Law – A profession or an industry?

[First published Law Week 2012] This week is Law Week, and this is the second of two articles on topics of general importance to the legal profession.

Access to justice is a big issue in Australia, as my Introduction to Public Law class explored yesterday in the context of discussing administrative law merits review.  Legal aid is hardly ever available, for example, for litigants before general merits review tribunals like the Administrative Appeals Tribunal and its State equivalents.  Yet unrepresented litigants are at a major disadvantage when facing “lawyered up” government departments, despite the exhortation in section 33 of the Administrative Appeals Tribunal Act 1975 that proceedings should “be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act … permit”.

Legal aid is also hardly ever available for anti-discrimination proceedings either before the Human Rights Commission or State or Territory equal opportunity bodies.  Somewhat ironically, that may mean that these bodies actually exacerbate the discrimination applicants have suffered rather than resolving it, because respondents will commonly be employers, businesses or governments who can usually afford their own legal representation where an ordinary applicant cannot.

When I worked as Director of Law and Policy at the NT Anti-Discrimination Commission in the late 1990s, then Commissioner Dawn Lawrie had a presumptive policy that usually neither party would be permitted legal representation at a complaint hearing.  It certainly didn’t endear her to most of the local legal profession, but personally I strongly agreed with the policy.  It meant that both parties were on a reasonably “level playing field” at least in the hearing itself.  The right to natural justice is seen in administrative law, somewhat self-servingly some might think, as contributing to “natural justice” whereas it may paradoxically work an injustice where only one side can afford a lawyer.

Community legal centres provide a partial answer to the problem of access to justice, as to a limited extent does the phenomenon of private law firms providing pro bono representation to some people.  Hugh de Kretser, Executive Officer of the Federation of Community Legal Centres (Victoria), published an article about this in the Herald Sun a couple of days ago as part of Law Week:

One of the funny things that happened when I moved from working in a big corporate law firm to a small community legal centre was that people were suddenly interested in what I did for a living. Before, if I met someone at a barbecue and told them I was a corporate lawyer, the conversation would stall. Now, the response is: Oh, so you’re a good lawyer.

The 500 or so lawyers who work in community legal centres and Victoria Legal Aid are good lawyers. Many could get paid much more working in commercial law but, driven by a passion for justice, choose a career that is all about leveling the playing field for people who can’t afford a lawyer.

But they’re not the only good lawyers. As a profession, lawyers care deeply about access to justice. Yes, some lawyers charge high fees, but the legal profession also does a vast amount of work for free for people who can’t otherwise get legal help. Known as “pro bono”, this work delivers literally millions of dollars worth of free legal help to needy Victorians every year.

Many law firms have signed up to a target of 35 hours of pro bono legal work per lawyer per year, and many exceed this target. More than 1000 lawyers and law students also volunteer in Victorian community legal centres each year.

The chronic underfunding of community legal centres and legal aid risks creating a system where only the rich and powerful can access the law. Pro bono work by lawyers is a vital safety net that helps to ensure that people don’t fall through the cracks.

However, while “many” law firms might have signed up to a target of 35 hours of pro bono legal work per lawyer per year, most have not.  Even for those who have, that’s a target of much less than one hour per week per lawyer. Moreover, given that larger law firms informally expect their young lawyers to work at least 60 hours or so per week, it’s a rather small target indeed though certainly better than nothing.

Nevertheless, de Kretser’s article has sparked an idea.  What if the legal profession were to set out actively to broker a national Access to Justice Accord with Commonwealth, state and territory governments aiming at a dramatic boost in community access to justice?  If we as lawyers want to be taken seriously in our claims to be a true profession with a real commitment to the public interest and social justice rather than just a money-making industry, this is exactly the sort of initiative we should be pushing. Here’s my idea:

  1. The profession would accept that it would henceforth be a condition of renewal of practising certificates of all private lawyers (barristers and solicitors) that they must undertake a minimum of 92 hours of pro bono work per year.  That amounts to roughly 2 hours per week per practitioner, a significant commitment but hardly impossibly burdensome.
  2. The quid pro quo would be that Commonwealth, state and territory governments would have to agree to maintain existing legal aid funding in real terms and would commit to boosting funding to community legal centres by a combined total of at least $20 million per year.

Of course there would need to be some safeguards to ensure that practitioners could not easily evade the pro bono commitment e.g. by characterising existing “freebies” for mates as pro bono work or “doing a Keddies” on the real number of (otherwise billable) hours spent on it. Those dangers could largely be avoided by requiring existing legal aid organisations to assess and approve eligible pro bono clients (people who qualify on a means tested basis for legal aid but whose type of matter is not eligible for aid, or who just fail the means test by a whisker) and to assess and acquit the firm’s bill at the end of the matter.

Anyway, I’m going to cast this bread on the waters by tweeting it to CDU’s numerous lawyer followers. Let’s see what happens.  Are we a profession or just an industry? If the profession takes up an idea like this it would not only dramatically enhance access to justice in Australia but do much to break down the sort of negative perception of lawyers exemplified by the image accompanying this article.

**Image authorised for reuse.

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12 thoughts on “Law – A profession or an industry?”

  1. I was one of the public law students lucky enough to be involved in the class discussion yesterday. I have long wondered why merits review tribunals so often allow corporations / government departments to lawyer up, thereby outgunning the vast majority of battlers who happen to have been done over by poor, unjust, and/or unethical decisions made by their administrators.

    I have also long thought that if such corporations / government organisations were not allowed to be represented in the hearings and the decision-maker was required to front the hearing in person, perhaps the incentive to behave more like a good corporate citizen would result.

    It is clearly possible for such a scenario to occur – because Dawn Lawrie has already established a precedent. Oh that governments cared enough about justice to mandate such a presumptive policy for all federal, state and territory merits review bodies.

    As to mandated pro bono hours for all renewing legal registrants – why not? Lawyers are joked about as being blood sucking parasites, sharks, etc. Yet I know many who have a genuine social conscience and a commitment to justice in real terms. For those who may currently be too busy making squillions, having to commit to working with those who need justice but can’t afford it might just be the gentle reminder needed for all legal practitioners to remember that lawyering has a proud heritage and we all need to bring our skills to bear in a manner that pursues justice for all.

    I, for one, would be most pleased to sign up to such a registration requirement.

    Nice article, Ken.

  2. Thanks for the article, Ken!
    I was thinking of that whole ‘new managerialism’ scenario you mentioned in your Merits Review lecture. Numbers don’t lie. Just like government departments have to now adhere to KPIs, efficiency and my hate word, ‘outcomes’, it’s become the same for these big law firms. The justice thing has become blurred. I’ve been a cynic when law firms pledge to do pro bono work. For me, it is almost a PR exercise. I like the Access to Justice idea. It might actually make many in the legal profession ask themselves why they chose this wonderful profession in the first place.

  3. I also was part of yesterdays discussion, but I have not had the pleasure of meeting any lawyer willing or able to undertake pro bono work – and I have worked for many years in Family, Commercial, Probate and Criminal law.

    That is not saying that many of these solicitors and barristers wouldn’t undertake pro bono work if they could, rather the firms annual quota and high expectations placed on solicitors make availability to do so impossible.

    I completely agree with Ken’s suggestions.

    But I have another suggestion.

    Just as the AMA and Federal Govt require doctors-in-training to undertake placement for a set period in rural Australia or district of Dr shortage as soon as you have completed your degree (approximately 6 years under the Bonded Medical Places Scheme and Medical Rural Bonded Scholarships), so too should law graduates undertake placement for a fixed period with a Community Legal Centre. This would create a continuous flow of available legal representation, it will enable new solicitors invaluable experience – both personally and professionally, and most important of all, it will provide those who are in need with access to an industry which has been in the past generally unavailable or at least limited.

    As Bob Burg said “Money isn’t the target. Money is the reward for hitting your target”. And I guess the target is to make the “industry” a “profession” again.

  4. What a great idea! I volunteer weekly at my local community legal centre and have met some truly generous professionals. Their goal is simply equitable access to all – I was surprised to learn that provision of service is not means tested at our local CLC.

    So what then would become of our clients with complex or ongoing legal matters? Would they be better served by a ‘professional lawyer’ interested only in re-certification and thereby his/her ‘real job’? Once the pro bono hours have been achieved by the practitioner, what becomes of the client?

    A CLC provides much more than legal advice, we are part of our communities. We are motivated by the notion that justice ought to be within the reach of all, not merely the few. Time spent with a client is not apportioned or tallied, there are no billable hours in a CLC for the community lawyer.

    I agree that the state and federal governments should properly fund CLC’s, and permit realistic consumer choice and access in advocacy. Law is a profession and legal service is our industry.

  5. The high cost of obtaining justice at all levels is of serious concern, particularly those in need of it. Your suggestions Ken are admirable but I wonder how practical they are?

    I have little doubt that the larger law firms could easily meet the costs associated with a mandatory pro bono programme, but what of smaller, country-based firms, or more to the point, country sole practitioners? Whilst I have no first-hand experience at setting up and maintaining a law firm, I can only imagine the costs would be excessive; standard State costs associated with business name registration, setting up trust accounts, professional indemnity insurance, annual subscriptions to legal databases, law society membership, maintaining annual competency training, office rental, utility costs – not to mention somehow earning sufficient to make a profit from one’s endeavours, let alone recovering the cost of obtaining a law degree, and somehow trying to make up for the income lost for the duration of study.

    I fully agree, however, that something needs to be done and real funding of community law centres is but one.

  6. A pro bono measure was just taken in NY for admission to the bar (though I think it is only 50 hours) and what struck me most in the article (http://www.nytimes.com/2012/05/02/nyregion/new-lawyers-in-new-york-to-be-required-to-do-some-work-free.html?_r=1) was a comment from a Pro Bono Institute person.

    ““Lawyers do not like to be told what to do,” said Esther Lardent, president of the Pro Bono Institute, a nonprofit group that works with law firms to improve their pro bono services. “I worry about poor people with lawyers who don’t want to be there.””

    I’d worry a program such as the one suggested would result in a bunch of people annoyed at being there. I’m not sure a bunch of half arsed lawyers lacking commitment or heart is what anyone needs. Unfortunately, I’m not sure I can suggest a better method that doesn’t involve increased taxation or expensive admission fees. 🙂

  7. I can only imagine that alot of good lawyers do spend alot more time than one hour per week providing pro bono (or free legal work or advice) in an unofficial, unrecorded manner. Despite the many negative stereotypes that exist for lawyers, I think alot of people consider them in a similar way to doctors. Like doctors, when friends, family or acquantances find out that someone is a lawyer, I imagine they regularly get bombarded with pleas for free legal advice. It would be difficult to switch off from providing legal advice (if it’s asked for) in social settings, at family gatherings, kid’s sports games, dinners with friends etc. I know since I have started studying law, I’ve been hit up for “advice” numerous times on topics from EPAs, wills, body corporate disputes, rental agreements to de facto break ups. Of course I am in no position to provide very reliable or useful advice yet, but I imagine when I am able to it will be difficult to ignore those pleas from friends, family and colleagues.

    That said, I recognise that the type of free legal work I’m referring to is limited to people in a lawyer’s immediate circle, clique or community. It doesn’t extend to those who can’t afford a lawyer, don’t know a lawyer and aren’t eligible for legal aid. These are the people who will most benefit from an increase in required hours for pro bono work of lawyers. Like most charitable activities, there is a great sense of satisfaction in helping those who would otherwise be ignored, helpless and vulnerable.

  8. I like your idea Ken but unfortunately many firms cannot let their lawyers do pro bono work especially around 92 hours for the year. if implemented with the cpd points it could work, but it comes down to their own deadlines, capacity and if they have they can actually help in that area. I think legal aid’s do need as much help as possible and my view was to do pro bono when i can for legal aid civil section mainly NAAJA as they are deficient by funding cuts by the commonwealth and always understaffed. thanks for the article I loved it.

  9. Excellent article ken, I would love to think that someday I would have time to do pro bono work…maybe when im retired.

  10. Whenever the plight of those who cannot afford legal representation is raised, on particular phrase comes to mind ‘At what price Justice’. And connotations of ‘He with the most money wins’. It is quite shameful that the larger the wallet, the ‘more justice’ afforded. How can a ‘lay litigant’ progress or succeed against ‘teams’ of lawyers? It would appear that ‘lady justices’’ scales have been tipped with the weight of gold.

    But how do we ‘right the scales’? I love the idea of required ‘pro bono’ work but someone somewhere still ends up paying. I also like the ‘no representation’ idea used by the NT Anti-Discrimination Commission – levelling the playing field by not allowing representation. But there are so many people within the community who need assistance with the law who cannot afford it. Perhaps a combination of either required ‘pro bono’ work or a levy for those who cannot or will not fulfil their obligations. Or what about taking a ‘leaf’ from the Building and Construction industry here in WA – they place a levy on every building approval granted. That levy then goes toward training people in the industry. How about charging a levy on every writ (or similar) issued to pay for community legal services? I think that there could be a myriad of different ideas that could work but public discussion is the only way to get some action on them.

    1. How about a really huge reform? We all have to pay taxes (at a flat rate), but we get to choose where 10 percent of our tax money goes (or maybe where all of it goes). That would be an interesting exercise in public administration, wouldn’t it? With no money in the trough, we will end up with politicians who care about the job that they are meant to be doing, and funds can be provided to make administrative tribunals work the way that they are meant to – with adequate resourcing and a level playing field.

      …and then I woke up 😦

  11. I found this too ken in lexology.com.au

    For the good of the public: Victorian in-house lawyers get the right to do pro bono work

    Clayton Utz
    David Hillard
    Australia
    May 10 2012
    Clayton Utz

    David Hillard

    Victoria has passed legislation enabling in-house lawyers to provide pro bono work alongside their colleagues in private practice.

    Although lawyers understand instinctively that Pro Bono work is an inherent professional responsibility of admission to practice, regulation has prevented many in-house and government lawyers from taking up that responsibility. Last month, Victoria passed legislation which saw that State become the third in three years to enable in-house lawyers to provide pro bono work alongside their colleagues in private practice.

    Over the last 15 years, Australia’s largest law firms have transformed their capacity to provide pro bono assistance both to people who can neither obtain Legal Aid nor afford a lawyer, and to the not-for-profit organisations which support these people. Thirty-nine law firms have now signed on to the National Aspirational Pro Bono Target of at least 35 hours of pro bono work per lawyer each year. In the last financial year, the six largest Pro Bono practices conducted more than 200,000 pro bono hours, at an average of over 45 hours per lawyer. That is the equivalent of a 125 person law firm providing full-time pro bono assistance.

    Might a similar transformation take place for in-house counsel and government lawyers? If so, it would open up pro bono resources in sectors which represent around 25% of our profession. Regulatory barriers and a lack of opportunity, rather than a lack of desire, have so far kept in-house pro bono efforts relatively modest. As Nathan Butler, General Counsel Corporate at NAB, wrote in the Victorian Public Interest Law Clearing House (PILCH)’s August 2010 submission to COAG: “Allowing qualified government and corporate lawyers to undertake pro bono services within their organisations would remove an unnecessary constraint to pro bono and tap a willing and significant pro bono resource”.

    Now any in-house lawyer who holds a practising certificate in New South Wales, Queensland and Victoria is entitled to provide pro bono legal advice. The Australian Corporate Lawyers’ Association indicates that South Australia may be next. In-house and government lawyers also have access to no-cost professional indemnity insurance for their pro bono work, through the National Pro Bono Professional Indemnity Insurance policy held by the National Pro Bono Resource Centre.

    The US experience with in-house lawyers has shown pro bono work gathering pace. In 2006, the Pro Bono Institute and the Association of Corporate Counsel created Corporate Pro Bono to empower corporate legal departments to identify and benchmark a commitment to pro bono service. Over 100 corporations have now joined the Corporate Pro Bono Challenge, pledging to encourage at least half their legal staff to perform pro bono work and to ask their external law firm providers to be pro bono leaders. The list of signatories includes some of the most recognisable corporations in the world, from across all sectors.

    Some Australian in-house and government teams have started the pro bono journey. PILCHs in Victoria, Queensland and NSW variously have legal departments from NAB, the Transport Accident Commission, the PACT Group, the ACCC, Xstrata Copper and Westpac as members. More than one-quarter of the lawyers at the Australian Government Solicitor have been involved in pro bono work since 2008. Eleven corporate in-house projects are now covered under the National Pro Bono Professional Indemnity Insurance policy. Lawyers from AMP, Fairfax Media and Ramsay Health Care have all partnered with external law firm providers on pro bono projects.

    Each of these legal teams is contributing to making our legal system more accessible, and no doubt enjoying the significant professional benefits which come from giving lawyers the opportunity to be involved in pro bono work. Many are building a pro bono culture which extends their organisation’s established CSR program.

    Partnering with one or more law firms makes pro bono work easier to undertake. Pro bono practices at firms can share their expertise to help train and supervise in-house lawyers, develop a pro bono policy, identify pro bono opportunities and partner in the delivery of pro bono work.

    Legal Aid funding levels – which remain $20 million a year below 1997 levels – continue to be insufficient to ensure access to justice for all Australians. Across the country, many people are both unable to afford a lawyer and are ineligible for Legal Aid.

    While pro bono is not the solution to Australia’s access to justice crisis, widening the pool of lawyers who are able to deliver such services is a positive and welcome step.

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