Speeches
PROFESSION OR SERVICE
INDUSTRY: THE CHOICE
OPENING ADDRESS
AUSTRALIAN BAR ASSOCIATION CONFERENCE
SAN FRANCISCO 18-21 AUGUST 1996
The Hon Sir Gerard Brennan AC KBE
Chief Justice of Australia
18 August 1996
It is a great satisfaction for me to open this Conference
of the Australian Bar Association, particularly as the conference
has the support of another Bar which shares many of the ideals
and aspirations of the A.B.A. My satisfaction stems largely
from recollections of and gratitude for a life at the Bar,
replete with its triumphs and its tragedies, its wins and
its losses, the friendships forged and the battles fought,
the long nights of reading and the flashes of inspiration
that sometimes fail in their application. The Bar captures
the mind and governs the life of those who join it. Its rewards
are sometimes financially generous, sometimes financially
parsimonious. It is a profession to be entered only by those
who have a passionate desire to be a barrister. But that is
the best of all reasons. For those, the experience of practice
does not disappoint.
I hope that that sense of satisfaction remains in the Australian
Bar today, though there are signs of strain and sometimes
of disaffection. Chief Justice Rehnquist has noted something
of a change in sentiment in the United States. He said
1 :
" I think successful lawyers today, on average, earn
more than did successful lawyers in my day, even after adjustments
for inflation. I think successful lawyers today put a good
deal more time into the practice of their profession than
did successful lawyers in my day. And I think, though this
is the riskiest generalization, that the lawyers among whom
I practiced enjoyed the practice of law more than do lawyers
today."
He attributed much of the disenchantment to the pressures
of a successful practice. He said this:
" The fact that the work is enjoyable makes it easier
than it otherwise would be to succumb to the subtle pressures
to put more and more time in on the job.
These subtle pressures are often the result of successful
performance, which means an increasing demand for your services
that is both flattering and financially rewarding. Without
realizing it, you can slide imperceptibly into a mode where
demands the job makes are automatically accorded priority
over other demands."
His Honour is surely right and I hope that, in this Conference,
you may all have an opportunity to enjoy some of the friendships
and stimuli that are offered by others who share the same
professional interests.
In reading what Chief Justice Rehnquist had to say, I thought
back to the time when I came to the Bar and mused about the
changes that have occurred. Some of those changes have had
an effect on public appreciation of the Bar. Even if financial
prospects of practice may have increased, I doubt whether
public confidence in and respect for the profession has been
maintained. And I wondered why.
Nearly 45 years ago, eleven or twelve of us (I don't now
remember), recent graduates of the Law School, were admitted
to practice by the Supreme Court of Queensland "as barristers
of this Honourable Court." I practised as such for 25
years - 14 as a junior; 11 as a silk. The numerical strength
of the practising Queensland Bar when I joined it was slightly
more than 80; it was, I think, about 130 when I left for the
bench. The new barristers found a corner in the chambers of
more senior members. That wasn't particularly difficult, because
the rooms were large and sparsely furnished, the rents were
low, the secretaries were shared and financial expectations
were not exalted. For those of us who were awaiting briefs,
and for those fortunate enough to have a chamber application
with or against a senior counsel near the top of the list
at 10 a.m., there was a general exodus for coffee and conversation
at 11. The state of the nation, the idiosyncrasies of judges,
judicial aspirations and the prospects for next Saturday were
discussed with great authority. When the briefs came, they
were diverse. Committal proceedings, minor collision cases,
landlord and tenant, assaults, maintenance cases, undefended
divorces, motions for probate and an occasional reduction
of capital provided a varied diet. There was no legal aid
work unless you were already briefed to go on circuit and
the Public Defender had a matter in the list for which he
offered a small fee sufficient to pay for an extra day at
the country hotel. "Smithy", the bibulous and beloved
salesman for the Law Book Company, determined when we should
buy books and how we should pay for them. The fledgling barrister,
with few overheads, was anxious to do any brief for the sake
of experience. If there were a fee as well, so much the better.
There was no talk of anti-competitive rules in that environment.
My first lesson in competition policy came when I asked Bob
Andrews (as he then was) how much I should charge for a paying
brief I had just done. "How much were you thinking of?"
he asked. "Eight guineas," said I. "Well,"
said Bob, "I would charge 10. And if I were a solicitor
and I could have you for 8 or me for 10, I'd take me every
time!" It was good advice. Now I understand that the
experience of coming to the Bar has changed.
A smaller proportion of barristers come to the Bar direct
from Law School; many already have family responsibilities;
they must take Chambers in expensive buildings in the central
business district; they have heavy overheads to meet and,
if they buy their chambers, many have substantial interest
bills; they specialize from an early stage in order to establish
a niche in the work area of their choice; they do not have
the freedom to be without paying work for long. For some,
legal aid is a financial lifeline. For others, survival at
the Bar depends upon briefs to appear for corporate, industrial
or government bodies that have the funds to pay counsel's
fee. The proportion of briefs to appear on behalf of individuals
in big cases has diminished. When a pro bono
brief is accepted, the motivation is likely to
be solely altruistic rather than the acquiring of experience.
Fees are necessarily higher than they used to be and litigants
who can afford to pay them now probably represent a smaller
segment of society than in earlier days. The pattern of litigation
has changed; the volume of litigation has increased; the jurisdictions
of the lower courts have been extended. Alternative dispute
resolution and mediation have become a familiar feature of
the litigation landscape. Lay clients are now more knowledgeable
about the services rendered by the Bar. Solicitors are under
great pressure to conduct their practices as commercial enterprises,
even to the extent of joining in multi-disciplinary partnerships.
Some firms provide and others would wish to provide advocacy
services by in-house counsel, albeit few of those counsel
venture into the higher courts.
Now, all of these factors have produced a profession that
is necessarily different from the profession which I first
entered. In some respects, we may be justifiably nostalgic
about "the good old days" - the days of the long
lunch when the case was settled, of the idle chatter in one
another's chambers and the innumerable stories that were built
around the Bar's characters. The Bar's ethics were enforced
almost always without a complaint procedure - usually by peer
group pressure or, in graver cases, by a caution administered
by a Senior whose authority was undoubted. But nostalgia does
not solve the problems of today's profession. Some of the
changes are worth a comment not only to identify them but
also to note their effect on the profession.
First, specialisation is more commonplace than it used to
be. In an age of ever-increasing legal complexity, a barrister
who purports to offer a high level of service in advice and
advocacy encounters real difficulty in acquiring the necessary
fund of knowledge in diverse areas of practice, especially
in those years when the briefs relate to problems arising
from the minutiae of the law rather than from broad principle.
So specialisation, at least to some degree, is inevitable.
But specialization comes at a price.
Lawyers are the engineers who operate the legal machinery
that maintains social relationships and orders social activity.
The lawyer who confines his or her attention to a particular
piece of machinery fails to appreciate the social significance
of the law he or she practises. Such a lawyer is more like
a trained repairer of domestic appliances than a professional
engineer. But a lawyer who sees his or her piece of legal
machinery as part of an institutional force that both expresses
the values of, and governs, society has a more profound understanding
of the contribution which his or her piece of legal machinery
makes to the welfare of society.
From the viewpoint of the Bar as a whole, narrow specialisation
brings the risk of transformation from a profession to a business.
If specialist barristers were to lose the consciousness of
the law as an entirety, the Bar would be a loose federation
of specialist interest groups. Institutional cohesion would
be weakened. Then the barrister practising in a speciality
would find it increasingly difficult to resist being subsumed
into a multi-disciplinary service organization. Professional
status would be exchanged for a place on the business letterhead.
There are some indicia of strain between sections of the Bar,
especially between those who practise in the criminal jurisdictions
and those who practise the civil law. In Sydney the divergence
seems to be accentuated by the distance between the chambers
of these two categories of counsel. I venture to suggest that
the practitioner in the Family Court needs to see the working
of the equity jurisdiction; the practitioner in trade practices
would do well to appreciate the dynamics of a jury trial.
Another trend in practice, associated with specialisation,
is the narrowing of the client base. The litigation in which
barristers are briefed today seems to be more confined than
in earlier times. Perhaps I am too far removed from the coalface
of practice to know the true extent of the areas of work now
performed by the Bar, but I suspect that cost and specialisation
have combined to restrict briefing to the more remunerative
areas of litigation. If this be right, the public goodwill
of the Bar has been diminished. Is the barrister seen more
as a gun for hire by the powerful than a cab for hire by anybody?
Whatever the truth may be, media references seldom acknowledge
the Bar to be the protectors of the oppressed or the champions
of the righteous. Rather the emphasis seems to be that the
Bar is the institution that frustrates the doing of justice
and the visiting of the powerful unrighteous with their just
deserts. Such a portrayal can be reversed only if the Bar
is and is seen to be available to serve the interests of clients
across the range of areas in which advice and advocacy are
required. I imagine that might require a significant increase
in work accepted on an unremunerative or pro bono basis in
areas in which the Bar's services have not been often sought.
The cab-rank rule, so often and so rightly advanced as a
cornerstone of the profession's ethical standards, can be
easily negatived in practice. The rule, as you know, has two
limbs: the obligation to accept a brief exists only in respect
of briefs in an area in which counsel ordinarily practises
and for which a reasonable fee is offered. If counsel confines
the area of practice too narrowly, or if the notion of reasonableness
in relation to fees is not properly applied, the cab-rank
rule becomes a cloak for a failure in professional standards.
Then the Bar is seen to be oriented more towards commerce
than it is to the service of the public. Yet it is the hallmark
of a profession that its services answer a social need.
Sir Anthony Mason has written 2
: "The professional ideal is not the pursuit of wealth
but public service. That is the vital difference between professionalism
and commercialism. It is timely to repeat what O'Connor J
(with whom Rehnquist CJ and Scalia J agreed) said in Shapero
v. Kentucky Bar Association
3:
'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. There are sound reasons to continue
pursuing the goal that is implicit in the traditional view
of professional life. Both the special privileges incident
to membership in the profession and the advantages those privileges
give in the necessary task of earning a living are means to
a goal that transcends the accumulation of wealth.'"
Sir Anthony adds the comment: "Unless the Bar dedicates
itself to the ideal of public service, it forfeits its claim
to treatment as a profession in the true sense of the term.
Dedication to public service demands not only attainment of
a high standard of professional skill but also faithful performance
of duty to client and court and a willingness to make the
professional service available to the public."
Of course, the Bar cannot be expected to provide an across-the-board
social service to represent litigants in every class of litigation.
The Bar's function is to provide that service so far as it
is reasonable for the collective strength of the Bar to do
so. By performing this function, the Bar earns the respect
and goodwill of the community.
Practices must be carried on so as to return a reasonable
income and in that respect the barrister is in business as
well as in a profession. But, with due respect, those who
would seek to regulate the Bar as though it were a service
industry profoundly misunderstand the purpose of the Bar's
existence. Perhaps barristers themselves sometimes fail to
appreciate the social importance of what they do, especially
in the conduct of litigation. Barristers are not mere agents
of the client seeking to employ their skill and knowledge
to gain whatever benefit the client desires: they are involved
in the administration of justice according to law, a function
on which a free and democratic society depends. In Giannarelli
v Wraith , Mason CJ said 4
(and I omit a part of the quotation): "
The peculiar feature of counsel's responsibility is that he
owes a duty to the court as well as to his client. His duty
to his client is subject to his overriding duty to the court.
In the performance of that overriding duty there is a strong
element of public interest. So, in Swinfen v Lord Chelmsford
5
Pollock CB, after speaking of the discharge of counsel's
duty as one in which the court and the public, as well as
the client, had an interest said: 'The conduct and control
of the cause are necessarily left to counsel...."
The performance by counsel of his paramount duty to the court
will require him to act in a variety of ways to the possible
disadvantage of his client. Counsel must not mislead the court,
cast unjustifiable aspersions on any party or witness or withhold
documents and authorities which detract from his client's
case. And, if he notes an irregularity in the conduct of a
criminal trial, he must take the point so that it can be remedied,
instead of keeping the point up his sleeve and using it as
a ground for appeal."
In the same case, I quoted 6
Lord Eldon:
"'He lends his exertions to all, himself to none. The
result of the cause is to him a matter of indifference. It
is for the court to decide. It is for him to argue. He is,
however he may be represented by those who understand not
his true situation, merely an officer assisting in the administration
of justice, and acting under the impression, that truth is
best discovered by powerful statements on both sides of the
question.""
And I added:
"By a paradox which is obvious to any who have experience
in our courts, the client is best served by a counsel who
is manifestly independent."
Absent an independent Bar, how would the voice of the oppressed
be heard? Where would one find an effective champion of an
unpopular cause? How would the courts be able to function
without the distillation of issues by skilled and independent
minds? And how would any tendency to judicial tyranny be restrained?
The point was well made by Chief Justice McEachern of British
Columbia 7
:
"I believe an independent bar and an independent judiciary
are sentries posted by the constitution to guard our people
of their danger. A re-born Erskine would remind us that our
greatest threat is not from insurrection, but rather from
earnest, misguided, well-intentioned philosophies that suggest
some combination of Jeffersonian democracy and Harvard Business
School efficiency could organize the legal system better,
if troublesome judges and lawyers would just get out of the
way."
The independence of the Bar is as valuable to the client
as it is to the public welfare. To the client, it gives an
assurance of such accuracy as knowledge and skill can contribute;
to the community, it gives the service of applying the law
in the manner in which the law is intended to act. It is independence
that makes the barrister essential to the administration of
justice according to law. Independence that cannot be bought
in a market; independence that will not be bartered for money,
or for privilege, status or favour or even for a momentary
success. This is the characteristic that, more than any other,
stamps the Bar as a profession and not a service industry.
Competition policy assumes that profit is the governing motive
of commercial conduct; that is an assumption which, if it
were ever to be true of the Bar, would transform it from a
profession to a service industry. That is the quality which,
above all, must be preserved not only in the interests of
clients and of the courts but in the interests of the community
as a whole.
Independence is preserved by the sole practice rule. It
would be sapped by a need to give loyalty to partners, or
to lay clients on whose patronage a barrister depended for
income, or to sources of power or patronage. Independence
is the mother of candour and candour is the ally of advocacy.
Thus independence is the quality exhibited by all leaders
in the profession. And any compromise with expediency is quickly
sensed by the peer group and reflected in a loss of the respect
which is essential to professional eminence.
In the years that lie ahead, there will be enormous pressure
on the Bar to alter its rules and practices to conform more
closely to some commercial template. Of course, there will
be changes - and so there should be. Mediation and alternative
dispute resolution will evoke skill in the negotiation of
settlements rather than in the adversarial battles of the
court room. Problem solving will become as important a function
as the set joust of litigation. Technology will alter in a
variety of unforeseen ways the conduct of counsel's practice.
We are familiar with the word processor and, to an extent,
with the document scanner, with video connections to distant
places and with the keeping of records electronically. The
methods and even the nature of legal research is changing
with the development of data bases and of CD-Roms that direct
the user to relevant research material. Technology will place
new demands on the advocate, challenging him or her to produce
submissions of such cogency and precision that they might
be downloaded with minor editing into a judgment. The pressure
of cases will require ever more pithy written submissions
and the utilisation of advocacy time to advance arguments
that do not ramble aimlessly or tendentiously around the point
for decision.
Nation-wide eligibility to practise cannot now be far distant.
We shall see the emergence of what can be described with complete
accuracy as an Australian Bar. And from that Australian Bar,
there will in time grow an Australian Judiciary familiar with
the legal systems of all parts of the Commonwealth and preserving
the characteristics which develop from a lifetime of independent
thought. A competent and independent Bar is the vital training
ground for judges in the modern age who must possess experience
in litigation and a fair and robust mind to stand against
the buffeting that many decisions attract. An Australian Bar
will not be created, I hope, merely as a supplier of services
in what some economic regulators choose to call a national
legal services market. The Bar has far more extensive duties
to perform than the provision of services to so-called "consumers".
If the Bar were to see itself simply as such a supplier, our
national court system would have to be reconstructed with
features and safeguards that are presently unnecessary. The
survival of the Bar as a separate and independent institution
may make little sense to an economist who does not appreciate
its social utility and does not foresee the consequences of
its destruction. But the possibility that the Bar will not
survive is minimal provided the Bar has a sufficient conceit
of its function in the maintenance of a free democracy and,
to that end, retains its competence and its independence.
It must reject the notion that it is concerned with the marketing
of expertise rather than with the use of skill and knowledge
in the service of the client and the community. That was the
message which Sir Daryl Dawson delivered in his significant
paper " The Legal Services Market"
which he delivered to the 29th Australian Legal
Convention. The Bar must change with the times, but it must
cling to its ideals of independence and competence in the
service of justice according to law. These are the ideals
that, for those who have practised at the Bar, make it a true
home for mind and spirit. These are the ideals of which Judge
Cardozo spoke when addressing the lawyers of New York County:
"The tradition, the ennobling tradition, though it be
myth as well as verity, that surrounds as with an aura the
profession of the law, is the bond between its members and
one of the great concerns of man - the cause of justice upon
earth."
That is the tradition in which we meet, and I am glad
to be part of it.
| 1 |
ABA Journal, February 1996, p 100.
|
| 2 |
The Independence of the Bench (1993)
10 Aust.Bar Review 1 at p.9.
|
| 3 |
(1988) 486 US 466 at 488-489.
|
| 4 |
((1988) 165 CLR 543 at 555-556.
|
| 5 |
(1860) 5 H & N 890 at 921 [157 ER 1436 at 1449].
|
| 6 |
(1988) 165 CLR 543 at 579.
|
| 7 |
(1995) 29 Law Society Gazette No.1, 1 at p.5.
|
|
