A profession or an industry? Access to justice

Access to justice should be a big issue in Australia, as my Introduction to Public Law class explored yesterday in the context of discussing administrative law merits review.As commenter wilful observed on my last post about lawyers:

I can reflect on my sister’s recent experience. She lost and lost badly, because she had no money to represent herself, the judge was disuninterested, and the husband’s lawyers were reprehensible, with no interest whatsoever in the truth, the interests of the Court, the child that was being contested or the Family Law Act. They threw every bit of sh*t at her that they could invent (and it was basically all made up) and they got away with it. They had a barrister, she’s a part-time school teacher, the whole thing left me feeling sick to my stomach. I do not trust or expect justice in the family law courts in Australia any more. The lawyers involved should be deeply ashamed of themselves.

Legal aid is also hardly ever available for litigants before general merits review tribunals like the Administrative Appeals Tribunal and its State equivalents. Yet unrepresented litigants are at a major disadvantage when facing “lawyered up” government departments, despite the exhortation in section 33 of the Administrative Appeals Tribunal Act 1975 that proceedings should “be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act … permit”.

Somewhat ironically, legal aid is also hardly ever available for anti-discrimination proceedings either before the Human Rights Commission or State or Territory equal opportunity bodies. That may mean that these bodies actually exacerbate the discrimination applicants have suffered rather than resolving it, because respondents will commonly be employers, businesses or governments who can usually afford their own legal representation where an ordinary applicant cannot.

When I worked as Director of Law and Policy at the NT Anti-Discrimination Commission in the late 1990s, then Commissioner Dawn Lawrie had a presumptive policy that usually neither party would be permitted legal representation at a complaint hearing. It certainly didn’t endear her to most of the local legal profession, but personally I strongly agreed with the policy. It meant that both parties were on a reasonably “level playing field” at least in the hearing itself. The right to natural justice is seen in administrative law, somewhat self-servingly some might think, as contributing to “natural justice” whereas it may paradoxically work an injustice where only one side can afford a lawyer.

Community legal centres provide a partial answer to the problem of access to justice, as to a limited extent does the phenomenon of private law firms providing pro bono representation to some people. Hugh de Kretser, Executive Officer of the Federation of Community Legal Centres (Victoria), published an article about this in the Herald Sun a couple of days ago as part of Law Week:

Before, if I met someone at a barbecue and told them I was a corporate lawyer, the conversation would stall. Now, the response is: Oh, so you’re a good lawyer.

One of the funny things that happened when I moved from working in a big corporate law firm to a small community legal centre was that people were suddenly interested in what I did for a living. Before, if I met someone at a barbecue and told them I was a corporate lawyer, the conversation would stall. Now, the response is: Oh, so you’re a good lawyer.

The 500 or so lawyers who work in community legal centres and Victoria Legal Aid are good lawyers. Many could get paid much more working in commercial law but, driven by a passion for justice, choose a career that is all about leveling the playing field for people who can’t afford a lawyer.

But they’re not the only good lawyers. As a profession, lawyers care deeply about access to justice. Yes, some lawyers charge high fees, but the legal profession also does a vast amount of work for free for people who can’t otherwise get legal help. Known as “pro bono”, this work delivers literally millions of dollars worth of free legal help to needy Victorians every year.

Many law firms have signed up to a target of 35 hours of pro bono legal work per lawyer per year, and many exceed this target. More than 1000 lawyers and law students also volunteer in Victorian community legal centres each year.

The chronic underfunding of community legal centres and legal aid risks creating a system where only the rich and powerful can access the law. Pro bono work by lawyers is a vital safety net that helps to ensure that people don’t fall through the cracks.

However, while “many” law firms might have signed up to a target of 35 hours of pro bono legal work per lawyer per year, most have not. Even for those who have, that’s a target of much less than one hour per week per lawyer. Moreover, given that larger law firms informally expect their young lawyers to work at least 60 hours or so per week, it’s a rather small target indeed though certainly better than nothing.

Nevertheless, de Kretser’s article has sparked an idea. What if the legal profession were to set out actively to broker a national Access to Justice Accord with Commonwealth, state and territory governments aiming at a dramatic boost in community access to justice? If we as lawyers want to be taken seriously in our claims to be a true profession with a real commitment to the public interest and social justice rather than just a money-making industry, this is exactly the sort of initiative we should be pushing. Here’s my idea:

  1. The profession would accept that it would henceforth be a condition of renewal of practising certificates of all private lawyers (barristers and solicitors) that they must undertake a minimum of 92 hours of pro bono work per year. That amounts to roughly 2 hours per week per practitioner, a significant commitment but hardly impossibly burdensome.
  2. The quid pro quo would be that Commonwealth, state and territory governments would have to agree to maintain existing legal aid funding in real terms and would commit to boosting funding to community legal centres by a combined total of at least $20 million per year.

Of course there would need to be some safeguards to ensure that practitioners could not easily evade the pro bono commitment e.g. by characterising existing “freebies” for mates as pro bono work or “doing a Keddies” on the real number of (otherwise billable) hours spent on it. Those dangers could largely be avoided by requiring existing legal aid organisations to assess and approve eligible pro bono clients (people who qualify on a means tested basis for legal aid but whose type of matter is not eligible for aid, or who just fail the means test by a whisker) and to assess and acquit the firm’s bill at the end of the matter.

A realist/cynic would instantly conclude that a proposal like this has no chance of winning support from State law societies, which profess to be impartial regulators of the “profession” but actually have an irretrievable conflict of interest between that role and serving as an employers’/industry association. That conflict was exemplified only last week (Law Week) when NSW Chief Justice Tom Bathurst described large law firms dedicated to billable hours as being occupied by “mindless drones”, only to be forced to back down partially after criticism from the NSW Law Society whose President piously observed that profit and ethics were not mutually exclusive. Richard “Justinian” Ackland subsequently published an article by the pseudonymous Artemus Jones which effectively demolished the Law Society’s pretensions.

Anyway, I’m going to cast this bread on the waters by tweeting my Access to Justice Accord proposal to CDU’s numerous lawyer followers. Let’s see what happens. Are we a profession or just an industry? If the profession takes up an idea like this it would not only dramatically enhance access to justice in Australia but do much to break down the sort of negative perception of lawyers exemplified by the image accompanying this article.  However I won’t be holding my breath.

PS I should make it clear that I have no problem whatever with lawyers making a decent living from their calling, even a handsome one.  It’s a stressful occupation, most lawyers work very hard and undergo years of training to get there.  However when an industry claims special privileges (e.g. self-regulation and a closed shop)[1. The comparison with print news media at least on the first of those privileges is an obvious one.] through being a “profession” serving the public interest, those claims need to have a solid basis in reality not just be mere self-serving PR “puff”.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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john walker
john walker
9 years ago

… any idea about how much pro bono work is currently done?

Paul Frijters
Paul Frijters
9 years ago

Richer countries have more lawyers, but that could be just because a bigger turd attracts more flies.
Mandating pro bono work? Sounds like a form of national conscription just for lawyers. My natural inclination is to wonder about the demand side of this question: is legal advice a case of supply-induced demand or is there some real-world productive reason for this link between the size of an economy and the volume of legal advise?

Pedro
Pedro
9 years ago
Reply to  Paul Frijters

Have a look at the statistics on the increase in statutes and regulations and there is one cause.

Paul Frijters
Paul Frijters
9 years ago
Reply to  Pedro

the explosion in regulations is a case in point where it is hard to say what is going on: the new regulations are written up by lawyers inside the bureaucracy, making work for lawyers outside the bureaucracy. Yet they respond to actual calls by the public and politicians to ‘regulate something’. Should I look at this as an increase in demand effectively due to having more lawyers in the economy or as something actually productive that improves the operation of the economy?

Pedro
Pedro
9 years ago

I’m not sure why the obligation should apply to the professional designation. We are not the only profession, which is a much debased term anyway.

There is a different question as to whether the closed shop and self-regulation should come with a community obligations price tag. To the extent that licensing is not in the public interest it should be abolished. The problems caused by a stupidly closed shop aren’t going to be cancelled out by community service obligations, as the cost of one cannot be reconciled to the value of the other. If licensing is in the public interest then self-regulation, which we don’t have in Qld, is purely an efficiency issue.

Your other issue is whether litigants ought to be forced to fight fair. My limited experience with easy access tribunals is that they have a tendency to do bad law in a crap way. If there is a public interest in fair fights it doesn’t follow that we should address that interest by turning litigation in to the legal equivalent of jelly wrestling. Perhaps the easy access tribunals should be supplemented with low-qualification paralegals trained in the relevant areas.

john walker
john walker
9 years ago
Reply to  Pedro

pedro
about 12 years ago we helped a Spanish speaking neighbor defend himself from a vexatious use of a apprehended violence order by another neighbor -she did not like him complaining about her noise at 3 am (and did not realise that the Spanish for stop it is “Basta ya” )
On the day at Newtown courts there were large two court rooms dealing with AVOs ,in one room a magistrate was dealing with a long list of serious domestic stuff and in the other room another magistrate was hearing a long list of AVOs deriving from disputes between neighbors about leaves , trees and noise.

Pedro
Pedro
9 years ago
Reply to  Ken Parish

It might be useful, but its got to be well written to avoid problems. I’ll give you a good example.

There is separate legislation for residential tenancies, including caravans and for mobile homes. The MHA gives a kind of permanent tenure while other residential tenancies don’t have that. If you look around a caravan park you will see plenty of caravans that have been variously altered and decayed so you could never tow them again. The relevant tribunal decided that a converted caravan should therefore be regarded as a manufactured home with the permanent tenure. It was probably a fair decision on the drafting of the two Acts. Big problem, so the govt amends the MHA to exclude converted caravans.
But just the other week a Maggie was falling over himself to ignore the amendment. No lawyers present and so he would have gotten away with it except for an appeal, but the parties settled the dispute.

jennifer
jennifer
9 years ago

‘section 33 of the Administrative Appeals Tribunal Act 1975 that proceedings should “be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act … permit”.’

Agree with the jelly wrestling business but I wonder about the cost of an army of paralegals taking on cases to prevent the self-represented jelly wrestlers. Who would bear that cost? And would both sides be limited to representation by a paralegal? Might that lead to a slightly more civilised but a much more expensive form of jelly wrestling?

Russell
Russell
9 years ago

Tangential, but relevant – years ago the State Library I worked in had a really good legal collection and experienced staff. Some lawyers and community legal centres sent people in to do some initial research, get copies of cases etc, but plenty of other people just turned up because they had the need. The staff were able to give them a good start.

I think you’ll find that’s not the case anymore, in many large public libraries. Legal information is very expensive, and of course needs to be always up-to-date. Cut-backs and efficiency dividends, the need to attract the maximum number of ‘users’ to prove the library’s relevance etc mean you have fewer ‘generalist’ staff who have less time to spend with clients, and less time to be mentored into being competent in areas like legal information.

So that’s one more area in which there is less and less free public access to legal information. The primary sources available on the internet are fantastic, but people need more than that.

Scott Young
Scott Young
9 years ago
Reply to  Russell

I agree. Many aspects of the law are not particularly complex, and I suspect a reasonably intelligent unrepresented litigant could easily get across the issues if he or she had access to resources like Halsbury’s Laws of Australia and LexisNexis.

It’s great that most important cases from the last 10 years are available on AustLII now, but I imagine it would be difficult to navigate them without legal training or tools to link important cases to summaries of the relevant law. My fantasy solution to this problem involves a free legal commentary wiki that provides a similar service to Halsbury’s, but so far none of the existing law wikis seem to have gained the critical mass required to become credible.

Patrick
Patrick
9 years ago

I’d strongly support scrapping the privileged status side of things instead. I’m not particularly sure why either lawyers or mass media need special regulation. Freedoms of communication should apply universally, as should your right to sue some someone for incompetence. I’m grudgingly open to there being an argument for barriers to entry but far from convinced.

You can add the medical profession to the list as well.

Patrick
Patrick
9 years ago
Reply to  Patrick

And how could I forget, the unions are in many ways in the same boat.