ADR and the Barristers Rules: a message from President Jane Needham SC

13/05/2015

I have over the last few days received a number of letters, submissions and emails in relation to Rule 15(h) of the New South Wales Barristers Rules. This correspondence arises out of a concern that the work of arbitrators and mediators is not "recognised" in the Bar’s Conduct Rules.

The conduct rules for barristers have been the focus of efforts to achieve national uniformity since around 2007. Since then, the Australian Bar Association has been developing rules which reflect the specialised nature of "barristers’ work". The NSW Bar rule in question has been in place since 2011. Since then it has always been the Council’s view – and that view has been publicised in In Brief from time to time – that Bar rule 15(h) recognises that barristers do work, such as conducting mediations or arbitrations, which is not specifically included in the definition of "barristers’ work". The reason for the wording of the current rule is to assist in ensuring that the Bar remain as an independent branch of the profession and maintaining a focus on the work which sets barristers apart from other legal professionals.

Now that the Legal Profession Uniform Law Application Act 2014 (NSW) has been passed by the NSW Parliament, the ABA is the body which develops conduct rules, legal practice rules, and CPD rules, and lodges them with the Commissioner for Uniform Legal Services Regulation for consideration by the Legal Services Council. Any rules made which bind the NSW Bar Association are made under the Legal Profession Uniform Law. The consultation period for the proposed national Legal Profession Conduct Rules for barristers has now expired and the Rules will come into effect on 1 July. The question of whether a specific recognition of acting as an arbitrator or mediator formed part of the review of the Rules which underpinned the consultation process.

The current rules are in the same, or substantially similar, form as our current rules have been since 2011.

I make these points only to note that even if the Council takes the view that a new rule is necessary, no change is guaranteed, because we are now subject (from 1 July 2015) to uniform rules. However, the question of whether the amendment proposed should be sought is the subject of discussion at an upcoming Council meeting. The views already expressed to me will of course be taken into account. Additionally, the Council will have input from the ADR Committee of the Association on this topic.

Please provide any email in response to this topic to executivedirector@nswbar.asn.au rather than my practice email address.

Jane Needham SC

President

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