Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
Louise Cauchi[*]
Dean Roscoe Pound describes the term profession as ‘… a group … pursuing a learned art as a common calling in the spirit of public service — no less a public service because it may incidentally be a means to a livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.’[1] Professionals command, or at least expect, a certain respect within the community. That respect must be earned.
This article focuses on the spirit of public service within the legal profession. Some professions do serve the public. Some assist others to enforce their rights as humans and the community to meet its responsibilities. However, it is becoming increasingly difficult for professionals to give priority to service to the public in times that are both demanding and competitive.
It has been observed[2] that professions display a number of notable traits. Its members acquire skills based on theoretical knowledge. The professional body provides training and education and tests the competence of its members. Professions are organised with an ethical code of conduct and are often involved in altruistic service. A professional is a skilled person who offers their skill in service of the community[3] and is accountable for that skill and service. A legal practitioner must serve the clients’ interests but not at the expense of the administration of justice.[4]
If a legal practitioner’s skill is used with a primary motive of making money this may be considered to be unethical. Preoccupation with the making of money is not conducive to the giving of disinterested advice. It is essential that the legal profession as a whole maintains its position of public trust and continued service. Sir Anthony Mason considers that the professional ideal ought not be the pursuit of wealth but public service.[5] In Shapero v Kentucky Bar Association [1988] USSC 112; (1988) 486 US 466, Justice Sandra Day O’Connor stated: ‘[O]ne 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 that could not be enforced either by legal fiat or through the discipline of the market’ (488–89).
Values such as honesty, integrity, impartiality, respect for the law, respect for persons, diligence, economy and efficiency, responsiveness and accountability are evident in Australian professional ethical codes and guidelines. A code of ethics commonly expresses the expectation of service to the community.[6] This ideal is espoused by the Australian Corporate Lawyers Association and the St James Ethics Centre in their recently published handbook: Ethics for In-House Counsel.[7] The first ethical foundation in that publication is that the defining characteristic of each and every profession is a commitment to place the interests of others before those of its members, individually and collectively, and to act in a spirit of public service. Another is that practising law requires the exercise of moral courage. The Law Society of New South Wales Statement of Ethics states that:
The law should protect the rights and freedoms of members of the community. The administration of the law should be just. The lawyer practises law as an officer of the Court. The lawyer’s role is both to uphold the rule of law and serve the community in the administration of justice.
In fulfilling this role, lawyers should:
• Serve their clients’ interests competently
• Communicate clearly with their clients
• Treat people with respect
• Act fairly, honestly and diligently in all dealings
• Pursue an ideal of service that transcends self-interest
• Work with their colleagues to uphold the integrity of the profession and honourable standards and principles
• Develop and maintain excellent professional skills
• Act frankly and fairly in all dealings with the courts
• Be trustworthy
• Keep the affairs of clients confidential, unless otherwise required by the law
• Maintain and defend the rights and liberty of the individual
• Avoid any conflict of interest
In fulfilling this role, lawyers are not obliged to serve the client’s interests alone, if to do so would conflict with the duty which lawyers owe to the court and to serving the ends of justice.[8]
At the beginning of the last century Isaacs J defined the role of the lawyer in society as involving ‘… a serious responsibility to the court — a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential’ (Incorporated Law Institute of New South Wales v RD Meagher [1909] HCA 87; (1909) 9 CLR 655 at 681).
In professional life the notion of service is regrettably no longer the predominant consideration. Expert professionalism, that is the marketing of expertise, is said to prevail today over social trustee professionalism or the use of knowledge acquired on trust for the benefit of the profession itself and the community which it serves.[9] Modern legal service is less comprehensive and clients tend to look to specific firms of solicitors for advice in relation to particular transactions as opposed to retaining one firm to manage all their affairs.
In 1996 Kirby J asserted that the challenge for the legal profession is:
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 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.[10]
One must accept the old ways of professional legal practice have inevitably succumbed to the demands of modern life. Nonetheless it is essential for the legal profession as a whole to maintain its position of public trust and continued service to the community.
The community is entitled to receive legal information and to be provided with legal advice and representation to resolve disputes and establish or affirm individual rights and obligations. Regrettably, as the former Chief Justice of Australia, Sir Gerard Brennan has observed:
…litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally aided litigant; governments are anxious to restrict expenditure on legal aid and the administration of justice. It is not an overstatement to say that the system of administering justice is in crisis. Ordinary people cannot afford to enforce their rights or litigate to protect their immunities … some solutions must be found and practical solutions are likely to be radical. [11]
Why should we be concerned with this state of affairs? The short answer is that we are a ‘profession’ and, as noted earlier, a profession is bound by a duty of service to the community. What is to be done to improve the current situation? Phillips CJ of the Victorian Supreme Court believes that ‘improvement can be effected if our profession increases its present contribution in an organised way. But it is vital that this be accompanied by increases in funding by governments.’[12]
In his 1999 State of the Judicature address, Gleeson CJ made the telling observation that, ‘[p]roviding legal aid is costly. So is not providing legal aid.’ After stressing the reliance of courts on the work of both barristers and solicitors, his Honour said that:
The system depends, not only for the justice of the ultimate outcome, but also for the efficiency with which the proceedings are conducted, upon the assumption that the competing cases are being put, to their best advantage, by professionals who have the skills necessary to marshal evidence and argument, to identify the issues to be determined, to present the facts capably, and to understand and argue the law. For a system based upon that assumption, the unrepresented litigant is a serious problem … What is not so well understood outside the court system and the legal profession is the cost to the system, and the community, in terms of disruption and delay, of the unrepresented litigant.
The appearance of unrepresented litigants is now commonplace and the courts and the legal profession are taking steps to address this problem. For instance, in Western Australia and Victoria schemes have been established to assist unrepresented appellants in the preparation and presentation of their appeals. In Ruddock v Vadarlis [2001] FCA 1329 (the Tampa case), French J stated postscript that:
The counsel and solicitors acting in the interests of the rescuees in this case have evidently done so pro bono. They have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.
The Tampa case has been lauded as a ‘victory for the rule of law’.[13] This victory depends in no small part on the willingness of the legal profession to work pro bono to ensure access to justice for all.
Pro bono services have long been performed by the legal profession from a sense of professional, ethical and philosophical obligation. Recent cuts to government-funded legal aid in Australia have pressured the profession to take more cases on a pro bono basis. In the present climate it is particularly important that pro bono services are equitably spread throughout the profession and effectively managed to maximise the benefits both to the profession and the community.
Traditionally the legal practitioner was part of a group pursuing a learned art as a common calling in the spirit of public service. The subordination of personal aims and ambitions to the service of the community defined the profession. However, the demands of modern practice and competitive forces have brought about changes to legal practice causing professionalism to fall prey to the claims of commercialism. Instead of dedicating themselves to the public that they purport to serve, it is claimed that lawyers aspire to achieving wealth as evidence of their success. In other words they are endeavouring to achieve profit at the expense of their principles.[14]
In the words of Kirby J:[15]
The great debate for lawyers in [this] century … is whether the ascendancy of economics and competition, 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 certainly all hope that the basic ideal of the legal profession, as one of the faithful service beyond pure economic self-interest will survive. But whether it survives or not is up to us, the lawyers of today.
[*] Louise Cauchi is a Sydney lawyer.email: louisecauchi@hotmail.com © 2002 Louise Cauchi (text)© 2002 Jane Cafarella (cartoon)
[1] Pound, D.R., cited by Gibson, B, ‘Justice in Pursuit of Lawyers’, in a response to Nicolas Cowdery QC, Director of Public Prosecutions, NSW, Co-Chairman: Human Rights Institute, International Bar Association, St James Ethics Centre, 26 August 1997.
[2] Millerson, G., The Qualifying Associations: a Study in Professionalism, Routledge and Kegan Paul, London, 1964.
[3] Berglund, C.A., ‘Teaching Ethics by Distance Learning — Paper and Web-based Resources: Ethics and Limits of Practice’, AIHLE Conference Proceedings 1999, p.1.
[4] Kaptein, H., ‘Against Professional Ethics’, in Sampford C., Preston, N. with Bois, C.A., Public Sector Ethics: Finding and Implementing Values, Federation Press, 1998, p.31.
[5] ‘The Independence of the Bench’, (1993) 10 Australian Bar Review 1 at 9.
[6] See Barker, S.F., ‘What is a Profession?’ (1992) Professional Ethics: A Multidisciplinary Journal (1&2), pp.73–99.
[7] Trimmer, A., ‘Law — A Profession or a Business?’, (May 2001) Australian Lawyer 2.
[8] Council of the Law Society of New South Wales — Statement of Ethics proclaimed on 20 November 1994. The Law Society of New South Wales is the professional association for the solicitor’s branch of the legal profession in the State of New South Wales, Australia.
[9] See Brint, S., In an Age of Experts: The Changing Roles of Professionals in Politics and Public Life, Princeton University Press, 1994, Ch 1.
[10] Kirby, M., ‘An Honourable Profession?’, inaugural lawyers’ lecture delivered to the St James Ethics Centre Forum on Ethical Issues, 23 July 1996.
[11] Brennan, G., ‘Key issues in Judicial Administration’, 15th Annual Conference speech delivered to the Australian Institute of Judicial Administration, 21 September 1996.
[12] Phillips, J.H., ‘… and Justice for All’, lawyers’ lecture delivered to the St James Ethics Centre, 1–2 August 2000.
[13] Connellan, Greg, Vice President, Victorian Council for Civil Liberties, Press Release, 17 September 2001.
[14] Corbin, L., ‘Professionalism Redefined — More Than Ethics’, (2001) 26(3) Alt.LJ 140.
[15] Kirby, M., above, ref.10.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/47.html