Professional Standards Scheme
The New South Wales Bar Association Professional Standards Scheme benefits the entire community. Barristers are practising advocates and advisers, both in and out of the courtroom. It is widely accepted that outcomes for clients improve significantly when there is competent legal advice and representation at the earliest possible stage of any dispute. In fact, the proper operation of our court system depends on the interaction between experienced judges and specialist advocates.
Barristers are officers of the court, but they also compete with one another in the market for legal services. That market depends, to a degree, on the availability of affordable professional indemnity insurance to protect both clients and barristers in the event of a claim for financial loss. By limiting the liability of barristers to $1.5 million, the scheme reduces risk to both insurers and members, and helps to ensure the supply of affordable insurance cover for most possible claims.
Benefits for consumers
The New South Wales Bar Association Professional Standards Scheme upholds the standards of local practising barristers and ensures that clients may draw upon a large and diverse pool of skilled advocates for representation and advice. It ensures that members of the association are insured appropriately, participate in continuing professional development and are subject to a complaints and disciplinary structure.
The Third New South Wales Professional Standards Scheme was made pursuant to the Professional Standards Act 1994 and commenced on 1 July 2015 and expired on 30 June 2020.
On 18 October 2019 the Professional Standards Council of New South Wales approved the fourth Bar Association Professional Standards Scheme, which commenced in all applicable jurisdictions upon gazettal on 1 July 2020.
Types of work covered
The scheme applies to work carried out in the performance of a barrister’s professional services after 1 July 2020.
States and territories where the scheme operates
- New South Wales
- The Australian Capital Territory
- Northern Territory
- Western Australia
- South Australia
How is liability determined?
The Bar Association’s scheme limits liability for damages resulting from claims made and notified since 1 July 2020, including amounts determined by judgments, arbitral awards, settlements made with the insurer’s consent, as well as various disciplinary fines, penalties and contempt orders made under laws regulating the legal profession.
The Professional Standards Council has issued its Policy Statement on Disclosure of Limited Liability, which gives guidance to persons covered by a scheme about how they can meet their mandatory obligations to disclose they have limited liability. All members who are covered by the scheme are required to advise all clients (including briefing solicitors) of the cap in their liability by virtue of the scheme.
Participating members must display a disclosure statement - ‘Liability limited by a scheme approved under Professional Standards Legislation’ - on all business documents given (or caused to be given) to current or prospective clients, which promote or advertise their occupation as a barrister. Such documents might include letterhead, email, costs disclosure agreements, memoranda of fees and invoices. Business cards and social media accounts are excluded.
Notification - Proposed Professional Standards Scheme 2020-25
The New South Wales Bar Association has prepared a scheme, which commenced on 1 July 2020 in NSW and other applicable jurisdictions.
- Fourth Bar Association Professional Standards Scheme (1 July 2020 - 30 June 2025)
- Third Bar Association Professional Standards Scheme (1 July 2015 - 30 June 2020)
- Professional Standards Act 1994
- Policy Statement on Disclosure of Limited Liability