19TH AUSTRALIAN LEGAL CONVENTION YOUNG LAWYERS' …...LAWYERS' FUTUROLOGY The Hon. Mr. Justice M.D....
Transcript of 19TH AUSTRALIAN LEGAL CONVENTION YOUNG LAWYERS' …...LAWYERS' FUTUROLOGY The Hon. Mr. Justice M.D....
19TH AUSTRALIAN LEGAL CONVENTION
YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977
"AWYERS' FUTUROLOGY
Ron ~ustice M D Kirby
;fu1y 1977
19TH AUSTRALIAN LEGAL CONVENTION
YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977
"AWYERS' FUTUROLOGY
Ron ~ustice M D Kirby
;lu1y 1977
19TH AUSTRALIAN LEGAL CONVENTION
YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977
LAWYERS' FUTUROLOGY
The Hon. Mr. Justice M.D. KirbyChairman of the Australian Law R~form Commission
We know wha~ we are butknow not what we may be.
Shakespeare3 HamLet, Act IV ~c.5, 42
LAW, LAWYERS AND FUTUROLOGYPredicting the future is a hazardous business.
1
Inevitably, frognostications look inadequate and quaint, when
measured against events as they unfold. The safe?t prediction
we can make is that :
"our conjectures about .. , the year 2000will turn out by hindsight to have been 2naive and inaccurate in many respects ll
Never are the peril~ more obvious than w~en the law and its
practitioners find themselves in-an'age of rapid change: a
new Age of Reform. 3 In" his Agam~mnon, Aeschylus gave good
advice to those who would indulge· in futurology
liThe future you shall know when it hascome; before then, forget i til. 4
All reform involves futurology, to sOme extent. Seeking to
reform the legal profession requires of the reformer the
identification of those matters in which the profession is
failing so that suggestions can be made to· remedy defects and
right wrongs. In Australia an~ overseas numerous enquiries are
proceeding, designed to identify the problems of and for t~e lego~
profession, in order that they might be dealt with. A Royal
Commission on the Legal Profession and Legal Services-was
established in England in 1976. 5 ,A parallel inquiry has. also
begun in Scotland. In Canada an inquiry has corrunenced. ·Closer
19TH AUSTRALIAN LEGAL CONVENTION
YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977
LA\iYERS I FUTUROLOGY
The Hon. Mr. Justice M.D. Kirby Chairman of the Australian Law R~form Commission
We know wha~ we are but know not what we may be.
Shakespeare" HamLet" Act IV !;U~.5, 42
LAW, LAWYERS AND FUTUROLOGY Predicting the future is a hazardous business.
1
Inevitably, frognostications look inadequate and qua.int, when
measured against events as they unfold. The safe?t prediction
we can make is that :
"our conjectures about .. , the year 2000 will tUrn out by hindsight to have been 2 naive and inaccurate in many respects"
Never are the peril.s more obvious than wJ;en the law and its
practi tioners find themselves in -an" age of rapid change : a 3 .
new Age of Reform. In" his Agamemnon, Aeschylus gave good
advice to those who would indulge· in futurology
liThe futUre you shall know when it has come; before then, forget i til. 4
All reform involves futurology, to SOme extent. Seeking to
reform the legal profession requires of the reformer the
identification of those matters in which the profession is
failing so that suggestions can be made to- remedy defects and
right wrongs. In Australia ana. overseas numerous enquiries are
proceeding, designed to identify the problems of and ~or t~e lego!
profession, in order that they might be dealt with. A RO~/al
Commission on the Legal Profession and Legal ServiceS-Has
established in England in 1976. 5 ,A parallel inquiry has. also
begun in Scotland. In Canada an inquiry has corrunenced. -Closer
- 2 -
to home, the South Australian Government and Opposition have
each proposed legislation to effect ,reforms in the legal
profession of 'that State.-6..., -In"' Re'w ~eaT~ffi-a'; a wO~kin~ paper
has been distributed bY·-ohe··-o.f- -the. Law--Re:f,(~H"m Committees
concerning pr·oposals to change the disciplinary and complaints
procedures of the I-egal profession.? In New South Wales, a
majbr reference has be(en given t-b--the' New South Wales Law
Reform Conuni'Ssion, raising for report an enor'lllOU5 range of
maLtel"'S critically important. for the. fut-ure- of the' legal
profession in that S~a~e~8 The New South-Wal~s inquiry will
obviously have impliea"tions for the future of the profession
in other States. ·The Victoria, L~~ ]nstitute, representing
the solic.i tpr5, has acknowledged. thi;5 a:~.d.proposesto make
submissions to the N.ew South WaclesCommissi,on. 9.
In due course we will all have the benefit of the
informed reportS' of the- .inquirie.s .. The:Y.,<w,i;J,..t:.s~har~ the future
of the l·egal profes.sion'. TlJ-e. mooS"!:. T. 'ca,n<.qq .,is to .identifY a
few of the p'roblem ·areas and, in some. -cases, suggest the way
things may develop.
PROBLEMSIn 1976 the Law Foundation of New South Wales published
the results of a study conducted by ~he Foundation designed
to ascertain public attitudes to the legal profcs~i6n and 1~g3j
institutions. The book by Roinan Tomasic is titled Law, 1,,'1w[:',1'$
and the Community. 10 It recog~ises the fact that it {s
essential that accurate data should be available to those whose
function it is to ensure that the legal profession meets
society's needs and demands. ll I take it 'to be agreed that
the profession should ·have this object as one of its guiding
stars. Of course, a'fter a period of application to study, it
i~ entipely appropriate that an above-average income should
be expected, together with satisfactory opportuniTies of
self advancement and self fulfilment. But in the end, few
lawyers today would .pssert that the law and the legal pro[ess~on
exist simply to serve their own interests. The profession ~s
not and ought not:·to be -continuing "the self-congratulation 0 r;ocie
It provides particular services to the community. Its utility
can he measured against the degree to which the services
- 2 -
to home, the South Australian Government and Opposition have
each proposed legislation to effect ,,reforms in t0e l~gal
profession of 'that State.-6 ... , -In"' Re"W: ZeaT~ffra·; a working paper
has been distributed bY·-ohe··-of- -the. Law --Re:f,~rm Committees
concerning pr-oposals to change the disciplinary and complaints
procedures of the I-egal profession. 7 In New South Wales, a
majbr reference has be"en given t.o--the" New South Wales Law
Reform Conuni'Ssion, raising for report an enor'lllDUS range of
maLtel"S critically important, for the. fut-ure- of the' legal
profession in that S~a~e.8 The New South-Wal~s inq~iry will
obviously have implica"tions for the future of the profession
in other States .. The Victoria, L~~ }nsti t.ute, representing
the solic.i tPrs, has acknowledged. thi,s a-~-d _proposes to make
submissions to the N.ew South Wa-les Commissi,on. 9 .
In due course we will all have the benefit of the
informed reportS- of the- _inquirie.s .. They.:;; ~,:i),._t:_s~har~ the future
of the l-egal profes-sion-. TlJ-e. mooS"!:, -T. -ca,n-c'._qq ,is to _identify a
few of the p-roblem ·areas and, in some. -cases, suggest the way
things may develop.
PROBLEMS In 1976 the Law Foundation of rJew South Wales published
the results of a study conducted by ~he Foundation designed
to ascertain public attitudes to the legal profc~~:i6n and )~g~j
institutions. The book by Roinan Tomasic is titled Law, /,,'1w[:',1'$
and the Community. 10 It recog~ises the fact- that it :is
essential that accurate data should be available to those whose
function it is to ensur'e that the legal profession meets
society's needs and demands. II I take it 'to be agreed that
the profession should -n.ave this object as one of its guiding
stars. Of course, a-fter a period of application to study, it
i~ entif'ely appropriate that an above-aver'age income should
be expected, together with satisfactory opportuniTies of
self advancement and self fulfilment. But in the end, few
lawyers today would- __ asser:t that the law and the legal pl"'ofess~on
exist simply to serve their own interests. The profession ~s
not and ought not:'to be -continuing "the self-congratulation 0 r:ocie
It provides particular services to the community. Its utility
can he measured against the degree to which the services
- 3 -
offered. are those which society needs as well as the efficiency
and probity with which the profession performs -its work.
There are some who say that fundamental changes must
come from the numerous inquiries now afoot. According to
them, we must abandon entirely lawyers' monopolies, overthrow
.~ the adversary system and'coro~it all- lawyers to service to
"the community in a State-run legal corporation. We may come
to that. Some futurologists pr~dict it. 12 ~etting my
sights on more immediate possibilities, I can id-entif'y
practical problems Which, I suggest, ~re capabl~ of fairly
rapid change wi th.out ..altering the basic role and organisd tion
of the profession. In Australia-, anything more. is unlikely
to be achieved in the last quarter "of this century. [ven
fyturology must have limits, particu.larly in a settled and
['edsonably -hQmog~neous and self contented society, as l\uGtr'.:llia
is.
I propose·, therefore, to address myself t;o a number
of limited SUbjects, notably entry to the prGfession,. legal
educeltion, admission t-opr~ctice, t.he structure.of the
profession, its work, methods ·and s.elf., discipline.
ENTRY TO THE PROFESSIONOn the basis of empirical studies, there· seems li t;t It;:
doubt that the average lawyer in Australia does not have dn
average background. A study by Anderson and West;ern in 1965
showed, amongst ·other things, that.,a disproportionate number
of students came from high-income 'families. Incomparison
with students in ·medicine, engineering and· teaching., laW" had
the highest proportion from families in "the top income brachet.
Tv;enty percent came from homes with an income, then, of over
:}U, 000. In engineering, only 10% came from such homes ,'Ind in
teaching 6%. The same survey disclosed that lat-J studenLs were, 1" 1 . 13 T .. t ftne most po 2t~cal y- conservatlve. wenty nlne percen 0_
their fathers were prpfessional men, 6% had fathers in the
legal profession. Only 19% came from working class backgrounds.
Law students had a substant·ially higher percentage who had14attended non-State schools than other groups tested.
- 3 -
offered. are those which society needs as well as the efficiency
and probity with which the profession performs -its work.
There are some who say that fundamental changes must
come from the numerous inquiries now afoot. According to
them, we must abandon entirely laHyers' monopolies, overthrow
the adversary system and- cOTmnit all- lawyers' to service to
"the community in a State-run legal corporation. We may come
h S f 1 · d" 12 S . to t at. orne uturo Oglsts pr~ l.Ct l t. ettlng my
sights on more immediate possibilities, I can id-entif'y
practical problems .which, I suggest, ~re capable of fairly
rapid change wi th.out-.al tering the basic role and organisd tieD
of the profession. In Australia·, anything more. is unlikely
to be achieved in the last quarter "of this century. [ven
fyturology must have limits, particu.larly in a settled and
t'edsonably 'hQmog~neous and self contented society, as l\uGtr'.:llia
is.
I propose', therefore, to address myself 'to a number
of limited subjects, notably entry to the prGfession,. legal
educel.tion, admission to pr~ctice, t.he structure.of the
profession, its work, methods ·and s.elf .. discipline.
ENTRY TO THE PROFESSION On the basis of empirical studies, there· seems li tt J to!
doubt that the average lawyer in Australia does not have dn
average background. A study by Anderson and \<Jestern in 1965
showed, amongst -other things, that .. a disproportionate number
of students came from high-income ·families. In comparison
with students in 'medicine, engineering and· teaching., law' had
the highest proportion from families in 1;he top income bracher.
Tv;enty percent came from homes with an income, then, of over
$U,ooo. In engineering, only 10% came from such homes ,'Ind in
teaching 6%. The same survey disclosed that lat-J studenLs were , 1" 1 . 13 T .. t f tne most po 2t~ca1 y. COTIServatlve. wenty TIlne percen 0_
their fathers were prpfessional men, 6% had fathers in the
legal profession. Only 19% came from working class backgrounds.
Law students had a substant·ial1y higher percentage who had 14 attended non-State schools than other groups tested.
- 4 -
Now, these figures are much Qut of date. They may
well be" affected by the .limits impos-ed by university quotas
and the like. Plainly they are significant. An individual's
value system may be well entrenched by the time he gets to
university. ,If the machiner~: of- the legal system is worked
by a constantly self perpetuating group cho?en from an
unrepresentative sample of the community, this' is bound to
have an effect that distances the -law from the community which
it ultimately serves. In an important -address in May 1968,
Mr. Justice Jacobs put it this way:
"A lawye+> is naturalTy:conservative. Histraining almost inevitably mak~s him soand if is pr"oper that lie 'should be "~5Howeverconservatism must have. its' .1ilJIits:lI •
The 1l1J.mits II of which his Honour.:spoke "are nov.' being plumbed.
Australian society is changing rapidly", lfthe legal professi0J1
i:; to. maintain ~ let alone- expand its relev-ancy, it must t"l'
alert to these changes and able to meet the chellenge of ch~nge.
If a great proportion of its members suffer attitudinal
blinker,S, th~)f w,ill miss the signs of cha,nge.
One thing is sure and it is that women are playing
an increasing role in the profession. The disproportion of
Women is being corrected at every level. This trend is _likely
to continue. In 1940 there were 2 .women~pr~ctising as barristers
in New South Wales (0.7% of all barristers) and 15 solicitors
(1%). In 1975 there were 28 barristers (5%) 'and 304 solic-itor's
(6%). During the period from 1960 to 1974, the percen1:age of
female.s_ among Austral·ian law students rose from 11% to 22%.
Yet, in 197~ the equivaient percentage in medicine and science
was about 33% and zhe overall university percentage, 35%.16
The trend is certainly in the direction of increase. The
appointment of women to the Bench and their gener~l advar.cement
in the profession will not abate.
Allied to this profile of the background of Australian
lawyers is the inevitable question of supply and demand. In
the 1971 Cen~us, 10,.300 Australians described their employmentin a way that was subsequen-tly classified as llla't\l pro-fessiona1". 17
This produced a ratio of practising lawyers to population that
varied from 1:860 in N.S.W. to 1:2330 in W.A. The fi£ures tend
- 4 -
Now, these figures are much out of date. They may
well be" affected by the .limits impos-ed by university quotas
and the like. Plainly they are significant. An individual's
value system may be well entrenched by the time he gets to
university. ,If the machiner~: of- the legal system is worked
by a constantly self perpetuating group cho.sen from an
unrepresentative sample of the community, this' is bound to
have an effect that distances the -law from the community which
it ultimately serves. In an important -address in May 1968,
Mr. Justice Jacobs put it this way :
ITA lawye+, is natural-ly :conservative. His training almost inevitably mak:es him so and if is pr"oper that lie 'should be"~5However conservatism must have. its' .1ilJli ts'II,
The 1I11.mi ts II of which his Honour. :spoke "are neV.' being plumbed.
Australian society is changing rapidly", If the legal profcssi0J1
i:; to. maintain ~ let alone- expand its relev-ancy, it must t"l'
alert to' these changes and able to' meet the chellenge of ch~nge.
If a great prO'pertien of its members suffer attitudinal
blinker,s, th~)f w·ill miss the signs of cha,nge.
One thing is sure and it is that women are playing
an increasing role in the prefession. The disproportion ef
wemen is being corrected at every level. This trend is _likely
to continue. In 1940 there were 2 .:women~pr~ctising as barristers
in New South Wales (0.7% of all barristers) and 15 solicitors
(1%). In 1975 there were 28 barristers (5%) 'and 304 solic-itor's
(6%). During the period from 1960 to 1974, the percen1:age of
female.s_ among Austral·ian law students rose from 11% to 22%.
Yet in 197~ the equivaient percentage in medicine and science
was about 33% and zhe overall university percentage, 35%.16
The trend is certainly in the direction of increase. The
appointment of women to the Bench and their gener~l adva:r.cement
in the profession will not abate.
Allied to this profile of the background of Austral:ian
lawyers is the inevitable question of supply and demand. In
the 1971 Cen~us, 10,.300 Australians described their employment
in a way that was subsequen-tly classified as 1I1a .t\! pro-fessiona1". 17
This produced a ratio of practising lawyers to population that
varied from 1:860 in N.S.W. to 1:2330 in W.A. The fi£ures tend
to suggest a disproportionaTely great number of lawyers
centred in the city of Sydney and Melbourne, a disinclination
to practise in country or remote districts and, because of
the dramatic increases it! the numer'ieal strength of the legal
profession in recent years, a preponderance of young laywers.
Even the present preponderance of very young lawyers is unlikely
to decline. 18 The statistics are interesting:
I cann9t comment upon whether there is an over-supply of
lawyers either.now or. potentially. In New South Wales, the
number.of persons graduating annually will treble between 1970
and 1980. At ..least it can be said that there is a " s trong-,- . 19 .
possibil.i ty" of an over-supply. This phenomenon is most acute
in New South Wales. It may not be present in South Australia
and Western Australia. But the explosion in numbers
unfortunately coincides with an economic downturn which, putting
it at its lowest, make the positio?.for p'ro~pective law
grad~ates within the practising prOfession, more doubtful than
has been the case for decades.
The outcome of ov~r-supply of lawy~rs in some pdrts
of Australia may not be an unrelieved disaster. Indeed it may
have some advantages. It may encourage lawyers in this country
to be more adventurous in their professiona-l careers. 20 I·c
may set them upon the process, well established and developing
in the United States,by which lawyers work in decreasing numbers
in private practice and increasingly for businesses, unions
and others as IIhouse counsel". 2l It may make government practice
more 'attractive.22 It may encourage the next generation of
lawyers to turn their attention to activities where there is
a social need but which are neglected because other work is
more'remunerative.,23 has more "snob value" or is other\o1ise presen1
considered more congenial.
(21% )(13% )(30%)(35%)
39%19%22%20%
Percentage ofrespondents
1973 1967 (est)
Period sinceadmission
Under. 5 years5-9 years ~
10-19 years20 years or more
- 5 -
1;1. %43%23%23%
Percentage ofrespondents
Age
Under 25 years25-34 years
.35-44 years45 years
- 5 -
to suggest a disproportionaTely great number of lawyers
centred in the city of Sydney and Melbourne, a disinclination
to practise in country or remote districts and, because of
the dramatic increases it! the numer'ical strength of the legal
profession in recent years, a preponderance of young laywers.
Even the present preponderance of very young lawyers is unlikely
to decline.18
The statistics are interesting:
Age
Under 25 years 25-34 years
.35-44 years 45 years
Percentage of respondents
1;1. % 43% 23% 23%
Period since admission
Under. 5 years 5-9 years ~
10-19 years 20 years or more
Percentage of respondents
1973 1967 (est)
39% 19% 22% 20%
(21% ) (13% ) (30%) (35% )
I cann9t comment upon whether there is an over-supply of
lawyers either.now or. potentially. In New South Wales, the
number _of persons graduating annually will treble bettveen 1970
and 1980. At_.1east it can be said that there is a "strong / . 19 .
possibil.ity" of an over-supply. This phenomenon is most acute
in New South Wales. It may not be present in South Australia
and Western Australia. But the explosion in numbers
unfortunately coincides with an economic downturn which, putting
it at its lowest, make the positio!, .. for p'ro~pective law
grad~ates within the practising profession, more doubtful than
has been the case for decades.
The outcome of ov.er-supply of lawy.ers in some pdrts
of Australia may not be an unrelieved disaster. Indeed it may
have some advantages. It
to be more adventurous in
may encourage lawyers in this
their professiona.l careers. 20
country
It
may set them upon the process, well established and developing
in the United States,by which lawyers work in decreasing numbers
in private practice and increasingly for businesses, unions
and others as "house counsel".2l It may make government practice
more 'attractive.22 It may encourage the next generation of
laHyers to turn thei!' attention to activities where there is
a social need but which are neglected because other Hark is . . 23
more remuneratlVe., has more "snOb value" or is otherHise presen1
considered more congenial.
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LEGAL EDUCATION
There' is not a shadow of doubt that legal education
both in content and method will change rapidly in the last
quarter of this century. In his overview of legal education
in Australia', Professor Derham told 1;:he Conference in 1976 :
"We ar.e· now ~_;.' in a period" 0"£ profoundand rapid change in our society ... Thework of bringing. OUI'_ 'black letter law'into tune with the needs of the time isarduo~s and" exact.~ng-.work c.a:l.).. iIl;g forhigh scholarship and developed legalski-lIs ... If it .is not done, ,no:t _onlylawyers ·but the law itself will fall intodisrepu.te':-.· 24 ..
I believe·:that this perception is- snared in law schools and
colleges of law ·throughout the c~ufl~rY.
There is, of course-, a potential conflict between: the
functlon of law to provide stability, predictability and
certainty and -its function to react -flexibly to changes in societ~
and changes· imposed by" sc'"i'ence "arid technology. Legal education
has hithertoj~aid excessive emphasis upon the first" feature of
the law. Increasingly it wiil put emphasis upon the second.
This will impose. upon law teachers the-obligation to teach
new skills. At the moment, in 'the analysis of decisions of
"appellate courts, too often discuss:Lon ends "at the very point
where it should proper:1y begin".25. A sc'rutiny of the interests
at stake in judicial decisionmaking and in the framing of
legislation is a proper function of the lawyer. He is trusted.
with touching faith, to help to resolve social conflicts,
many of which will be intense, new and lacking in clear analogous. 26gUldance. "
It is not so long ago that constitutional law was
taugh_"t,,as if it was and should be a mere matter of statutory
construction. I am confident that this vlew will not survive
the present century, even if it does not suffer an earlier death.
It is important that when we deprive lawyers of resort to such
an important myth as "complete and absolute legalism" we should
arm the next generation with the tOOls that will be necessary
to replace that myth. They must be helped to identify and
articulate the interests they are dealing with. Self deception
- 6 -
LEGAL EDUCATION
There" is not a shadow of doubt that legal education
both in c'ontent and method will change rapidly in the last
quarter of this century. In his overview of legal education
in Australia', Prof.essor Derham told 1;=he Conference in 1976 :
"We ar.e· now ~_:F.; in a period' 0"£ profound and rapid change in our society ... The work of bringing. OUI'_ 'black letter law' into tune with the needs of the time is arduo~s and' exact.ing- ,work c.a:l.) .. iI'1:g for hi-gh scho·larship and developed I·egal ski-lIs ... If it .is not done, ,TIQt only lawyers -but the law itself will fall into disrepu.te':-.· 24 ..
I believe ·=that this perception is- snared in law schools and
COlleges of law -throughout the c~ufl~rY.
There is, of course-, a potential conflict between: the
functlon of law to provide stability, predictability and
certainty and "its function to react-flexibly to changes in societ~
and changes· imposed by· sc""fence ·arid technology. Legal education
has hitherto/laid excessive emphasis upon the first· feature of
the law. Increasingly it wiil put emphasis upon the second.
This will impose. upon law teachers .the -obligation to teach
new skills. At the moment, in --the ami.lysis of decisions of
. appellate courts, too often discuss:Lon ends "at the very point
where it should proper:1y begin".25. A sc'rutiny of the interests
at stake in judicial decisionmaking and in the framing of
legislation is a proper function of the lawyer. He is trusted.
with touching faith, to help to resolve social conflicts,
many of which will be intense, new and lacking in clear analogous . 26 gUldance ..
It is not so long ago that constitutional law was
taugh_"t,,as if it was and should be a mere matter of statutory
construction. I am confident that this vleiv will not sun.rive
the present century, even if it does not suffer an earlier death.
It is important that when we deprive lawyers of resort to such
an important myth as "complete and absolute legalism" we should
arm the next generation with the tools that will be necessary
to replace that myth. They must be helped to identify and
articulate the interests they are dealing with. Self deception
- 7 -
and not hypocrisy, is the enemy here. David Riesman and
~ulius Stone have been teaching this for successive generations
students since"the 194-05. The law moves in tardy, .as
well as mysterious ways. Only now have the first glimmerings
of Stone's perceptions begun to show in jUdicial decisions.
Legal education has a long fuse. If lawyers are to meet the
~hallenge of relevancy, it is importan~, in my view, that
unive~sities develop the oPtion~~ ?ou~ses.that will prepare the
profess-ion of the f1..!ture for its-·t";"~ks. Cqurses on
environmental la~, trade un~ons and the law, law and medicine,
poverty law, civil_rights, consumer law and so on sound curious
to the ear -of those trained in,.a.rigid,..c.urr.iculurn., But when
it is seen that that cu~ricu14m, with,its emphasis upon. property
rights protection, serve only a part of the'community, and
when it is remembered that legal aid will offer the opportunity
of access to the law to different interests in the community,
it is vital that. those-.who.. are coming thr.ough should· acquire
mul t:iple skills in direct-rons that we're unthinkable even a. 27genera t.lon ,ago.
ADMISSION TO PRACTISE
The rules governing.admission to pr~ctise h~ve corne
under scrutiny of late. Steps have been taken which show the
way of th~ future. The President of the Victorian Law
Institute points the way :
"There is a growing need for the professionto be more nationally minded. We aremembers of the one profession whether inpractice in Queensland, Western Australiaor Victoria. Why should there not be acommon code of ethic.s, a common systemof costing and a common professionalindemnity scheme?lI 28
One of the far-seeing provisions introduced by the .Judi-aiary Act
(Amendment) 'BiLL 1976 was that which would permit the appearance
of practitioners admitted in any State to appear before a
State court of another -State when exercising Commonwealth
j'uriscHction. 29 This will begin the process of er'oding the
protective requ"irements of residence by which the sma 11e1" States
have previously excluded practitioners from Sydney and Melbourne.
There is no future in this kind of limitation upon
- 7 -
and not hypocrisy, is the enemy here. David Riesman and
,Julius Stone have been teachi.ng this for successive ge'nerations
students since"the 194-0s. The law moves in tardY,-,as
well as mysterious ways. Only now have the first glimmerings
of Stone's perceptions begun to show in jUdicial decisions.
Legal education has a long fuse. If lawyers are to meet the
~hallenge of relevancy, it is importan~, in my view, that
univer:-sities develop t-he oPtionc3;~ cou:r:ses. that: t.;ill prepare the
Cqurses on
environmental la~, trade un~ons and the law, law and medicine,
poverty law, civil _ rights, consumer law and so 'on sound curious
to the ear ·of those trained in:.a.rigid ... c.urr.iculurn., But when
it is seen that that cu~ricu14m, with,its emphasis upon. property
rights protection, serve only a part of the'community, and
when it is remembered that legal aid will offer the opportunity
of access to the law to different interests in the community,
it is vi tal that. those- .who .. are corning thr.ough should· acquire
mul t:iple skills in direct-rons that we're unthinkable even a . 27 genera t.Lon ,ago.
ADMISSION TO PRACTISE
The rules governing.admission to pr<?.c1;:ise haye corne
under scrutiny of late. Steps have been taken Vlhich show the
way of th.e future. The President of the Victorian Law
Institute points the way :
"There is a growing need for the profession to be more nationally minded. We are members of the one profession whether in practice in Queensland, Western Australia or Victoria. Why should there not be a common code of ethic.s, a common system of costing and a common professional indemnity scheme?!! 28
One of the far-seeing provisions introduced by the .Judi-ciary Act
(Amendment) BiLL 1976 was that which would permit the appearance
of practitioners admitted in any State to appear before a
State court of another -State when exercising Commonwealth
j'urisaiction. 29 This will begin the process of er'oding the
protective requ'irements of residence by which the sma 11e1" States
have previously excluded practitioners from Sydney and Melbourne.
There is no future in this kind of limitation upon
- 8 -
the right to practice within Australia. Already steps hav-e
been taken in Europe, within the markedly differen t legal
systems of the Continent and the United Ki"ngdom; to abolish
discrimination based on frontiers and to ensure reciprocity.
of legal representation. 3D When the' differences of language,
culture a~d his~ory, to say nothing of legal tradition in
that conte"~tare me~sured against the Australian scene, iT makes
the just,ification of State irnpe'dime~ts to practise hard to
perceive. The presence of Federal Courts, the admissiDn of
some practitioners in State courts, the growth of Commonwealth
law and the presc l.e nee of State law s'ocieties clearly point
the way of the future. Although there are obvious difficulties,
given'the present org:i.nisation of-'disci"p"line-'of the pr'-ofession
by the JUdges of the Supreme Courts of the several States, Ipredict th~t the Law Council will give fresh attention to this
l-J{'oblcm. By the turn of the century, I wouJd e~:pPC't ;1 tl~uly
~. national "pr-Ofession e~j"6ying'·comp"iet~ re·ciproci·ty, at" least
before the courts and tribunai':{ in 'eve-r'"Y part of' the coun-rry.. .United States wri~ers are pessimistic about the emergence of
a national Bar in the United States. 31 Some Australian "..Jritcrs
share this pessimism. I do not. F~rces are at work which
will not go into.reverseP2 I have suggested some of them. 1
would only add the general relax~tion in technical requirement~
such as nationality which are evidencea in recent Australian
decisions. 33 ~e have fewer impediments to achieving a national
profession than exist in the United States. The increasing
contact between lawyers in all parts of the country will
diminish the remaining barriers in the way of complete
reciprocity.
STRUCTURE OF TH~ PROFESSION
One of the critical questions before the Ne\·.' S<Juth
Willes Lair! Reform Commission is whether t.he separ:lt i0n of ~ h('
profession between barristers and solicitors should }'crsis~
and, if 'not, whether some form of fusion could or should" b~~
permitted or enforced. That the distinction is not entirely
historical and could have practical implications can be seen
from some at least of the reasons for judgment in the High Court
of Australia in Re NeiZ; ex parte Cinema InternationaZ
Corporation Pty. Limited. 34
- 8 -
the right to practice within Australia. Already steps hav-e
been taken in Europe, wi thin the markedly differen t legal
systems of the Continent and the United Ki'ngdom; to abolish
discrimination based on frontiers and to ensure reciprocity.
of legal representation. 30 \>Jhen the' differences of language,
culture a~d his~ory, to say nothing of legal tradition in
that cont~~t are me~sured against the Australian scene, iT makes
the just.ification of State irnpe'dime~ts to practise hard to
perceive. The presence of Federal Courts, the admissiDn of
some practitioners in State courts, the growth of Commonwealth
law and the prescience of State law s'ocieties clearly point
the way of the future. Although there are obvious difficulties,
given' the present org:i.nisatlon of disci"p-line- of the pr-ofession
by the Judges of the Supreme Courts of the several States, I predict th~t the Law Council will give fresh attention to this
lJ{,oblcm. By the turn of the century, I wouJd e~:pPC't ;1 tl~uly
~. national pr-Ofession enj"oying' complete re"ciproci"ty, at' least
before the court,s and tribunai~': in 'ev'e;"y part of- the coun-rry.
Uni ted Stat-es wri"ters are pessimistic about the emergence of
a national Bar in the United States. 31 Some Australian "driters
share this pessimism. I do not. F~rces are at work which
will not go into.reverseP2 I have suggested some of them. 1
would only add the general relaxi:jtion in technical requircr.lent.s
such as nationality which are evidencea in recent Australian
decisions. 33 ~e have fewer impediments to achieving a national
profession than exist in the United States. The increasjng
contact between lawyers in all parts of the country will
diminish the remaining barriers in the way of complete
reciprocity.
STRUCTURE OF TH~ PROFESSION
One of the critical questions before thc Ne\·.' S<Juth
Willes Lair; Reform Commission is whether t.he sepaT':lt i0n of ~ he
profession between barristers and solicitors should l'crsis~
and, if -not, whether some form of fusion could or should b~~
permitted or enforced. That the distinction is not entirely
historical and could have practical implications can be seen
from some at least of the reasons for judgment in the High Court
of Australia in Re NeiZ; ex parte Cinema InternationaZ
Corporation Pty. Limited. 34
- 9 -
This is not the occasion ~~ ~~~ea~se the argu~ents
·for and against a separate Bar~ It i~.worth noti~g that whilst
there is a strong fe.eling in s~me quarters in Austra.lia 1;hat
separation unduly add~. to legal costs and duplicates- highly
paid work, in the United States, the contrary feeling is abroad.
The Chief Justice of the United States ha~ specifically lamented
the absence of a separate, special~?ed Bar.
Various suggestiohs.ha~7:be~~made to p~rmit or
encourage a changed organisation of -tl1e.pro.f~ssion. Certainly
it must be acknowledg~d that attempt"s; or.. prp.posa·ls in the past
to enforce f~~iort where it· did .n-.qt:-.-exlst: have.. come to nothing:_.- - - 35 . .. -. - -- --- 3·running. into .judicial opposition· - ?r"professional.. preferences. b
In his 1968 lectupe, Mr. Justice Jac?bs suggested ~hat
a better orga.nisation of the pl'ofes.~ion.was that d.?opted by·· the
medical profession, namely a diVis~bn'between those in- - - -- -... -. . ... 37
general practic~ and those. engaged 10 spec1~1 practice. There
seems to be' a.-&idespread view that a greater degree of
5pecialisatio~.wouldadvan~age ~h~. ~o~~\S,and the C?mrnUDit~.38
The Young Solicitors· Group. of the Law Society of
England and Wales proposed a three-tier sFructure made up of
Ca) A legal administratbr~whb dealt withancillary administrative work calledliThe Legal ~xecutivell
Cb) The practitioner to ,whom the client cango direct for advice and assistancecalled "The Lawyer ll
(c) The practitioner of exceptional .abili tyand experience who is consulted by!Ilawyersll to assist in cases df unusualdifficulty or importance, called'"Counsel ll ; 3'9
This organ~sat~on parallels that proposed by Mr. Justice Jacobs,
with the addition of a support group of para-legals who could
no doubt do routine work curre~tly reserved to lawye~s.
Associated with these proposals for change are proposals
for incorporation amongst legal practitioners. Such a proposal
was put forward by the Victorian Law Institute but apparently
- 9 -
This is not the occasion ~~ .r:,~~ear:se the argu!J1ents
·for and against a separate Bar., It i~. worth noti~g that whilst
there is a strong fe.eling in s~me quarters in Austra.1ia 1;hat
separation unduly adds', to legal costs and duplicates· highly
paid work, in the United States, the contrary feeling is abroad.
The Chief Justice of the United Sta'tes ha~ specifically lamented
the absence of a separate, special~?ed Bar.
Various suggestiohs.ha:'7:be~~ made to p~rmit or
encourage a changed organisation of 'the, pro.f~ssion. Certainly
it must be acknowledg~d that attempt's. or._ prp,posa'ls in the past
to enforce f~~iort where it· ~J~ . ~~r exist: ~a:.v~.: come to nothing : 36
running, into .judicial Opposltlon - or"professional.preferences.
In his 1968 lectupe, Mr. Justice Jacobs suggested ~hat
a better orga.nisation of the pl'ofes.~ion was that a,:lopted by' the
medical profession, namely a div'is'ion'between those in . .... .... '. . '.' 37
general practic~ and those, engaged 10 spec1~1 practice. There
seems to be' a ,,&idespread view that a greater degree of
specialisation,.,would advan~a.ge ~h,~. ~o~r.t:s ,and ,the c.?nunuI)i t)!. 38
The Young Solicitors t Group. of the Law Society of
England and Wales proposed a three-tier sFructure made up of
Ca) A legal administra'tbr'-'whb dealt with ancillary administrative work called liThe Legal ~xecutivell
Cb) The practitioner to ,whom the client can go direct for advice and assistance called "The Lawyer!!
(c) The practitioner of exceptional ability and experience who is consulted by "lawyers!! to assist in cases df unusual difficulty or importance, called "Counsel!!; 3'9
This organ~sat~on parallels that proposed by Mr. Justice Jacobs,
with the addition of a support group of para-legals who could
no doubt do routine work curre~tly reserved to lawye~s_
Associated with these proposals for change are proposals
for incorporation amongst legal practitioners. Such a proposal
was put forward by the Victorian Law Institute but apparently
- 10 -
wi thdrawn when the implications of the TY'ade Practices AC.t
were ~ons idered. 4-0
It seems unthinkable to me that lawyers should be
forced into partnership. The trend in the United State~ is. .. .. 41
certa~nly towards er~dlng the role of the sole practltloner..
Indeed .the trend in the. United States is di$tinctly away from. . 4
priva'te ·pra·ctice and to'wards business aRd go,:,ernment engagement.
Any solu~ion wil~_ have-~o ac~ommodate ~tse~f_ to the
substantive law ,a~d co~rt systems which the profession has to
operate., As it_"'i-~__.unlikely that::c.we,: w.ill aba-ndaD entirely the
adversary s~s ;~" the~e' wiil _b~'~. ~~_ed f.o~"'"'_the"for~seeable_future for ~raine4 advocates~ Already th~" Ba~.is tending .to
s~ecialise and, by a proces~ of evolution rather than imposition,
is-"tending_ to mo~e- in the 'dire~tion pr~d.ic,ted by Hr. Justice
Jacobs in 19..68 and .·the You,?g Sol.ici.tors in 1-97,2. ]'iJCl'~. <..lI'L:,
of course, ancj.llary matteFs' that..must be clarified. We must
consider, for 'examJ?~e, ~he the.r.c.e~t.ific:ates of spec ialisa t ion
are needed,.?dvertising of specialties permitted, the ~wo-counse1
rule abolished and so on. Given the adve!:'sary system, the
talents and inc~inations of a limited n~mber of the profession
towards advocacy, t.he his~tory of the deve~opment of a separate
~ar and the other arguments pro and con, my own feeling is that
a separate Bar will survive current scrutiny. At the same
time there is no doubt that peripheral abuses which mar the
present system will disappear, to adapt Mr~ Justice Jacobs,
at the end of " a golden autumn ll•
WORK OF THE PROFESSIONUse of the La~. We are not likely to live to see
the removal of all of the impediments which stand in the way
of use of the law cjnd lawyers by all citizens. Ignorance,
fear, apathy, indifference, an inability to afford fees ,and
a conviction that the law is II stacked up against ll the ord.inary
individual are ~ot likely to disappear by the turn of the
century. Nevertheless, changes are occurring which will tend
to promote a closer approx~mation to the ideal of true equality
before the law. These forces include the rapidly increasing
levels of education in the Australian community, the provision
- 10 -
wi thdra\'!n when the implications of the TY'ade Practices AC.t
were ~ons idered. 4-0
It seems unthinkable to me that lawyers should be
forced ,into partnership. The trend in the United State"s is . .. .. 41
certa~nly towards er~dlng the role of the sole practltloner ..
Indeed .the trend in the. United States is di$tinctly away from . . 4
priva'te ·pra·ctice and to'wards business aRd go,:,"ernment engagement.
Any solu~ion wil;L. have- ,to ac~ommodate .i ts€:t.f. to the
substantive law <a~d co~rt systems which the profession has to
opera te., A~ ~ ~_ "'i-~_-. un~i~e}-y th~ t7:W~:_ w.ill ~ba-ndon entirely the
adversary sys tern., there wiil .be' a. n~_ed f.oJ:''''"'_the" foreseeable.
future fO.r ;traineq advoca:tes~ Already th~ Bar .. is tendin.g to
s~ecialise and, by a proces~ of evolution rather than imposition,
is-"tending_ to mo~e- in the 'dire~tion pr~d.ic,ted by Hr. Justice
Jacobs in 19 .. 68 and .·the You.?g Sol.ici.tors in 1.g7.2. ]'hcl"~. <..II'e,
of course, ancj.llary matte~s' that .. must be clarified. We must
consider, for 'examJ?~e, ~heth~.r .c.e~t.ific:ates of specialisation
are needed, .. .advertising of special ties permitted, the T.wo-counsel
rule abolished and so on. Given the adve!:'sary system, the
talents and inc~inations of a limited n~mber of the profession
towards advocacy, t.he his~tory of the deve~opment of a separate
tsar and the other arguments pro and con, my own feeling is that
a separate Bar will survive curren"t scrutiny. At the same
time there is no doubt that peripheral abuses whiCh mal" the
present system will disappear, to adapt Mr~ Justice Jacobs,
at the end of "a golden autumn ll•
WORK OF THE PROFESSION Use of the Lal.J. We are not likely to live to see
the removal of all of the impediments which stand in the way
of use of the law cjnd lawyers by all citizens. Ignorance,
fear, apathy, indifference, an inability to afford fees ,and
a conviction that the law is II stacked up against ll the ord,inary
individual are ~ot likely to disappear by the turn of the
century. Nevertheless, changes are occurring which will tend
to promote a closer approx~mation to the ideal of true equality
before the law. These forces includ'e the rapidly increasing
levels of education in the Australian community, the provision
- 11 -
of special services for particular disadvantaged groups (as
for example the Aboriginal Legal~Service),the expansion of legal
aid generally and the design of new machinery to resolve disputes
which, though importan~ t'? those ,invo:Lved, do not warrant
in mone.y terms. tJ1e.engagement of.!l laHyer. In this last
cate&ory must be included Ombudsmen, consumer protection
authorities, debt counsell~ng.. services, small claims tribunals43and so on.
. .. ' ,~.; .... 'ill1e "provi~don of s~ch facilities., allied, with the
expansion in ~umQer~, changes pt attitv4es and additions to the
curricula in .l.~gal e.dJlcati.on,. wi).l",.J+Dclqubtedly propel the
1 f · - & -.- 44 -egal pr~ e?s.lon "lnto new ar~as ,0.1.. actlVl.ty.· It J.5 to be
hoped that this occurs be~ause the signs _are definitely.out
that the profession is goin~ to lose at least its monopoly ,in
the volume work .. which has lately provided the great part 01 its. ,income. If oI').~. examin.eE?__ :the aJ::'~_~s ,iI). w1:1ich. until now the
ordinary mem1;>er .at:. th~' cOTIUnj..l.nitY.:nas· used a lawyer, they \o,,'ould
tend to contract to the following; ~ real estate transactions,
especi~lly th~ purqhase of a block of land or horne; matrimoniul
disputes (especially divorce); drawing a .will and administering45 - -
an estate. j
In some parts of Australia only law~ers are permitted
to prepare for reward documents for land conveyancing, probate
administration and the like. Esti~ates vary but it seems a
fair assumption that work of this kind produces about 60% of
the income of lawyers in the Eastern States.46
Neither in
Western Australia nor South Australia do lawyers enjoy a monopoly
of this work. Consequently, in South Australia lawyers share
only 20% of the conveyancing work, the remaio?er being carried
on by registered "landbrokers". Lawyers tend to be utilised
\.-There the transact~on is large, associated with othep dea.lings (-·r
if personal factors are involved. The scale of charges [?~
landbrokers, wi t.h '"",hom lawyers must compete, in South Austra.l iii.
are well below those levied by lawyers in the Eastern States.
On a purchase of a house of $40,00~-the comparative fees are
S .A. $146 V. $485
'I.A. $128 N.S.W. $351
Q. $364
- 11 -
of special services for particular disadvantaged groups (as
for example the Aboriginal Legal~Service),the expansion of legal
aid generally and the design of new machinery to resolve disputes
which, though importan~ tc? those ,invo:Lved, do not warrant
in mone.y terms. tJ:le.engagement of.!1 laHyer. In this last
cate&ljory must be included Ombudsmen, co"nsumer protection
authori ties, debt counsell~ng .. services, small claims tribunals 43 and so on.
. .. ' ,~ .... .. 'lU1e "provi~don of s~ch facilities., allied, with the
expansion in ry.um1;:>er~, changes ,at attitu.4es and additions to the
curricula in .l~gal e.dJlcati.on,.
legal
wi).l.,,_~ciqubtedly
... 44 actJ.vl.ty ..
propel the
It is to be
hoped
pr~fe?s.ion "into new ar~as ,of
that this occurs be~ause the signs _are definitely.out
that the profession is goin~ to lose at least its monopoly ,in
the volume work .. which has lately provided the great part 01 its - , income. If OI').~. examil]eE? __ :the aJ::'-5!_~s .il). wnich. until now the
ordinary meml;>er .at:. th~' conunJlnitY.:nas, used a lawyer, they \o,,'ould
'tend to contract to the ;following;:. real estate transactions,
especi~lly th~ purqhase of a block of land or horne; matrimoniul
disputes (especially divorce).; draw"ing a: .will and administering 45 .
an estate. j
In some parts of Australia only law~ers are permitted
to prepare for reward documents for land conveyancing, probate
administration and the like. Esti~ates vary but it seems a
fair assumption that work of this kind produces about 60% of
the income of lawyers in the Eastern States.46
Neither in
Western Australia nor Soulh Australia do lawyers enjoy a monopoly
of this work. Consequently, in South Australia lawyers shar'e
only 20% of the conveyancing work, the remain?er being carried
on by registered "landbrokers ll• Lawyers tend to be utilised
Hhere the transact~on is large, associated with othep dealings ~-·r
if personal factors are involved. The scale of charges [.0:'
landbrokers, wi t,h '""hom lawyers must compete, in South Austral iii.
are well below those levied by lawyers in the Eastern States.
On a purchase of a house of $40,00~-the comparative fees are
S.A.
'i.A.
$146
$128
v. $485
N.S.W. $351
Q. $364
- 12 -
There may, of course, be other relevant market'factors. fo~ty
thousand dollars purchases a good property in Adelaide but a
very modest one indeed in Sydney. The land market is more
vigorolls in the Eastern States and the communities marginally
more prosperolls. _Th~ difference is still significant. It
cannot be scoffed away. There is no use hiding the fact that
many conveyancing transactions are de facto'performed from
first to last by trained typists. This au~omaticity is
likely to inc~ease rather than diminish with the growing spread
of the TOrrens System, the use of computerisation ahd the
development of ins~rance schemes to pr6te~t against loss. I
think it very likelY'tha't lawyers will'lose their'monopoly on
land conveyancing and t-ha.t this part' 6f th-eir" practice wii]
severely contract to roughly the proportions of-South Australia.
Clearly the loss of such ·volume WOI"k wilT have marked implications
.tor the fu.ture activity and income levels of the pro.tessio-rl.
That is riot" ail. In the Family Law area'significdnt
cl-iangQs have commenced. The "opject- of the Family Law Act j!..j to
['educe to "un ahsolu-te minimum the i~pediments in the WilY oj
(Jjr..solution of marriages. The great ,increase in ,the divorce
rate and in the numbers awaiting divorce, demonSTrate the
effectiveness of the Act in securing this ,object. Simplification, ." , 47
of the law reduces the need for "la"wyering". It makes
yossible .the Il do-i t-yourself l1 kit which has enjoyed some
success in the Family Law area already and is likely to expand
rapidly into other activities including real estate, proba~e,
b f l 'f' 'b' 1 d 48appearances e are pro ~ erat~ng tr~ una s an so on.
If one turns from the work traditionally done by
solicitors, to the work of advocates, it must be admitted that
the Ilevil hour ll was averted when the National Compensation Bill
was forestalled. However, even in recent weeks the Opposition
has reintroduced the National Compen~ation and Rehabilitatio~
Bill 1977.49
The Government has made it plain that the issue
is not dead but that discussions are being had with the States. I" .. II 50with a view to procurlng a nat~onal compensatlon polley .
A Royal Commission is looking into the matter in England, a
Board of Inquiry under Sir John Minogue is examining the no-fault
- 12 -
There may, of course, be other relevant market' factors. fO'IJTY
thousand dollars purchases a good property in Adelaide but a
very modest one indeed in Sydney. The land market is more
vigorous in the Eastern States and the communities marginally
more prosperous. _Th~ difference is still significant. It
cannot be scoffed away. There is no use hiding the fact that
many conveyancing transactions are de facto'performed from
first· to last by trained typists. This au.tomaticity is
likely to inc~ease rather than diminish with the growing spread
of the T~rrens System, the use of computerisation ahd the
development of insl-lrance schemes to protect
think it very likely- that lawyers will " ib~e a-gainst loss. I
their"monopoly on
land conveyancing and t-ha_t this part' 6f th-eir"' practice wii]
severely contract to roughly the proportions of-South Australia.
Clearly the loss of such 'volume WOI"'k wilT have marked implications
ror the fu.ture activity and income levels of the pro1essio-rl.
That is riot, ail. In the Family Law area 'significdnt
cbangC!s have commenced. The 'opject- of the Family Law Act j!.; to
['edUCe! to ,un ahsolu-te minimum the i~pediments in the WilY oj
(lj r.,sol ution of marriages. The great ,increase in. the divorce
rate and in the numbers awaiting divorce, demonSTrate the
effectiveness of the Act in securing this ,object. Simplification , ." , 47
of the law reduces the need for "la·wyering". It makes
yossible .the I!do-i t-yourselfl1 kit which has enjoyed some
success in the Family Law area already and is likely to expand
rapidly int.o other activities including real estate, proba::e,
b f l 'f' 'b' 1 d 48 appearances e ore pro ~ erat~ng tr~ una s an so on.
If one turns from the work traditionally done by
solicitors, to the work of advocates, it must be admitted that
the Ilevil hourI! was averted when the National Componsation Bill
was forestalled. However, even in recent weeks the Opposition
has reintroduced the National Compen~ation and Rehabilitatio~
Bill 1977.49
The Government has made it plain that the issue
is not dead but that discussions are being had with the States
with a view to procuring a I!national compensation policy". 50
A Royal Commission is looking into the matter in England. a
Board of Inquiry under Sir John Minogue is examining the no-fauJt
- 13 -
motor. y..e:hicle accident compensation scheme in Vict0ria~ It
would be a bOfd man. wh~'.:predicted t~at compensation litigation
_would survive in its prescnt..form to the end of the century.
It is a labour-~ntensive, ~os~ly,and unsatisfactory machinery
which impedes reform of the s.ubstantive law. .1 have litt-Ie
doubt, for my own part, that governments of both pOlitical
persuasions will move gradually toward a.sociaL ~ervices-type
solution in which the.role of the advocate. will ~e severely
circumscribed. Similar ..predictio~~ :are made in theUnited. ·51 . -
States al though .there the..~le:a'p to· s.9q~9-1. ?,~curity is likely.
to. pause for a time ~t the stop of- " no ':'-fault .1iability ll.
A ~ terna tive..s. . If these predicd:ions come true, the
legal profession is in the midst of a peri~d of radical change
in its work patterns .. The bulk work ppesen~ly pr.oducing the
·grea~ proportion of~its income will fall ~way.or be~ subs~anti?lly
performed by other interests. Banks·~ insurance compan:i:es~
.Lr~st ·companies, r~al e~"!=ate -brokers:, .debt col;Lect<?rs and-lay
advocates wil~..Fmake marked inroad.~. int6-'~he activities'of the
legal professi~)J"~,.,52,' W,~~~ ~~.~i,.~apP~{l. t~,:,.t!le la~lyers released
by such developm~~!?? Will there be work for them?
I am an optimist. I believe tha~ we can already SEe
the way of the future. Legal aid will redress the bias of
lawyers as ll protectors of the propertied class ll53 and direct
increasing numbers into I'public interest ll areas. 54 The commOn
law has been a poor protector of the environment. Legislation,. 55
particularly armed with changes in the laws governing standlng
(a matter currently before the Law Reform Commission) will
ensure that lawyers of the future become -involved in national
resources litigation. Likewise, I predict, concern with
consumer interests, perhaps armed with a facility of class
actions (also a matter before the Commission) will look increasint;l
to the legal profession to advance their arguments.
Special groups, Aboriginals, ethnic communities and
reform groups will look to lawyers in this country to perform
the reforming work in courtrooms done by·the civil liberties and
coloured people's organisations in th'e United States. We should
- 13 -
motor_ y..e:hicle accident compensation scheme in Vict0ria~ It
would be a bo)..d man. wh~'.:predicted t~at compensation litigation
_would survive in its prescntJorm to the end of the century.
It is a labour -~_ntensive, ~os:t:ly, and un'satisfa-ctory machinery
which impedes reform of the s.ubstantive law. .1 have litt-Ie
doubt, for my own part, that governments of both political
persuasions will move gradually toward a.sociaL ~ervices-type
solution in which the.role of the advocate. will l?e severely
Similar .. predictio~~ :are made in the United circumscribed. . ·51 . -
States although _there
to_ pause for a time ~t the stop of- "no~fault.liabilityll.
A ~ terna tivt3..s. . If these predicd:ions come true) the
legal profession is in the midst of -a per'i,?d of radical change
in it's work patterns .. The bulk wo'rk ppesent-ly pr.oducing the
'great- proportion of~ its income will fall ,..away. Or be~ subs_tanti"dlly
performed by other interests. Banks'~ insurance compan:i:es~
"trust companies, real e~"!=ate -brokers:, .debt col;t.ect<?rs and-lay
advocates will..Fmake marked inroads. into"the activities'of the
legal professi?~,.,52,' W,~~~ ~~,~i,.~a·~p~~. t~,::.t~e lavlyers released
by such developm~~!?? ~-lill there be work for them?
I am an optimist. I believe tha~ we can already see
the way of the future. Legal aid will redress the bias of
lawyers as ll protectors of the propertied class 1l53 and direct
increasing numbers into "public interest ll areas. 54 The common
law has been a poor protector of the environment. Legislation, , 55
particularly armed with changes in the laws governing standlng
(a matter currently before the Law Reform Commission) will
ensure that lawyers of the future become -involved in national
resources litigation. Likewise, I predict, concern with
consumer interests, perhaps armed with a facility of class
actions (also a matter before the Commission) will look increasint;l
to the legal profession to advance their arguments.
Special groups, Aboriginals, ethnic communities and
reform groups will look to lawyers in this country to perform
the reforming work in courtrooms done by·the civil libertieS and
coloured people's organisations in th"e United States. We should
- 14 -
not be afraid of these deve lopments. I tis, pref era ble tha 1:
social disputes and tensions should b! resolve~ in courtroons
rather than elsewhere. Obviously changes of this kind will rais€
for consideration the extent to wh~ch it is right for lawyers
to go beyond mere articulation of their clients' causes, Is
it necessary for the lawyer to advise 'clients about lobbying,
political and media ~ontac~s and so on? How far should the. 56
lawyer have to adopt d' passive "service" role?
I think it is also clear 'that lawyers will play an,"",.
increasi~g role in government service and private business at
the expense of private practice. This is already the trend
in the, United ~tcrtes. I think we wil_l see increasing numbers
work.1.ng in + ~,~e social wel{~r~' ar~~ using sk.iil'~- of negotia t ion,
advice ,·aRd manipulati-on of governme'Ot machinery rather 'than
the adversary skills of conflict.57 If ~he_;'Am":'crican ex;~t'.icn~"c. •. .- ~
is any guide we will probably ~ee an increase in so-calleJ
Ilpre-pa~d" legal_servic~s.58 .Although this has been challenged.
four times bftfore .the .Supreme Court of the United States the,"Bar-has four times been r~buffed. Certainly it is difficult to
see the future of legal aid. However one of the prime problems
which the private' profession will have to grapple with is the
extent to which the middle income earner, unable himself to
afford access to the law and disq~alifxed from ~ssistance by
legal aid schemes, is left in a disadvantageous position short
of true equa1ity before the law. 59
Australian studies plainly show the utility of legal
representation before the courts. Although I predict a growing
number of lay advocates, I have no doubt tha~ legal aid will
ensure that an increasing number of persons are fai!'ly
represented, especially in criminal matters. Given the intensive
training at a high level whis:h the profession requires, th0
re-.alignment of the profession from rout~ne conveyal'lcinr; int.:.l
assisting the resolution of the rcal disputes of our society
is nothing less than a precondition of survival. Retreat
behind monopoly walls to overpriced routine work is the kind
of IIfeather-bedding" which members of the legal profession would
be the first to condemn in other occupations, and rightly so.
- 14 -
not be afraid of these developments. I tis, pref era ble tha 1:
social disputes and tensions should b~~ resolve~ in courtro'or.1s
rather than elsewhere. Obviously changes of this kind will rais€
for consideration the extent to whi.ch it is right for lawyers
to go beyond mere articulation of their client sica uses._ Is
it necessary for the lawye~ to advise 'clients about lobbying,
political and media ~ontacts and s'o on? How far should the
lawyer have to adopt d' passive "service" . 56 role?
I think it is also clear 'that lawyers will play an ,"",.
increasin.g role in governmen't service and private business at
the expense of private practice. This is already the trend
in the, United ~tcites. I think we wi~_l see increasing numbers
work.1.ng in the social wel{~r~' a'r~~ using sk.iil-~- of negotia t ion, • + - , ••
advice ,·aRd manipulat:i-on of governmellt machinery rather 'than
thq asIversary skil.~s o~ conflict.57 If ~he_;'Am":'crican ex;~t'.icn~"c
is any guide ,we will probably !;>ee an increase in so-calleLi
"pre-pa~d"
four times
.. 58 legal. services. .AI though
bftfore _the -Supreme Court of ,-
this has been challenged
the United States the
Bar-has four times been r~buffed. Certainly it is difficult to
see the future of legal aid~ However one of the prime problems
which the private'profession will have to grapple with is the
extent to which the middle income earner, unable himself to
afford access to the law and disqJ.;lalifi'ed from d.ssistance by
legal aid schemes, is left in a disadvantageous position short
of true equa1ity before the law. 59
Australian studies plainly show the utility of legal
representation before the courts. Although I predict a. growing
number of lay advocates, I have no doubt tha't legal aid .... ,ill
ensure that an increasing number of persons are fai!'ly
represented, especially in criminal matters. Given the intensive
training at a high level whis:h the profession requires, tht"
re-.alignment of the profession from rout~nc conveyal'lcinr; int.:.l
assisting the resolution of the real disputes of our society
is nothing less
behind monopoly
than a precondition of survival. Retreat
walls to overpriced routine wcrk is the kind
of IIfeather-beddingl! which members of the legal profession would
be the first to condemn in other occupations, and rightly so.
- 15 -
t1ETHODS
The' use of labour,;...saving equipment has begun in the
legal profession" but in this cou'ntry'as in the United' States,
it'has a long way to go to catch up to business. 60 The use
of computers, particularly for office management and the
retrieval of legal inforrnation6
.1 has only just commenced. There
is' no evidence yet about whether photocopiers and like equipment
have been used to reduce the cost of delivering services to
the comrn~nity, although it seems doubtful to me that it has.
I hope tha t. a fel"J leader's> and the: ·~pro·fe·s sional so..:: ie tie 5
caD take the profes'~ion into' the' c'omput'er ,-age'.' . They must do
battle with the conservatism 'of lawyers", plaTlted by their.
background and fed by the' "v.erY "nature of their ·profession. T1K'1~e
does n~'t yet seem to be abroad 'the' conviction "that the
profession must use ·t~ "the full cos~s-saving devices, nat only
machinel~Y but par.alegal personnel.' lri:·the-" courts structur-e
we see the- beginning O"["·-th.e -rnovemeif't' -1'(( -the" appolntmtW-i-l"t (, f
court administrators and suggestions for a national jUjiciul
ad~inistration.. 62 I hope that aft~r the- present economic trOl":Eh
is passed, ~ufficient ·fund~ ~ill'b"e made" availahle to take
further the- Mullin Committee IS :inqulry- i~tb the computeri sa t ion
of legal data. No syste"m lemd's" its-elf mOFe readily to computer
retrieval than the common law system. In a relatively small
legal community, the provision of computer terminals would
also assist in the movement towards uniformity of laws in
appropriate areas. 63
ETHICS AND DISCIPLINE
Ne~ Ethics. I fully realise that any discussion of
ethical standards in the lat.J distresses many lawyers. Why
should this be so? One recent article in the United Stat";;:s
suggests an answer
1tThey view a cha-llenge to their ethics asequivalent to a challenge to' their honestyand believe that, in the final analysis,ethical jUdgments involve highly personal,even semi-religious" decisions as to whatis right and wrong lf
• 64
- 15 -
t1ETHODS
The' use of labour-saving equipment has begun in the
legal profession" but in this' co-u'ntry 'as in the United" States,
it' has a long way to go to ca'tch up to business. 60 The use
of computers, particularly for office management and the
retrieval of legal information6
.l has only just commenced. There
is- no evidence yet about whether photocopiers and like equipment
have been used to I'educe the cost of delivering services to
the commt.:nitY", although it seems doubtful to me that it has.
I hope tha t. a fel"J leader's· and the -'pro·fe"s 5 ienal so..:: ie tie 5
caD take the profes'~ion into' the" c'omput'er --age'.'· They must do
battle with the conservatism 'of lawyers", planted by their.
background and fed by the' " v.ery "nature of their "prOfession. T1K'l~e
does n~'t yet seem to be abroad "the' conviction "that the
profession must use "t~ "the full cos~s-saving devices, not only
machinel~y but par.alegal personnel.' In:" the"" courts structupe
we see the- beginning O"f "-the" rnoverneif't' -r?(i:he" appolntmtW-i"l"t of court administrators and suggestions for a national jUjicial
ad~inistration .. 62 I hope that aft~r the" present economic troL.:lJll
is passed, ~ufficient "fund~"~ill"b"e made" availahle to take
further the"Mullin Committee' 5 :inqulry" i~tb the computerisatjon
of legal data. No syste"m lemds"" its-elf mope readily to computer
retrieval than the common laH system. In a ~elatively small
legal community, the provision of computer terminals wbule
also assist in the movement towards uniformity of laws in
appropriate areas. 63
ETHICS AND DISCIPLINE
Ne!JJ Ethics. I fully realise that any discussion of
ethical standards in the law distresses many lawyers" Why
should this be so? One recent article in the United Stat";;:s
suggests an answer
1tThey view a eha"11enge to their ethics as equivalent to a challenge to" their honesty and believe that, in the final analysis, ethical judgments involve highly personal, even semi-religious" decisions as to what is right and wrong lf
• 64
- 15 -
Events, however, will force a reconsideration of lawyers'
ethics. In the first place, it ~s hardly likely, in a
community learning to live with the Trade Practices Act and
where there ar'e" stringent limits on monopolisation, prohibitions
on resale price maintenance and ge~eral discouragement of
anti-competitive ·activity," that the lega~ profession will
em~rge unscathed whilst others are submitted to legal discipline.
The debate about the appointment and privileges of Queen's
Counsel is not confined to this country.55 In Canada the
coinag~has been debased in some p~ts, leading to a call for
abolition or the title, ,as JI.lisl.eading. More important, it
seems to me, than matters of title are matters of substance.
The rules that require, as_a matter of ethics, the presence
of':~Junior Counsel and· the so.-called lItwo-thirds" rule- for the
fees or Junior Counsel plainly r,equire revision, if not
abolition. Tpe Mo;qpolies and Merger? Commission in Lngland
has struck down the two-couns~·l rule-. 6~ I, predict a similar
fat-e in this co.untr.y. Even i£ a separate Bar survives, as
seems to me lik~ly, it should survive on the services provided
and not artificiallY fixeq minimum fees.
Allied to ~hi9'is the debate about lawyers' adverLising.
Modesty, gentlemanly conduct and the theory of equal professional
skill proscribe advertising by lawyers.' But should this be
so? Some evidence suggests that when professional people are
permitted to advertise, the cost of services provided falls.
It was so in the case of optometrists in the United States.67
The absolute prohibition on 'professional advertising would appeal~
to be in its last days. This is a universal debate embracing
the English profession~8 the United States profession and the
profession in Australia.
The Law Foundation's survey certainly appears to
indicate that many people believe that lawyers are specla~lsea
but do not know how to go about finding a person with the
appropriate specialty. In England, the Monopolies Commission
recommended, putting it generally, that solicitors should be
free to advertise as they wished, including publicly, concerning
their specialties, fees and speed of service. The only proviso
- 15 -
Events, hOHever, will force a reconsideration of lawyers'
ethics. In the first place) it ~s hardly likely, in a
corrununity learning to live with the Trade Pr>aatices Act and
where there ar'e" stringent limits on monopolisation, prohibitions
on resale price maintenance and ge~eral discouragement of
anti-competitive "activity," tha-t the legal. profession will
em~rge unscathed whilst others are submitted to legal discipline.
The debate about the appointment and privileges of Queen's 55 -Counsel is not confined to this country. In Canada the
coinag~has been debased in some p~ts, leading to a call for
abolition or the title, ·as JI.lisl.eading. More important, it
seems to me, than matters of ti-tle are matters of substance.
The rules that require, as a matter of ethics, the presence
of'.-Junior Counsel and' the so.-called lItwo-thirds" rule- for the
fees 0-£ Junior Counsel plainly r,equire revision, if not
abolition. Tpe Mo;qpolies and Merger? Commission in Lngland - - . 55
has struck down the two-counsel rule.' I, predict a similar
fat-e in this co.untr.Y' Even i£ a separate Bar survives, as
seems to me lik~ly, it should survive on the services provi-ded
and not artificiallY fixeq minimum fees.
Allied to ~hi9·is the debate about lawyers' adverLising.
Modesty, gentlemanly conduc.t and the theory of equal professional
skill proscribe advertising by lawyers.' But should this be
so? Some evidence suggests that when professional people are
permitted to advertise, the cost of services provided falls.
It was so in the case of optometrists in the United States. 67
The absolute prohibition
to be in its last days.
the English profession~8
profession in Australia.
on 'professional advertising would appeal~
This is a universal debate embracing
the United States profession and the
The Law Foundation's survey certainly appears to
indicate that many people believe that lawyers are specia~ised
but do not know how to
appropriate specialty.
recommended, putting it
go about finding a person with the
In England, the Monopolies Commission
generally, that solicitors should be
free to advertise as they wished, including publicly, concerning
their specialties, fees and speed of service. The only prGviso
- 17 -
was that the advertisemf£nts :shoiJ~d' not' "claim superiority in
any respect ll over other 'soli'eitors nor contain "inaccuracies
or misleading"statements" ~9 -The Commission did propose a
power iri the Caw Society to p-rohibi:t. advert~sing Ulikely to
bring the profession into disrepute". Certainly this ruling
heralds a change which I believe we are likely to See in
this c:ountry."-
Associated with adv!=rtising is the questior: of persona.l
publicity. One author at ~east be~i~ves that-the limits on
lawyers I speaking out hav.e tended' tb' 5uppf'ess·~the·role which
they might playas representatives of.rion-propertied.interests. 70
Witho~t'embracing-that view en~irely,;and'without~exaggerating
the limits imposed on lawyers, it must··be acknowledged that
the widespread-advent of· leg:l aid. does raise a c~itical.questio:
about the lawyers I .~Ilvolvement in the affair:;, of hi:.; clielll.
Will it be- enough to··take~a 'passive . role?· To what extent
~hould lawY.ers hel:pi~g thE("poor', ·tlie·"Abori"gi"hals' or other
disadvantag~.d 'groups sti~ck-strictly'to··preparing documents and
arguing cases dispassionately in ·court? ·Se>me authors
sincerely feel that thi.s view of l,egal ethics is one desi[.ned
by proper1:;ieq. interests' to uphold"t:he ·'·s~atus··quo in the
distribution Qf wealth in our community. For good or ill, I
believe that we will see the distant, dispassionate, remote
role of the lawyer give way to a more active involvement in
the client's affairs. It really seems the inevitable
consequence of providing funded legal assistance to di5~dv~ntage::i
groups whose litigation sometimes may transcend the parties
to a particular case. Clearly there are limits. The adversary
system is particularly exposed to the potential for abuse. 71
As more and more non-lawyers gain access as advocates to
tribunals and courts, the issue will be starkly posed. Lawyer~,
who are trained to be conscious 01 their uu ty to Ult~ c~)ur' L
and .to the system of the administration of justice dnd wl}(..
are sUbject to discipline for breach, may feel it unf~ir thut
lay advocates, who do not feel bound by the same rules, are
not subject to the same discipline.
- 17 -
was that the advertisemf£nts :shoiJ~d' not' "claim superiority in
any respect ll over other -soli-eitors nor contain "inaccuracies
or misleading" statements" ~9 -The Commission did propose a
power iri the Caw Society to p-rohibi:t. advert~sing Ulikely to
bring the profession into disrepute". Certainly this ruling
heralds a change which I believe we aI'e likely to See in
this c:oun try.- -
Associated with adv!=rtisirig is the questior: of persona.l
publicity. One author at .least be:l:i.e.ves that -the limi ts on
lawyers I speaking out hav.e tended' tb' suppf'ess·-the· role which
they might-playas representatives of.rion-propertied.interests. 70
~<Ji tho,ut -embracing -that view ent,irely, -'"and, without~ exaggera t ing
the limits imposed on lawyers, it must"be acknowledged that
the widespread. advent of, leg:l aid. does raise a c~itical.questio:
about the lawyers I .~nvolvement in the affair:;, of hi:..; client.
Will it be- enough to .. take~a 'passive ·role?· To what extent
~hould lawY.ers hel·pi~g thE("poor', ·tlie''"Abori"ginals' or other
disadvantag~.d "groups sti~ck' strictly 'to-'preparing documents and
arguing cases dispassionately in 'court? ·Se>me authors
sincerely feel that thi.s view of l.egal ethics is one desi[.ned
by proper1:;ieq. interests' to uphold"·the "'s~atus" quo in the
distribution o.f wealth in our c .. ommunity. For good or ill, I
believe that we will see the distant, dispassionate, remote
role of the laT.vyer give way to a more active involvement in
the client's affairs. It really seems the inevitable
consequence of providing funded legal assistance to di5~dvantage::i
groups whose litigation sometimes may transcend the parties
to a particular case. Clearly there are limits. The adversary
system is particularly exposed to the potential for abuse. 71
As more and more non-lawyers gain access as advocates to
tribunals and courts, the issue will be starkly' posed. Lawyer'::>,
who are trained to be conscious 01 their tlu ty to Ult~ c~)ur' L
and .to the system of the administration of justice dna W!}t..
are subject to discipline for breach, may feel it unf.:lir that
lay advocates., who do not feel bound by the same rules, are
not subject to the same discipline.
- 18 -
Fees and COSt8~ Legal ~id.will not be the ~hole
answer to the problem of bringing law within the reach of
everybody who has ·a serious dispute, susceptible to reasoned
resolution.. One disadvantaged cIa-55 is thE7 middle income earner 1,.
does not qualify for legal aid but could not af'ford to become
embroiled in lengthy litigation. Lord Denning has lately
suggest€d that it is time that we started to think about
contingency fees for lawyer? . He explained the system thus
111£ we -win, I get a .'percentage -of. thedamages. If we, lose, I will charge you
':! nothing". 72 -
Writers are already beginning to' urge consideration of this
method 'of funding li'ti'g.lt'i6n/ ,3."' suggestidn ·-that ~ould haye
been regarded as Iitile short of ~caridafo'us--only a" "few' years
ago. 73 The" referenc·e before the Law Reform Commission r"elating
to standing to sue art~ class actions obviously~raises rorcritical consideration the implications of group act ions fOl l
'our cost rules. One of the 'prl'n·clpal"'objections" "to cost
sharing was associated with the ~i~~ ~oncerning a lawyer's proper
distance fro~ his clie~t ~nd his client's interests. But
as that view itself comes under new scrut{ny, so, I belr~ve,
will Qontingency fees.In practical terms, as we all know,
much litigation is already 'conducted on·a.semi-speculative
basis. The introduction 'of contingency .fees, openly negotiated',
might regularise this conduct and ~t the sam~ time open court
doors tor the resolution of serious disputes.
DiscipZine. In all parts of" the common law world
radical changes are occurring in the machinery for and rules
of discipline of the legal profession. In England a Lay
Observer has been appointed to" represent community interest in
internal disciplinary procedures of the Law Society.74 A
similar provision has now been introduced in Scotland.75
A
Law Reform Committee in New Zealand has proposed a similal~
system there. 76 The matter is now before the New South ~cles
Law Relorm Commission but meanwhile, ·in Victoria, changes ha'.'e
been introduced, in advance of legislation, in controls over
disciplinary procedure. One change is that the hearing of77
charges against lawyers is now conducted in the open.
- 18 -
Fees and Costs .. Legal a,id. will not be the- YJhole
answer to the problem of bringing la'w wi-thin the reach of
everybody who has ·a serious dispute, susceptible to reasoned
resolution .. One disadvantaged cIa-55 is thE7 middle income earner 1,.
does not qualify for legal aid but could not af'ford to become
embroiled in lengthy litigation. Lord Denning has lately
suggest€d that it is time that we started to think about
contingency fees for lawyer? . He explained the system thus
111£ we -win, I get a.-percentage of. the damages. If we, lose, I will charge you nothing". 72
Writers are already beginning 'to' urge consideration of this
method 'of funding li'ti'g.iit6n/ a"' suggestidn "that ~ould haye been regarded as Ii tile short of scandalo'us--only a" "few' years
ago. 73 The- referenc-e before the Law Reform Commission r-elating
to standing to sue an'tl class actions obviollsly ... raises for
cri tical consideration the implications of group act ions fOl'
'our cost rules. One of the 'pri-n'cipal-~objections- -to cost
sharing was associated with the 'vie'~ con"cerni'ng a laHyer I s proper
distance frotK his clie~t a:nd 'his c""iie-rlt" 's interests. But
as that view itself comes under new scrut{ny, so, I bel:L~ve,
will Qontingency fees.In practical terms, as we all know,
much litigation is already "conducted on'a.serni-speculative
basis. The introduction -of contingency .fees, openly negotiated',
might regularise this conduct and ~t the sarn~ time open court
doors tor the resolution of serious disputes.
DiscipZine. In all parts of" the common law world
radical changes are occurring in the machinery for and rules
of discipline of the legal profession. In England a Lay
Observer has been appointed to" represent community interest in
internal disciplinary procedures of the Law Society.74 A
similar provision has now been introduced in Scotland.75
A
Law Reform Committee in New Zealand has proposed a similal~
76 system there. The matter is now before the New South \r,'-ales
Law Relorm Commission but meanwhile, 'in Victoria,changes ha'.'e
been introduced, in advance of legislation, in controls over
disciplinary procedur"e. One change is that the
charges against lawyers is now conducted in the
hearing 77
open.
of
- 19 -
Perhaps the most important developments are occurring
in Canada. In British Columbia a Competency BiLL -has be~n
introduced to allow di scipline .0£ lawyers -who "are., found.... .. 78 .
incompetent.. In my view' the moves. to open 'up disciplinary
proceedings ;,. to infuse. arl'.·,{n"dependent· element in them and to
expand the concept-of profes5ional misconduct to include
incompetency and neglect, would go a long way towards meeting
the numerous complaints voiced about the legal profession in
the Law Founctation's·survey. Delay, ".indifference to the client,
lack of sensitivity to his prob1em and ordea1 79 and incompetence
represent the major proble~s for ethics and ~iscipline.
Although, unhappilY, f,raud and· default 'hit the,.he~dlines, it
is the less publi~ised hum~n. failings. tha,t ~_ have mentioned
that poison the relatjonships between the legal pr~fession and
the community. ~RetrainiDg, inclUding compulsory retraininc of. -.. '" .. " .
judges, seem~ scapcely avoidable at a time when the 'law and
legalmach~nery are changing S0, rapid~y. I realise that this
proposal, rece~~ly made in the united~Kingd?m) attracted almost
unanimous opposition from the judiciary. I expect there would
be similar .opposLtion from the profession .. But" the days are-'.. ,'. ..' . - .'.' .
gone when we can rely upon a certificate of competency in the
law to endure a li"fetime. Nor can we be ·sure that the holder
of that certificate will assiduously read, legal material so
that he can adequately serve the community. I entertain little
doubt that in the 21st century those entitled to call themselves
lawyers will be required constantly to renew their skills and
not merely their practising certificates.
CONCLUS IONS
If this sounds like a prescription for radical change,
it is not. The adversary system will survive. Come 10 o'clock,
somebody will have to rise to speak for the client. Government
service and legal aid will surely expand. But with reasondble
prospects of continuing general prosperity, I predict that
the legal profession will continue to enjoy a significantly
affluent future. Its tasks will change. The present bulk
business will be replaced by new work that is more relevant to
modern times. Legal education will become more diverse. The
profession will openly embrace specialisation as its mode of
- 19 -
Perhaps the most important developments are occurring
in Canada. In British Columbia a Competency BiLL -has be.en
introduced to allow discipline .0£ lawyers 'who "are., found .... .. 78 .
incompetent.. In my view' the moves. to open 'up disciplinary
proceedings ;'. to infuse- arf.·,i'n-dependent· element in them and to
expand the concept 'of prafes'sional misconduct -to include
incompetency and neglect, would go a long way towards meeting
the numerous complaints voiced about the legal profession in
the Law Foundation's' survey. Delay, ".indifference to the client, . .'. 79"
lack of sensitivity to his problem and ordeal and incompetence
represent the major problems for ethics and .:discipline.
Although, unhappilY, fraud and· default 'hit the,.he~dlines, it
is the less publi~ised hum~n. failings. tha·t I have mentioned
that poison the relationships between the legal pr.ofession and
the community. ~RetrainiDg, including compulsory retrain~nc of . - ~
judges, seems: sca.~cely avoidable at a time when the 'law and
legal mach·~tiery are changing so, rapid.ly. I realise that this
proposal, recen~t.ly made in the Uni teeL Kingd?m, attracted almost
unanimous opposition from the judiciary. I expect there would
be similar .:..C?P'?osLt .. iop from the_ pr.~.~.ession .. But" the days are
gone when we can rely upon a certificate of competency in the
law to endure a li'fetime. Nor can we be ·sure that the holder
of that certificate will assiduously read, legal material so
that he can adequately serve the community. I entertain little
doubt that in the 21st century those entitled to call themselves
lawyers will be required constantly to renew their skills and
not merely their practising certificates.
CONCLUS IONS
If this sounds like a prescription for radical change,
it is not. The adversary system will survive. Come 10 o'clock,
somebody will have to rise to speak for the client. Government
service and legal aid will surely expand. But with reasondble
prospects of continuing general prosperity, I predict that
the legal profession will continue to enjoy a significantly
affluent future. Its tasks will change. The present bulk
business will be replaced by new work that is more relevant to
modern times. Legal education will become more diverse. The
profession will openly embrace specialisation as its mode of
-·20 -
organisation'"; 'Ph~·. antA-competitive rules -will wi:ther,. There
will be g~eater openness _and,a~cou~tability,tqthe community.
The challenge before-us ~~s,one.~! re~eva~cy. Those who· know
tl;Le his"tory:. at.' the p,rq.f-~l?~~9fl' s.tr:etpI:-?-pg ,as _.i:t: does., in our
civili_sat.ion..,~over :r:ear':+'Y- ei:ght c:en-t;,ur~es, will have no doubt
that it wil-l answer .. the challenge .
.•.. ' ..,. •..
-·20 -
organisation,"; 'Ph~·. ant.~-competi tive rules -will wither,. There
will be g:rea"ter openness _and, ac:::coun.'tability ,tq the communi"ty.
The challenge before-us ,;~s one .C?f. re~eva~cy'. Those who· know
tl;Le hi-story:.o{ the p.rq-f-~!?~~9.~, s.tr:et~l:t?-~g ,as .. i:t: does., in our
civili_sat.ion..,- over :r:ea;r>Jy- ei:ght c:en-t;.ur~es, will have no doubt
that it wil-l answer,the challenge .
.•.. '.,. •.. -
- 21 -
FOOTNOTES
LT.D. Morgan, "The Evolving" Concept of ProfessionalResponsibi-lity", 90 Harvard L.Rev. 702 at p.703 (1977).
2. Q. Johnstone, liThe Private Practitioner", 25 Alabama L.Reo.13 at p,18 (1972).
3. Sir Leslie Scarman, liThe Age of Reform ll, London Times~
5 January 1977, Suppl., p.II.
4-. Aeschylus,. Agamemnon. (tr)., R. Lattimore.
5. (1976) 126 New L.J. 678; 50 A.L.J. 267; 73 Law Soc. Gazette,59).
5. (1975) 2 L.S.B. ~5, 63.
P. New ·Zealand Public and Administrative Law "Reform Committee,Discipline andCompZaints Procedure of the Legal ?rof~ssion,Working Paper, 1976; In.respect of South Africa, see SirHugh Beadle, "Whither. the Legal Profession in South l\frica?"f1975] Rhodesia L.J. 21.
8. (19761 50 A.L.J..383.
9. (l976) 50 Law Inst.Jo. (Vic) 3. C!.. Aust. Fin.Rev., 12 May1977, p.5
10. R. Tomasic, "Law~ Lawyers and the Community", August 1976.
11. Ibid, p.ii.
12. Johnstone, p.17
13. J. Disney, J. Basten, P. Redmond and S. Ross; Lawyers, tobe pUblished mid 1977, p.140. For brevity of reference,this book will be hereafter.ci!=ed as "Disney".
14. S.D. Ross, "The Role of Lawyers in Society", The AustralianQua~terly, March 1966, p.6l at p.62.
15. K.A. Jacobs, liThe Future of the Lega'l· Profession inAustralia ll
, an address delivered to the A.N.V. Law Societ'/Annual Dinner, Canberra, 2 Hay 1968, mimeo, p. 2.
16. Disney, pp.188-9.
17. Disney, p.SO.
18. Disney, p.82.
19. J. Basten and J. -Disney, "Aspects of the Australian LegalProfession", Discussion Paper for the Seminar on Professionsorganised by the Australian Academy of .Social Sciences,Canberra, October 1976, mimeo, pp.7-8.
- 21 -
FOOTNOTES
LT. D. Morgan, "The Evolving" Concept of Professional Responsibi-lit y ll, 90 Harvard L.Ret). 702 at p.703 (1977),
2. Q. Johnstone, liThe Private Practitioner", 25 AZabama L.Reo. 13 at p,18 (1972).
3. Sir Leslie Scarman, liThe Age of Reform ll, London Times~
5 January 1977, Su·ppl., p.II.
4-. Aeschylus,. Agamemnon. (tr)., R. Lattimore.
5. (1976) 126 New L.J. 678; 50 A.L.J. 267; 73 Law Soc. Gazette, 591-
5. (1975) 2 L.S.8. ~5, 63.
7·', New 'Zealand Public and Administrative Law -Reform Committee, Disc:ipline and Comp"La1:nts Procedure of the Legal ?l'oj'tJssion., Working Paper, 1976; In.respect of South Africa, see Sir Hugh Beadle, "Whither. the Legal Profession in South l\frica?" r1975) Rhodesia L.J. 21.
8. (1976) 50 A.L.J .. 383.
9. (l976) 50 Law Inst.Jo. (Vic) 3. Cf .. Aust. Fin.Rev., 12 May 1977, p.5
10. R. Tomasic, "Law'! Lawyers and the Community", August 1976.
11. Ibid, p.ii.
12. Johnstone, p.17
13. J. Disney, J. Basten, P. Redmond and S. Ross, Lawyers, to be published mid 1977, p.140. For brevity of reference, this book will be hereafter.ci!=ed as "Disney".
14. S.D. Ross, "The Role of Lawyers in Societyll, The Australian Qua~terlYJ March 1966, p.6l at p.62.
15. K.A. Jacobs, "The Future of the Lega·l· Profession in Australia", an address delivered to the A.N.U. Law Societ'/ Annual Dinner, Canberra, 2 Hay 1968, mimeo, p.2.
16. Disney, pp.188-9.
17. Disney, p.SO.
18. Disney, p.82.
19. J. Basten and J. ·Disney, "Aspects of the Australian Legal Profession", Discussion Paper for the Seminar on Professions organised by the Australian Academy of .Social Sciences, Canberra, October 1976, mimeo, pp.7-8.
27. Ross, p.65.
- 22 -
.•
•See (1976) 6 EUl'opearz. Commission Bul2etin 13; (1976) 73Law Soc. Gazette~ 365.,
Clause 12
T. Ehrlich and M. Schwartz, lIR"educing the Costs of LegalServices : Possible Approaches by the Federal Government ll
,
a .report 'to the Subcommittee on Representation ofCitizens' interests, U. S. Senate Committe'e on the Judiciary,93d' Congo 2d Sess._ (1974), p.584; Basten and Disney, p.lO.
Disney, p.34.
29.
30.
31.
32.
He Howard (1976-), .unreported., Court o.f App~eal, 59/76(Judgment, 6 July 1976).
34. (1976) 50 A.L.J.R. 501. Contra Murphy J.
20. N.K. Wran, IlLaHyers in a Time of Change", address atSydney University, 26 March 1977, mimeo~ p.4
21. Johnstone, p .13.
22. Disney, pp.94·-5'.
23 ',~_ Basten and ,Disney, p. IL
24. (1976) 50 A.L.J. 577.
33.
28. (1976) 50 La", Inst.Jo. (Via) 105.
25. D. R. Riesman, cited Ross, p.64.
26. Johnstone, p.lS .
35. Judges' Memorandum upon the Administration of Justice Bill1931 (N.S.W.) quoted in (1951) 25 A.L.J. 298 at p.306 andin Disney, p.66f.
37. Jacobs, p.ll.
36. Basten anq Disney, p.3.
44. Ross, p.68.
43. R. Nader, liThe Role of the Lawyer Todayrl, 49 Michigan Sta teB.J. 17 at pp.21, 23 (1970).
42. Johnstone, pp.13, 15.
38. Hangar C.J. cit~d in Disney, pp.67-8; Johnstone, p.14.
39. Disney, p.75.
40. Aust. Fin. Rev., 8 December 1976, p.l.
41. Johnstone, p.1S.
- 22 -
20. N.K. Wran, IILaHyers in a Time of Change", address at Sydney University, 26 March 1977, mimeo~ p.4
21. Johnstone, p.13.
22. Disney, pp.94·-5',
23.,~_ Basten and ,Disney, p.!L
24. (1976) 50 A.L.J. 577.
25. D. R. Riesman, cited Ross, p.64.
26. Johnstone, p.lS . .•
27. Ross, p.65.
28. (1976) 50 La", Inst.Jo. (Vic) 105.
29. Clause 12
30. See (1976) 6 EUl'opearz. Commission Bul2etin 13; (1976) 73 Law Soc. Gazette~ 365., •
31. T. Ehrlich and M. Schwartz, lIR"educing the Costs of Legal Services: Possible Approaches by the Federal Government ll
,
a .report ,to the Subcommittee on Representation of
32.
33.
Citizens' interests, U. S. Senate Committe'e on the Judiciary, 93& Congo 2d Sess._ (1974), p.584; Basten arid Disney, p.lO.
Disney, p.34.
Re Howard (1976-») .unreported., Court o.f ApPieal, 59/76 (Judgment, 6 July 1976).
34. (1976) 50 A.L.J.R. 501. Contra Murphy J.
35. Judges' Memorandum upon the Administration of Justice Bill 1931 (N.S.W.) quoted in (1951) 25 A.L.J. 298 at p.306 and in Disney, p.66f.
36. Basten anq Disney, p.3.
37. Jacobs, p.ll.
38. Hangar C.J. cit~d in Disney, pp.67-8; Johnstone, p.14.
39. Disney, p.75.
40. Aust. Fin. Rev., 8 December 1976, p.l.
41. Johnstone, p.1S.
42. Johnstone, pp.13, 15.
43. R. Nader, liThe Role of the Lawyer Today!!, 49 Michigan Sta te B.J. 17 at pp.21, 23 (1970).
44. Ross, p.68.
54. -Nader, p.23.
48. Morgan, p.707.
- 23 -
Ross, p.61.
Johnstone",' p .13.
Ross, p.75-.-
The ref€rence on" standing "to s&e and ciass actiops WuSgiven to the ~ustralian Law Reform Commission on 1 Fcbr~ary
1977.
Johnst9ne, p.l?
52.
53.
56.·
57.
62. R. B. McKay, liThe Lawyer in the Year 2000 : Three Views j
a New Species rt, 25 Alabama L.Rev. 1 at p.9 CI972).
49. Commonwealth Parliamentary Debates (H of RJ, 24 Feb. 1977,p.425.
45. See Table 4A, Tomasic, p.79--,"
46. Basten and Disney, p.12.
47~ Ehrlich and Schwartz, p.589.
50. Ibid, (Senate), 9 Nov. 1976,!p.1708.
51; EhrlIch' and -Schwartz,· p~5B9.
63. The Law Reform Commission CAust.) AnnuaZ Rep·opt 1975(A.L.R.C.3), p.47.
58. t1org~n, p. 7~2.
59. Ehrlich and Schwartz, p.sa~.
60. Johnstone, p.14.
61. Ehr'lich and Schwartz, p.592.·'
64. Morgan, p.704.
71. M.H. Freedman, lILawyers I Ethics in an Adversar!J Sysi.cm".See review 51 N.Y.V.L.Rev. 348 (1976).
68.. (1976) 126 New L.J. 801; Basten and Disney, p.lS.
65. Disney, pp.44-45.
66. Disney, p.~4.
67. Lhrlich and Schwartz, pp.585-7; 45 V.S. Law Week 2116 (197G:
69. Morggn, p.713.
70. Ross, p.67, 73.
·55.
- 23 -
45. See Table 4A, Tomasic, p.79--,"
46. Basten and Disney, p.12.
47~. Ehrlich and Schwartz, p. 589.
48. Morgan, p.707.
49. Commonwealth Parliamentary Debates (H of RJ, 24 Feb. 1977, p.425.
50. Ibid, (Senate), 9 Nov. 1976,!p.1708.
51; Ehr-l:h:h' and -SchWartz,- p~ 589.
52. Johnstone",' p .13.
53. Ross, p.61.
54. -Nader, p.23.
·55.
56.·
57.
The ref-erence on" stahding" "to su.e and ciass actioflS was given to the 'Australian Law Reform Commission on 1 Fcbrl!.ary 1977.
Ross, p.75-.·
Johnst9ne, p.l?
58. t1org~n, p. 7~2.
59. Ehrlich and Schwartz, p.5.8.~.
60. Johnstone, p.14.
61. Ehr'lich and Schwartz, p.592.·'
62. R. 8. McKay, liThe Lawyer in the Year 2000 : Three Views; a New Species rt
, 25 Alabama L.Rev. 1 at p.9 (1972).
63. The Law Reform Commission CAust.) AnnuaZ Rep·opt 1975 (A.L.R.C.3), p.47.
64. Morgan, p.704.
65. Disney, pp.44-45.
66. Disney, p.~4.
67. Lhrlich and Schwartz, pp.585-7; 45 U.S. LalJ ~/eek 2116 (197(,:
68.. (1976) 126 New L.J. 801; Basten and Disney, p.lS.
69. Morggn, p.713.
70. Ross, p.67, 73.
71. M.H. Freedman, IILawyers I Ethics in an Adversary Sysi.cm". See review 51 N.Y.V.L.Rev. 348 (1976).
- 24 -
79. Ross, p.73.
76. AbOVE, n.7.
Cl976) 1.26 lie" L.J. 976.
74. For comment, see (19'76) 126 _New L.J. 507; (1976) 73 LauSoc. Ga-zette· 6lL
· ~ ....'. i' '
73. H.B. ,Mason, "Possible Alternatives to an AustralianSecurities and Exchange Commission"(~976) 50 A..L.J. 26.
77. (19~76) 50 Law I-nst.-Jo. (Vic)49,9; The Age;, 2 December 1976,
78. Canadian Bar _Association, Nationa-l;, vB-I. 3 (July 1976)) p.'e'~ Ehrlich and Schwartz, p. 597.
72.WaZZe'l'steiner 1i. Mair (No.2) [1_975] 2 W.L.R. 389 at p.39S
75.
· ), , .. '. it '
- 24 -
72. WaZZersteiner 1i. Moir (No.2) [1.975] 2 W.L.R. 389 at p.39S
73. H.B .. Mason, "Possible Alternatives to an Australian Securities and Exchange Commission" (~976) 50 A .• L.J. 26.
74. For comment, see (19·76) 126 .New L.J. 507; (1976) 73 Lau Soc. Ga·2ette· 6lL
75. (1976) 1.26 lie" L.J. 976.
76. Abov.e, n.7.
77. (19~76) 50 Law Tnst.·Jo. (Vic)49,9; The Age;, 2 December 1976,
78. Canadian Bar .Association, Nation-a."!;, v8""1. 3 (July 1976), p. 'e'~ Ehrlich and Schwartz, p. 597.
79. Ross, p.73.