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COMPETITION, COOPERATION AND LEGAL CHANGE
DAVID WEISBROT*
INTRODUCTION
There are a number of trends in the development of the contemporary Australian legal profession which have been widely remarked upon, among them:
The inter-relationship between these phenomena, however, has been much less often explored. In this article I have attempted to do this, with some trepidation, focussing particularly on the ways in which legal change1 may be promoted through the development of a more cooperative relationship between academic lawyers and the private legal profession.
THE CHANGING FACE OF AUSTRALIAN LEGAL PRACTICE
When the New South Wales Law Reform Commission was
established by executive order in 1966 (legislation followed in 1967), the first
batch of nine references included a project to review the State’s old and
oft-amended Legal Practitioners Act 1898. The Commission’s brief
was to respond to proposed amendments put forward by the Council of the Law
Society of New South
Wales.
The concerns of that time as expressed in the
Commission’s second report2 are interesting now,
indicating both the changes that have since occurred and the timelessness of
some of the other controversies.
These major concerns included: the effect of
the trend to university legal training on admission requirements and articles;
the attempt
to restrict the activities of so-called “non-practising
barristers”;3 the need to abolish the category of
licensed lay conveyancers,4 and the strengthening of
the solicitors’ monopoly over certain types of work, such as conveyancing,
legal drafting, and probate;5 rights of audience for
solicitors;6 increased powers to investigate the trust
accounts and financial affairs of solicitors;7 and the
level of detail required of solicitors’ Bills of
Costs.8
The attitude of the initial members of the
Commission to its reform project also is interesting, in its suggestion that law
reform
is mainly a technical legal exercise, divorced from issues of
“policy”:
The Commission has at all times exercised the greatest care to concern itself only with strictly legal problems. You [the Attorney General] have already indicated your agreement with the Commission’s considered view that it should not in any way intrude into the field of policy. However, in the special circumstances of this case, where the draft bills are concerned with the conduct and control of the members of the legal profession, the Commission is prepared to make an exception ... only because it is dealing with a special field of which it has particular knowledge and that such comments are intended only for the assistance of the Government ...9
Since the Commission’s first, tentative foray
into professional regulation, the legal professions in New South Wales and
elsewhere
in Australia have undergone a major transformation, and we find
ourselves now in a dynamic period of quite radical change by institutional
standards.
The number of lawyers and the lawyer-population ratio have
increased greatly in a short time, with the average age and experience
of the
profession declining, and competition for jobs and work increasing,
accordingly.10 In the 1911 national census, women
comprised only 0.2% of the legal profession; as late as 1971, women only made up
6% of the profession,
but the figure would now be about
20%.11 The remarkable growth in numbers and the more
modest feminisation of the profession are both, in part, products of the shift
from
the apprenticeship mode of entry to the tertiary mode, with university law
schools becoming central to both the academic and professional
training of new
lawyers.
Until the 1970s, the profession was almost entirely a private one,
with few lawyers acting in a salaried, public capacity and with
limited public
funding for legal aid. Legal Aid Commissions are now major employers of legal
services, however, and the growth of
legal jobs in the public service and the
advent of the community legal centres movement has meant that it is now quite
possible to
enjoy a satisfying career in public sector lawyering.
It may be,
however, that the gap between public and private legal practice will narrow
quite considerably in the 1990s, with the outright
privatisation of some public
legal services, and the operation of others along private sector lines and
sensibilities. For example,
the Commonwealth Attorney-General’s
Department has moved to re-constitute some of its operations in the form of an
“Australian
Legal Practice” which will compete directly with the
private profession for government and para-governmental (Telecom, Australia
Post) work.12 Similarly, the Crown Solicitor’s
offices in many States now routinely “bill” (genuinely or
notionally) other government
departments for legal work.
The separate Bar
has thus far survived political threats of fusion and accusations of restrictive
work practices, but one of the most
salient developments has been the rise of
the “mega-firm” of solicitors, which challenge the Bar’s
previous monopoly
on specialist expertise, prestige and intellectual and
financial reward. The other major division in Australia — geography
— has closed in recent times. Whereas there was not a single major firm
that bridged the Sydney-Melbourne divide through the
mid-1970s, and Queensland
and South Australia virtually prohibited the admission of out-of-state lawyers,
inter-state (and, indeed,
international) practice13 is
now accepted as appropriate and inevitable, and we will soon have uniform,
national admission to practice.
THE ERA OF INQUIRIES INTO THE PROFESSION
In the face of all of this change, it is notable that
the profession has thus far remained remarkably autonomous, withstanding or
co-opting a number of significant attempts to impose a greater degree of public
regulation and accountability. For example, the long
inquiry into professional
regulation conducted by the New South Wales Law Reform Commission
(1976–1984) initially promised
dramatic change, but ultimately resulted in
legislation which actually increased the powers of the Councils of the Law
Society and
Bar Association and maintained most of the restrictive trade
practices which had been identified and questioned.14
One of the reasons for the successful preservation of professional autonomy
was the maintenance of professional unity, despite the considerable
degree of fragmentation of working styles and the stratification of income and
prestige levels. Unity was
able to be maintained because of shared adherence to
the principles of the rule of law (which traditionally include the
“independence
of the profession”, among other things); a large
measure of social homogeneity; and shared self-interest in the perpetuation
of
monopolies over various lucrative areas of legal
work.15 Thus, the submissions of the Law Society of NSW
to the NSW Law Reform Commission in the late 1970s hinted at a degree of
rivalry,
but were carefully drawn so as not to threaten the Bar’s
traditional preserve.
However, less than one decade later, we have entered
another “era of inquiries” into the legal profession. This push is
far more likely to result in fundamental changes to the organisation and
regulation of legal work in Australia. In large part this
is because the changes
are driven by the same conservative interests which have previously
identified with and protected the legal profession from reformist efforts from
the political and legal
Left, and also because professional unity appears to be
declining in the face of economic and other pressures.
Social expectations
also have changed considerably in the past decade. There is an increased
awareness of the rights of consumers,
and an extension of these principles into
the public sector, with calls for increased openness, fairness and
accountability of public
institutions and officials. The recent emphasis on
“micro-economic reform” has reached the professions, with the
attendant
concerns about the elimination of restrictive trade practices and the
promotion of increased competition within and between markets
for goods and
services — including professional services.
The English Precedent for Market-driven Reform
In the United Kingdom, there were six major public
inquiries and two major privately-commissioned inquiries between 1970 and 1990
into the organisation of legal work and the structure and regulation of the
profession. The Monopolies and Mergers Commission conducted
inquiries into the
provision of legal services in 1970 and (two in) 1976, with little result in the
face of professional opposition
to free market reform
proposals.16 The Royal Commission on Legal Services
(the “Benson Commission”) conducted a major inquiry and presented
its report to
Parliament in 1979.17 (A separate royal
commission on legal services in Scotland reported to Parliament in
1980.)18 The Government responded with its own White
Paper in 1983.19
In 1986, a Committee of Inquiry
into the Future of the Legal Profession was established under the convenorship
of Lady Marre, with
representation from both branches of the legal profession as
well as independent members. The resulting Report20 had
only been available for discussion for six months in 1988 when the Lord
Chancellor, Lord Mackay of Clashfern, was asked by the
Thatcher Government to,
in effect, apply the free market principles it espoused generally to the
delivery of legal services, with
an eye to reducing the cost of legal services
(to individuals and, importantly, to the Government). In January 1989, Lord
Mackay
released a series of three Green Papers on: the work and organisation of
the legal profession,21
conveyancing;22 and contingency
fees.23
Following submissions, the Lord Chancellor
produced a White Paper later in 1989 on Legal
Services.24 The key recommendations were:
Legislation giving effect to most of the recommendations in the White Paper followed in 1990, with the passage of the Courts and Legal Services Act 1990 (UK).
Current Trends in Australia
The Australian legal professions are presently the
subject of an extraordinary number and range of public inquiries. There are
major
inquiries in train at the State level into at least some aspect of
professional regulation in New South Wales, Queensland, Victoria,
South
Australia, and Tasmania. The Western Australian Parliament is about to consider
reform legislation based on an earlier inquiry
into the future organisation of
the profession.
The Senate Standing Committee on Legal and Constitutional
Affairs is in the midst of its major inquiry into the Costs of Justice,
and the
Federal Trade Practices Commission (TPC) is about to examine “the legal
services industry”, with the stated aim
of eliminating anti-competitive
strictures. From the initial publicity it certainly does not appear that the TPC
will proceed from
the traditional presumption that there is something different
and special about the market for professional services which exempts that
market from the usual free market techniques of cost reduction through the
promotion of more intense internal
and external competition.
Quite apart
from the TPC inquiry, the New South Wales Government recently approved —
over the bitter opposition of the Law Society
— the licensing of lay
conveyancers.25 Combined with the recent relaxation of
restrictions on the advertising of fees by solicitors, the market for
conveyancing services
has become extremely competitive, both from within and
from outside. Fees for routine residential conveyances have already dropped
markedly, judging from the newspaper ads — and it may well be that had the
Law Society permitted advertising at an earlier
time this would have taken most
of the steam out of the campaign to terminate the solicitors’ monopoly.
In late 1992, the NSW Attorney General’s Department released an Issues
Paper26 canvassing a number of fundamental issues
relating to reform of the structure and regulation of the legal profession,
drawn mainly
from the Law Reform Commission’s earlier work as well as the
other recent inquiries. Among other things, the Paper reconsiders
the
division-fusion question; the possibility of more flexible “business
structures” for barristers and solicitors; advertising;
specialisation;
appointment of Queen’s Counsel; the “two counsel rule”;
barristers’ relationship with solicitors;
court dress; and the regulatory
framework.
COMPETITION AND THE SERVICE IDEAL
Differing Perceptions of the Service Ideal
No doubt one of the major reasons for the profession’s current
placement under the microscope is the public perception of an
irritating gap
between the “service ideal” which the profession espouses (and uses
as the main justification for self-regulation
and immunity from the normal
controls on business and commerce), and the reality of the provision of legal
services. The “service
ideal” maintains that the distinction between
a profession, such as law, and a mere business or occupation, is that in the
former case there is “a tradition of devoted and disinterested
service” such that “normal commercial imperatives
are subordinated
to altruistic concerns of service to the client and to the
community”.27
Not least among the legal
profession’s problems in convincing the general public that the
“service ideal” is not
simply “self-serving” is the fact
that surveys demonstrate that the majority of lawyers do not appear to
accept this proposition themselves!28 The public
perception is reinforced by the common portrayal (often, but not always,
accurate) in the mass media and in popular culture
of the massive incomes of
some lawyers and the consequent inaccessibility of legal services and litigation
to all but a few wealthy
individuals, corporations, and a small segment of the
poor (through legal aid). The bans on advertising by lawyers, as noted above,
have been counterproductive in recent times, preventing the widespread
advertising of reasonably priced legal services which may
have provided some
factual balance.
Surveys of popular attitudes indicate that in Australia, as
in many other cultures, lawyers consistently rate very poorly in terms
of ethics
and honesty.29 Lawyers tend to be grouped with other
occupations — such as company directors, business executives, and
stockbrokers —
who aim to maximise wealth and make no pretence towards
upholding a service ideal. Health care professionals, academics and school
teachers, and (for reasons that elude me) engineers, invariably rank much more
highly. Lawyers only receive respectability upon their
elevation to the Bench
when, apparently, their previous activities are overshadowed by the reverence
for the public office. It is
cold comfort that lawyers out-rate the likes of
politicians, journalists, advertising executives and car sales
people.30
Some of this public cynicism is unfair.
The legal profession as a whole tends to be more introspective and self-critical
than most
other professions and occupations, and there is a tradition of pro
bono work. The Community Legal Centres movement31 the
Alternative Dispute Resolution Movement, the Lawyers’ Reform Association
and other similar progressive legal institutions
are largely without parallel in
most other professions, while lawyers probably also have been disproportionately
involved in other
social movements in Australia, such as those relating to
Aboriginal land rights, environmental protection, human rights and
anti-discrimination.
Further, some of the antipathy caused by
dissatisfaction with the legal system — such as the lengthy delays, the
absence of
needed substantive and procedural reforms, and the non-availability
of legal aid — are transferred onto the legal profession,
although some of
the problems may be caused wholly or in part by the actions or priorities of
others.
The New Competitive Pressures
By their own standards, the mega-firms of solicitors
have suffered some reverses in the past few years after a period of enormous
growth and profit. In part this is due to the willingness of their corporate
clients to shed old loyalties in search of more attractive
deals (both in terms
of fees and services). However, the diminished income of the megafirms is
probably due at least as much to the
general economic recession as to the
particular competitive pressures in the market for their form of legal services.
These new competitive
pressures are more likely to impinge upon the multitude of
small firms, with the challenges to the traditional solicitors’
monopoly
over property conveyancing work and changes to the system for compensating
personal injury victims.
The conventional wisdom always has been that the
trinity of residential conveyancing, probate, and accident compensation
accounted
for the great bulk of solicitors’ work and incomes, at least in
the large Eastern States with divided professions and statutory
monopolies.
Indeed, the solicitors’ monopoly over this area of routine and lucrative
work has been aptly described as one of
the “central pillars upon which
the divided profession rests”.32
This
position has been confirmed by census surveys undertaken by the Australian
Bureau of Statistics, which indicate that in New South
Wales:33 fewer than one in five persons (18.8%)
reported having one of the designated “legal matters” in a given
year; only just
over half (57.5%) of those persons who believed that they had a
legal matter actually sought professional legal advice; but that
persons with
conveyancing and will-making needs almost always (93.2% and 90.2% respectively)
consulted a solicitor. (By way of contrast,
only 17.4% of persons who believed
that they were unlawfully denied employment or a service because of racial or
other prohibited
discrimination sought legal advice.) Taken together, accident
compensation, probate and conveyancing accounted for fully 85% of the
consultations with lawyers. An earlier ABS survey provided roughly similar data
for Queensland.34
In 1985, the then President of
the Law Society of New South Wales predicted, with considerable accuracy and
foreboding, that two different
classes of solicitor were emerging: “those
that are successful” — being “those that have the
commercial strand of work — and “then a whole mass of them
that
are battling away like corner stores for a limited market share and
making very modest incomes”.35
The changing
patterns of legal work are unlikely to threaten the existence of the Bar in the
short term, but there are signs that
the new competitive pressures are
beginning to affect the Bar. The leading firms of solicitors, for example,
now possess sufficient in-house specialised expertise such
that they are
becoming increasingly less likely to refer matters to the Bar for an
opinion. There are also signs that the leading firms are intending to
retain an increasing share of the advocacy work that to date has been routinely
briefed to the Bar.
In the divided professions of the Eastern States,
solicitors are, for the first time, becoming publicly critical of the work
practices
of the Bar. For example, the Law Society of New South Wales recently
hosted two meetings of the 30 largest large firms in Sydney,
which produced a
long list of complaints and allegations of “unacceptable Bar
practices” and inefficiencies.36 It appears that
the growing restiveness stems from two different sources: first, the
longstanding resentment of the superior status
and perquisites of the Bar; and
second, pressure from corporate clients to rationalise the cost structure of
legal services. Specific
complaints related to: the “two counsel
rule”; the refusal of barristers to appear with solicitor-advocates; the
refusal
of barristers to attend solicitors’ offices for conferences; the
growing practice of barristers charging substantial “cancellation
fees”; and special court dress (wigs and gowns), which emphasises the
difference in status between barristers and solicitors.
The NSW Attorney
General’s current review of the regulation and structure of the legal
profession, discussed above, has heightened
the tension between the branches of
the profession in that State. The President of the NSW Bar Association, Mr John
Coombs QC, recently
took the extraordinary step of writing to all solicitors,
attaching a copy of the Law Society’s submission to the
Attorney General to a cover letter which is very critical of the positions taken
by the Law Society. The Bar and
the Law Society also are in direct conflict over
the provision of advocacy services to the financially starved NSW Legal Aid
Commission,
with the Law Society promoting the suggestion that solicitors could
provide these services as effectively but more inexpensively.
THE CORPORATISATION OF LEGAL SERVICES
Increased emphasis is now being placed upon the
advertising and marketing of legal services, and law firms of all sizes are
enjoined
to operate in a more “business-like” fashion, despite the
traditional distinction between a “service- oriented
profession” and
other occupations and commercial ventures. The Law Societies now offer a range
of services and CLE courses
for solicitors which emphasise the commercial, small
business, nature of most practices and the consequent need for business plans,
marketing strategies, strict billing and debt recovery practices, and so on.
In the past few years we have witnessed the increasing inter-changeability
of legal and corporate personnel. A number of the mega-firms
have hired managing
partners who, while admitted to practice as lawyers, are principally experienced
in, and made their reputations
in, corporate management. For example, James
Strong, who had been a senior executive in the mining and airline industries,
was made
“Chief Executive” of the law firm Corrs. (Strong has since
left Corrs to pursue other corporate opportunities). Blake
Dawson Waldron hired
as its managing partner Graham Bradley, from the corporate consulting firm Mc-
Kinseys. Freehills recently appointed
Michael Cannon- Brookes as managing
director, after his 22 years of experience in the banking industry, including a
period as executive
chairman of Citibank Australia.
The law firm Dunhill
Madden and Butler recently has announced the establishment of an “advisory
board of directors” comprised
of non-lawyers with commercial, marketing or
financial expertise. These directors include senior executives from CSR, ANI,
Consolidated
Press, LendLease and AUSSAT. Movements in the other direction
include Corrs senior partner Peter Bobeff, who has recently become
director of
corporate affairs for the Fosters Brewing Group Ltd after serving for many years
as a legal adviser to the brewer.
It should be said that there is nothing at
all improper in the formal movement between the corporate and legal sectors;
indeed, there
is probably much to be learned from the distinctive techniques and
analyses applied to problems by the different sectors. What is
somewhat more
worrying is the blurring of the distinction between legal adviser and
corporate executive in some cases. In the spate of major corporate collapses in
recent
times, it is apparent that there was sometimes a high degree of
identification with corporate aims and interests (and personalities)
by legal
advisers, rather than the provision of “disinterested” advice in
which “normal commercial imperatives
are subordinated to altruistic
concerns”.
Effects on Legal Change
There are some ironies in the timing of the decline
of the service ideal and the impetus towards the deprofessionalisation of many
areas of traditional legal work. During the long period when the professional
paradigm and its practical consequences (professional
autonomy, monopoly work,
etc) were readily accepted in Australia, many or most legal practitioners
actually had qualified through the apprenticeship
route37 and performed relatively routine tasks. In a
sense, the only “professional” aspect of much of the work done by
solicitors
was the level of the fee.
In recent times, however, Australian
lawyers have acquired more of the idealised attributes of the
“professional”. Lawyers
now are better educated, and capable of
providing more highly specialised advice, often across a number of disciplines
(and at an
even higher level of fees). Nevertheless, the other pressures
referred to above are leading to the diminution of professional autonomy.
These more “professional” lawyers also may be in a poorer
position to achieve significant legal change. Some work will
simply be lost to
other service-providers, as the present demarcations are eroded. As discussed
above, the general pressure to be
more “business-like”, to be more
commercially competitive, will severely strain the service ideal and limit the
time
and resources available for efforts to promote legal change.
In
Australia we still rely in large measure on the common law delineation of our
rights and development of our jurisprudence. Thus,
the pressures on the judicial
system to move cases through much more expeditiously also must be considered.
The greater the caseload
of the courts, the lesser the opportunity to explore
difficult philosophical issues whose determination are not absolutely necessary
to the conclusion, but which may serve to develop the law. The increasing
tribunalisation of our judicial system also has limited
to the opportunities of
the courts.
While ADR is generally a good thing, promoting quicker, cheaper
and often more appropriate forms of conflict resolution, the trend
away from
formal adjudication means that a smaller number and range of cases will be
judicially considered and reported. (One of
the weaknesses of ADR is the absence
of any developed theory of conflict.) In sum, it may be that lawyers will have
less practical
opportunity, less altruistic motivation and less commercial
incentive to pursue legal change.
THE EMERGENCE OF THE AUSTRALIAN LEGAL ACADEMY
In 1946, there were only 15 full-time legal academics
in Australia, scattered among the original six law schools. By 1984, the number
had risen to 380, including 67 at Monash University and 56 at the University of
New South Wales (the two largest faculties) alone.
Including legal studies
teachers at universities and colleges, the total number of full-time legal
academics is now approximately
800, and growing.38 This
is substantially larger than the practising professions in Tasmania, the ACT, or
the Northern Territory. Taking into account
all of those academics who work in
legal studies departments and other faculties within universities, and those who
work in the practical
legal training courses, the numbers are probably beginning
to approach the size of the legal professions in South Australia and in
Western
Australia.
While the size (staff and student population) of the established
law schools (12 at the time of the Pearce Report) has remained relatively
stable
in the past decade, the current “third wave” expansion in the number
of law schools in Australia will result in
another surge in the numbers of
students and full-time legal academics. Australia and the United States appear
to be the only countries
in the Western world which have undergone a significant
rise in the number of law schools in recent times,39
and Australia clearly stands out in this regard in relative terms. In the United
States, only one private and two public (ABA accredited)
law schools have been
established in the past decade;40 in the much smaller
Australian market over the same period, the figures are one private and ten new
public law schools, with several
more in the planning stages.
The emergence
of a significant and distinct class of legal academics, freed from narrow
vocational concerns, creates the conditions
for a systematic and comprehensive
review of areas of legal doctrine and practice which incorporates theory,
empirical research,
comparative analysis and interdisciplinary approaches. As
Weber has noted, this “far-reaching emancipation of legal thinking
from
the everyday needs of the public”41 promotes a
shift in focus from what the Romans called “cautelary jurisprudence”
(law developed through the pragmatic
resolution of individual disputes) toward
the systematic elaboration and rationalisation of law, but at a more theoretical
or abstract
level.
Unfortunately, the widespread (and partly accurate)
perception that Australian law schools were merely adjuncts to the legal
profession
rather than true academic faculties dedicated to liberal education
was accompanied by the limited recurrent funding, high staff-student
ratios,
small libraries, scant research funds and assistance, lack of post-graduate
programs and students, and poor infrastructure
and support services. This legacy
— and the continued lack of resources despite some changed perceptions,
still severely restrains
the development of legal scholarship and pedagogy in
this country.42
It is generally true that in the
dual world that legal academics now inhabit, their primary allegiance and
identification is with
the methods, aims, traditions and values of the
university teacher and scholar and not with those of legal practitioners. Even
the
so-called “formalists” in Australian legal education, whose
ideology is less hostile to professional practice, tend faithfully
to reproduce
the work patterns of academics. Indeed, lacking interest in clinical approaches
and in empirical inquiry, the formalists
are the most divorced from the
practices and processes of law and most reliant on abstraction.
The law
school curriculum also has been substantially liberalised and made more
flexible, eclectic, specialised and inter-disciplinary,
although it must be said
that most courses still have a distinctively professional or rule-manipulative
orientation. Ironically,
most law courses are distinctively
“unprofessional” in one sense as they only provide anecdotal and
atheoretical insights
into the various behaviour patterns of
“professional” lawyers. Nevertheless, the legal academy has begun to
build up
a body of descriptive and critical secondary legal literature which
largely was lacking. Among other things, empirical portraits
of various aspects
of the legal system have begun to be drawn, and there is a welcome (if belated)
recognition of the pluralist nature
of Australian society which was not
reflected in the earlier common law or social orthodoxies.
THE RELATIONSHIP BETWEEN ACADEMICS AND THE PROFESSION
Although some legal academics do, or did, carry on practices and some
practitioners teach part-time or occasionally, there is a very
noticeable
distance between the two. The Pearce Report described the relationship between
legal academics and practitioners as
“uneasy”,43 and the Australian law deans
have said that it contains “an element of
tension”.44 In truth, the relationship is
sometimes even less healthy, and has been characterised as “the most
significant division within
the profession”,45
surpassing even the division between barristers and solicitors.
As a general
matter, practitioners do not seem to regard academic skills and expertise as
transferable to practice, since “except
in the rarest of circumstances in
Australia, there is no pattern of consultation of academics by
practitioners.”46 In the words of one senior New
South Wales Queens Counsel, the attitude of the private profession is that
“academic lawyers
are primarily professional teachers rather than
professional lawyers. They have the time, skill and assiduousness to produce
surveys
of law and to teach. Practitioners do not have the time to do
this.”47
The Unwelcome Conscience
Australian legal academics have been far more
actively involved in progressive legal and social issues than the profession at
large
because of, among other things, a more flexible work structure, a somewhat
different political orientation, and freedom from the
pragmatic interests and
restrictive “ethical” rules of practitioners. The critical function
of legal education and legal
scholarship has in recent years been applied to the
profession itself, with legal academics often being critical of the
self-regulation
of the legal profession, standards of professional
responsibility and the delivery of legal services.48
This critical function has been positively recognised by the recently
retired NSW Court of Appeal judge, Mr Justice Gordon Samuels
(who is also the
Chancellor of the University of New South Wales):
[Academics] have increasingly assumed the character of social conscience to the profession and the judiciary. It is a role for which they are well cast, since they are neither influenced by professional self-interest nor trammelled by professional responsibility. Academics are no more immune than others from eventual intellectual sclerosis; but their work keeps them aware of the wider ranging currents of legal thought and experiment, and they are constantly exposed to the irreverent reactions of students first encountering the more opaque areas of the law. So their contribution ought to be a generally critical one.49
However, other
judges and practitioners have been less willing to assign to academics the role
of “conscience of the profession”,
at least without some return
criticism. Justice Daryl Dawson of the High Court of Australia gave a paper at a
legal education conference
in 1976 (prior to his appointment to the judiciary)
in which he expressed displeasure at the “rejection by law teachers of
the
values of the practitioner and hence the relevance of any views which the
practitioner might have on the subject of legal education”,
and the fact
that legal academics regard themselves “not as a member of the legal
fraternity, but as a member of the academic
community, who is entitled, in the
exercise of academic freedom, to insulate himself from the views of the
practising profession”.50 The Law Council of
Australia also has complained that some law schools prefer to hire a tutor one
year out of law school to a legal
practitioner with 20 years
experience.51
Recently, the Law School of the
University of New South Wales had a private firm conduct some market research to
help formulate strategies
for external fundraising. This exercise principally
targeted the large Sydney law firms. The researchers found that while the Law
School’s staff and students were generally held in high esteem, the Law
School was still associated in the minds of some senior
partners with the NSW
Law Reform Commission’s inquiry into (and criticism of) the legal
profession of a decade earlier. This
was offered as a factor which might well
militate against future donations to the Law School.
The Practical Consequences of the Great Divide
The placement of academic lawyers outside the legal
professional paradigm has important adverse consequences.
First, this
attitude contributes (along with a number of structural factors) to the relative
lack of mobility between the different
sectors of lawyering, particularly as
compared with the American experience. It is true that many academics have left
the university
law schools for the private profession in recent times, attracted
by the much higher rates of remuneration as well as by the intellectual
challenge. Despite the profession’s view that legal academics do not do
“legal work”, it seems that those academics
who have made the leap
have been quite successful in practice, both in the big firms as well as at the
Bar. It may be too early to
tell, but it appears that few of these lapsed
academics will return to the universities, so the brain drain is largely in one
direction.
Secondly, practising certificates may be denied to academic
lawyers who do not “practice”, as interpreted by the professional
associations. (This, of course, has the knock-on effect of limiting professional
mobility.) For example, the NSW Legal Profession Act 1987 established for the
first time the requirement that a barrister possess a current practising
certificate, and granted power to the
Bar Council to administer the system. The
Act provides that an unrestricted certificate be given to an admitted barrister
who “is
practising as a barrister immediately before” the
legislation commenced (in 1988).52 The Bar Council has
interpreted that phrase plainly, with the result that large numbers of fulltime
academics and government lawyers
have been designated as “non-practising
barristers”, even though they previously held full rights of practice
consequent
upon admission. Whereas virtually every other industry faced with new
occupational licensing laws has ensured that existing practitioners
are included
in a “grandfather clause”, the Bar used the changing regime as an
opportunity to severely limit the practice
rights of those who do not practice
entirely in the professionally accepted, traditional way.
Following an
amendment to the new Act sought by the Bar Council, academic lawyers and others
in a similar position (such as government
lawyers, in-house corporation counsel,
and legal publishers) may be granted a restricted practising certificate, which
allows for
opinion or advisory work but does not permit advocacy in the courts
without the presence of a leader.53 Regaining
unrestricted rights of practice would require undertaking a year’s
pupillage program, which has been designed to
be impractical for anyone not at
the Bar full-time. Thus the new regime has resulted in the retrospective removal
of rights of practice
for lawyers in this position, with the substitution of a
form of second-class citizenship in the profession.
Thirdly, academics (as
well as government lawyers and others outside of private practice) are
effectively cut off from consideration
for professional honoraria (such as
appointment as Queen’s Counsel) and more importantly for judicial
appointment.
Most critically, the divide serves to marginalise the legal
academy and its ideas and perspectives. In their fascinating exploration
of the
differences between English and American legal cultures, Atiyah and Summers have
pointed out that in the United States, “the
ethos of the leading law
schools has played a major role in shaping the substantive character of the
modern American legal system”;54 the
“American law schools have been the source of the dominant general theory
of law in America ... [called] ‘instrumentalism’
because it
conceives of law essentially as a pragmatic instrument of social
improvement.”55 American legal scholarship is
regularly cited by the courts in written judgments, and relied upon by
practitioners “for imaginative
and innovative ideas, for new lines of
argument, and sometimes for social scientific and statistical data that can
buttress policy
arguments.”56 Law professors also
are consulted by the practising profession, especially in relation to appellate
matters. By contrast, Atiyah
and Summers conclude that in England:
[the] common legal culture ... does not really include the law schools at all. That culture is, of course, centred in the Inns of Court and the Law Courts in London where the judiciary, the bar and much of the rest of the profession are centred. It is easier for a culture that thus excludes academics to develop where most academics have not themselves practised law, and are viewed as outsiders, both geographically and intellectually ... Thus English law schools are the least important of the major legal institutions competing to influence the legal order as a whole; whereas in America, the leading law schools are the most important.57
Unfortunately, the Australian situation more
closely resembles the English experience than the American. Although the
position is
beginning to change, Australian courts traditionally have not cited
law review articles or texts written by academics even where
well-respected
scholarship existed. Practitioners do utilise texts written by academics, but
these are works primarily aimed at and
marketed for the profession and consist
of annotated legislation, case law exposition, and forms and precedents rather
than more
innovative scholarly perspectives.58 Although
some individual academics have had their expertise recognised and relied upon by
the profession, there is nevertheless no
formal pattern of consultation of
academics by practitioners in Australia59 which
acknowledges (intellectually and materially) the academic contribution, as
regularly happens in the United States and in most
of continental
Europe.60
Where politicians and corporate leaders
in Australia will seek (and publicly parade) a “QC’s opinion”
to validate
certain conduct or a proposed course of action, there is less cache
to be found in flaunting a “law professor’s opinion”
—
the cultural assumption is that the senior Bar is the sole repository of all
professional wisdom (at least outside of the
Bench).
Thus, the law schools
and legal academics in Australia, as in England, have not been central to the
national legal culture in the
same way that barristers and judges, especially,
have been. It is to be hoped that the strong growth and development of the
university
law schools in the past 25 years, and the “coming of age”
of a more creative Australian legal scholarship, coupled with
a generation or
more of graduates more receptive to this sort of innovation, means that the
legal academy is likely to exert a broadening
influence.61 It is pleasing to know that, according to
the President of the NSW Court of Appeal, Justice Michael
Kirby,62 most judges no longer believe that the only
academic that it is proper to cite in a judgment is a dead one.
SOME IDEAS FOR A COOPERATIVE WAY FORWARD
Judicial Recognition of Academic Expertise
As discussed above, academic writing traditionally has not been widely
utilised or acknowledged in judicial opinions. This has begun
to change, and it
is an important advance, not only for the contribution which such work may make
to the development of Australian
jurisprudence, but also for the encouragement
which it provides for legal scholarship — assuming in both cases that the
material
relied upon is thoughtful and innovative, rather than mere summaries of
positive law.
As the Chief Justice of Australia, Sir Anthony Mason, said at
the inauguration ceremony for the University of Wollongong’s law
faculty:
a law school should aim to be a constructive participant in the dynamic life of the common law. It has been said from time to time that in Australia, in contrast to the United States, in the field of judge-made law, it is the judges rather than counsel or academic lawyers who have taken the initiative in constructively developing the law. Unquestionably that statement is true. In Australia, academic lawyers over many years failed to match the contribution made by their counterparts in the United States and, to a lesser extent, the United Kingdom. That position is changing perceptibly ... There is now available a vast range of textbooks and monographs on almost every conceivable topic and, in addition, many university and specialist law journals which provide many opportunities for constructive examination of Australian law with a view to promoting its principled development. We should aim to follow the United States example in this respect. But we will succeed in doing so only if we give greater emphasis to the study of law as an intellectual discipline which is responsive to the needs of society. That entails greater emphasis on jurisprudence and the philosophy of law so that graduates emerge from a university with a panoramic view of the law as an entire discipline rather than as a series of discrete and unrelated pigeon-holes ... And it requires active cultivation of that spirit of inquiry which has been the touchstone of academic life.63
Apart from
including more references to academic writing in their judgments, it is also
pleasing to see that the Australian Institute
of Judicial Administration (AIJA),
has commissioned a series of studies on various aspects of the Australian legal
system, using
legal and non-legal academic
consultants.64
It is to be hoped that the
integration of academic and judicial writing also will highlight the similarity
of the intellectual task,
smoothing the way for the appointment of senior
academics to specialised tribunals and appellate courts. In the United States,
there
has been a strong tradition of appointing distinguished academic lawyers
(Pound, Brandeis, Cardozo, Frankfurter and others) to the
senior appellate
courts, including the US Supreme Court, where many have made significant
contributions to the development of American
jurisprudence.
Professional (institutional) Support for the University Law Schools
Lobbying efforts and better consultation
While the professional associations representing accountants, engineers
and others have been active for some time in promoting the
interests of the
academics in their discipline, this sort of activity has come late to the legal
professional associations. Indeed,
as discussed above, the legal profession has
sometimes acted positively contrary to the interests of legal academics.
There are some indications that this may be changing, although the signals
are mixed. At the Law Council of Australia’s conference
at Bond University
in February 1991 on “Producing the Compleat Lawyer”, the
Council’s officers were genuinely shocked
to discover the financial plight
of the university law schools.65 Following the
conference, the Council’s President, Alex Chernov QC, and others did
strenuously lobby the relevant ministers
and senior bureaucrats in Canberra
(Dawkins, Baldwin, Chubb). This effort did not result in the immediate free flow
of funds, but
it must be useful for politicians and bureaucrats to be made aware
that the profession is maintaining an interest in these issues.
Given the
professional-academic rapprochement which appeared to come out of the
Bond conference, it is disappointing that the involvement of the legal academy
in the profession’s
policy-making process is still patchy. The Law Council
of Australia did consult with the Law Dean’s Group in the formulation
of
the Council’s Policy on Legal Education, with the result that the Policy
is now more flexible, ameliorating the strict “common
core group: approach
of the 1982 McGarvie Report, which was specifically rejected in New South Wales
in 1984 as being unnecessarily
prescriptive and
inflexible.66 The Council’s Policy, in turn, has
influenced the Consultative Committee of State and Territory Admitting
Authorities (the
“Priestley Committee”) which is preparing draft
uniform admission rules for Australia.
By way of contrast, the New South
Wales Law Society recently announced major changes to the organisation of the
College of Law practical
legal training regime, which in effect alters the
requirements for admission to practice as a solicitor. The Law Society failed to
consult with either legal academics or law students before approving these
changes.
Direct funding
At the Australian Legal Convention in Adelaide in
1991, Professor Dennis Pearce suggested the possibility of imposing an
“education
levy” of, say, $100 on each of the approximately 26,000
holders of practising certificates in Australia to raise funds for
the
university law schools. It is fair to say that the professional reaction was
somewhat unenthusiastic. Nevertheless, the idea
could be refined (the amount of
the levy could be progressive, for example, with exemptions for lawyers with low
incomes) and should
be pushed at every opportunity. The individual levy would
not be oppressive, but would result in a substantial pool of funds for
designated uses, such as research, curriculum design, clinical programs and so
on.
Another benefit of this form of fundraising is that the funding would be
not be skewed in favour of certain subject areas or approaches.
This is in
contrast to the creation of endowed chairs by the major law firms, for example,
which tend to focus on the commercial
areas with consequences down the track for
staffing profiles, research focuses, and curriculum design.
Financial
assistance from the private profession — individually and corporately
— also is of obvious need for such necessary
or desirable things as
libraries, research, visitorships, physical plant, clinical programs, student
scholarships, and so on.
Professional accreditation
Another of the initiatives which attracted some
attention at the Law Council’s conference at Bond University was the
establishment
of a system of professional accreditation of university law
schools. This already occurs in Australia in the area of accounting,
but the
more important model is the American Bar Association’s program for (full
or provisional) accreditation of law schools
based on published standards and
policies.
The attraction of this scheme to impoverished law schools is that
the threat of withdrawal of professional accreditation may force
governments and
university administrations to provide sufficient resources to meet the minimum
standards. The Pearce Report suggested
that very few, if any, Australian law
schools would meet the likely criteria for staffing, library, physical plant,
and so on.67
The dangers in this high-stakes poker
game are also obvious, with the threat of increased professional control over
legal education
and the possibility of actual losses of accreditation. The
Pearce Report’s own misguided recommendations about the closure
of
Macquarie Law School indicate that select committees on accreditation may
sometimes make strange decisions.
Collaborative Work Arrangements
In my view, legal work is becoming more “academic” than ever before. This is not to suggest that the work is of less “practical” relevance or application — for this would be to approve of the perverse but unfortunately common connotation of “academic” being the equivalent of “moot” or positively “irrelevant”. There probably never has been that much difference in technique between an academic’s journal article and a barrister’s opinion (except for the proper recognition and attribution of sources in academic writing). However, such factors as:
have
substantially narrowed the gap between what academics and practitioners actually
do.
The level of consultation of academics by practitioners probably has
increased as a result, although it is still largely informal
from the
practitioners’ point of view. Academics are seen as a free and limitlessly
patient source of specialised expertise
— a kind of “legal
aid” for harassed lawyers. There is now the need and the opportunity to
establish more evenly
reciprocal collaborative working arrangements between
practitioners and academics. Perhaps the first issue which must be addressed
is
the restriction on the rights of academic lawyers to “practice”,
which imposes a barrier to effective cooperation.
(It is interesting to note
that in the US, academics at accredited law schools are often granted enhanced
rights to practice, with
the waiver of certain requirements.) These restrictions
were never calculated to serve the public interest, and are now even more
clearly anomalous. For example, when national admission becomes a reality in the
near future, it will be very hard to justify out-of-state
generalist lawyers
having practice rights denied to in-state academic specialists in respect of
particular matters. Similarly, the
Law Society of New South Wales has just
approved a specialist accreditation scheme for practitioners — for which
academics
will sometimes serve as examiners. Once that barrier is breached, it
will be possible for academic lawyers to appear and to assist
more regularly as
advocates in appellate matters within their areas of expertise, and to be
retained as consultants by law firms
engaged in major research, planning and
writing exercises.
Chief Justice Mason recently has predicted that:
it is ... in the growing cross-fertilisation between academic and practising lawyers that the real prospect of future and productive law reform truly lies.68
I tend to agree,
although the Chief Justice saw this cross-fertilisation occurring in the present
reality of senior academic lawyers
deserting “the groves of Academe for
the topless towers of the Central Business District.”69
There are some problems with this present reality, however. First,
the university law schools may come to be seen as the “Reserve
Grade” for the major law firms, with those academics who establish a
sufficiently high level of expertise becoming eligible
for
“promotion”. This may be good for the firms, but the benefits would
flow in only one direction. For the law schools,
it means that the very persons
who are expected to provide academic leadership in teaching and re- search are
those who will face
the greatest temptations to leave, and at the most
productive point in their academic careers.
From the perspective of
progressive legal change, this phenomenon also would be unhealthy. Academic
lawyers are privileged to enjoy
that “far-reaching emancipation of legal
thinking from the everyday needs of the public” which permits systematic,
rational
and critical analysis of the law, which allows them to serve as the
“conscience” of the profession, and, ironically,
which puts them
closer to fulfilling the “service ideal” of the profession.
Legal change, as I have defined it, would be best served by a more
cooperative, collaborative model. Such a model would make academic
work
sufficiently attractive for law schools to be able to recruit and retain good
people, and would give legal academics sufficient
contact with — but
freedom from — the imperatives of daily practice to make a real
contribution to reform.
* Commissioner, New South Wales Law Reform Commission; Visiting Professorial
Fellow in Law, University of Wollongong; Associate Professor
of Law, University
of New South Wales. This article is adapted from an address delivered to the
47th Annual Conference of the Australasian
Law Teachers’ Association,
Brisbane, 11 July 1992. The views expressed in this paper are those of the
author and do not necessarily
represent those of the Law Reform Commission.
© 1993. [1993] LegEdRev 1; (1993) 4 Legal Educ Rev, 1.
1 “Legal change” is taken to mean reform in the direction of achieving a greater measure of social justice. I accept that not everyone would use this definition.
2 New South Wales Law Reform Commission, Proposed Amendments to the Legal Practitioners Act, 1898–1960 (LRC 2, 1966).
3 This proposal was rejected by the Commission on the basis that the Supreme Court had provided adequate supervision, id at 3, and 5–6.
4 The Commission agreed, writing: “The conveyancer has become an anachronism. The sooner he is abolished the better,” id at 5.
5 Id. at 7–9 and Appendix B. The proposals called for increased penalties for work by unqualified practitioners, among other things.
6 The extension of rights of audience to solicitors who were not principals or partners was rejected because the Commission felt that the duty of an employed solicitor to a master solicitor would interfere with that solicitor’s other duties to the client and the court, id at 6–7.
7 Id at 12–14, 20–21.
8 Id Appendix A.
9 Id at 1.
10 See D Weisbrot, Australian Lawyers (Melbourne: Longman Cheshire, 1990) Ch 3.
11 Id at 85.
12 See N Hooper, “Lawyers Prepare for the New Order”, (26 June 1992) Business Review Weekly 54–55.
13 Weisbrot, supra note 10 at 262–263 and 270.
14 Under the Legal Profession Act 1987 (NSW).
15 Weisbrot, supra note 10 at 4–7,9,43–44,101 and 273.
16 United Kingdom Monopolies Commission, Report on the general effect on the public interest of certain restrictive practices so far as they prevail in relation to supply of professional services (1970); United Kingdom Monopolies and Mergers Commission, Barristers Services (1976) and Services of Solicitors in England and Wales (1976).
17 Royal Commission on Legal Services, Final Report (1979) (the “Benson Report”).
18 Royal Commission on Legal Services in Scotland, Report (1980) (the “Hughes Report”).
19 Lord Chancellor’s Department, The Government Response to the Report of the Royal Commission on Legal Studies (1983).
20 Report of the Committee on the Future of the Legal Profession (1988) (the “Marre Report”).
21 Lord Chancellor’s Department, The Work and Organisation of the Legal Profession (Cmnd 570, January 1989).
22 Lord Chancellor’s Department, Conveyancing by Authorised Practitioners (Cmnd 572, 1989).
23 Lord Chancellor’s Department, Contingency Fees (Cmnd 571,1989).
24 Lord Chancellor’s Department, Legal Services: A Framework for the Future (Cmnd 740,1989).
25 See the Conveyancers Licensing Act l992 (NSW).
26 New South Wales Attorney General’s Department, The Structure and Regulation of the Legal Profession (Issues Paper, November 1992).
27 Weisbrot, supra note 10 at 4 and 196.
28 See Weisbrot, supra note 10 at 9 and 196, quoting the survey of NSW lawyers by Tomasic and Bullard.
29 Id at 17–19. The most recent Morgan Poll in Australia appeared in Time, May 18,1992 at 11.
30 Id.
31 See J Basten, R Graycar and D Neal, Legal Centres in Australia (1985) 7 Law & Policy 113.
32 J R Forbes, The Divided Legal Profession in Australia (Sydney: Law Book Company, 1979) 226.
33 Australian Bureau of Statistics, Usage of Legal Services, New South Wales, October 1990 (May 1991). See esp Table 1.
34 Australian Bureau of Statistics, Usage of Legal Services, Queensland, October 1986 (Dec 1987).
35 Interview with Rod McGeoch in “Towards Two Different Classes of Solicitor” (1985) Law Soc J 357, at 362.
36 K Gosman, ‘Rumpole’ vs ‘LA Law’, The Sun-Herald, May 10, 1992 at 33.
37 That is, through articles and Admission Board programs.
38 D Pearce, E Campbell & D Harding, Australian Law Schools: A discipline Assessment for the Commonwealth Tertiary Education Commission (Canberra: AGPS, 1987) (hereafter, the “Pearce Report”) put the figure at 439 in 1984, but this counted only those academics who worked in the recognised law schools. The Australasian Law Teachers’ Association provided the estimate of 800 legal academics.
39 See H M Kritzer, Abel and the Professional Project: The Institutional Analysis of the Legal Profession (1991) 16 Law and Social Inquiry 529, at 548.
40 The private law school is St Thomas, in Miami, Florida; the public law schools are at Georgia State University and the City University of New York. Going back 15 years, seven new private law schools and four new public law schools (with ABA accreditation) have opened in the US (although one of the private law schools closed in 1992).
41 M Weber, Economy and Society (G Roth and C Wittich, eds (Berkeley: University of California Press, 1978) vol 2, at 789.
42 See D Weisbrot, Recent Statistical Trends in Australian Legal Education (1991) 2 Leg Educ Rev 219, at 242–251.
43 Pearce Report, supra note 38 at 991.
44 Id statement of the Australian Law Deans, Appendix 3, para 71.
45 T Halliday, “The Fractured Profession: Structural Impediments to Collective Action by the Australian Legal Profession” (Paper delivered to the American Sociological Association Annual Meeting, Toronto, 1981) 26.
46 Id at 27.
47 Weisbrot, supra note 10, interview reported at 62.
48 Id, at 27–28, 30.
49 G Samuels, “Control of Admission to Practice — Its Effect on Legal Education” in R Balmford ed, Legal Education in Australia (Melbourne: Australian Law Council Foundation, 1978) 679.
50 Pearce Report, supra note 38 at 991.
51 J R Forbes, The Study of Lawyers by Lawyers: Obstacles to Re search and Some Suggestions in R Tomasic ed, Understanding Lawyers (Sydney: George Allen & Unwin and Law Foundation of NSW, 1978) 122.
52 Section 32(1).
53 Section 32(3)(b).
54 P Atiyah and R S Summers, Form and Substance in Anglo-Australian Law (Oxford and New York: Clarendon Press Oxford University Press, 1987) 384.
55 Id at 404.
56 Id at 374.
57 Id at 407.
58 M Chesterman & D Weisbrot, Legal Scholarship in Australia (1987) 50 Mod L Rev 709 at 714,723.
59 Halliday, supra note 45 at 27.
60 E Blankenburg and U Schultz, German Advocates: A Highly Regulated Profession in R L Abel and P S C Lewis eds, Lawyers in Society — The Civil Law World (Berkley: University of California Press, 1988) 134–135.
61 Chesterman & Weisbot, supra note 58 at 724.
62 From Justice Kirby’s address to the 47th Annual Conference of the Australasian Law Teachers’ Association, Brisbane, 11 July 1992.
63 Sir Anthony Mason, Inaugural Address, University of Wollongong Faculty of Law, 19 February 1991, at 6–7.
64 Id at 11.
65 See the report of conference proceedings in the April 1991 edition of Australian Law News, at 9–21.
66 Weisbrot, supra note 10 at 143–146.
67 For example, see the Pearce Report, supra note 38 at 55–56.
68 Sir Anthony Mason, “Changing the Law in a Changing Society”, an address to the 27th Australian Legal Convention, Adelaide, 9 September 1991, at 21–22.
69 Id at 2l.
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