A modest proposal to end lawyers’ self-serving ways

Sure, they’re wiggy dudes, but do they offer good service? Steve Punter flickr

The patently obvious was stated by Allan Myers QC, when he called for abolition of time-billing by lawyers in the Weekend Australian on Saturday. Politicians and judges have been calling for such reform for years.

Mr Myers might also have addressed the astronomical fees charged by silks — not only does solicitors’ practice of billable hours lead to time-wasting (and even perhaps corruption, as Myers suggests), but the high barristers’ fees mean that the best advice is available only to the personally very rich and large corporations. Then there is the unethical conduct of lawyers especially in litigation involving large corporations using “tactics” to delay and frustrate the pursuit of cases.

These truths are not offset by barristers and solicitors sometimes acting pro bono. The fact that your Australian in the street has literally no chance ever of being able to afford the best legal advice lays the entire legal profession open to deserved criticism.

Roy Morgan’s Image of Professions Survey 2010 showed lawyers ranked below policemen, university lecturers and bank managers but three places ahead of shock jocks as the most honest and ethical profession.

Shakespeare famously invoked the ordinary person’s nirvana when he wrote in (2) Henry VI, 4.ii.72— “The first thing we do, let’s kill all the lawyers.” Typically lawyers have reinterpreted this as being in praise of lawyers, rationalizing that villains always want fewer lawyers. But this was not Shakespeare’s intention; he was making a joke reflecting the popular Elizabethan view.

Lawyers have always had a bad press. Even Jesus of Nazareth said: “Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers. …Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.” (Luke 11:46; 52)

Not much has changed in two millennia.

Lawyers have always justified high fees by reference to their long years of study and learning in the law: the law is a profession (as opposed to a trade).

But these days, many carpenters, builders, plumbers and bricklayers are sole-traders, just like barristers. There can be no good reason for high and inflated fees, tactical manoeuvres, or delay on the part of lawyers; nor is there any good reason for delay by judges in giving decisions or for sleeping on the job.

The law is not a game, a money-spinner, or siege warfare. The law is made by people for people. Lawyers are to serve the law; the law is not there to serve lawyers.

What can be done? Billing per item and better means of judicial appointment are not the answers as Myers suggests. These are classic examples of thinking inside the box, or perhaps through one’s wig — such suggestions arise from and are interdependent with a legal culture that is failing Australian citizens. Forget about SCAG, COAG, and the Legal Profession National Law Bill (years in the making and it still has not seen the light of day). Consultation of this kind will never see results, dominated as it is by the persons to be regulated.

The Commonwealth government and the Commonwealth parliament should bite the bullet, take the High Court at its word, invoke the judicial power of the Commonwealth, and draft a new uniform Bill regulating the “legal profession” based on what the woman in the street sees needs to be done. Lawyers would hate this, arguing it smacks of that old saw, “arbitrary government.” But maybe then we would see some real results.

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