity of practising law as a result of the proliferation of information and law. Looking at this bigger picture, the NZLS could well conclude that there was no good reason, in the interests of ensuring the delivery of the best quality services, that it should not encourage it. Accordingly a scheme would not create specialists but simply recognise them.

But, it could be argued, whilst the Law Society should accept this reality, should it nevertheless actively encourage this development? The Canterbury District Law Society contends that a scheme could be a divisive influence insofar as the profession as a whole could resent the Society setting up a means by which a few might obtain a marketing benefit which was not available to, or wanted by, the rest of the profession, eg. those in general practice in rural towns. However, in response, again it can be said that in other jurisdictions, despite any advantage which may have accrued to the specialists, there is no indication of a direct impact on those not in the schemes.

The Canterbury District Law Society argues that, for the majority of legal work, specialist expertise or knowledge is not required; rather what is required is the competence and integrity of a lawyer. This may well be true, but there is no suggestion that all legal work, or even the majority of it, would be repackaged into specialist areas in which only specialists would work. In other jurisdictions where there are schemes, there are myriad examples of lawyers doing work which requires these generic skills and attitudes, and indeed of specialists engaging in work of a more general kind.

6.3 Is the best option for the Law Society to formalise an existing reality by means of a specialisation scheme?

Specialisation schemes in law are nothing more than a recognition or formalisation, by the professional body, of a reality which already exists.

As a proportion of the legal profession is already de facto specialists, a specialisation scheme would give the Law Society the opportunity to create common standards for this practice and make the specialists better known to the public. Hence, a specialisation scheme would formalise this emerging informal situation and ensure appropriate standards were in place.

And indeed, in other jurisdictions specialisation schemes do seek to create common, high standards. In Victoria, for example, an aim of its scheme is to provide an incentive and an opportunity for solicitors to reach and maintain higher levels of competence in their chosen areas of practice and to encourage improvement in the quality, speed and cost-efficiency of legal services.

6.4 Would a specialisation scheme disadvantage others in the profession who are not members of the scheme?

How does the Law Society balance its dual roles of encouraging the development of the profession by supporting those who wish to strategically positioning themselves for success in practice, and yet protecting those who, for one reason or another, are not able or willing to change their way of practice in order to survive and grow, eg. by taking part in a specialisation scheme?

The view espoused by the Council of the Canterbury District Law Society is that the ability to obtain accreditation as a specialist would be of benefit to a few but that, in a number of ways, it would be of detriment to the rest of the profession.

The General Council of the Bar’s consultation paper argues that one of the disadvantages of a specialisation scheme is that there could be problematic that a scheme can be fair to all involved, particularly in the context of a diverse profession in which many able individuals have wide-ranging practices.

The issue is, in effect, twofold – is there indeed a reasonable prospect of detriment occurring and, if there is, should the NZLS introduce a scheme if this might occur?

There are three groups which immediately spring to mind as falling into the category of those who might be unable (as opposed to unwilling) to take advantage of a scheme. They are –

There may well be others in addition to these three groups.

Women lawyers

So far as women lawyers are concerned, the basic concern is that some women may have difficulty in amassing the prerequisites of five years in practice and three years of practice in the specialist area, because of the need of many women to absent themselves, partly or fully, from legal work at an early stage in their careers because of family responsibilities. This is a genuine concern and there would appear to be only two ways to attempt to meet it –

Younger lawyers

It would essentially be a contradiction in terms if a practitioner could become an accredited specialist without experience in the area and some form of testing of the practitioner’s knowledge and ability. To exclude younger lawyers would not be discriminatory as such. As has been said –

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.

The discrimination would arise if the younger lawyer would find it impossible or extremely difficult to qualify for membership of a scheme, even after the effluxion of the prerequisite period in practice, because the specialist area had essentially become a monopoly. The need to avoid this is discussed elsewhere in this report.

In fact there could be advantages for younger lawyers, as it has been argued –

Despite the objections of many of the ‘young lawyers’ to the specialization project as being discriminatory, advocates … point out that this program offers the means by which young lawyers, with a minimum of five years of practice, can be certified as specialists and therefore be in a better competitive position with older lawyers who have established specialist reputations within large firms or by public recognition.

General practitioners

Would a scheme put the continued existence of general practitioners at particular risk, especially those working in geographical proximity to specialists or those working part time? In response it can be said that there still appears to be a place for general practitioners in those jurisdictions with schemes, and there does not appear to have been any assertion, either by them or on their behalf, that their practices have suffered at the hands of specialists. No law society in those jurisdictions has, apparently, had to deal with a backlash from non-specialists once their schemes have been introduced.

An interesting situation, which suggests a scheme could benefit suburban and country general practitioners, occurred in Victoria. An advertising campaign by the Law Institute for the scheme had no impact in major metropolitan newspapers but received considerable coverage in suburban and country newspapers. Local specialists were profiled or interviewed. Subsequently it was observed that increases in work had been larger in country and suburban areas than in metropolitan areas.

The Canadian Bar Foundation report suggests –

If lawyers in smaller firms believe they are at a competitive advantage in comparison with the larger firms which, in the perception of many, may house nothing but "specialists", then the availability of a program of certification as a specialist may be of distinct benefit to the sole or small firm practitioner in removing this perceived skills gap.

Likewise, there are lawyers outside the larger firms who desire to provide specialized services, but who find it difficult to receive the necessary training or gain the recognition that can be achieved by a larger firm.

And so, the basic question is, given the specialists would be given some competitive advantage, would a scheme give specialists an unfair advantage over general practitioners? The answer is that if a scheme had an essential integrity, the designation it would confer would be appropriate. Indeed an accreditation scheme is likely to be fairer because the designation of ‘specialist’ has to be earned rather than be simply a self-designation.

There is a range of other issues other than those affecting the three groups discussed above.

Intra-profession competition

Some may argue against competition at all within the profession. But this argument appears to be based on an unspoken premise that the primary purpose of the legal services sector is to generate income for lawyers rather than provide the best service possible for members of the public.

An additional marketing tool

Given there is a fixed amount of work available for all lawyers, specialists might, presumably, be able to gather more of that work to themselves at the expense of their colleagues – through the marketing of their specialist status to clients, potential clients and bodies which might refer work to them. If an advantage of specialisation is that it would enable lawyers to increase their practices, logic suggests that the only way in which that might occur would be as a result of the specialists taking a greater share of the fixed market.

Specialists would be given, by the establishment of a scheme, an additional marketing tool that their non-specialist colleagues would not have. Indeed the Law Society might be undertaking some of that marketing for them. Should the Law Society be setting up a system whereby some members of the profession would have a marketing tool that others would not have? In response it should be noted that the capacity to market already exists, as the ability to self-designate as a specialist is permitted by Rule 4.02. The Yellow Pages attest to this practice. Hence a scheme would presumably only result in a marginal change from the existing situation.

Referrals

Apart from receiving of work from the public generally, there is also the issue of disadvantage in the receipt of work referred by various agencies. The Canterbury District Law Society suggests that accreditation for a few might work to the disadvantage of many, insofar as accreditation as a specialist might be insisted upon by those in a position to allocate legal services, eg. the LSA, Government departments or banks. Thus accreditation could make it harder to obtain instructions and this could create a barrier to successful practice for those who are more junior in the profession or are practising in a more generalist way.

In response, it can indeed be acknowledged that in Australia accreditation has, in some instances, become a prerequisite to receive work from some legal aid authorities, insurance companies and similar bodies. But whilst this may disadvantage some, it could equally be argued that it is in the best interests of society that services provided to these bodies be of the highest standard, and if specialisation is a way to achieve that, the disadvantage to some which might result is an outcome which is acceptable.

Conclusion

Although, in theory, disadvantages such as those discussed above would appear to be a possible outcome of a scheme, the fact is that the schemes in other jurisdictions do not appear to have had a discernible negative impact on those outside the schemes. Having said this, it must be acknowledged that there is no research from these other jurisdictions on the effect of the schemes on non-specialist lawyers, one way or the other. Hence, there is no empirically based information to guide the Society as to what the impact of the introduction of a scheme might be.

But even in the absence of empirical evidence, it could be argued that this competitive situation exists already in New Zealand, partly because of Rule 4.02, and there is no apparent negative impact. Already those who are not specialists have to compete against practitioners who have specialised and against those firms with advertisements in the Yellow Pages in which they claim specialist status. So whether in fact specialisation (which a scheme would only regularise) does, or would, have a negative impact on non-specialists could genuinely be questioned.

On the other hand, while some degree of competition between specialists and general practitioners would be desirable, there could be some concern that, as more lawyers 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 programme might no longer be so. This, however, is likely to be a long way ahead.

6.5 Would a specialisation scheme benefit the public?

The benefits for the public of a specialist scheme are generally considered to be –

There is no doubt that a principal motivating factor for introducing specialisation schemes in other jurisdictions has been to improve the public’s access to legal services. It has been argued that, if a scheme were to be linked to an advertising programme and/or easily accessible lists of specialists, informed public access to legal services should be enhanced. Identification of practitioners and information regarding them and their services should be more readily available.

The Canterbury District Law Society contends that a scheme is not required, in order to enable the public generally to make an informed choice as to whom best to use, as most people have other effective means such as personal referrals. This undoubtedly is the case for some members of the public, but there is some evidence to suggest that it is not the case for most people.

The Law Commission’s 1999 study of women’s access to legal services, focussing as it did on women’s access, claimed that one of the five systemic defects in the delivery of private lawyers’ services was "inadequate and poorly co-ordinated information about lawyers, which hinders women’s choice of lawyers and their informed participation in the justice system". Accordingly, one its five key strategies was "increased diversity in the publication and co-ordination of information about lawyers’ services". On the basis of its enquiries, the Law Commission concluded that a very widespread complaint was that insufficient information is publicly available about lawyers’ professional and personal knowledge and skills.

The existing arrangements, whereby the public can be aware of lawyers who would be able to do work for them, principally comprise one or more of the following –

In regard to referrals, they undoubtedly often work well and seamlessly. But, for some other cases, the Law Commission, in its 1999 study, argued that

processes for referral in some areas are cumbersome and unreliable. In one major city the community law centre knew victims of family violence who had been referred by the police to the Family Court, where they had been referred to the law centre, which them mad referrals to lawyers.

In regard to permitted forms of advertisements, the Law Commission points out that advertising is important but that it does not in itself "meet the information needs of prospective clients who want a recommendation to a lawyers, not merely a self-promotion by one".

In regard to word-of-mouth referrals, the Law Commission’s 1999 study of women’s access to legal services reported that a 1996 NZLS Poll of the Public found that almost 40% of the public did not have an established relationship with a lawyer the last time they sought legal services. They were, accordingly, dependent on other ways of identifying a suitable lawyer. Women, it found, usually turn to friends or family members but, the Law Commission said, this can be problematic "because those people may also not know, or know where to find information about, an appropriate lawyer for a particular matter".

As well, it can be argued that these methods, whilst useful, could be inadequate for several other reasons –

And hence the real issue is not whether a scheme would make lawyers more accessible (that is probably sufficiently achieved already) but whether there is sufficient value in providing reliable access to those with proven expertise to justify the establishment of a scheme.

The point was made several times during the consultations that very often, when members of the general public seeks a lawyer, their first criterion is that the lawyer is able to do the work competently and effectively. Although cost is always important, it may well be a criterion which is of lesser importance.

Hence, a specialisation scheme can give the general public a higher degree of assuredness that those they are consulting are indeed competent to perform the work that is sought from them. This is in the interests of the individual client but also has a more general benefit, insofar as it should lead to a heightened overall sense of certainty about the ability of lawyers. Insofar as the specialists would do a better job, there should be an overall increased sense of satisfaction with the legal profession.

One person who took part in the consultations went so far as to suggest that if there is a significant, and perhaps growing, group within the general public that feels it has not received value for money, lawyers run the risk, in the longer term, of becoming "an endangered species". This dissatisfaction, it was said, will inevitably lead to political and others pressures which may result in lawyers losing their reserved work or the development of alternative ways of having the work done which do not involve lawyers. Hence, giving to the public a sense of assuredness (and satisfaction with the work done) must be achieved, if for no other reason than self-preservation.

The Canterbury District Law Society has noted that it is significant that the public has not asked for, or indicated a need for, accreditation. This is not quite true. The Law Commission’s study of women’s access to legal services, after discussing women’s difficulties in reliably accessing suitable lawyers for their needs from time to time, goes on to say that –

No doubt the increasing specialisation of the legal profession and the absence of any professional systems for recognising lawyers’ expertise in particular fields of law compound the difficulties in this regard.

Whilst it is no doubt true that the public generally has not suggested accreditation as a means to meet their needs and expectations of the legal profession, it would be difficult to pursue an argument that the public has not clearly expressed its expectation that clients should feel assured that their lawyers have the ability to do the work expected of them. To suggest that that is not already the case would be naïve. Simply because the public has not proposed the detail of the solution to the problem does not establish there is no problem.

As was said in a recent article in Australia –

Specialist accreditation allows potential clients who contact a state law society for help to be assured they are being referred to someone with proven experience – someone tested by their peers in the relevant area.

This is the core of this issue.

6.6 Would a specialisation scheme contribute to the maintenance and enhancement of professional standards?

There is general agreement that the need to set, maintain, and indeed enhance, professional standards is a core and ongoing issue for the profession. This is an issue which the New Zealand profession shares with every other legal profession in the common law world.

The question for the Law Society is whether a specialisation scheme would substantially contribute to achieving this goal. The Canadian Bar Foundation report asserts that –

Specialization, whether de facto or in a regulated form, enhances lawyer competency. Indeed, as society and laws become more complex, specialization, is essential and not some kind of luxury.

Although this is no more than an assertion, later in its report the Canadian Bar Foundation suggests that specialisation "is but one of a range of measures which must be taken to deal with professional competence – but it is a good one". The General Council of the Bar in England also asserts, in the consultation document for its proposed scheme, that "accreditation could assist in setting and maintaining professional standards in specified areas". More specifically it suggests that accreditation schemes –

Specialisation should enhance and maintain the overall level of competence in the profession by virtue of the existence of specialists working throughout the profession. But it has to be said that there is no empirical evidence linking specialisation to improved overall competency within the profession. In a Report of the Competency Planning Committee of the Law Society of Alberta it was said –

… it could be argued and was, that a specialization program would service as a "carrot" to those who have a marginal practice to seek a higher standard of competency in that area and thereby serve to elevate minimum competency levels. However, it was that considered opinion of the Committee that the implementation of a specialists certification program would likely serve to elevate the competency level of those already competent in their field of practice and have little or no effect on the elevating of minimum competency levels.

There are, however, several other factors which suggest that a scheme would enhance standards. Because lawyers seeking recognition as specialists have to meet certain requirements, the process itself should maintain and enhance standards – at least so far as those practitioners are concerned. The standards required for ongoing recognition as specialists should encourage lawyers to continue their legal education. Also a scheme which encourages practitioners to focus their attention on a particular area of law is likely to result in them making less mistakes.

Nevertheless, it also needs to be borne in mind, as the General Council of the Bar’s consultation paper argues, that standards of performance are often dependent not on knowledge of the law in specific areas but on other qualities or attributes which result in good client care or in good practice management. If a scheme does not address these factors it will not go to meeting the underlying causes of many failures to meet the requisite standards.

A practitioner who took part in the consultations pointed out that, whilst the standard of competence expected of all those admitted to the legal profession cannot realistically be set at too high or too low a level at the time of admission, that standard needs to be higher for much of the work that lawyers actually do. Lawyers need to advance up to higher levels of performance. One way is to push from behind, as it were, possibly by means such as mandatory CLE. But the other is to provide an opportunity for lawyers to advance up to specialist status, provided they have met appropriate standards of competence in the area of specialisation.

6.7 Would a specialisation scheme be an effective strategy for many lawyers who wish to maintain and develop their practices?

There is general agreement that, for many lawyers, the environment in which law is practised is an increasingly competitive and difficult one. Apart from those lawyers who work in the big national firms, many members of the New Zealand legal profession find themselves facing, or about to face, pressures such as –

Given these situations, it could well be argued that it is appropriate, and perhaps even incumbent, on the NZLS to explore ways to assist lawyers, particularly those in smaller general practices, to survive and thrive. Specialisation would appear to be a way whereby they could confine their practices in a recognised way and direct their energies into areas which interest them.

In other words, specialisation could be a strategic response to the challenges which the environment outlined above presents to many lawyers. The answer, at least for some, might be to do fewer things better, and with better rewards, within the framework of a specialisation scheme.

As this is what many lawyers are doing already, a specialisation scheme would provide a structure for them and a recognition of their specialisation, in the interests of both themselves and their clients. Hence, specialisation could be a way for lawyers already in general practice or working in a limited number of specific areas to move forward in a strategic way.

On the other hand, as the Canterbury District Law Society contends, many in the profession will not seek accreditation because they are able to establish their reputation in other ways, eg. through marketing, seminars for clients or networking. This argument suggests that there are, from the point of view of the practitioner, easier, more direct and cheaper ways to achieve the same end, ie. to maintain and build up a practice.

Looked at from another perspective, these schemes might be more attractive for those yet to enter the profession than those already in it. Lawyers who have newly entered the profession and wish to map out their career in a strategic way, could use specialisation to establish a reputation for themselves and, of course, a clientele. Newer practitioners might benefit through the development of specialty areas and the advertising permitted under the scheme. Whilst larger firms can rely on their name, networks and reputation, newer firms could use the recognition which a specialisation scheme can provide to build their practices.

But does this apply in regional and rural areas? Some, but not all, of those consulted who were from regional and rural areas suggested that, because of the demographics of their areas, it would just not be possible for them to claim that at least, say, 25% of their practice was in one particular area, in which a specialisation scheme was available. Some also said that it may not be in their best interests, as the designation of specialisation in one area might suggest to clients and potential clients that they did not accept work in the other areas of their practices. As is suggested elsewhere, this is probably not a real problem as evidenced by the fact that law firms have already found ways to advertise in the Yellow Pages designated themselves as specialists in some areas but ready to accept instructions in other areas.

The basic issue is that specialisation schemes might be a way for some practitioners to take their practices forward, although it should be recognised that for others this option might just not be available or be strategically advisable.

6.8 Might a specialisation scheme lead to an increase in the cost of legal services?

If a direct outcome of introducing a specialisation scheme were to be an increase in specialists’ fees, and hence an overall increase in the cost of legal services, should the NZLS promote such a scheme?

It would not be hard for someone seeking populist acclaim to portray specialisation as a means whereby the legal profession sought to increase its income by enabling those designated as specialists to charge higher fees.

The fact is that specialisation schemes in the legal profession almost always recognise an existing specialty. Accordingly, it could well be that a practitioner already had a higher charge-out rate before becoming accredited as a specialist under a scheme.

There is no research or evidence, one way or the other, that specialists in other jurisdictions are charging higher fees than their non-specialist colleagues doing similar work. In fact, informal enquiries suggest that increased fees have not eventuated as a result of the introduction of a scheme. In part the reason is that fees in some of the specialist areas are effectively set by the legal aid agency or insurers, or are highly competitive, eg. in conveyancing.

In other jurisdictions specialists, very largely, remain in the schemes despite the fact that there is a cost to them to do this, eg. the reaccreditation fees and the requirement to undertake a minimum of CLE. This suggests that they see the scheme as being worthwhile to them; presumably because it contributes to the success of their practices. That success might be partly as a result of being able to charge a higher fee but it could equally be that their designation as an accredited specialist has led to them being able to attract more clients to their practice. It could be both.

During the consultations several lawyers argued that an increased fee would, in any event, be highly appropriate, and that lawyers are being under-rewarded for the work they do.

Whether or not accredited specialists would have a higher charge-out rate, it could be said that, although the hourly rate might have increased, specialists should be more efficient in doing the work, thus often reducing the overall cost to the client. The NSW Taskforce suggested that higher absolute fees are conceivable but that on a value-for-money basis they should be the trade-off for higher quality services. It went on to argue that the real issue is not the absolute fee charged but ensuring that those who perceive it to be worthwhile to instruct a specialist receive a commensurate service.

And, of course, they should do the job well, contributing to the client’s satisfaction.

6.9 Could a scheme have negative impacts on the profession – elitism, monopolisation or fragmentation?

Some have argued that the creation of a group within the profession, which was seen to be an elite, could lend itself to some alienation of the public from the legal profession and would also not be desirable within the profession. But as the Canadian Bar Foundation report points out, "the only difference under a formal certification program will be a more accurate description of what is already the case".

So far as the public is concerned, it really would be a matter of how a scheme were projected to the public. It clearly would not be intended that specialisation should create elites insofar as it would not be intended that a particular group within the profession would be given any exclusive rights of practice or a special status other than a recognition of their specialist competence. This being so, the public should see the benefit of having such an identifiable group available to provide legal services.

So far as those within the profession are concerned, schemes in other jurisdictions have been means whereby the profession recognises a practitioner’s specialist status. This is not really elitist, and has been seen as worthwhile by some practitioners. Indeed it has been one of the motivations for joining a scheme.

The extent to which the scheme were seen as elitist would depend, to some extent, on how high the bar were set for membership. If the aim of a scheme were to identify the profession’s top experts in a field, the bar would need to be set high and, in reality, accreditation would be available to only a minority of the profession. But what might happen would be no more than a reinforcement of an existing perception of that group, as an elite. If, on the other hand, the bar were to be set somewhat lower, the likelihood of a perception of elitism arising would be much less.

Another potential negative aspect is that a scheme might come to be controlled, or heavily influenced, by those who were already accredited. The Council of the Canterbury District Law Society proposes this risk as one of its arguments against establishment of a scheme. This is the other side of the coin to the restraint of trade issue – which is discussed below. As with that issue, the response is to acknowledge the risk and its undesirability, and to so structure a scheme that this form of control or monopolisation could not occur.

There is also a concern that a specialisation scheme could lead to a fragmentation of the legal profession, as a result of over-specialisation. The fear is that if lawyers become overly narrow in their area of practice, they will not be able to relate even to other areas of the law, let alone broad non-legal concerns. Specialists too should be well-rounded lawyers and it would be of concern if specialists were to lose touch with the many problems which present themselves in the general practice of the law. The response, as suggested in the Canadian Bar Foundation report, might be that the reality is that most lawyers are, in fact, specialists of some type or another, and all that a scheme is doing is recognising this reality and seeking to ensure that those who consider themselves specialists meet objective criteria of legal knowledge and professional competence.

It has also been suggested that a scheme could lead to fragmentation of the profession in that there might be double handling, ie. by a general practitioner initially and subsequently by a specialist – as is often the case in medicine. This could lead to delays and excessive costs. The NSW Taskforce acknowledged this and suggested that one way to help prevent that would be to avoid intense and narrow specialisation in precisely defined areas of law. This should enable the bulk of clients to identify specialists while avoiding the dangers of excessive fragmentation.

 

6.10 Can the profession afford to establish a specialisation scheme?

The basic issue in regard to cost is whether a scheme can be of an appropriately high standard and yet be sufficiently affordable, and hence attract a sufficient number of practitioners to its membership. Solely for the purpose of giving some detail to this discussion, the fees in Australia for initial accreditation, including the cost of the assessment process, are in the range of $385 to over $1000, and the fees for re-accreditation are in the range of $165 to about $300.

The Council of the Canterbury District Law Society suggests that the costs are likely to be a disincentive, especially to those more junior in the profession. This may be true, although it should be said that a scheme would not be intended, or appropriate because of its very nature, for those who were junior in the profession, at least for those in the first years of practice. The Council also contends that junior barristers may find it difficult to take advantage of the scheme because of its cost and their lack of experience. Again, it could be said that such schemes are not really intended for junior members of the profession.

The only source of ongoing income for the scheme would be these fees for accreditation and re-accreditation, so there would be no other way of keeping costs (to members) down. There might be some initial subsidisation in order to give the scheme a kick start. But at some point the scheme needs sufficient practitioners joining it, and maintaining their membership through re-accreditation, to enable the fees to be sufficiently low to attract practitioners to the scheme. This would require a fine balancing of costs and fees and could expose the Law Society to some risk.

For some lawyers the fees might not be unduly burdensome. But for others the costs might be significant. Amongst this group could be those in small practices or those in part time practices, perhaps because of family-rearing duties. The question arises whether the introduction of a scheme would discriminate in this way against some groups within the profession.

Another perspective in regard to cost is whether all of the cost and effort involved would be justified by the eventual outcome. In the absence of any research from other jurisdictions, would those who become specialists benefit, or at least benefit sufficiently, to justify all the effort involved?

There is also the question for the NZLS as to whether it can afford to establish a scheme. The types of costs of establishing and running a scheme are set out in section 9.10 in Chapter 9. There are many variables within those costs and decisions would need to be made about many matters of detail before a calculation could be made of the likely cost of a scheme – both establishment costs and recurrent costs. Then a further estimation would need to be made as to the likely number of members over the initial few years of the scheme. The cost per member could then be calculated, which in turn would suggest the fees for accreditation and re-accreditation.

There is a very good chance that, in the early years, the cost per member would be higher than what that initial group of practitioners would be willing to pay. That being so, the likelihood is that a grant would need to be sought from the New Zealand Law Foundation (NZLF), as was done in NSW where its Law Foundation supported the scheme in its early years, or from some other source.

If that source were to be the Law Society itself, there would be a question as to whether members’ funds should be used to develop a scheme which, although in the best interests of the profession as a whole, benefited only some of its members. If the Law Society were to be the source of early support, it may be that it would need to be a loan to the scheme rather than a grant.

6.11 Are there better alternatives to a specialisation scheme?

As indicated in Chapter 4, a number of those consulted suggested alternatives to specialisation, such as mandatory CLE, better marketing of the existing Law Society Sections, multidisciplinary practices or better advertising of the services to the public.

In regard to advertising, the Canadian Bar Foundation report quotes the following suggestion –

The use of more informational advertising by lawyers in a variety of media as to their educational background, track record, experience, and prices would in time substantially reduce the information problem and provide consumers with the information needed to make rational choices.

The response of the Canadian Bar Foundation committee is that "we see the real issue in a specialization program being the matter of professional competence, not advertising per se".

The issue really is not whether there are alternatives, but whether one or more of those alternatives is so much more preferable, that it should be followed and a specialisation scheme should be abandoned.

There is nothing compelling to suggest this. Specialisation could well stand alongside other proposals which the Law Society might pursue in order to enhance, overall, the quality and range of services provided by members of the NZLS to the New Zealand general public, business community and other organisations and groups.

As well, as was suggested in the consultations, existing networks and informal referral procedures might largely achieve what a scheme sought to achieve. Some have suggested that lawyers will largely not embrace the scheme because of this. The two could, of course, sit beside each other and, as suggested above, these networks and procedures enable clients to get to lawyers, but it can really only be taken on trust that the client has a lawyer with proven ability to do the work.

It could be suggested that the existence of barristers obviates the need for accreditation of solicitors. The role that barristers can play cannot be disputed but it is also important to acknowledge that there are many solicitors who have a high level of expertise and this expertise should be recognised. In any event, as barristers cannot accept work direct from the public, it is important for the public to be able to identify a competent solicitor to consult.

6.12 Would the introduction of a scheme possibly result in increased liability?

Would specialists accredited under a scheme have an elevated duty of care? Could a scheme lead to a greater risk of litigation against the Law Society if a specialist did not meet the standard of performance expected of an accredited specialist?

The Canadian Bar Foundation reports asserts that "there is no doubt that a specialist, whether de facto or de jure, is held to a higher standard of care than that of a non-specialist". It appears to rely, at least in part, in making this assertion on a case in the United States, Horne vs. Peckham.

This question has not apparently been tested in any litigation in Australia to date. But it may well arise. If the basis of each scheme were a statement of performance standards, they would at least be a clear statement of what the standard of that duty was. Confusion as to what the term ‘specialist’ meant and hence what standard of duty of care could be expected of them, would be easier to resolve.

Those who at present hold themselves out as specialists may equally be attracting to themselves a higher standard of care. Accordingly what a scheme might do would be to define more specifically what that standard was.

6.13 Could the establishment of a scheme have the unintended consequence of opening up some areas of legal work to non-lawyers?

The Council of the Canterbury District Law Society has developed an interesting argument. It suggests that if practitioners in a particular area can be accredited as specialists but non-specialists can also practise in the area, it must be implicit that general competence as a lawyer is still adequate to ensure that the work is done properly – and hence, necessary. But if there is a recognised difference between special skill and general competence, it may be easier for non-lawyers to argue that they have developed a particular expertise in the area, ie. the ‘special skill’ which enables them to do the work just as competently as the general lawyer who is practising in the area.

The issue is whether, by ‘commoditising’ some areas of law, using a term suggested by one of those who took part in the consultations, it might be easier for those without full legal training to argue and display that they have the knowledge and skills which make up the special expertise that defines that area. Hence, they would argue, they too are entitled to offer services in that area in competition with legal practitioners.

The question is just how likely this situation is to arise, and/or whether a specialisation scheme might do no more than hasten a development which is already occurring.

6.14 Are there any restraint of trade issues?

It would appear that there are no such issues, as no one would be prevented from practising in an area in which there would be a specialist scheme; and indeed the decision might also be made that they would not be prevented from describing themselves as a specialist in that area, under the provisions of Rule 4.02 of the Rules of Professional Conduct.

However, this is a legal question and if there were to be any doubt, advice should be sought on this issue.

The NSW Taskforce suggests that in Australia there should be no restraint of trade issues as it would be difficult to perceive a misuse of market power and no additional restrictions were to be placed on non-accredited specialists in regard, particularly, to advertising. However, the Taskforce did observe that a German and some American schemes had been found to be in breach of restraint of trade provisions. It went on to observe that, to ensure there were no misleading or deceptive conduct, a scheme would need to take adequate steps to ensure those accredited were adequately qualified and experienced.

6.15 Taking all things into consideration, should New Zealand have a specialisation scheme?

The NZLS might accept an argument that –

then the NZLS should go ahead and establish a scheme.

On this basis and overall, given the information available and the apparent attitude of a significant group in the profession as discerned from the consultations, the NZLS could be confident in going ahead to establish a scheme.

Chapter 7 - Issues to be considered if a scheme were introduced

This chapter continues the approach outlined in Chapter 1 and assumes, for the purposes of discussion, that an in-principle decision to proceed to establish a scheme has been made. There is then a need to consider and resolve a range of issues which determine the nature of the scheme.

The terms of reference for the feasibility study ask that possible pitfalls be identified. Some of the discussion in this chapter suggests what those pitfalls might be.

7.1 What should the designation "specialist" mean?

A representative from a public interest advocacy centre in Australia has said of specialisation schemes –

A properly run accreditation system means people know that when they go to someone who says I am a specialist, that individual is just that – the cards are on the table.

But what, in fact, should the term ‘specialist’ mean? This issue is two dimensional, as shown in the following matrix. Its resolution will suggest what type of scheme should be introduced (as to which, see section 7.2) –

Highly

expert

Level of
Expertise

Competent


Scope of area of practice

This matrix suggests there are two questions – should the designated area be broad or relatively narrow and, in respect of the area, what level of expertise should be expected of a designated specialist? These questions are pertinent if for no other reason than that they underlie the criteria for determining whether a person is accredited as a specialist or not.

The situation is put this way in the 1983 Canadian Bar Foundation report –

In common parlance, specialization is often used to mean a substantial degree of concentration of work in a particular field. Yet concentration in a field does not necessarily always lead to expertise in it. In this Report we use the general term specialization to connote both concentration and expertise, and to embrace a wide range of possible views about the degree of concentration and the degree of expertise necessary to constitute specialization.

In regard to the scope of the area of practice, the issue is how broadly an area of practice should be defined for the purposes of the scheme. If the area were to be defined very narrowly, eg. land subdivisions or family protection, it would be easy for a practitioner to have specialist competence over the whole area – and hence there would be no doubt as to what the specialist designation meant. But if the area were to be defined more widely, eg. property law or family law, the question arises whether, to be a specialist, a practitioner must have specialist competence in all aspects of the defined area or whether such competence in only some aspects is sufficient.

There are some good arguments for not defining the area too narrowly. The numbers involved may be too small to support a scheme and, in any event, there has been no real call for a scheme for quite narrow areas. The NSW Taskforce examined this issue from another perspective. It pointed out that broadly based areas could favour more general practitioners over those who are, at the time of introduction of the scheme, recognised as ‘specialists’ in the area. It saw this as a weakness in a broadly based approach as it would be unpalatable to many such specialists, who will often be the very people to sit on the advisory committees and on whose work the success of the scheme may depend. Yet, as the Taskforce observed, an opposite approach would favour those who arguably need it least.

The experience elsewhere is that generally, but not always, the areas chosen are usually fairly broad, although with one or two exceptions, such as commercial tenancy law in Victoria or crofting law in Scotland.

The alternative approach would be to specify the core areas for each of the specialties and then choose between –

As an example of how the first approach might be dealt with, in the NSW specialisation scheme for personal injury law, the core areas are listed as motor accident cases, workers compensation/industrial accident cases, product liability cases, medical negligence cases and public liability cases. Then the following statement is made –

Applicants will be expected to display a working knowledge of all the core areas; to recognise typical problems, construct an advice to a client and to outline the steps which would be taken to prepare the matter for hearing. In addition, the applicant will be expected to have an in-depth knowledge of one of the core areas and be able to address more complex issues peculiar to that field and covering the matters set out in the performance standards.

Examples of the second approach would be the area of testamentary promises in the more general area of family law, or subdivisions in the more general area of property law. Neither of these might be defined as core areas but would be one of several additional areas in which a specialist would need to display specialist competence.

In the medical specialties there are sub-specialties, and members of the public appreciate that a specialist, although for example called a surgeon, may actually specialise in a particular area of surgery.

The Canadian Bar Foundation report also provides an example of how an area might be defined. It suggests as a definition of the area of criminal law –

The practice of law dealing with … matters involving legal aspects of preliminary proceedings; rights of the parties; pre-trial procedures; entering of pleas; trial; post-verdict proceedings; appeal and other post-conviction relief, double jeopardy; immunity; confessions; search and seizure; identification; rules of criminal evidence; substantive criminal offences and defences; and juvenile matters.

The question would be to decide what were core areas and what were other areas.

When the scheme is designed there would, therefore, be a need to define the areas of practice which the specialties were to cover and decide what core areas they encompassed and what other areas were to be included. It would also need to be decided whether specialist competence in the core areas alone would be sufficient or whether specialist competence in at least one of the other areas must be displayed.

In regard to the level of expertise, the question is should the practitioner have specialist competence (whatever that may mean) in the specialty area, or should the practitioner be expert at a higher level, in the specialty area? A suggested description of the levels is ‘greater than average ability’ in the relevant area but not necessarily ‘extraordinary expertise’. The implications of this choice are discussed further in section 7.2.

It may well be that the public and the profession will understand that being designated as an accredited specialist in a designated area means that the practitioner has the knowledge and skill to do work which could be expected of a person who has worked in that area for a substantial period of time. But it could also be that the public, taking a cue from the medical model, will expect the term to mean a higher degree of expertise, similar to what one expects of a cardio-surgeon as opposed to a general practitioner.

The answer to these questions will underpin the nature of the scheme and, more specifically, the assessment regime for the scheme. The scope and standards expected in the assessments will differ, depending on the decisions made as to what the term ‘specialist’ should mean.

The scheme, as developed, would need to be introduced to the general public such that there was an easy and clear understanding of the breadth of the scheme and the degree of expertise that might be expected of a specialist.

7.2 What type of scheme should be adopted?

There are two fundamental questions which need to be resolved –

One relates to the requirements for membership, namely whether, as already intimated in section 7.1, the scheme would accredit practitioners with sufficient competence to be able to perform work in the area of specialty at a level sufficient to do the job efficiently and effectively (what might be called a ‘medium level’ scheme), or whether it would accredit only those with exceptional, high level skills and abilities, ie. those who are outstanding practitioners (what might be called a ‘higher level’ scheme).

The other question relates to the routes for entry, namely whether the scheme would only be open to those with substantial experience in the area of practice or whether there might be a means to acquire specialist ability, and hence be accredited as a specialist other than solely by experience in practice.

In regard to the requirements for membership, the NSW Taskforce suggested there was a generally uniform understanding of three levels of schemes, as follows –

"High level" connotes:

"Medium level" connotes:

"Low level" essentially connotes a self designation scheme.

7.2.1 A medium level specialisation scheme

This scheme would be similar to those in Australia, England and Ontario. As a starting point for discussion, the following might be its elements –

  1. A practitioner would need to have been in practice for the equivalent of five years full time before being eligible to apply for accreditation
  2. During the immediately preceding three years (or equivalent) the practitioner would have had to have spent at least 25% of his/her practising time in the area of specialisation
  3. A description of the area of specialisation would be developed, to be known as performance standards, which would –
  1. Practitioners seeking accreditation would be required to –
  1. Accreditation would be initially for three years, and thereafter for five years.

  2. To maintain accreditation a specialist would need –

The principal advantage of adopting this approach is that it would be similar to the approaches found in a number of other jurisdictions and has been accepted by the profession in those jurisdictions as the basis for a specialisation scheme. It would also open up the scheme to a reasonably broad number of practitioners, and give it a greater likelihood of developing a critical mass and becoming financially self-sufficient. It would be more likely to avoid claims of elitism or special support for a very small group within the profession.

7.2.2 A higher level specialisation scheme

This scheme would be the same as that outlined in 7.2.1 except that the standards of performance would be those pertaining to a high level expert who had both extensive experience in practice and recognised exceptional abilities. As a consequence, the assessments, although the same in structure, would be a set at a higher level and might be more extensive.

The NZLS could consider developing, in conjunction with one or more of the law schools, a graduate diploma course, the completion of which could be a prerequisite for membership of the scheme.

This form of scheme would equate more closely to the medical model and that now being considered in Ontario, but would be at a higher level than those for lawyers in other jurisdictions where there are schemes.

7.2.3 A compromise: a tiered scheme

A scheme which could combine the approaches in both 7.2.1 and 7.2.2 would be a two tiered scheme. Under this scheme, the standard route to specialist accreditation would be by the so-called medium level approach, based on substantial experience and some assessments. However, a specialist could advance on to the higher tier by further study and examination, as well as further experience in practice.

The approach would satisfy both views within the profession as to the type of specialisation scheme the New Zealand profession should have. But it runs the risk of creating confusion in the eyes of the public and possibly the profession, and could be overly complex to initiate and administer, particularly in its early stages.

If this practice were to be adopted, appropriate terminology would need to be developed to describe the two tiers or ranks within the scheme.

No other legal profession so far has a tiered scheme, with one or two exceptions in a single area of specialty. However, there are some examples of this approach in other related professions.

The AMINZ has three categories of membership for arbitrators and mediators – affiliate, associate and fellow. To be an associate or fellow a person must undergo a quite extensive educational program (offered through Massey University), pass the examination and undertake a one day practical test. A number of those consulted suggested that this model might be an appropriate way to go. It would permit people to work their way up to specialist accreditation, ie. fellow status in the case of AMINZ. More especially, it would meet the needs of both those who wanted a scheme which recognised true expertise and those who wanted a scheme which was more all-embracing. The AMINZ scheme does not require experience, except to the extent that it can be an alternative means to gain Associate or Fellow status, although presumably only in rare cases would a person gain Associate or Fellow status without significant experience. But it is essentially a scheme based solely on educational attainments.

LEADR might provide another model. Its accreditation scheme is meant to provide

certainty for all members as to what they need to achieve in order to be accepted on to a LEADR panel, as well as certainty for people seeking referrals from the LEADR panels, as to the basic skill level and experience of the mediators whose profiles they receive.

There are three levels of panel membership – the LEADR Provisional Panel, the LEADR Panel, and the Advanced LEADR Panel. Only members on the Panel or the Advanced Panel can style themselves as ‘LEADR Accredited’. Members must work their way up through the levels of panels. The requirements for membership of a panel are –

Provisional Panel completion of a four-day workshop.

LEADR Panel a video assessment

Advanced LEADR Panel 150 hours of mediation or 100 hours of mediation and a two-day advanced course.

Hence, that scheme only requires actual experience for membership of the Advanced Panel.

An advantage of this approach would be that those who worked less than 25% in a particular area could still be part of the scheme, and choose a level appropriate to their situation.

If New Zealand were to adopt a scheme along these lines, it might have two levels –

Lower A person with significant experience who had passed some assessments to display appropriate competence.

Higher A person who had significant practical experience in the area and who had completed a diploma level course of education and passed the appropriate rigorous examinations.

The question then would be whether all of these practitioners should be able to use the designation ‘accredited specialist’ (should that be the designation chosen) or whether there should be designations to reflect the appropriate level. There is an argument that the public and other practitioners ought to be able to know what level of specialisation a practitioner had attained, but there is another argument that this would be unduly confusing and complex, particularly in the early stages of a scheme and for a scheme with a relatively small number of members.

The advantage of this approach is that it would still enable a fairly wide range of practitioners to become specialists, but would also respond to those who wished to see a significantly higher standard, of undoubted expert, established and to which practitioners could attain.

It is noteworthy that the Law Society of Ireland has a number of diploma courses which are in addition to its general CLE program. Although it does not have a specialisation scheme, these courses suggest the type of training which might be part of a specialist scheme. The President-elect of the Law Society of NSW, who also chairs the NSW Specialist Accreditation Board, is apparently proposing to push for a higher level of education for the specialist scheme in NSW, by means of diploma-type courses, similar to those in Ireland. If that were to eventuate, the higher level would incorporate not only a need to show greater expertise but also to have a qualification obtained through study and examination.

The Family Law Bar Association in England proposes two levels in the area of children law – full accreditation and provisional accreditation. The requirement for provisional accreditation, which would be where a practitioner had insufficient experience to satisfy the requirement for full accreditation, would be to satisfy the Accreditation Committee "by means of their limited portfolio of work, training, interview or further information that they possess a basic understanding of the [area]" and to demonstrate "a commitment to achieving and maintaining high standards of practice in children law proceedings".

7.2.4 A parallel-entry scheme

Another issue which affects the type of the scheme is whether it should only recognise existing specialist ability or whether it should provide a means whereby a practitioner could become a specialist. It could, of course, do both.

Almost all of the existing schemes have, as a prerequisite, a reasonably substantial period of time in practice, and of substantial practice in the specialist area. On this basis, the assessments are really to enable the practitioner to display that existing specialist competence. Hence, in most instances there are no training courses which precede the assessments.

In order to respond to some concerns expressed during the consultations, it would be possible to have a type of scheme which offered a parallel entry route for those practitioners who were unable to attain sufficient experience, for whatever reason. This approach would open up the scheme to those who might otherwise be disadvantaged, such as women who could only practise part time or may need to suspend their practice. It could also potentially introduce a solid intellectual foundation for each of the specialties.

The alternative entry route would be by study and examination and some, but not as much, practical experience in the specialist area. Practically oriented training courses could be developed which led to specialist status. These might be developed and run jointly by the NZLS and one or more of the law schools.

People entering by this route might be given associate status within the scheme which could convert to full membership once they had attained the full required period of experience in the specialist area.

Their assessments would presumably be at a lower level than the assessments for those seeking full specialist status. A question would then arise as to whether those seeking full status should later be required to undertake the assessments required of all specialists, once they were eligible in terms of their years of experience. This would be feasible but would mean two sets of assessments would need to be developed – and this may be another unnecessary complication.

7.3 How should referrals from one lawyer to another be handled?

It has been argued, and was confirmed during the consultations, that the existence of lawyers designated as specialists could assist other lawyers to refer clients when they are not able to carry out the work themselves. There are, of course, already existing networks and informal practices, and in many instances these work well. In particular, it was clear during the consultations that this was so in the regional areas.

With the introduction of a scheme, it would be important to seek to ensure that these networks and practices were not undermined by the scheme’s introduction. This is manageable as the scheme would not give any exclusive rights of practice and there is already a practice, supported by Rule 4.01 of the Professional Conduct Rules, of some practitioners advertising themselves as specialists.

There would, however, be a need to have a protocol in regard to how referrals to specialists should be handled so as to avoid ‘poaching’. The rules for the scheme in Victoria provide that an accredited specialist receiving a referral of a matter from another practitioner must do all in his/her power to ensure that the referred client returns the client to the referring practitioner in respect of all other legal work. The Law Society of NSW, in its 1991 discussion paper, suggested that one possible reason for an initial slow acceptance of the Victorian scheme was the lack of an enforceable code of conduct in regard to referrals. As the report says, "There appears to be a perception that a referred client may be seen as ‘fair game’ for the accredited specialist to service in other areas as well". On this basis, the proposed rules for the NSW scheme included the following provision –

An accredited specialist receiving a referral of a matter from another practitioner shall do all in his or her power to ensure that the referred client returns to the referring practitioners in respect of all other legal work ….

7.4 How to ensure that the scheme does not result in an overall loss of work for accredited specialists

An important issue, touched on in the previous chapter and discussed extensively in the consultations, is that it is likely that many, and perhaps most, of those designated as specialists would also be seeking work in at least one other area of practice. For example, one lawyer in a provincial city mentioned that resource management comprised about 45% of his practice and he could well see himself seeking specialist accreditation in that area. But he would be concerned if, thereby, he were to suggest to existing or future clients that he did not accept instructions in the remaining 55% of his practice. This was an observation recognised by a number of those consulted.

But when this was suggested, others said that they did not believe it would be a major concern. As the use of the term ‘specialist’ is already permitted under Rule 4.02, informal specialisation is already a fact of life, and clients know that the fact that their lawyer is a ‘specialist’ in one area does not mean that he/she does not work in others. They also suggested that it depended on how it was projected to clients and potential clients. They believed that it would not be difficult for clients and others to appreciate that a lawyer could be a specialist but able to accept work in a range of areas.

A perusal of the Yellow Pages advertisements supports this. The following two examples of advertisements suggest that it is possible to market oneself as a specialist but also indicate that one accepts instructions in other areas.

For Effective and Friendly Legal Service

Mary Smith, Partner

  • Specialist in Family Law

Peter Brown, Associate

  • Specialist in Family Law & Employment Law

Also Covering Your Legal Requirements in

  • Commercial and Company
  • Wills, Trusts, Estate Planning & Claims
  • Civil Litigation
  • Residential & Commercial
  • Conveyancing
  • Immigration

Smith & White

Barristers & Solicitors

Mainsville

 

 

White Black Green

Barristers and Solicitors

Full Legal Services

Family & Property Law Specialists

 

These advertisements are examples of how specialist status can be indicated without implying that the practitioner or firm works exclusively in that area.

7.5 What should be done about Rule 4.02?

As already indicated, Rule 4.02 permits practitioners to hold themselves out as specialists, subject to certain conditions. The Rule provides –

1 A practitioner must not, in any advertisement to, or any other communication with any person, claim to be a specialist or to have special expertise in any field or fields of practice unless such a claim is capable of verification on inquiry.

2 The council of a District Society may at any time after such a claim has been made, call on the practitioner to verify the claim.

3 The council of a District Society, having considered any material put forward by the practitioner in support of the claim, shall advise the practitioner whether or not it considers the claim has been satisfactorily verified, and if not, the council shall require the practitioner to cease forthwith the making of such a claim.

The commentary to this rule lists a number of factors to be taken into account in gaining an overall impression as to whether the claim can be satisfactorily verified, namely –

The question arises as to whether the establishment of a scheme would mean that this Rule should be revoked and a new rule introduced which confined the use of the term ‘specialist’ only to those accredited under the scheme. The Society would need to think very carefully about taking away a privilege it had already granted in order to favour or support a new group it was establishing.

One the other hand, there might be confusion, in the eyes of the public, clients and community groups, if they were to see some practitioners designating themselves as ‘specialist’ and others designated as ‘accredited specialist’ (or whatever term may be chosen).

As a matter of interest, in Ontario only those certified by the Law Society may refer to themselves as specialists in their advertising, and only they are included in the Law Society’s Specialist Directory. On the other hand, in NSW, section 38K of the Legal Profession Act provides that –

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 Law Society Council.

The NSW Taskforce recommended that the NSW equivalent of Rule 4.02 should remain intact but that –

Over a period of time accreditation will establish its value in the minds of the profession and the public to a point where advertising accreditation as a specialist will provide an advantage. This is not seen as unfair. Indeed part of the purpose of the scheme is to bring some order and reality to the entitlement to advertise specialisation. Provision must nevertheless be retained for practitioners in those areas which are not susceptible to accreditation.

7.6 How would a scheme fit in with the Legal Services Agency’s scheme for work in criminal law?

The LSA will only provide legal aid for work done by ‘listed providers’. This practice applies in areas such as criminal law, family law, mental health and employment law.

The scheme has a set of criteria in the area of criminal law whereby practitioners must qualify to do work in one of five categories, ranging from simple criminal matters through to major criminal trials and appeals. These are already, in effect, a form of specialisation whereby only those who have been able to satisfy the criteria, expressed in terms of experience, can undertake legally aided work. In addition, there are training programmes for levels one and two – the NZLS’s workshops on Introduction to Criminal Law Practice and How to Run a District Court Jury Trial.

Until now the district law societies have provided advice to the LSA as to practitioners’ suitability to be added to the lists in accordance with the criteria, but the LSA is moving towards processing applications to join the lists in-house (although the district law societies would continue to have an advisory role). The LSA intends to develop a set of stated competencies which will define the areas covered by the lists, set standards and provide a basis for assessment of applications from practitioners to join the lists.

The existing, and the likely future, practice is a kind of specialisation scheme. Hence any scheme established by the NZLS would need to take this into account. The schemes in areas where the LSA had developed criteria for listing might seek to parallel the competencies chosen by the LSA or those schemes might consciously develop distinctive standards which reflect the profession’s understanding of what a specialist is in those areas of practice.

On the other hand, the LSA might, if the NZLS were to adopt a specialisation scheme, decide to use it for its own purposes. Hence, a situation could emerge whereby specialists might be given some priority for LSA-funded work or might even be paid at a higher rate, as is the case in England with the Legal Services Commission.

One issue which has arisen in regard to the existing LSA list is how a practitioner acquires the necessary initial experience to qualify to join a list. If there is not a way then the lists become closed shops and anti-competitive. The only way to qualify for a LSA list is to do non legally-aided criminal work in order to gain the experience, or perhaps to work on a non-paid basis with a practitioner already on the list. In the circumstances, this situation might still make it very difficult for some practitioners to qualify. This, so far as a specialisation scheme is concerned, raises the question of whether there should be an alternative. One such alternative might be two parallel routes to specialist status (as discussed above), one of which involves less actual practical experience in the specialist area but a rigorous educational and assessment process leading to a form of ‘temporary’ membership of the specialty, which can be confirmed by further experience gained from work as a specialist.

A possibility also is that a condition of being accredited as a specialist might be a requirement that the specialist provides a certain amount of mentoring assistance to other practitioners which, in turn, could be used by those practitioners to support their later applications for specialist accreditation.

    1. The initial specialty areas – how many and how should they be chosen?

There are some arguments to support a decision to introduce more than one specialist area from the beginning, but not to attempt to introduce too many. If there were but one specialty area, as in Western Australia, the scheme may never move beyond that area of practice and it would be harder to portray it as a profession-wide initiative. On the other hand, it would also be a mistake to attempt to introduce a scheme in too many areas at once, although once established new areas could be added after a year or so.

An early decision, which may need to precede the implementation plan, is what areas of practice should be selected initially for the scheme. The following statement by the Queensland Law Society, in regard to its scheme, could be of guidance –

The Specialist Accreditation Board gives consideration to community needs and the requirement not to compromise the scheme as a whole. The Board takes an active role in identifying specialist areas of practice which will best enable non-sophisticated users of legal services to identify practitioners with special competence in the range of areas in which they are likely to require advice.

The Board has regard to:

The criteria used by the Law Society of NSW for choosing new areas are –

The NSW approach contrasts with that in Victoria and Western Australia. The decision there has been left to the association of practitioners in that area with no attention paid to the question of whether a scheme in that area is particularly desirable. The question is not addressed by the profession as a whole or by any body representing the interests of clients. The NSW Taskforce believed this approach to be undesirable partly because those practitioners who might benefit most may not be represented by those making the decision. Rather it recommended that the areas chosen should –

So far as possible, reflect the needs of the community for the services the scheme will provide and should be defined so as to enable non-sophisticated users of legal services to identify appropriate practitioners with competence in the range of areas in which they are likely to require advice.

One basis for choosing an area is that it is easy to define. Some, such as corporate law, have so many different areas that it would be difficult to craft a scheme and for the public to make sense of the accreditation. Another basis could be that there is already a grouping of practitioners working in that area in the NZLS Sections. These Sections also could provide much needed initial support for the concept of specialisation and for the scheme. The NSW Taskforce’s Report suggests that a critical mass of interested practitioners is required in order to make the process viable.

During the consultations it was suggested that there might be a specialist area for general practitioners. This approach is also to be found in the Canadian Bar Foundation report where, in a section headed "The Generalist as a Specialist", it is said –

Frequently … specialization is associated with lawyers who restrict their practice to, say, securities law … and the like. However, lawyers outside the perceived group of de facto specialists can also be seen as specialists – specializing as generalists. This is not just a play on words. The "general practitioner" is a lawyer who specializes in integrating areas of law appropriate to his clientele …

And the report goes on to say –

Many practitioners, in supplying legal services to their surrounding communities, come to specialize in matters unique to those communities, and … this represents just as much a specialization in practice as a lawyer who devotes his time to corporate amalgamations, etc.

This, then, raises the question whether at some point, not necessarily at the commencement of the scheme, a general practice specialist area might be established. This might help concerns expressed during the consultations as to the impact of a scheme on general practitioners. In fact, the Canadian Bar Foundation report suggests that, if general practitioners are given the opportunity to participate in such schemes, the schemes are actually for their benefit more than any others. The report suggests that "recognition as a specialist gives this group of lawyers an opportunity to compete on a more equal footing with large firms, the principal characteristic of which is the division of law into specialties and the ability of the firm to perform specialized services".

On the other hand, as asked by the NSW Taskforce, can a ‘generalist’ specialist really be said to be a specialist at all? And how would the area be defined and standards formulated? Lauw also is sceptical but from a different angle. She notes that general practitioners are those who, in supplying services to their local communities, come to specialise in matters unique to those communities. She asks –

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.

7.8 Is there a risk that the scheme will not embraced by the profession?

One issue for the Society would be what would what happen if only a quite small group of practitioners embraced the scheme, leaving the majority of practitioners in the area of work outside the scheme? The Law Society would, naturally, wish to have a reasonable expectation that there will be take-up amongst practitioners who would be potential specialists.

The NSW Taskforce saw the issue in this way –

Not all of the relevant practitioners in [the areas where the scheme was introduced] may feel the need to have such accreditation and there may not be sufficient practitioners who are willing to spend the significant time required to establish the scheme. Eligible practitioners may then not be prepared to apply for accreditation under the scheme once established. The timing of the introduction of the scheme would be dictated by the slowest group and could be delayed almost indefinitely.

As was said in Chapter 1, the consultations sought to ascertain, as best as could be done, whether there would be take-up amongst the profession. It needs to be borne in mind that those consulted represented only a quite small proportion of the profession, and it is not known whether they were representative or not. Even so, during the meetings the views of some of those present probably changed – to a position of either for or against. So that a view expressed early in a meeting by a practitioner may not have been that practitioner’s view by the end of the meeting. Overall, the consultations cannot be taken as a very reliable indicator of the readiness to embrace the scheme or the extent of take-up of the scheme.

That being so, the Law Society will either need to undertake some intensive liaison with the profession or market research which could indicate the likelihood and extent of take-up, and/or it could rely on other indicators such as the expressed position of the sections or other groups within the profession.

Once a decision were made to introduce a scheme, it would certainly need some strong, committed ‘champions’ who would lead by example, and encourage or pressure others to become accredited.

It can be said that that in Australia schemes in most of the areas of practice have been taken up and a reasonable number of practitioners have put themselves forward for accreditation. As well, almost all specialists, once accredited, have stayed in the scheme. This suggests that, despite the cost and effort of staying in the scheme, they find it worthwhile.

7.9 Should the concept and use of performance standards be adopted?

The issues of just what should be meant by the term ‘specialist’, and hence what criteria would apply to designate a person as a specialist, have already been discussed. In Australia this has been done by the development of performance standards. Performance standards provide the benchmark for the assessments because the basic question in deciding what form of assessment to use is, what should be tested to decide if a person can display the performance standards? If, for example, a standard were that the practitioner can competently act as an advocate in specified areas, a written test would be inappropriate – rather, the practitioner should be tested by undertaking an advocacy exercise.

The process of developing performance standards is usually done by the initial committees of the Specialist Board established for each specialist area. In their discussions the committees would need to resolve issues such as to the scope of the area of law to be embraced by the specialty and the level of expertise that is to be set. The process of writing performance standards can be laborious and time consuming, and delay the introduction of the scheme. But, as is always the case, the effort put into developing them avoids much subsequent confusion as to what the scheme is really about (both within the profession and in the eyes of the public), and the risk of dispute when a practitioner is refused specialist status.

7.10 What sort of assessment regime should be used?

A related issue is what form the assessments should take. The easiest approach would be to rely solely on written examinations. But clearly this form of assessment is not a valid demonstration of some of the abilities which are identified as appropriate for a specialist. For this reason, in Australia the assessment process involves at least three forms of assessment, only one of which is a written examination. Other forms, as appropriate to the performance standards, are –

Written examinations may be daunting, and especially for older practitioners who have not sat one for many years. In this respect they might favour younger applicants.

The development of the assessments would require time and effort. The input of an appropriate educationalist would be of assistance, as was found to be the case in Australia. Assessments will need to be constantly revised, updated and possibly adjusted.

All of this will require considerable input and, to ensure an appropriately sustained level of professionalism, honoraria may need to be paid.

7.11 What should be required for maintaining accreditation?

Another issue for consideration is whether specialists would need to seek re-accreditation, and if so what would be necessary for a specialist to maintain his/her specialist accreditation. Re-accreditation requirements are important as a scheme would be undermined if the continued competence of a specialist could not be assured.

At one end of the spectrum would be no requirement at all, apart presumably from the payment of a regular fee for membership of the scheme. But in Australia and, to varying extents in the other jurisdictions, there are requirements of continued substantial practice in the specialist area and a minimum amount of CLE in the area – 10 hours per year in the case of Australia. At the other end of the spectrum would be some form of re-assessment requirement. This might include a form of peer review. Peer review is not a part of the re-accreditation process in any other schemes, but if the decision were made to have a high level scheme, it might be seen as a useful element to maintain the high standards.

A related question is what should happen if a person slipped below the minimum threshold? Would their specialist accreditation taken away from them?

All of this will have implications for the management of the scheme, as there will be time and financial cost involved in running the re-accreditation aspect of the scheme.

7.12 Should there be ‘grandparenting?

An issue for other schemes has been whether there should be ‘grandparenting in order to launch the scheme. By ‘grandparenting’ is meant an approach whereby initially a small, select group of very senior practitioners, recognised as leaders in the area/s, would be accredited as specialists. They would be the initial group of specialists and would set and conduct the first assessments. They would determine the performance standards, if the decision were to adopt that approach. By accrediting the group it would be intended that they would give the scheme credibility and an initial impetus, as it would demonstrate that it had support from the most senior practitioners in the areas of specialist practice.

Some of those who have had a role in the NSW scheme have strongly urged against this approach. They contend that grandparenting would have the opposite impact, and that the credibility of a scheme is enhanced if it is known that each and every specialist has been through the assessment process. But the NSW Taskforce report suggested that a reasonably broadly-based scheme might benefit from a limited form of grandparenting. It suggested that would encourage initial participation by the accepted leaders in the area and dangers, such as simply recognising longevity, can be avoided by a rigorous peer review process.

The ABA Standing Committee on Specialization also strongly opposes grandparenting. But the Canadian Bar Foundation report suggests that the problem is probably not as great as it is perceived to be, arguing that grandparenting really only means the absence of examinations and the ‘grandparents’ would already be de facto specialists and would therefore have no problem with any of the other requirements.

Lauw suggests that a limited period of grandparenting may be convenient to establish the scheme and encourage participation and acceptance, but an extended or permanent period would appear to discriminate against younger practitioners.

7.13 How should the scheme be controlled and managed?

Another issue to be resolved would be how the control and management of the scheme should be structured. Assuming the Council of the Law Society would not have day-to day oversight responsibilities, the two choices would appear to be either a Specialist Board or the existing or new sections.

A Specialist Board would answer to the Law Society Council but would, under its ‘terms of reference’, be semi-autonomous. Under it would be committees, one for each of the specialist areas. This is the practice in NSW and Victoria. The Board would have a moderating role, ensuring an appropriately even and high level of standards across the various specialty areas, and with responsibility for marketing the scheme and the concept of specialists to the public.

An alternative would be to allow each section (existing or to be created) to run its own specialisation scheme. Although this would enhance the role of the sections, and perhaps encourage the creation of new ones, it could lead to uneven standards between the various specialist areas. In Victoria, where there is both a scheme and sections, there is no formal relationship between the sections and the scheme. Hence, the sections have no formal role in assessment and accreditation. There is some overlap in committee memberships, but this is not intentional as such. The suggestion has been made, in regard to that scheme, that the existing arrangement is inefficient and that it would be more streamlined if there were one committee in each area of law responsible for the scheme’s assessments and accreditation and the section’s educational activities.

Interestingly a suggestion in England that the specialist bar associations might manage the English Bar’s specialist schemes did not find universal favour with those associations. It was felt it could put their members in the potentially invidious position of sitting in judgement on their colleagues and indeed competitors. To avoid this it was suggested during the consultations in England in regard to the Bar’s proposed scheme, that the criteria should be a specified proportion of practice devoted to the specialist area and a specified number of hours of relevant CPD, but not peer review.

A via media could be to have a Council-appointed Specialist Board but each of the practice area committees appointed by the sections. This would ensure an integration between the sections and the scheme, and help avoid the risk that the various specialist areas could move in different directions or even see themselves as in competition for the involvement of members of the profession.

In order to ensure the scheme was truly representative of the profession, the committees running the scheme and carrying out the assessments should be representatives, to the extent possible, of the whole profession and not be dominated by city practitioners.

Another issue is whether, if one of the reasons for establishment of a specialist accreditation scheme were that it would be for the benefit of the general public, what stake should the public have in its governance? In other words, should consumers of legal services be invited to participate in the establishing of standards or competencies, or administering the scheme?

Chapter 8 - The best proposal for a scheme

 

This chapter outlines what is suggested to be the best proposal for a scheme. Having outlined a best proposal, the chapter then goes on to suggest how the other approaches, which were discussed in Chapter 6, might be kept under review, rather than discarded once and for all at this stage.

    1. Suggested best proposal

The suggested best proposal is that outlined above, in section 7.2 of Chapter 7, as a medium level scheme. The principal reason why the other options are not being recommended is that the scheme is more likely to be successfully introduced if –

Its essential elements would be –

  1. Name

    The scheme would be known as the New Zealand Law Society Specialist Scheme.

    Note: The term ‘specialist’ rather than ‘specialisation’ is used, and terms such as ‘accreditation’ or ‘certification’ are not used in the scheme’s title. However, the term ‘accreditation’ would be used in other parts of the documentation to describe the nature of the scheme.

  2. Specialist Board

    The scheme would be administered by a Specialist Board, established by the Law Society. The members of the Specialist Board would be appointed by the Council of the Law Society. The members of the practice area committees of the Specialist Board would be appointed by the Board, after consultation with any Law Society section in the same area of practice.

  3. Prerequisites for accreditation

    3.1 A practitioner would need to have been in practice for the equivalent of five years full time before being eligible to apply for accreditation.

    Note: This period need not necessarily be one unbroken period but could be made up of several periods. It also need not necessarily have been immediately prior to the application for accreditation. In this respect the scheme would be very similar to those in Australia and in England.

    The period of five years is that required in the ABA Standards and in Australia. This length of practice is sufficiently long to allow lawyers to acquire an awareness of the law and to develop skills in communication and research, but is not so prolonged as to discourage new admittees to the profession from the idea of specialisation.

    3.2 During the immediately preceding three years (or equivalent) the practitioner would have to have spent at least 25% of his/her practising time in the area of specialisation.

    Note: Unlike the prerequisite in 3.1, this period should be immediately preceding the application for accreditation. This protects the integrity of the scheme.

    How the 25% would be measured would be left to the applicant’s honesty and goodwill. However, it is unlikely a practitioner practising in an area for less than 25% of his/her time would normally be motivated to seek specialist accreditation in that area. In this respect the scheme would be very similar to those in Australia and in England.

    The period of 25% is that found in the ABA Standards and that used in Australia.

    The Canadian Bar Foundation report suggests that the period of 25% could be relative, depending on the area of practice. For example, 25% might be appropriate for criminal law but would be very substantial indeed for constitutional law.

    3.3 Be in good standing with the Law Society.

    Note: What this would mean would need further definition, but essentially it would mean that the person had not been found guilty of professional misconduct in the past or had proceedings against him/her pending.

  4. Performance standards

Performance standards for each area of practice for which a specialist scheme was established would be developed and they would –

Note: In this respect the scheme would be the same as those in Australia. Performance standards would largely contribute to the scheme having an apparent integrity and be the basis for assessments which were, and were seen to be, sufficiently rigorous to reinforce that integrity.

  1. Requirements and procedures for accreditation

    Practitioners seeking accreditation would be required to –

    5.1 Undertake an assessment process, comprising an open book written examination and at least two other forms of assessment which required performance, as detailed in the performance standards.

    Note: The NSW Taskforce notes that –

    In spite of the fact that considerable emphasis is placed on specialist accreditation being a practical rather than an academic qualification the written examination is the linchpin for most of the specialist areas.

    5.2 Submit a description of their practice in the area of specialisation, in terms not breaching client confidentiality, which showed that it encompassed the area of specialisation as defined in the performance standards

    5.3 Submit the names of five referees who could vouch to the applicant’s specialist competence in terms of the performance standards.

    Note: The NSW Taskforce, in reviewing the Victorian scheme (at that time – the situation may have changed since then) noted that –

    Responses from referees have been disappointing, insofar as they have been uniformly bland, have not provided insights into the potential of a candidate and have not flagged matters which might become problems. It is generally recognised that this aspect of the accreditation procedures in Victoria is ineffective and does not act as the peer review filter for which it was established. There has also been a pattern of certain referees reappearing and consistently giving an almost standard form response.

    Despite this, the Australian schemes have retained this aspect but perhaps not too much reliance is placed upon it.

  2. Period of accreditation

    Accreditation would be initially for three years, and thereafter for periods of five years.

  3. Requirements and procedures for continued accreditation

To maintain accreditation a specialist would need –

7.1 To continue to practise, for at least 25% of their practising time, in the area of specialisation.

7.2 Engage each year in at least ten hours of face-to-face CLE in the area of specialisation, or satisfy the Specialist Board that he/she had done the equivalent, eg. presented at a CLE seminar or a conference, or written an article in the specialist area.

Note: This recommendation implies that there would be no further assessment requirements or any further peer review.

    1. A review after three years

It is appropriate that the scheme be reviewed after three years in order to identify whether it has been a success, has met the expectations of it, whether changes should be made to improve it, and indeed whether it should continue.

As the Law Society Council may not wish to dismiss the other possible options permanently, this would be an appropriate time to revisit the options outlined in sections 7.2.2, 7.2.3 and 7.2.4 and consider any other options which may then be apparent.

 

Chapter 9 - Implementation and conduct of the scheme

 

The ‘terms of reference’ requires this report to set out, in some detail, what would need to be done to –

Obviously, until the exact nature of the scheme is decided upon, its fine detail cannot be determined. But it is possible at this stage to list and discuss in general terms the things that would need to be done to design, implement and conduct the scheme. It is envisaged by the NZLS that there would be a further phase after this feasibility study which would involve more detailed planning, such as the writing of the rules and of procedures, and the setting up of administrative mechanisms.

At an annual ABA Conference on Specialization, the following ideas were suggested for successful launching of a scheme. They are largely taken up in the sections which follow.

  1. Decide on the goals of the program before deciding on the type of program.

  2. Consult members of the profession and members of Council prior to a successful implementation stage.

  3. Set standards that are high but achievable by members of the profession.

  4. Explain the meaning of, and publicize, the program, both within the profession and to the public.

  5. Encourage established practitioners to join at the outset in order to develop credibility and status.

  6. Do not establish administrative or architectural barriers, which will keep those practitioners out of the program who are most essential for its implementation.

  7. Select staff and committee members carefully to include those who are committed, enthusiastic, non-bureaucratic and accessible to the profession and to the public.

  8. Encourage the profession to control the plan in order to avoid the possibility of another bureaucracy or government body controlling a specialization plan.

9.1 Implementation Action Plan

The first step would be to write an Implementation Action Plan. This would list every action that needed to be carried out, provide a time line, show who would be responsible and any costs involved. Hence, the plan and the timeline record might look like the following –

Action Plan

No.

Action

By Whom

By When

Costs Involved

1.

       

2.

       

3.

       

etc

       

Time Line

Month

Actions to be completed

1st

 

2nd

 

3rd

 

etc

 

 

9.2 Establishment of the Specialist Board and its committees

Once the decision is made that the scheme should have its own board, with responsibility for its own budget and administrative arrangements but answerable to the NZLS Council, some subsidiary questions arise.

How would that board be constituted?

By way of example, in NSW the Board comprises at least ten members, made up of Law Society Council members, six solicitors, a community representative and members experienced in assessment processes.

Would there be an advisory committee for each specialist area?

This is the practice in other jurisdictions. In NSW most advisory committees have seven members – a community representative, a person experienced in assessment, and five practitioners, four of whom have recognised special competence in the area. In Victoria the advisory committees have seven members, at least six of whom must meet the criteria for accreditation.

If the areas of specialty overlap with areas covered by NZLS sections, should there be linkages or even significant overlap?

If the latter decision were decided upon, the sections could, for example, nominate say 50% of the membership of the area committee, with the other 50% appointed by the Specialist Board.

More specific details, such as the length of the terms of office, could be decided upon later.

 

The primary role of the Board would be –

The primary role of the committees would be –

The NSW Taskforce noted that the advisory committees, once appointed, effectively set their own agenda and timetable, with their recommendations going to the Board for final approval. The initial members are deemed to be accredited specialists but are expected to undertake the assessments in the year following the year in which they leave the advisory committee.

Assuming it is decided that participation in CLE is an ongoing requirement for re-accreditation, both the Board and the committees would also have a role in regard to this. The scheme could decide to conduct its own CLE or, perhaps more likely, could work in conjunction with the NZLS and the sections to develop CLE programmes solely for specialists or especially appropriate for them.

9.3 Choosing the initial specialist areas

This will be an important early decision as it will determine, amongst other things, who will be involved in the decision making and planning in the early stages. The process will not simply be a choice of areas but a defining of their boundaries. Too broad or too narrow a definition could affect the successful take-up of the scheme. For example, the NSW Taskforce observed that the choice of the area ‘local government and town planning law’ may have been too broad, cutting out people who were considered to be specialists in just one or other area. On the other hand, a too narrow area could result in practitioners in smaller practices not being able to meet the 25% of time prerequisite.

9.4 Developing the performance standards and assessments

Basing each specialist area on a formal description of its scope and of the nature of specialist competence has already been recommended, in order to provide a firm foundation for a number of aspects of the scheme. The assessments can then be designed so that they appropriately assess whether a practitioner can match the performance standards and hence qualify for specialist status.

The Board and committees might benefit from some expert assistance in developing the performance standards and writing the initial assessments. This might come from an educationalist who was sensitive to the needs, constraints and approach of the legal profession and/or from someone who has actively participated in the process elsewhere, eg. a member of one of the boards of the specialisation schemes in Australia.

9.5 Marketing and promotion of the scheme

The scheme will need to be promoted with the profession. A plan of action should be developed. It could comprise –

The promotion of the scheme to the general public could comprise –

There might also be something like the Law Society of NSW’s Specialist Accreditation Manual, which is designed to assist specialists to market themselves. It contains a guide to the basic principles of marketing and a variety of ideas which can be pursued.

It appears that in NSW the use of advertisements in the newspapers caused some problems with other members of the profession who, albeit incorrectly, thought that the Law Society was using their money to promote the specialists. As a result, there is almost no advertising in newspapers now, and the focus is on the specialists marketing themselves, with assistance from the Specialist Accreditation Board, complemented by the website and the hotline.

This suggests that, in addition, a website would be developed. It could describe the scheme but also include details of specialists by area of specialty and geographic area. The website should enable the public, community groups and other to easily identify an appropriate specialist. As well, a 0800 number hotline could be established which also gave the public the chance to identify accredited specialists.

There could be considerable value in having a logo for the scheme. If this were thought to be a useful marketing device (and that certainly is the case in Australia), a question arises as to whether an approach should be made to use the Australian logo or whether a new logo should be designed.

Some expert marketing exercise might be obtained for these purposes.

9.6 The Professional Conduct Rules

A decision will need to be made as to what should be done, if anything, about R4.02. Should there be a new sub-rule for specialists accredited under the scheme? Should the existing rule remain unchanged or should it now only permit accredited specialists to take advantage of it? If this is not done, does anything need to be done to avoid confusion as a result of some practitioners being able to describe themselves as specialists pursuant to the Rule and other being accredited as specialists? If the Rule were to be amended so that it was confined only to accredited specialists, would those practitioners who have, to date, taken advantage of it be likely to express strong discontent?

9.7 Making of the Rules

Once all broad and specific decisions are made, rules will presumably need to be written for the scheme. These Rules would be adopted by the Specialist Board and confirmed by the NZLS Council.

9.8 Staffing of the scheme

A decision will need to be made as to how the scheme will be staffed. One issue is how many members of staff will be needed. In Australia the staffing establishment for the schemes, bearing in mind they are now established and not in their start-up phases, is –

NSW 3, full time

Queensland 1 full time and the Director, who has other duties and devotes about 60% of his time to the Specialisation programme.

Victoria 2 full time and the Director, who is also Director of Professional Development (which includes CLE as well)

Western Australia 1, part time (has other duties in the Law Society)

A basic decision is at what level the scheme’s executive officer should be appointed. Should the person be relatively senior so that he/she would play a central role in the scheme’s establishment and promotion and the ongoing setting and maintenance of standards and a consistently appropriate approach in its administration, or should the Executive Officer have primarily a clerical role? The more senior the person, the more costly would be the scheme’s administrative costs.

It may be that, at least in its early days, the scheme would require no more than an Executive Officer. However this will, to an extent, depend on how many specialist areas are initially established.

The Executive Officer will need a range of abilities including –

9.9 Budget

9.9.1 Implementation budget

An initial implementation budget could comprise –

Income

1. Grant and/or loans from the New Zealand Law Foundation (NZLF), NZLS and/or other sources

Expenditure

2. Consultants’ fees for -

3 Honoraria paid to members of the specialists committees responsible for acting as examiners.

4 Design, printing and distribution (to all members of the profession) of the Specialist Scheme Handbook.

5 Marketing consultant’s fee to assist with marketing of the scheme to the public.

6 Initial marketing costs.

7 Possible cost of design of specialist logo or fee for use of Australia logo.

8 Setting up of office – computers, furniture, stationery etc

Notes

a) An assumption is made that the scheme will not be subsidised from general NZLS funds; however a long term loan could be made to the scheme.

b) A grant from the NZLF might be possible. The Law Society of NSW received such a grant from the NSW Law Foundation when it established its scheme.

c) The NZLS might engage one or more consultants to carry out the tasks in (2), or the work might be done internally by staff and/or committee members.

d) The reference to the writing of performance standards in (2) is subject to a decision being made to have them as part of the scheme.

e) The reference to the payment of honoraria to examiners in (2) is subject to a decision being made to do this. In Australia, honoraria are not been paid to advisory committee members as such. However, generally those responsible for devising the assessments, including setting of the examinations, are paid. In Victoria, for example, the principal examiners are paid a standard fee of $1800 unless more than one examiners is involved or if there are other conditions. The examiner for the nationwide family law assessments is paid a fee. In NSW the academics who set the examination papers and those who mark them are paid, and the actors who participate in the interactive assessments, eg.interviews with clients, are also paid.

9.9.2 Recurrent budget

An ongoing recurrent budget would comprise –

Income

  1. Application and accreditation fees
  2. Re-accreditation fees
  3. Grants/loans to subsidise scheme in the first few years

    Expenditure

  4. Repayment of loan/s
  5. Executive Officer’s salary
  6. Other staff support
  7. Office expenses – computer support, telephone, stationery etc
  8. Annual reprinting and distribution of Specialist Scheme Handbook
  9. Honoraria for updating of assessments and writing of new assessments
  10. Marketing expenses

Notes

a) The fees will be fixed based on what the actual dollar costs will be, the extent of support provided by way of loans and grants, and what fees are seen as acceptable to would-be specialists and specialists.

  1. It is very unlikely that the scheme could be self reliant in its first few years, and hence will need subsidisation support.
  2. Decisions will need to be made as to the nature and extent of ongoing marketing.


Bibliography
American Bar Association (2002) Lawyer Specialty Certification by the Numbers, 1994–2001: National Trends, Growth Trends, June 2002

Arbitrators’ and Mediators’ Institute of New Zealand Inc. (2001) Membership and Education Information

Armytage, L (1996) "Client satisfaction with specialists’ services: lessons for legal educators", Australasian Professional Legal Education Council International Conference Papers

Bicknell, DG (2002) "Sowing the Seeds of Certification", Certification Link, Newsletter of the ABA Standing Committee on Specialization, February 2002

Bascom, JD (1998) Blueprint for specialization, The Law Society of Alberta – Benchers’ Advisory, Issue #53.

Canadian Bar Foundation (1983) The Unknown Experts: Legal Specialists in Canada Today, Report of the Canadian Bar Association Special Committee on Specialization in the Legal Profession

General Council of the Bar (2000) Accreditation Consultation Document, The General Council of the Bar Policy Committee. www.barcouncil.org.uk/document.asp?documentid=1005.

Gonczi, A, Hager, P & Palmer, C (1994) "Performance Based Assessment and the NSW Law Society Specialist Accreditation Program", Journal of Professional Legal Education, vol 12, no 2, pp 135 – 147.

Howland, R (1996) "Lawyer Certification: Defining and marketing what lawyers do best", The Compleat Lawyer, Fall 1996, Vol. 13, No. 4

Lauw, I (1994) Specialisation, Accreditation and the Legal Profession in Australia and Canada, paper submitted in fulfilment of course requirements of the School of Law, Murdoch University.

Law Commission (1999) Women’s Access to Legal Services, Study Paper 1 (by Joanne Morris), Wellington, New Zealand.

Law Society, The (of England & Wales) (1998) Immigration Law Accreditation – Consultation Paper. www.lawsociety.org.uk/dcs/fourth_tier.asp?section_id=378.

Law Society, The (of England & Wales) (1999) Networks for Solicitors – Consultation Paper, www.lawsociety.org.uk/dcs/fourth_tier.asp?section_id=2997.

Law Society of Alberta (1997) Report of the Specialization Committee to Law Society Members http://www.lawsocietyalberta.com/pubs_policies_reports/specialization_report.asp

Law Society of Alberta (1998) Report of the Competency Planning Committee, http://www.lawsocietyalberta.com/pubs_policies_reports//compco1/compco1.asp

Law Society of Alberta (2002) Report to Convocation of the Professional Development & Competence Committee, http://www.lsuc.on.ca/news/pdf/convjune02_profdevcomp.pdf

Law Society of Alberta (2002) Specialist Certification Business Plan, http://www.lsuc.on.ca/news/pdf/convjune02_speccertbusplan.pdf

Law Society of New South Wales (1991) Specialist Accreditation: Policy Review: Discussion Paper.

Law Society of New South Wales (undated) Specialist Accreditation Manual

Law Society of New South Wales (October 2001) Specialist Accreditation Handbook: Policy Procedures & Regulations

Law Society of New South Wales (2002) Assessment Guidelines 2002

Law Society of Queensland Assessment Guidelines for Specialist Accreditation 2002

Law Society of Scotland (2002) "Guidance Notes" to Applications to be Accredited as a Specialist

Law Society of Western Australia (2001) "Standards for Accreditation: Specialist Family Lawyer", Rules for Accreditation of Legal Practitioners in Western Australia, July 2001

Law Society of Upper Canada (2000) Implementing the Law Society’s Competence Mandate: A Consultation Document, March, 2000

Law Society of Upper Canada (2001) Implementing the Law Society’s Competence Mandate: Report and Recommendations, March, 2001

Law Society of Upper Canada (2002) Professional Development & Competence Committee: Report to Convocation, June 28, 2002, http://www.lsuc.on.ca/news/pdf/convjune02_profdevcomp.pdf

Law Society of Upper Canada (2002) Specialist Certification Business Plan, June 2002, http://www.lsuc.on.ca/news/pdf/convjune02_speccertbusplan.pdf

Romaine, B. (1997) President’s Message, The Law Society of Alberta _ Benchers’ Advisory, Issue #51, August 1997.

Schwartz, AM (2002) "Professional Development: Board Certification rises 41% in Half-Decade", www.lexisone.com/professionaldevelopment/pdlibrary/certification.
Wilkins, F (2001) "Getting certified – should you consider it?", Lawyers Weekly, 17 August 2001, p 14.


Websites

American Bar Association Standing Committee on Specialization
http://www.abanet.org/legalservices/%20specializationn

The General Council of the Bar http://www.barcouncil.org.uk/

Queensland Law Society http://www.qls.com.au/requirements/specaccred-faqs.htm

Law Institute of Victoria http://www.liv.asn.au/

The Law Society of Alberta http://www.lawsocietyalberta.com/

The Law Society of England & Wales http://www.lawsociety.org.uk/
http://www.lawsociety.org.uk/

The Law Society of Ireland http://www.lawsociety.ie/

The Law Society of New South Wales www.lawsocnsw.asn.au/specialists/

The Law Society of Scotland http://www.lawscot.org.uk/

The Law Society of Upper Canada http://www.lsuc.on.ca/services/services_specialist_intro_en.jsp

Law Society of Western Australia http://www.lawsocietywa.asn.au/

Annexure A Consultation paper

 

Note: The two appendices to this paper are omitted.

 

NEW ZEALAND LAW SOCIETY

Proposal for a specialisation scheme

CONSULTATION PAPER

prepared by Christopher Roper & Adrian Deans

The College of Law Alliance

 

Contents

1 The purpose of this consultation *

2 The purpose of this paper *

3 The concept of recognition of specialisation *

4 Specialisation schemes in other jurisdictions *

5 Benefits of specialisation and issues or concerns which might arise *

 

 

 

1 The purpose of this consultation

The New Zealand Law Society is considering the introduction of a specialisation scheme. If the scheme is introduced, it will be with a view to it becoming a universal scheme but the pilot scheme would be in the area of family law.

In deciding whether to introduce a specialisation scheme and what form it should take, the Law Society wishes to seek the views and reaction of lawyers and others to the proposal in order –

This consultation forms part of a feasibility study for the proposal.

 

2 The purpose of this paper

This paper seeks to assist informed discussion of the proposal. It does this by briefly –

The issues raised in this paper can form a basis for the discussion which will take place at the consultations – although they should not constrain the raising of other relevant issues.

 

3 The concept of recognition of specialisation

The traditional legal model of specialisation is to be contrasted with the model commonly adopted by the medical profession. The medical profession uses specialisation in order to qualify professionals for higher duties (eg, thoracic surgery or gastro-enterology). Practitioners who have not acquired the requisite level of specialisation are not entitled to provide the relevant services.

This has not been the legal approach. Specialisation schemes for legal practitioners have more commonly served to recognise existing excellence or competence, without conferring any further or exclusive rights of practice in that area. The medical model creates expertise and gives the experts exclusive rights of practice in the area; the legal model recognises proven expertise but does not prevent others working in the area of practice.

 

4 Specialisation schemes in other jurisdictions

Specialisation schemes for lawyers are in place in several Australian States, England, Scotland, Canada and a number of States in the United States. In most cases they concern areas of practice involving ordinary people rather than larger corporations. They are directed to enhancing the practices of small to medium size firms. A brief outline of these schemes is in Appendix A.

These specialisation schemes usually have three elements –

Eligibility

By way of example, in order to qualify for specialist accreditation in New South Wales, a practitioner must –

These requirements are fairly typical of most jurisdictions, with differences tending be a matter of degree rather than substance. For example, Ontario requires a minimum of seven years practice of law with 50% involvement in area of specialisation over the five years preceding the application. By contrast, England and Wales requires only three years practice of law and 350 hours per annum in the intended area of expertise.

Assessment of competence

Specialisation schemes in other jurisdictions are usually competency based. Accordingly, the assessment is designed to locate a practitioner on a spectrum of knowledge, skills attitudes and values, and to accredit where competency is displayed to the requisite standard. The competencies and standards are established by advisory committees, and are assessed, bearing in mind that the candidates are practising lawyers rather than students. The assessment tasks are therefore appropriate to test the skills of the practising lawyer and typically consist of the following –

Maintaining recognition as a specialist

All jurisdictions have some requirement in regard to the maintenance of recognition as a specialist. Usually this involves participation in a minimum level of continuing legal education and continuing to have a substantial practice in the area of specialisation. Some jurisdictions require something more.

 

5 Benefits of specialisation and issues or concerns which might arise

Specialisation schemes have been operating in numerous common law jurisdictions for over ten years. The rationale for the development of such schemes has typically been predicated on one or more of the following –

the professional development of the individual lawyer

the raising of standards across the profession

the provision of better service to the law-consuming public; and hence

improving the public’s perception of the general competence of the profession

making it easier for the public to identify, and have access to, practitioners who have the expertise to assist them.

Hence, the benefits and issues or concerns can be considered from three angles –

Benefits and issues for the individual lawyer

  1. Specialisation can assist lawyers, particularly those in smaller general practices, to confine their practices in a recognised way and direct their energies into areas which interest them.
  2. Certain lawyers can use specialisation to establish a reputation as well as clientele. Small or rural practices, and newer practitioners, may benefit through the development of specialty areas and the advertising permitted under the scheme. Whilst larger firms can rely on their name and reputation, smaller firms need this recognition to build their practices.
  3. This could be seen as no more than the Law Society creating an elite group within the profession. This as a way for some practitioners to gather more work to themselves at the expense of their colleagues.
  4. It puts general practitioners at risk. It could be seen as a threat to the practices of general practitioners, especially in small practices.
  5. If the requirements for recognition as a specialist are too high, lawyers who are competent in a field but not identified as such, may be overlooked by potential clients.
  6. Specialisation will require lawyers to devote time to preparing for and becoming recognised, and subsequently maintaining their recognition through participation in CLE. Thus it is expensive for them, as it results in a period of non-billable hours.
  7. Associations of practitioners within a given field may monopolise that specialty. It could become difficult for other non-specialising lawyers to practise law in the specialty area/s.

    Benefits and issues for the legal profession

  8. Specialisation should enhance and maintain the overall level of competence in the profession by virtue of the existence of specialists working throughout the profession. But it has to be said that there is no empirical evidence linking specialisation to improved competency within the profession.
  9. Because lawyers seeking recognition as specialists have to meet certain requirements, the process itself should maintain and enhance standards – at least so far as the specialists are concerned.
  10. Should the Law Society be primarily assisting those who find practising law difficult under existing economic circumstances, or should it be encouraging and supporting the ‘frontrunners’ to develop their practices?
  11. The identification of specialists may be misleading. There may be public confusion over the title of specialist.
  12. The standards required for recognition as specialists and renewal will encourage lawyers to continue their legal education. Also a practitioner who focuses his/her attention on a particular area of law is less likely to make mistakes.
  13. Specialisation is a rational and obvious way to cope with the increasing complexity of practising law as a result of the proliferation of information and law.
  14. A proportion of the legal profession are already de facto specialists. Through a specialisation scheme, the Law Society has the opportunity to create common standards for this practice and make the specialists better known to the public.
  15. There is an inevitable cost in running a specialisation scheme. Who should pay for this? If all the costs are passed on to the specialists (application fees, etc.) will it be too expensive and thus dissuade lawyers seeking recognition as specialists?

    Benefits and issues for the general public

  16. If a scheme is linked to an advertising program, public access to legal services should be enhanced. Identification of practitioners and information regarding them and their services should be more readily available.
  17. It should be easier for lawyers to refer matters to other lawyers who have expertise in certain areas.
  18. This could be seen as no more than a way for the legal profession to increase its fees. But it could be said that although the hourly rate may increase, the efficiency with which work is done will also increase, thus reducing the overall cost.
  19. Creating a group, which is seen to be an elite, within the profession could lend itself to further alienation of the public from the legal profession.

 

Annexure B Invitation to members of the profession to take part in the consultations

30 April 2002

I N V I T A T I O N

The New Zealand Law Society is considering the possibility of creating voluntary specialisation schemes for practitioners in different areas of practice. The Society wishes to hear the members’ views on this as it will only proceed with the investigation if it has the support of the profession.

The Society has contracted Christopher Roper to investigate and report on the feasibility of establishing a specialisation scheme. Mr Roper is a highly qualified and experienced Australian consultant. He is legally qualified and has expertise in the area of specialisation having consulted on schemes in several countries including working on the NSW scheme from its inception.

Mr Roper will be in New Zealand to consult with the profession on this topic from 13-22 May. It is impossible for him to see everyone but you are invited to meet with him when he is in your area. This small informal meeting will be your chance to find out more and have your say. Input from practitioners such as you will determine the future of this project.

Below is a list of the places Mr Roper will visit and when. Meetings will be no longer than 90 minutes between 11am-3pm. Details of the venue and time will be advised once responses are received. A discussion paper will be available. There will be other opportunities to meet directly with Mr Roper if you are unable to attend the meeting. We may contact you directly about this.

Wellington 13 May 2002

Palmerston North 14 May 2002

Napier 15 May 2002

Auckland 16 May 2002

Hamilton 17 May 2002

Dunedin 20 May 2002

Christchurch 21 May 2002

Nelson 22 May 2002

Please note if too many people wish to attend numbers may be limited.

Sarah Spears

DDI (04) 915 1296

Fax: (04) 915 1283

------------------------------------------------------------------------------------------------------------

If you would like to attend a meeting please complete and return this section in the stamped self-addressed envelope provided by Tuesday 7 May 02.

I wish to attend the meeting in ____________________

Name:

Email:

Annexure C Those consulted in May 2002

 

Note: Two meetings were held in all of the following cities – at 11.00am and at 1.00pm.

Wellington

Rupert Ablett-Hampson Kerry Anderson
Sandy Baigent Andrew Beck
Bell Bevan Joanna Bond
Craig Boyes Grant Burston
Peter Churchman David Clarke
Ross Crotty Catriona Doyle
Tim Druce Russell Feist
John Greenwood John Harknesss
Greg Kelly Greg King
John Marshall Mark Mason
Margaret Powell Elena Szentivanyi
Don Turley Vivienne Ullrich QC
Tony Wilton

 

Palmerston North

Beverley Alexander Les Goodman
Alison Green Hendrika Hoogendyk
Glenn Mason Julie O'Brien
Ben Vanderkolk Steve Winter
   

Napier

Kevin Callinicos Alan Davies
Nevin Dawson John Donkin
Bevan Heremia Richard Hill
Philip Jensen John Matthews
Margaret Wellwood

Auckland

Alison Adams Bernadette Ah Voa Eteuati
David Burns Rochelle Hume
Simon Jefferson Harry Jordaan
Lynda Kearns Anthony Liew
Lorraine Lipman Stephen McCarthy
Vanessa Nicholas Peter O'Dea

In a separate meeting –

Ian Haynes ONZM, Immediate Past President of the Law Society

Hamilton

Martyn Chambers Lesley Chapman
Brendan Cullen Lex de Jong
Murray Earl Julie Hardcastle
David Hayes Kay Kirby-Curtis
David Nielsen David O'Neill
   

Dunedin

Lesley Brook Alison Fulcher
Jim Guest Alistair Logan
Garth Lucas Phil Roberts
Jonelle Williams Pene Williams
   

Christchurch

Marion Abrams Amy Adams
Susan Anderson Julian Clark
Angela Grant Richard Gray
Lindsay Lloyd Stephanie Marsden
Isabel Mitchell Rob Murfitt
Andrew McKenzie Gerald Nation
Anne O'Brien Peter O'Donnell
Mary O'Dwyer Simon Price
Jeff Reed Melanie Robertson
Ashley Sault John Sullivan
Anna Tutton Stephen van Bohemen

Nelson

David Caldwell Belinda Fletcher
Frank Freeman Jeremy Glasgow
Jane Hunter Julian Maze
Anne Meates Philippa Rutledge
Rob Somerville Mike Sullivan
Anne Todd-Lambie Sarah Jane Weir

Wellington

John Worden, Manager, Service Contracts and Monitoring, Legal Services Agency

Ms Jan Rivers, Legal Services Agency

Annexure D Extract from performance standards for the Property Law specialty in Queensland

 

Practitioners wishing to be accredited should be able to:

• display knowledge of the law and procedure which underpins the performance of tasks in this area of practice; and

• perform specified tasks.

Those tasks are:

1. Gather information

2. Determine course of action

3. Implement instructions

4. Settle the matter.

1. Gather information by

1.1 Taking initial instructions

The property lawyer:

• establishes:

– the identity and legal capacity of the client,

– the nature of the property and

– the client’s intentions.

• develops a full picture of the transaction including without limitation:

– the tax/duty implications,

– the intended financial arrangements and

– the planning position.

• assists the client in thinking the problem through step by step to identify the goals and the best means of achieving them.

• discusses the question of costs and identifies the party who is responsible for the costs.

1.2 Gathering information from external sources

The property lawyer:

• conducts searches to verify and amplify information obtained from the client, and to define the extent of the client’s risk in the transaction. Such searches will be of the property concerned, but may also be of parties to the transaction.

• knows the procedures for obtaining the information required, and conducts the searches with attention to detail and a concern for accuracy

• liaises with other professionals to obtain information

• interprets all the responses and assesses the impact of the information obtained on the transaction and the client’s position

2. Determine course of action by

2.1 Considering legal and practical implications

The property lawyer

• analyses the information gathered in light of the relevant law including recent case law and procedural requirements

• develops possible courses of action which reflect the client’s objectives, and

• considers strategy, including whether to submit draft documents for negotiation or to contact the other party’s representatives.

2.2 Canvassing options with client

The property lawyer

• explains complex legal and statutory concepts in a way which the client understands

• explains the impact of the transactions on the client’s financial position, the timetable and the cost involved

• outlines the sequence of the actions to be undertaken by the client

• checks the client’s understanding and confirms the client’s instructions to proceed, where necessary in writing.

3. Implement instructions by

3.1 Negotiating

The property lawyer adopts a well considered approach to achieving the client’s aims.

3.2 Drafting and assessing documents

The property lawyer

• prepares documents which

– address the pertinent legal issues,

– reflect any agreement between the parties

– achieve the client’s aims

– are plain English,

– are internally consistent,

– are set out in a way that is easy to read, and

– deal with the transaction in a logical sequence

• scrutinises and interprets documents prepared by each other party

• assesses the impact on the client of the expressed rights and obligations and any omissions therefrom, and

• ensures that the documents adequately include all the details of any agreement

• deals with all documents promptly with regard to time constraints and cost to the client

and so on …..

Annexure E Extract from the statement of knowledge in the core areas which underpins the performance standards for the Property Law specialty in Queensland

 

1. Conveyancing - Residential and Body Corporate

1.1 Issues and practices relating to formation of a contract

• disclosure obligations at common law and under statute including but not limited to:

Property Agents and Motor Dealers Act 2000

Body Corporate and Community Management Act 1997

Trade Practices Act 1974

Fair Trading Act 1974

Environmental Protection Act 1994

Land Sales Act 1984

Queensland Building Services Authority Act 1991

• appointment of agents

• general law impacting on formation of a land contract including: agreement,

consideration, certainty, illegality, misrepresentation, mistake, and capacity

• standard contracts of sale – provisions and their effect

• effect of Property Law Act 1974

• nominations and subsales

• foreign ownership

• auction sales

• cooling off periods and lawyer’s certificates

• insurance and passing of risk

• powers of attorney

1.2 Preparation of contracts

• retainer

• conflict of interest

• interviewing the client

• drafting provisions of a contract including special conditions

• pre-contract inquiries

• execution of the contract

• instalment contracts

• deposit

• GST implications

• duty implications

 

Annexure F Summary of the main characteristics of schemes already in place

The following are several summaries, in tabular form, of the schemes already in place except for those in the United States, where the schemes are too numerous to summarise.

Areas in which accredited specialisation is to be found

 

NSW

Qld

Vic

WA

Scotland

England

British Columbia

Ontario

Advocacy

             

Bankruptcy/ insolvency law

       

 

Business law

 

         

Children

         

   

Civil litigation

             

Clinical negligence

         

   

Commercial law

       

     

Commercial litigation law

 

         

Commercial tenancy law

   

         

Construction law

       

   

Criminal law

 

   

 

Crofting law

       

     

Employment and industrial law

     

   

Environmental law

   

       

Environmental & planning law

   

         

Family law

 

Family mediation

       

 

Immigration law

 

   

 

Intellectual property

       

     

Liquour licensing

       

     

Mediation

 

         

Medical negligence

       

     

Medical partnership agreements

       

     

Mental health review tribunal

         

   

Pensions law

       

     

Personal injury law

 

   

Planning & local government l

     

   

Police station accreditation

         

   

Property law

         

Rights of audience in higher courts

         

   

Tax law (‘business & personal’ or ‘income’)

 

         

Trust law

       

     

Wills & estates (succession) l

         

Workplace safety & insurance

             

 

 

Requirements for accreditation and re-accreditation in Australia

Requirements

NSW

Queensland

Victoria

Western Australia

For accreditation

Criteria

Member of the professional body

   

Hold a current practising certificate

Practised for five years

Substantial involvement (25%) for previous three years

Professional disciplinary findings etc can be taken into account

?

?

[of good character]

Assessment methods (not all methods are used; depends on the specialty)

Open-book written examinations

Take home mock file

Interview with a panel

 

Simulations (eg. interview with client or advocacy)

Drafting exercise

   

 

References

 

For reaccreditation

Be a member of the professional body

   

 

Must hold a current practising certificate

Continue substantial involvement in specialist area

Must engage in CLE