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Sackville, Justice Ronald --- "Welcome address" (FCA) [2004] FedJSchol 4

Speeches

Faculty of Law Prize Ceremony 2004
Leighton Hall, The Scientia,
University of New South Wales

Welcome Address

Justice Ronald Sackville

Wednesday 10 March 2004


I first wish to congratulate most warmly each and every prize winner on your outstanding achievements. You, your family and friends are entitled to feel great pride in your having reached a standard of excellence in your particular subject or discipline that has warranted recognition this evening. The prizes are a small but significant reward for your dedication and attainments.

It is also appropriate to acknowledge the generosity and thoughtfulness of donors. The prize list indicates not only the breadth of the subjects and courses offered by the Faculty of Law, but the diverse range of donors interested in the work of the Faculty. As you will see, donors include law and accounting firms, law publishers, professional organisations and individuals supportive of the work of the Faculty and of its students. I see that even the Commissioner of Taxation is listed as a donor – possibly the first time he has ever given anything away.

There is, however, a downside to your being recognised as prize winners, well deserved as the recognition is. You can now officially be regarded as part of the elite. In the preface to his recently published book, “The Howard Years”, Robert Manne observes that supporters of the current government generally dismiss its most fervent critics as “members of the despised new social category, ‘the elites’”.[1] Now, I am not suggesting that all prize winners of the University of New South Wales Law School will necessarily be fervent critics of the current government – members of the Faculty are of course another matter. But the political rhetoric denigrating so-called elites in this country reflects a profound truth, namely the tendency of Australians to be suspicious of those who can fairly be described as intellectual achievers.

Suspicion of intellectuals does not mean that Australians are against excellence – they are just selective about the endeavours that deserve national recognition. What else can explain a system for nominating Australian of the year that results in the honour being given, ex officio, to the latest Australian cricket captain to retire?

I confess that I am no opponent of sport. But I cannot help endorsing the views of the sixth century BC philosopher, Xenophanes. Deeply disturbed by the lavish honours accorded to a winning athlete in his home city, Xenophanes complained bitterly:

“Yet he is not so worthy as me and my wisdom is better than the strength of men and horses. No, this is a foolish custom, nor is it right to honour strength more than excellent wisdom”.

Still, you must not give up hope. One of you may yet captain Australia at cricket.

I assume that I have been asked to speak tonight in part because of the judicial appointment I hold. Judges of course are very different to most other mortals, or even other elites. We are respectful of achievement, loath to criticise colleagues or other lawyers (even the occasional hopeless advocate who appears before us) and quick to lavish praise on those who have risen to the highest level. Consider the adulation shown by the ubiquitous Judge Richard A Posner of the United States Court of Appeals for the Seventh Circuit towards the late Justice William Douglas of the Supreme Court of the United States. Posner, in a recent book review, lists Douglas’ admirable qualities as follows:

“Apart from being a flagrant liar, Douglas was a compulsive womaniser, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice…. Rude, ice cold, hot tempered, ungrateful, foulmouthed, self absorbed and devoured by ambition, he was also financially reckless – at once a big spender, a tight wad, and a sponge.”

It is generosity of spirit like this which probably explains the awe with which the great writers treat judges. In his wonderful short story, “The Death of Ivan Ilyich”, which should not be read by hypochondriacal judges, Tolstoy describes the reaction of the judicial colleagues of the well liked Ivan Ilyich to news of his death:

“He had been ailing for several weeks with an illness said to be incurable. His post had been kept open … so that in learning of Ivan Ilyich’s death, the first thought of each of those present was its possible effect on … the chance for promotion for themselves or their associates.”

Professor Trakman in his letter of invitation to me indicated that perhaps I should say something relevant to your future careers. Well I imagine that I have just ruled out judicial life as a career option for you.

I do wish to say something a little more serious about the profession you are entering. I use the term “profession” broadly, because I know that, if recent experience is any guide, some of you will not necessarily choose the path of the practising profession and others will move into new fields after a relatively short time in practice. But even with a broad definition, your success in your academic endeavours suggests you are likely to be leaders in your chosen field. As I am sure you are aware, there is a close, albeit not perfect, relationship between academic achievement and professional success.

Universities and the legal profession share some things in common. In particular, in recent years each has felt the harsh forces of market economics and competition policy. These forces have meant that you have received your legal education in a very fine Law School, but one that is very different in important respects from the institution I knew a quarter of a century ago. Note that I do not say “worse” – just different.

I do not need to tell you of the changes that have been wrought, following the adoption in Australia of a Thatcherite model that reflects the view that higher education is one of the keys to global economic competitiveness. As Simon Marginson has put it, governments have established new systems of funding and control that have harnessed universities more closely to policy objectives, tied them to economic markets and treated them like businesses. In Australia, this approach is reflected in reductions in government funding for universities and the commensurate need for tertiary institutions to rely upon other sources of income. Thus in 2001, only 46% of university revenues came from direct government grants, compared with over 58% a mere five years earlier. In consequence, universities have been forced to compete in the market place for students, particularly of the full fee paying variety, and for scarce funds. Naturally, average class sizes have increased substantially, as have the Universities’ entrepreneurial activities. Universities have had to adjust to the new economic realities, while attempting to preserve traditional values of disinterested scholarship and high quality teaching, as well as fostering the study of disciplines that may have little to do with economic growth, but a great deal to do with the fostering of a civil (and civilised) society.

A similar phenomenon has occurred within the legal profession, although of course practising lawyers have never been as dependent on government funding as have Australian universities. In 1953, Roscoe Pound, defying George Bernard Shaw’s aphorism that all professions are conspiracies against the laity, expressed the traditional view that the term “profession”:

“refers to a group of men [he was writing in 1953] 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 of livelihood.” (Emphasis added.)

Commentators like Anthony Kronman and Mary Ann Glendon in the United States have traced the transition from the practice of law as a profession in that traditional sense to the conduct of a business, at least so far as the larger law firms are concerned. In consequence of the tyranny of the billable hour, so they argue, lawyers have identified far too closely with their clients and have foregone their role as “peacemakers” (to use Abraham Lincoln’s phrase) and as advisers on ethical questions. Commentators in Australia have observed similar developments, even though the structure of the profession, generally divided between solicitors and barristers, is somewhat different from that in the United States.

These developments have coincided with the application of competition policy to the legal profession. In Australia, mirroring events in other countries, the profession has been subjected to close, even relentless scrutiny. In consequence, it has been forced to abandon sundry restrictive practices, such as minimum fee scales, the conveyancing monopoly, constraints on advertising and prohibitions on multi-disciplinary partnerships. There have also been important changes in the structure of the profession, not least the removal of the power of self-regulation from professional bodies and the belated emergence of a national profession.

The legal profession faces a dilemma that is the counterpart to that facing Universities. In the face of ever greater competitive pressures and the removal of traditional constraints on the activities of lawyers, how is the profession to retain those characteristics that mark it out as a calling in the spirit of public service as distinct from a body of traders. For example, can advocates maintain and discharge their responsibilities as officers of the Court, even if this involves of conflict with the wishes of individual clients? Are lawyers able to act as “peacemakers” in circumstances when there may be powerful financial pressures to maximise conflict? Are lawyers prepared to refuse to countenance dubious transactions or to advise a client against unethical conduct, even if the costs of such a principled course might include loss of the client?

There is now a substantial body of opinion arguing the competition principles have gone far enough and that we are in danger of throwing out the baby with the bath water. The Chief Justice of New South Wales has recently advanced a sophisticated argument to that effect, based upon modern information economics. This discipline holds that significant asymmetries occur in markets where there is a substantial information gap between buyers and sellers, as is the case in the legal services market. Chief Justice Spigelman argues that because of this asymmetry the application of pure competition principles, at least without modification, will not achieve the desired results. He warns, too, that the danger of treating lawyers simply as if they are conducting a business is that they will behave accordingly to an even greater extent than they do now. And so, he counsels:

“the ethic of service which emphasises honesty, fidelity, diligence and professional self-restraint may, progressively, be lost.”

He also points to particular doctrines and constraints that countervail the asymmetry, notably the fiduciary obligations that are imposed on lawyers by reason of their capacity to take advantage of or inflict harm on vulnerable clients. These, he contends, justify caution in deregulating the legal profession, not least because it will place lawyers at a competitive disadvantage with other professionals who are not subject to the same constraints.

The danger identified by Chief Justice Spigelman is a real one. It comes about, in part at least, because the legal profession in the past has overstated the case for resisting change. It might have been thought that the argument in favour of removing some of the more anomalous restrictive practices that had grown up in a different age was unanswerable. That did not deter the Bar, for example, attempting, for a time, to justify retention of the two counsel rule (requiring a junior counsel to be briefed with a senior counsel) and even the so-called two-thirds rule (requiring the junior counsel to receive two thirds of the senior counsel’s fee).

Just as there is a danger that competition principles will be carried too far, so there are worrying signs that the business ethos is taking hold of the legal profession at the expense of traditional values that are genuinely worth preserving in the public interest. I do not mean to suggest that all or even most lawyers have given primacy to business values over the more traditional professional standards. I am aware, for example, of the outstanding pro bono work performed by many firms and practitioners that constitute an important element in preserving the rule of law. Similarly, there is no doubt that the administration of justice and the community at large benefit from a genuinely independent group of specialist advocates, whose integrity can be relied on in the conduct of litigation. Without a high degree of confidence in the independence and integrity of most advocates appearing before the courts, the system would break down. Nonetheless, judges frequently see examples of excessive exuberance by legal representatives who clearly find it difficult to distance themselves from their clients, and to give them fearless, unpalatable advice. No doubt the temptations to excessive exuberance are even greater in non-litigious fields, including taxation and corporate advisory work.

This is an area in which new entrants to the legal profession are likely to face difficult challenges and dilemmas. Modern graduates are not merely the product of a more materialist age (after all, materialism is hardly a novel phenomenon), but of pressures that previous generations did not experience. Without being too saturnine, these pressures include intense competition for university places and jobs, the burden of debt attributable to deferred fees, a volatile market for professional services, lack of security in employment (even at universities and the public sector generally) and anxiety about acquiring a home in an apparently eternally buoyant market. Moreover we live in a society that extols and rewards entrepreneurial skills and values, the manifestations of which may not always be consonant with the values of an independent legal profession.

The pressures to which I have referred can make it difficult for lawyers to display the independence of mind and strength of character that have long been said to be the hallmarks of the legal profession. Of course, for the most part the decisions that have to be made are straightforward. If the choice is between acting dishonestly or in contravention of the law, or acting with integrity and propriety, there is no choice at all. But sometimes the pressures are more subtle and invidious and the choices less clear cut. If in doubt, a useful guide is to stand back from the fray and ask yourself whether the course you propose to take, if generally known, would enhance your reputation for honesty and integrity that is ultimately the professional person’s most valuable asset. And remember that it sometimes takes a good deal of courage to say the very short word “No”.


[1] R Manne (ed), The Howard Years (2004), vii.

[2] R A Posner, “The Anti-Hero”, The New Republic, 24 February 2003.

[3] The Howard Years, note 1 above, 218.

[4] Id, 227.

[5] Roscoe Pound, The Lawyer from Antiquity to Modern Times (1953), 5, cited in M A Glendon, A Nation Under Lawyers (1994), 17.

[6] A T Kronman, The Lost Lawyer (1994).

[7] M A Glendon, note 5 above.

[8] J J Spigelman, “Are Lawyers Lemons? Competition Principles and Professional Regulation” (2003) 77 ALJ 44.

[9] Id, 47.


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