Before we can ask whether there are too many lawyers we must answer several preliminary questions: whom do we consider lawyers, and what does and should influence their number? The term ‘lawyer’, which English-speakers take for granted, has no obvious equivalent in many other languages. Civil law countries have the category of ‘jurist’, including everyone with a law degree; but a very large proportion of law graduates would not be recognized as lawyers in common law countries. Terms like ‘avocet’, ‘avvocato’, ‘abogado’ or ‘anwalt’ refer to lawyers with rights of audience in court – but this criterion would exclude jurists employed by corporations and civil servants, who are considered lawyers in common law countries. Notaries in civil law countries perform many of the functions of common law lawyers. Japan is famous for having few bengoshi compared with its population; but many of the functions of lawyers in other countries are performed by tax accountants, patent attorneys, and judicial and administrative scriveners in Japan.Abel notes that "At a moment like the present, when legal professions in many countries worry that their numbers are increasing in the face of great uncertainty about the future of the global economy, it is essential to review the ways in which lawyers have regulated their numbers in the past". He goes on to critique mechanisms such as -
- Numerus clausus
- State monopolies
- Ascribed characteristics
- Formal education
- Examinations
- Apprenticeship
- Employment
- Market Influences
Social constructivist theory urges us to ask who is defining the social problem and why they are doing so. Temporary imbalances between supply and demand are a cost of every profession. Legal professions emerged and matured by aggressively restricting supply, thereby increasing the monopoly rents they were able to extract and produce rising – some would say excessive – lawyer incomes. Recent increases in the production of lawyers were the response. They may have overshot the mark. Certainly law school enrolments failed to respond quickly to the global recession. But rather than rush to impose ‘solutions’ that once again restrict the production of lawyers, we should reflect on the historical and comparative experience of supply control by lawyers. The legal profession exists to serve the public, not its own members. Entry barriers can be justified only if they are demonstrably necessary to ensure a minimum level of competence. Advocates of restrictive practices must show they are essential to protect clients against lawyer overreaching or misconduct. Efforts to expand access to justice should be applauded, not stigmatized.In R v Stoneman [2013] QCA 209 - one of those puzzling 'sovereign citizen' or 'freemen' cases - the self-represented applicant was convicted in March 2012 after a summary trial in the Kingaroy Magistrates Court of two offences of driving without a licence under Transport Operations (Road Use Management) Act 1995 (Qld) s 78 and for an offence of breaching his bail undertaking. He appealed against each of those convictions and the sentence imposed in relation to the second driving offence under Justices Act 1886 (Qld) s 222 to the District Court. In November of that year the primary judge dismissed the applicant's appeals. The applicant filed an extension of time to apply for leave to appeal from those orders under District Court of Queensland Act 1967 (Qld) s 118(3). His application was almost four months out of time.
In this instance the Court states
The applicant has not filed a proposed notice of appeal but in his outline of argument he raised many issues. His primary contention was that the District Court judge demonstrated bias by failing to address his arguments and by ignoring crucial facts. He asserted that the judge erred in not accepting his claim that he had "an unalienable right (no licence required) of the private individual to use the common ways to travel as per the right to life, liberty and the pursuit of happiness". He also emphasised his contention that s 78 of the Act prohibited only the use of a motor vehicle for commercial purposes. In light of his allegations of bias, his rehearsal in this application of many of the arguments raised before the District Court judge, I will briefly discuss the District Court judge's reasons for refusing his appeal.
Her Honour rejected the applicant's argument that the Act did not apply to him because he was a freeman on the land and had not consented to membership of the legal fiction known as the State of Queensland, which enacted s 78. Her Honour also dismissed as senseless and unmeritorious his distinction between travelling on the public road in the exercise of a common law right and driving on a public road. Her Honour rightly identified that any common law right of freedom of movement on public roads would not be offended by a requirement for a driver to be licensed when operating a motor vehicle on a public road.
Her Honour found the applicant's claim that there was a permanent and irrevocable estoppel against the Queensland Crown to be without foundation. As the relevant facts placed before the acting magistrate were not disputed and the applicant raised no lawful defence, her Honour rightly found that the charges under s 78 of the Act were proved and that his appeal against conviction in relation to them must fail.
Her Honour also determined that the Magistrates Court registrar, in refusing to issue a subpoena to the former local State Member of Parliament to attend the hearing so that the applicant could question her about whether he had given his consent to her representing or governing him, was of no assistance in his appeal.Further
I turn now to his allegation in his written material that the District Court judge was biased in ignoring crucial facts and failing to address his arguments. The applicant's outline of argument in this respect was not easy to comprehend. Her Honour was certainly not bound to answer every incomprehensible contention raised by him when the unremarkable proposition that he was bound by the statutory law of Queensland was a complete answer to all his claims. Her Honour, however, made a commendable effort to answer all his remarkable contentions. No fair-minded lay observer could reasonably apprehend that her Honour did not bring an impartial and unprejudiced mind to the resolution of the matters before her. The fact that her Honour received some support in her conclusions from decisions in other cases and jurisdictions is the application of the doctrine of precedent and not an indication of bias. This ground of appeal is not made out.
He claimed that the District Court judge did not deal with his assertion that he was acting under a mistake of fact. He had, he stated, an honest and reasonable belief that he did not need to ask for permission to drive his vehicle and did not knowingly and intentionally contravene any law. This belief provides no defence. Any such mistake was a mistake of law and not a mistake of fact, and does not undermine the correctness of any of his these convictions.
The applicant next contends that the District Court judge did not deal with his submission that the acting magistrate did not read his submissions. This probably refers to the acting magistrate's statement in his reasons that the applicant had raised issues that he did not propose to address as they were irrelevant to the charges, and that he raised many matters but not in a way that one could attempt to address them all and comments of that ilk. The applicant has not demonstrated that the magistrate was wrong in that assessment or that any of the applicant's incomprehensible submissions before the magistrate could have resulted in different orders. The evidence against him in respect of all three convictions was overwhelming.
