Kirby, Michael --- "Legal Professional Ethics in Times of Change" [1998] ALRCRefJl 2; (1998) 72 Australian Law Reform Commission Reform Journal 5

• Reform Issue 72 Autumn 1998
• This article appeared on pages 5 – 10 of the original journal.

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Reform Issue 72 Autumn 1998
This article appeared on pages 5 – 10 of the original journal.

Legal Professional Ethics in Times of Change

Justice Michael Kirby* spoke to a St James Ethics Centre forum on ethical issues in Sydney on July 23, 1996. This is an edited version of his speech.

The object of this forum is to raise the consciousness of lawyers so that they may evaluate their role within the legal profession and in the broader community at a time of rapid social change. The aim is to challenge us to re-evaluate our conduct to enhance the level of service provided by the legal profession to a community which has larger expectations of us, but a diminishing estimation of the likelihood that they will be fulfilled.

The organisers of this forum hope that it will provide an opportunity to examine the tension which they feel exists between the traditional features of the practice of the law, enjoying important privileges (on the one hand) and the dictates of modern business practices, which impose on lawyers of today obligations to address cost factors and so-called ‘bottom line’ considerations (on the other). Within the St James Ethics Centre, a fear has been expressed that an undue emphasis on economic factors has recently led to a lessening of sensitivity to, and the importance of, the old ethic and culture of professional service.

The basic questions are these: is such expressed anxiety nothing more than a nostalgic hankering for the ‘good old days’ of legal practice, which were not so good for the consumer after all? Was the professionalism of the past merely a (self-deceiving) disguise to preserve a large hold on power in society? Or is our anxiety a last desperate effort to keep alive the flame of professionalism in the face of so much evidence that law is moving in the direction of a business and that the idealism and selflessness of professionalism is dying out?

Problems

Dean Anthony Kronman’s The Lost Lawyer: Failing Ideals of the Legal Profession,¹ is said to be the most influential book on the legal profession written in recent decades and the subject of great agitation in the United States. It takes attorneys, advocates, law teachers and judges to task. It contrasts the suggested idealism, self-discipline, public spirit, economy and wisdom of the lawyers of Kronman’s early years with the scene he observes today as head of what is probably his nation’s finest law school, Yale.

Kronman considers that, in the hands of today’s lawyers, the stewardship of the institutions of law in the US has been extremely poor. They will not pass on a profession of quality and integrity such as they received from earlier generations. He argues the original ideals of wise and dispassionate advice to clients are increasingly enfeebled by a mercantile attitude, which effectively lets the client dictate the course of disputes, without the effective cautionary words which lawyers previously gave.

Advocates too, according to Kronman, are changing their ways. The old days of complete honesty with the courts and candour and honour in dealing with each other has given way to a more ruthless effort to win cases because of larger profits which hang upon them, essential to the lawyer’s “business”. The client becomes a mere “punter”.

Kronman is equally critical of law schools for fostering the teaching of law (and negating the teaching of legal ethics) in ways that pander to the demands which the market view of legal practice place upon the law schools. But his most scathing comments are reserved for the judges, especially appellate judges. He says that, in the United States, under the pressure of their caseloads, they have become mere editors of opinion drafts presented to them by their clerks.

A reading of Kronman would leave any lawyer dispirited, not least because its author cannot offer very much in the way of solution or many causes for optimism. The question which an Australian lawyer asks on putting it down is whether there is evidence in our own country (with its somewhat different legal traditions) which makes Kronman’s analysis applicable to our own circumstances or whether it is, at least, a warning of what may be in store.

To answer this last question I turned to The Legal Services Market, an essay by my colleague, Sir Daryl Dawson, delivered to the 29th Legal Convention in Brisbane in September 1995.² Sir Daryl Dawson acknowledges that the very changes which give rise to many of Kronman’s concerns can already be detected in the Australian legal scene.

Sir Daryl Dawson’s essay disclaims a nostalgic hankering for the past that will not return. To talk of a “national market for legal services” is to conceive of the legal profession in economic terms in a way that would have offended the purists of past generations. But Sir Daryl Dawson accepts that the change of language results from a fundamental change in the way in which the profession is now practised in Australia. It is now increasingly conceived of as a “commercial activity”, although one of a special kind. Such changes of approach will doubtless improve the accessibility, efficiency and costs of some legal services and even the rewards to some legal practitioners.

Anomalously, surveys performed of members of the Australian legal profession have shown very high levels of dissatisfaction with professional life.³ Sir Daryl Dawson lists a number of reasons why this should be so. Many of them are connected with the growing concentration of legal practice in large firms. There is the increasingly narrowing effect of specialisation. There is diminished loyalty of partners to each other and to employed solicitors. The priority has changed in some places to the making of money rather than the provision of disinterested, yet sympathetic, legal advice. Unprofitable work is rebuffed by some as a waste of time. Longer and longer hours must be worked to the cost of quality of the lawyer’s life. The work satisfaction which attended much legal practice in the past has been replaced by a “strictly commercial and entrepreneurial approach to the practice of the law”.⁴

A third item relevant to these remarks is an address of the Chief Justice of the United States of America (Chief Justice William Rehnquist) at the Commencement Ceremony of the Catholic University of America Law School on May 25, 1996. The Chief Justice reminisced about his own first graduation 54 years earlier and about his early faltering efforts to establish a legal practice in Arizona. He acknowledged that lawyering today was probably of a higher quality than in those days and that law firms were “certainly more efficient” today. To some extent this is an inevitable product of new technology and new approaches to office management. He also acknowledged that young lawyers today generally make more money than they did in his day, even allowing for inflation. But then he asked the Kronman question:

“If all this is true, why are there so many dissatisfied young lawyers?” ⁵

Like Sir Daryl Dawson, Chief Justice Rehnquist resisted the yearning for the “good old days” and came at once to the crunch:

“... The practise of law is today a business where once it was a profession ... Law firms, whether in 1956 or 1996 have always had to turn a profit if they were to stay in business. But today the profit motive seems to be writ large in a way that it was not in the past ... Perhaps nowhere in the profession is this tendency more developed than in the emphasis on billable hours ... Hourly billing rewards inefficiency: the work of lawyer A, who spends 100 hours preparing a motion for summary judgment, costs the client 100 times the billing rate; the work of lawyer B whom it takes 200 hours to do the same work costs the client twice as much for the same service.” ⁶

In these remarks, Chief Justice Rehnquist was merely restating observations frequently made in Australia by Chief Justice Murray Gleeson. The system of billable hours can reward the slow-witted lawyer. It can penalise the experienced, wise and efficient. But Chief Justice Rehnquist, not one generally adverse to the market economy and individual autonomy, described the eroding consequences of converting the legal profession to a business. Large firms simply cannot economically justify taking on small matters; so they end up with only large clients ... [and] large cases ... [with] an enormous amount of time devoted to relatively uninteresting work ... [in cases] very few of [which] actually go to completed trial.

There is also a loss of loyalty not only within firms but between clients and legal firms. Chief Justice Rehnquist went on:

“...(In the past) there was a personal relationship built up among lawyers in the same firm which meant that income producing ability, though a very important factor, was not the sole basis on which the status of a partner depended. It also meant that between clients, and law firms with whom the client had a long-term relationship, there was an element of trust and understanding which may be diminishing today. Clients regarded lawyers as supplying a sort of service different in kind from that supplied by their vendor of office supplies or raw materials. But if the law firm simply counts the number of hours spent and sends a bill for that amount, perhaps there isn’t a great difference between the law firm, on the one hand, and the office supply vendor who simply counts the number of pencils furnished and sends a bill for that amount, on the other.” ⁷

What should be our reaction to these trends? Will we, in far-away Australia, be immune from the most horrible of these mercantile developments which Chief Justice Rehnquist and Professor Kronman sketch in the United States? In response to these warnings there are several lessons.

Avoid nostalgia

First, we should, as Sir Daryl Dawson warns, avoid tiresome nostalgia for the past. It will always be the province of old timers, particularly in a hierarchical, traditionalist and historically conscious occupation such as the law to look to the past with more affection than, say, an aeronautical engineer or a computer games salesman. But lawyers too, and their institutions, must move with fast changing times. Technology stimulates rapid change. Other factors are also at work. They include a better educated community; a much expanded legal profession; a less monochrome society with changing values; and an era in which every institution, from the Crown down, is under the microscope of critical social scrutiny. In the case of the law, such scrutiny not only reveals the many wrongs in the substantive law which, in the good old days, too many lawyers accepted without complaint.⁸ It also includes fresh perceptions of the imperfections of the system as presently organised to deliver justice to the ordinary citizen and new insights into the unsatisfactory features of the ethnic and class makeup of the legal profession itself.⁹

Change is inevitable & often for the better

No institution is impervious to change. This is least of all so in a profession that repeatedly boasts of its adaptability and rests upon the foundation of the common law, which is truly one of history’s success stories in its capacity to adapt (sometimes quite rapidly) to changing times.

Lawyers should not be adverse to acknowledging that many changes, which alter somewhat the character and activities of the legal profession, often forced upon it reluctantly, have been for the better. Sometimes we have to unlearn bad old habits, which have outlived whatever usefulness they may have had, such as the two counsel or the two-thirds fee rule amongst barristers; or the prohibition on the use of paralegals or of joint practices with other professionals. Sometimes, too, we have had to respond to the call for external scrutiny of the way we handle public and client complaints against members of the profession.

Lord Justice Staughton in England recently remarked that some of the profession’s ethical rules appeared to have been simply protectionist and not at all concerned with the public interest or the proper administration of justice.¹⁰ At least some of the ethical truisms of the past were less concerned with ensuring right behaviour to clients than with gathering and retaining clients from the ambitions of competitors or stamping a high degree of conformity on professional behaviour and services.¹¹

Legal idealism endures

It should be acknowledged, both within the legal profession and by its critics, that there remain many, possibly a majority, who are as committed to the ideals of service and dispassionate advice as existed in times gone by. We have our heroes and role models. Fine leaders of the Bar who daily accept the call to pro bono work. Women lawyers who blaze a trail for equal opportunity in the law. Aboriginal lawyers, now exemplified by Judge Robert Bellear, who will help to change two centuries of attitudes. Gay lawyers who courageously refuse to accept prejudice from society, least of all from their colleagues. Councils for Civil Liberties and endless professional associations connected with the law and law reform such as the International Commission of Jurists, the International Bar Association, Amnesty International and a myriad of other groups. Who says lawyers have wholly lost their idealism? Some may have. Many have not.

This said, some of the issues of professionalism which have been identified in the US and Australia are certainly ripe for attention. Many of them derive from the growth of very large firms with their assignment of unrewarding work to the best and brightest graduates. Such firms themselves must address the growing evidence of lawyer dissatisfaction. In part, they do by encouraging a little pro bono work and engagement in professional bodies. But unless a culture of loyalty and self-respect can be restored, the mercantile values of ruthless self-interest will permeate legal practice in Australia just as they have come to do in the United States. This will be to the destruction of the ethos of firm and client loyalty that has existed until now.

Teaching legal ethics

The revival of the public debate about what legal professional ethics should be, and the heart-searching within the legal profession itself, make it timely to urge an intensified interest in law schools in the teaching of legal ethics. This is not just a rudimentary training in the provisions of the local professional statute, rules of etiquette and, where applicable, book-keeping and trust account requirements, offered in a few lectures thrown in at the end of the law course. It is a matter of infusing all law teaching with a consideration of the ethical quandaries that can be presented to lawyers in the course of their professional lives.

Need for curial vigilance

The courts and bodies supervising professional conduct also have a duty to uphold high standards of honest, faithful, diligent, competent and dispassionate legal advice and representation. It may be hoped that professional bodies and courts, faced with the variety of complaints made against legal practitioners, will have the imagination to devise remedies suitable to the wrongs when found. Dealing with defalcation, criminal offences and trust fund abuses may be easy. Overcharging may require new responses that involve a purgative obligation of honorary legal service to the poor or disadvantaged.¹² Rudeness and non-communication may warrant mediation with the complainant, as the New South Wales Attorney-General has proposed.

But how is incompetence, ignorance of the law and simple failure to attend to a case to be redressed for the protection of the clients who come after? Virtually every second Monday in the Court of Appeal, in motions, I saw shocking cases of practitioner neglect which, in my own youth, would have been brusquely refused relief. My usual solution was to provide relief, but to refer the papers to the professional body and order the practitioner, not the party, to pay the costs. Rarely, if ever, did it seem appropriate to punish the client.

Spiritual values

Finally, there is a deeper malaise, which is difficult to speak of. In a secular society we feel rather uncomfortable in doing so, lest our words should be misinterpreted as inappropriate, hypocritical or self-righteous. I only mention it because I feel I must. I refer to the void which is left in many lives by the absence of any spiritual construct and by the increasingly general rejection of any spiritual dimension whatever to life.

Previously, there was a spiritual dimension to Western societies (including those of Britain, the USA and Australia), which provided a framework of beliefs that was important to sustaining and reinforcing ethical principles.¹³ The Judeo-Christian-Islamic belief in the sacredness of each individual human life, bearing a divine spark, provided an ultimate foundation for self-control and for respect for others.

“For God, King and country” was an expression that formed the bedrock of an earlier time when everything seemed more certain. Now God is doubted by many. The King’s successors are denigrated in ways that would previously have been unthinkable. Even country is rejected by many, except when a sporting event lets loose the contemporary cries of warlike nationalism. All forms of loyalty, within and outside the profession, seem dismissed as hopelessly outdated.

In a time when so many fundamentals are questioned, doubted, even rejected, it is hardly surprising that the ethics of the legal profession should also be doubted by some of its members and attacked by its critics. It is easier to adopt a purely economic or mercantile view of the law if you have no concept of the nobility of the search for individual justice, of the essential dignity of each human being and the vital necessity of providing the law’s protection, particularly to minorities, those who are hated, even demonised, and reviled.

Conclusion

The challenge before the legal profession in Australia today is to resolve the basic paradoxes which it faces. To adapt to changing social values and revolutionary technology. To reorganise itself in such a way as to provide more effective, real and affordable access to legal advice and representation by ordinary citizens. To preserve and, where necessary, to defend the best of the old rules requiring honesty, fidelity, loyalty, diligence, competence and dispassion in the service of clients above mere self-interest and, specifically, above commercial self-advantage. Yet to move with the changing direction of legal services in a global and national market. To adapt to the growth and changing composition of our society and of its legal profession: beyond the monochrome club of Anglo-Celtic males. And to mould itself to the fast changing content and complexity of substantive and procedural law. It is a tall order. Are we up to it?

The hope must be that some of the old-fashioned notions of selfless and faithful service will survive, even in these changing times, and that a new foothold for idealism and selflessness will be found. Despite the beliefs of some of its critics, the legal profession’s guiding principles will not be found in economics alone. Economics simply cannot explain the will to do justice, to be dutiful to courts and honest and dispassionate to clients.

The great debate for lawyers in the coming century is whether the ascendancy of economics, competition and technology, unrestrained, will snuff out what is left of the nobility of the legal calling and the idealism of those who are attracted to its service. We must hope that the basic ideal of the legal profession, as one of faithful service beyond pure economic self-interest, will survive. But whether it survives or not is up to the lawyers of today. We should examine the sources of our deepest concerns and then do what we can, whilst moving with the times, to revive and reinforce the best of the old professional ideals, to teach them rigorously and insistently to new recruits and to enforce them strictly where there is default.

We cannot say that we have not been warned.

* The Hon Justice Michael Kirby AC CMG is a Justice of the High Court of Australia. He was the Commission’s first Chairman (1975 - 1984).

End-notes

1. A T Kronman, ‘The Lost Lawyer - Failing Ideals of the Legal Profession’, Harvard Uni Press, Cambridge, Massachusetts, 1993.

2. Published in (1995) 5 ‘Journal of Judicial Administration’ 147.

3. Victoria Law Foundation, Job Satisfaction Survey - Interim Report, June 1995 cited D M Dawson, The Legal Services Market, (1995) 5 ‘Journal of Judicial Administration’ 147 at 152.

4. D M Dawson, The Legal Services Market, (1995) 5 ‘Journal of Judicial Administration’ 147 at 153.

5. W H Rehnquist, ‘Remarks of the Chief Justice, Catholic University School of Law Commencement’, 25 May 1996, unpublished at 4.

6. Ibid at 7.

7. Ibid at 8-9.

8. M D Kirby, Swearing in and welcome speech - 6 February 1996 70 ‘Australian Law Journal’ 274 at 276.

9. D Barker and A Maloney, Access to Legal Education cited M D Kirby, ‘Tomorrow’s Lawyers’, Address to a Graduation Ceremony of the University of Technology, Sydney,

2 May 1996 at 5.

10. R v Visitors to the Inns of Court [1994] QB 1 (CA) at 63.

11. R Cranston (ed), ‘Legal Ethics and Professional Responsibility’, Clarendon, Oxford, 1995 at 1 citing B Abel-Smith and R Stevens, ‘Lawyers and the Courts’, 1967 at 138-9, 160-1.

12. cf Law Society of New South Wales v Foreman (1991) 24 NSWLR 238 (CA); (1994) 34 NSWLR 408 (CA) at 419-420.

13. For some of the writer’s views see Kotowitz v The Law Society of New South Wales, Court of Appeal, unreported, 7 August 1987, referred to in Foreman above 34 NSWLR 408 at 419.