WOMEN LAWYERS' ASSOCIATION OF NEW SOUTH WALES
26 OCTOBER 1999
THE CHANGING PARADIGM
Murray Gleeson 1
In speaking to a group of women lawyers
about the changing paradigm of a lawyer, I mean to be
strictly gender-neutral. There is, however, a reason why
the subject ought to be of special interest to women.
One concern of your Association is access
of women to the legal profession. There are many women
who now play an active role in the affairs of the two
major professional associations in this State. The current
President of the Law Society is a woman. Of the 21 members
of the Council of the Law Society, 9 are women. It is
likely that the next President of the New South Wales
Bar Association will be a woman. Six members of the Bar
Council are women. One of them is my daughter. I assume
that they, and many other women lawyers, wish to understand,
and influence, changes that are taking place in the nature
of the profession to which they are seeking greater access.
The group in which you seek equitable participation is
changing, and women should seek to be part of that process
of change. It would be an injustice if, by the time women
attain a fully equal opportunity to engage in the work
and life of the legal profession, they find that all they
have achieved is the right of any citizen to carry on
a business.
What will it mean to be a lawyer twenty
years from now? What will be the nature, and structure,
of the profession?
The model of the lawyer as a legal practitioner,
barrister or solicitor, in private practice, has never
been completely representative, and is becoming less representative.
Law teachers, for example, have greatly increased in number
and professional importance in recent years. When I attended
Sydney University Law School in the late 50's and early
60's, it was the only law school in New South Wales, and
most of the teaching was done by part-time lecturers,
who were either judges or practitioners. I doubt that
there would have been a dozen law teachers in New South
Wales. Consider, now, the number of universities and other
institutions throughout Australia which teach law or legal
subjects, and the number of teachers involved in that
form of professional activity. Again, it has always been
the case that lawyers have worked in government departments,
or as employees of corporations, including banks, insurance
companies and many other forms of enterprise. Their numbers
have increased greatly.
There are many people, including some highly
qualified and skilled in the law, who, although they have
law degrees, would describe themselves primarily as members
of other vocational groups: such as accountants, merchant
bankers, financial advisers, tax consultants, parliamentarians,
or trade union officials.
Even so, when most people think of the legal
profession, they think of the lawyer in private practice
as a barrister or solicitor. For reasons I am about to
examine, that image may come to require adjustment.
What is it that distinguishes lawyers from
other occupational groups, and justifies public perception
of them, and their perception of themselves, as members
of a profession, in the narrower sense of that term? Their
qualifications show that they have undergone a course
of study in an organised body of specialist knowledge,
but in that respect they are no different from many other
groups in the community. They are required to observe
certain standards of behaviour, and are subject to systematic
discipline, but so are stockbrokers and racehorse trainers.
Lawyers are given, by statute, a monopoly
upon the right to provide, for reward, certain kinds of
service to the public, but there is a question as to what
should be scope of that monopoly. Many of the services
provided by legal practitioners are also provided by the
members of other occupational groups, such as accountants,
tax agents, conveyancers, real estate agents, and consultants
of various kinds. In many rural areas, it is not uncommon
for a local solicitor to prepare income tax returns for
clients; a task which might be, and often is, performed
with equal facility by an accountant. In some parts of
Australia it is at least as common for conveyancers as
for lawyers to attend to what is involved in passing or
taking title upon the sale of real estate. Drafting a
commercial contract, or organising a business structure,
or planning and executing a corporate takeover, might
involve the combined skills of a number of people, including
a lawyer. In truth, it is not easy to identify any form
of service provided by lawyers that cannot be, and is
not, provided by non-lawyers, with one important exception.
The exception is the provision of services related to
the administration of justice and, in particular, legal
representation in civil and criminal court proceedings.
That has always been the core activity of the legal profession.
The profession needs to be reminded of that, from time
to time. It is only as agents in the administration of
justice that lawyers can claim to be different from the
other groups I had mentioned. That is the distinctive,
and definitive, feature of their calling.
This should not come as a surprise to anyone
who is familiar with a history of the legal profession.
Originally, barristers were those advocates to whom the
courts in England were willing to give audience. In exchange
for this privilege, the courts controlled their education
and their discipline. To this day, barristers in London
are organized in Inns of Court. Attorneys and solicitors
were the people who were licensed by the Courts of Kings
Bench and Chancery to attend to the written work necessarily
associated with the presentation of cases in those courts.
This division of function is not peculiar to the common
law system. It is reflected to this day in France in the
distinction between the avocat and the avoué.
Some people are surprised to learn that
lawyers originally saw it as beneath their dignity to
charge for their services. It is only in recent years,
indeed, since I ceased to practise at the New South Wales
Bar, that barristers in this State have had the legal
capacity to enter into binding contractual arrangements
in relation to their fees. Until then, barristers could
not sue for their fees. This was an anachronism, but the
underlying idea was of more than merely historical interest.
The defining characteristic of a barrister or a solicitor
was that he or she was an officer of the court, admitted
by the court to participate in the administration of justice,
and owing obligations to the court which overrode the
obligations to a particular client, or considerations
of self interest. In each Australian State, the Supreme
Court of the State exercised formal, and ultimate, control
over the education and discipline of legal practitioners,
and their right to appear in other courts, and in other
jurisdictions, existed by virtue of their admission as
barristers or solicitors of the Supreme Court of their
home state. This consideration is still reflected in the
practice of the High Court of Australia in relation to
the formal dress worn by advocates in that court. There
is now some variety in relation to court dress in the
various jurisdictions. We require advocates who appear
in the High Court to follow the dress requirements of
the Supreme Court of the State or Territory in which they
were primarily admitted to practise, regardless of the
jurisdiction from which an appeal comes to us. This results
in a superficial lack of uniformity, but it is based upon
an underlying consistency of principle. We regard that
principle as important. It defines the relationship between
members of the Australian legal profession and the courts
of this nation. They are officers of the courts which
admitted them to practice.
The point may be emphasised by considering
a principle of law which treats confidential communications
between lawyers and their clients differently from communications
between other professional or business people and their
clients or customers. The principle is known to the common
law as legal professional privilege: a somewhat misleading
description, as it suggests, erroneously, that the privilege
is that of the lawyer. The 1995 Evidence Act describes
it more accurately as client legal privilege. It marks
out a very significant distinction between the role of
lawyers and that of other advisers. The origin of the
distinction is the part played by lawyers, as officers
of the court, in the administration of justice.
If the legal profession were to cut itself
off from its association with the courts, and the administration
of justice, then the profession would lose its defining
characteristic.
The role of a lawyer as an officer of a
court is the primary basis upon which lawyers can claim
to share in the principal attribute which distinguishes
a profession from a business. In Shapero v Kentucky
Bar Association (1988) 486 US 466 at 488, Justice
Sandra Day O'Connor of the United States Supreme Court
said:
- "One distinguishing feature of any profession,
unlike other occupations that may be equally respectable,
is that membership entails an ethical obligation to
temper one's selfish pursuit of economic success by
adhering to standards of conduct that could not be
enforced either by legal fiat or through the discipline
of the market."
The source of the ethical obligations of a lawyer is the
role he or she plays in the administration of justice.
These obligations, in a variety of ways, are supposed
to temper their selfish pursuit of economic success. Current
developments in relation to professional behaviour, discipline
and organisation, driven to a large extent by the demands
of competition policy, present some challenges to this
theory.
We are about to enter an era of multi-disciplinary
practices and of corporatisation. This has been accepted
as government policy, and as the policy of a number of
the major professional associations. Some issues of detail
remain unresolved. It is not my purpose to seek to argue
against this policy, or to comment on the unresolved issues.
My object, however, is to draw attention to the challenges
the policy presents, in the hope that ways may be found
of addressing them.
Consider, for example, the relationship
between a corporatised, multi-disciplinary, legal practice,
and what was referred to earlier as the paradigm of the
private legal practitioner. In such an organisation, a
majority, perhaps all, of the directors and the shareholders,
may be non-lawyers. The corporation may employ lawyers,
accountants, financial advisers, and a range of other
people exercising various skills. Presumably, in accordance
with standard doctrines of company law, the duty of the
directors of such a corporation will be to act for the
benefit of the shareholders. Presumably, in accordance
with accepted principles of employment law, the duties
of the employees will be to obey the lawful instructions
given to them and to act faithfully to serve the corporation.
Let me return to the observation of Justice
O'Connor. She spoke of an obligation to temper the pursuit
of economic success by adhering to standards of conduct
that are not capable of being enforced either by legal
compulsion or through the discipline of the market. This
she described as a distinguishing feature of professionalism.
What are the arrangements that will ensure, in the corporate
context I have just described, the observance by the lawyers
employed by the corporation of that fundamental obligation?
What is a typical commercial corporation, under its Memorandum
and Articles of Association, capable of pursuing, except
economic success?
In discussion of this subject a formula
that is commonly used is that the professional associations
will continue to regulate the professional conduct of
the lawyers in question, without seeking to regulate the
business behaviour of the entity by which they are employed.
If this a reference to negative professional obligations,
such as not stealing trust funds, not permitting conflicts
of interest to arise, or not breaching obligations of
confidentiality, then I understand, I think, how it will
work. But it is far from a complete description of the
ethical obligations of a lawyer to say that he or she
must not steal a client's money, or breach confidentiality,
or permit conflicts of interest to arise. What about the
fundamental obligation, referred to by Justice O'Connor,
without which lawyers are not entitled to regard themselves
as members of the profession? How does a person, in the
service of a multi disciplinary business corporation,
temper the pursuit of economic success?
The professional associations, if they are
to preserve the characteristic of professionalism, will
need to ensure that the standards of behaviour they seek
to impose and enforce will include such matters as not
encouraging fruitless or merely tactical litigation, however
profitable it may be to the corporate employer, accepting
an obligation to undertake a reasonable share of pro bono
work, and insisting uupon full observance of duties to
the court, as well as to clients, in all aspects of the
administration of justice. Of course, there are already
lawyers whose observance of professional obligations of
this kind is, to say the least, imperfect, but that is
a reason for emphasising the obligations, not for relaxing
them.
One possible outcome is that the essential
legal profession will contract in size. Perhaps there
will develop a gap between those lawyers, barristers or
solicitors, whose work is principally concerned with the
administration of justice, and other legally skilled persons
whose principal expertise is in areas more readily compatible
with the services of accountants or merchant bankers,
or the business practices of entrepreneurs. Perhaps the
new multi disciplinary partnerships and corporations will
find that their structures are difficult to adapt to the
provision of some aspects of legal services; especially
those concerned with the conduct of litigation. Perhaps
courts will find that they need to assert their control
over lawyers in ways that may come as a surprise to some
of their more entrepreneurial associates. The competitive
forces to which the profession is responding may ultimately
force a reconsideration of the nature of the profession.
On the other hand, as things work out in
practice, there may be less to these proposed changes
than meets the eye.
It may be that lawyers who work for multi
disciplinary corporations will be in a position not much
different from that of lawyers who now work for banks,
or are companies, or insurers. It may also be that most
corporations concerned with the provision of legal services
will, in practice, not be materially different from the
legal partnerships with which we are familiar. Lawyers
may simply have an opportunity to adopt more flexible,
and advantageous, operating structures. Medical practitioners
have been doing this for decades, and, with the significant
exception of diagnostic services, (a capital intensive
activity), it does not seem to have made much difference
to the relationship between the profession and the public.
It is not easy to predict the future shape of the legal
profession, or the extent of practical change that will
occur.
A popular phrase now employed in this context
is "harmonisation of commercialism and professionalism".
I would wish to reserve my judgment on that kind of harmonisation
until I see it at work.
There are changes taking place in the legal
profession, and you had better make sure you, or your
representatives, are working to influence their direction.
Women lawyers who value the idea of a profession have
a large stake in that.
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- The Hon Murray Gleeson AC, Chief Justice
of Australia
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