05 May 2012

All ok, says President Pangloss?

From a 'provocation' in the latest issue of The Summons, the UC Students Law Society journal -
UC Law students are trained to question rhetoric, puncture pomposity, look beneath the glittering fa├žade that cloaks self-interest and even cruelty.

The search for what one legal realist characterised as the ‘skull beneath the skin’ may be invigorating rather than enervating, inspiring rather than productive of the depression and disengagement that’s of increasing concern to law academics and bodies such as the Tristan Jepson Memorial Foundation. If you want to change the world you need to know what the world is like, rather than being soothed by lullabies from Collins Street or promises from the big white building with the flagpole on the other side of the lake.

What do those students think of the latest speech by Bathurst CJ of the NSW Supreme Court and the indignant response by Law Council of Australia president Catherine Gale, the apologist for Law Inc and provider of reassurance that we don’t really need to worry about law as an industry or a profession?
Are law students indeed aware of that exchange and of underlying issues in the shape of legal practice or education, issues that are reflected in developments such as offshoring to law factories in India and a relentless ‘partnering’ of major law groups with overseas competitors?

Gale is reported as fearing that Bathurst CJ has left the public with a distorted perception of the major firms' work practices and culture: he is apparently wrong to suggest young lawyers are being exploited and indoctrinated into cultures in which professional duties could be "superseded for personal gain". Moreover, “to suggest that … our young lawyers are exposed to exploitation in the pursuit of profit, thereby directly conflicting with their professional duties, is simply incorrect".

Ms Gale reportedly does not believe that large law firms value their lawyers according to billable hours, although conceding that "a large law firm is no different in many respects from any other large business that employs a large number of people”. I, on the other hand, do not believe in the tooth fairy, santa claus or the omniscience of the MBAs who gave us the Global Financial Crisis.

Gale was responding to ‘Commercialisation Of Legal Practice: Conflict Ab Initio, Conflict De Futuro’ [PDF], a speech by the Chief Justice to the Commonwealth Law Association Regional Conference on 21 April.

Bathurst CJ noted that
conflicts between mercantilism and professional obligations have been present since the time of the first legal practitioners and will continue to be grappled with in the future. Second, this conflict between profit and professional ethics is at the core of concerns over the commercialisation of legal practice. Third, commercialisation is not inherently bad or evil; it is a different set of means and ends, which both complement and conflict with the means and ends of professional legal practice.
 Commercialisation – in particular the growth of mega-practices - is “not some inherent evil, whittling away at the noble heart of legal practice”. However, at the heart of concerns about commercialisation is 
the question of whether profit motivations compromise the core values and obligations of professional conduct. For example, the rise of litigation funders and mega-firms, the public listing of incorporated legal practices, the increased prevalence of private arbitration, international outsourcing, and the growing role of in-house counsel, all raise questions about how duties to clients and the courts may conflict with business practice, profit incentives and corporate expectations. In a phrase: Profit versus professional ethics. 
In his cogent speech the Chief Justice comments that there is an ongoing need to “engage in fearless, open discussion about how age-old professional ethics should be upheld and reinforced in the modern world”. Open discussion and debate “is, in itself, an expression of ethical practice”.

A more positive contribution by the Law Council, and by parts of legal academia that equate professionalism with silence, would seem to be a useful part of that debate.