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Mutual recognition is on the Mark

Mutual recognition is on the Mark

THE LARGE web of Attorneys-General departments, law societies and national firms currently grappling with how to best create a uniform national profession were last week given a timely…

THE LARGE web of Attorneys-General departments, law societies and national firms currently grappling with how to best create a uniform national profession were last week given a timely recommendation by NSW Legal Services Commissioner Steve Mark: don’t underestimate the power of mutual recognition.

Speaking at an international law seminar at Sydney University last week, the disciplinary watchdog’s advice arose during an address in which he examined the merits of a global code of professional conduct. Referring frequently to the much-publicised National Profession Project (NPP), Mark told the audience that mutual recognition, as opposed to a general overriding code, was the “best and fastest way to uniformity”.

According to Mark, giving individual stakeholders within a proposed wholesale scheme the ultimate discretion in rejecting or accepting general principles, is the only way to preserve important cultural differences while simultaneously promoting harmony.

Mutual recognition avoids, on one hand, a backlash from individual states and territories because of an overly prescriptive code that specifically does not cater for local differences, and on the other, apathy arising from a set of principles that are too broad.

“We want harmonisation not homogenisation, but how do we resist the latter with an overall code?” Mark asked. “Harmonisation of laws while recognising cultural norms of individual jurisdictions is realistic and appropriate.”

If each jurisdiction is asked to implement laws that universally mirror the content of the model rules, Mark fears that uniformity will never be achieved.

His concerns are backed to some extent by public resistance to a number of NPP proposals, namely incorporated legal practice, multi-disciplinary legal practice, and professional indemnity, from the less populous states South Australia and Tasmania. Further, Western Australia has already made sweeping reforms to its Legal Profession Act, and despite the fact the model rules are still to be finalised, that state’s A-G Jim McGinty said last month no further alterations would be entertained regardless of the NPP outcome.

Allowing States and Territories to recognise and, if appropriate and in the public interest, apply cross-border laws, would instead grant them the opportunity to consider and understand alternative options.

“In terms of regulation of solicitors, I’ve been very keen on promoting mutual recognition of disciplinary decisions. At the moment, if you are struck off in one it can be recognised in all — but it goes no further than that,” Mark said.

Not wanting to overstate his importance to the overall project, Mark later told Lawyers Weekly he had been given “some input” on NPP working parties.

A number of the nine strands of model rules were expected to be released during this month’s Standing Committee of Attorneys-General (SCAG) meeting in Hobart, but as yet no details have emerged in the public arena.

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