19TH AUSTRALIAN LEGAL CONVENTION

YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977

"AWYERS' FUTUROLOGY

Ron ~ustice M D Kirby

;fu1y 1977

19TH AUSTRALIAN LEGAL CONVENTION

YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977

"AWYERS' FUTUROLOGY

Ron ~ustice M D Kirby

;lu1y 1977

19TH AUSTRALIAN LEGAL CONVENTION

YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977

LAWYERS' FUTUROLOGY

The Hon. Mr. Justice M.D. KirbyChairman of the Australian Law R~form Commission

We know wha~ we are butknow not what we may be.

Shakespeare3 HamLet, Act IV ~c.5, 42

LAW, LAWYERS AND FUTUROLOGYPredicting the future is a hazardous business.

1

Inevitably, frognostications look inadequate and quaint, when

measured against events as they unfold. The safe?t prediction

we can make is that :

"our conjectures about .. , the year 2000will turn out by hindsight to have been 2naive and inaccurate in many respects ll

Never are the peril~ more obvious than w~en the law and its

practitioners find themselves in-an'age of rapid change: a

new Age of Reform. 3 In" his Agam~mnon, Aeschylus gave good

advice to those who would indulge· in futurology

liThe future you shall know when it hascome; before then, forget i til. 4

All reform involves futurology, to sOme extent. Seeking to

reform the legal profession requires of the reformer the

identification of those matters in which the profession is

failing so that suggestions can be made to· remedy defects and

right wrongs. In Australia an~ overseas numerous enquiries are

proceeding, designed to identify the problems of and for t~e lego~

profession, in order that they might be dealt with. A Royal

Commission on the Legal Profession and Legal Services-was

established in England in 1976. 5 ,A parallel inquiry has. also

begun in Scotland. In Canada an inquiry has corrunenced. ·Closer

19TH AUSTRALIAN LEGAL CONVENTION

YOUNG LAWYERS' FORUM, SYDNEY, 4 JULY 1977

LA\iYERS I FUTUROLOGY

The Hon. Mr. Justice M.D. Kirby Chairman of the Australian Law R~form Commission

We know wha~ we are but know not what we may be.

Shakespeare" HamLet" Act IV !;U~.5, 42

LAW, LAWYERS AND FUTUROLOGY Predicting the future is a hazardous business.

1

Inevitably, frognostications look inadequate and qua.int, when

measured against events as they unfold. The safe?t prediction

we can make is that :

"our conjectures about .. , the year 2000 will tUrn out by hindsight to have been 2 naive and inaccurate in many respects"

Never are the peril.s more obvious than wJ;en the law and its

practi tioners find themselves in -an" age of rapid change : a 3 .

new Age of Reform. In" his Agamemnon, Aeschylus gave good

advice to those who would indulge· in futurology

liThe futUre you shall know when it has come; before then, forget i til. 4

All reform involves futurology, to SOme extent. Seeking to

reform the legal profession requires of the reformer the

identification of those matters in which the profession is

failing so that suggestions can be made to- remedy defects and

right wrongs. In Australia ana. overseas numerous enquiries are

proceeding, designed to identify the problems of and ~or t~e lego!

profession, in order that they might be dealt with. A RO~/al

Commission on the Legal Profession and Legal ServiceS-Has

established in England in 1976. 5 ,A parallel inquiry has. also

begun in Scotland. In Canada an inquiry has corrunenced. -Closer

- 2 -

to home, the South Australian Government and Opposition have

each proposed legislation to effect ,reforms in the legal

profession of 'that State.-6..., -In"' Re'w ~eaT~ffi-a'; a wO~kin~ paper

has been distributed bY·-ohe··-o.f- -the. Law--Re:f,(~H"m Committees

concerning pr·oposals to change the disciplinary and complaints

procedures of the I-egal profession.? In New South Wales, a

majbr reference has be(en given t-b--the' New South Wales Law

Reform Conuni'Ssion, raising for report an enor'lllOU5 range of

maLtel"'S critically important. for the. fut-ure- of the' legal

profession in that S~a~e~8 The New South-Wal~s inquiry will

obviously have impliea"tions for the future of the profession

in other States. ·The Victoria, L~~ ]nstitute, representing

the solic.i tpr5, has acknowledged. thi;5 a:~.d.proposesto make

submissions to the N.ew South WaclesCommissi,on. 9.

In due course we will all have the benefit of the

informed reportS' of the- .inquirie.s .. The:Y.,<w,i;J,..t:.s~har~ the future

of the l·egal profes.sion'. TlJ-e. mooS"!:. T. 'ca,n<.qq .,is to .identifY a

few of the p'roblem ·areas and, in some. -cases, suggest the way

things may develop.

PROBLEMSIn 1976 the Law Foundation of New South Wales published

the results of a study conducted by ~he Foundation designed

to ascertain public attitudes to the legal profcs~i6n and 1~g3j

institutions. The book by Roinan Tomasic is titled Law, 1,,'1w[:',1'$

and the Community. 10 It recog~ises the fact that it {s

essential that accurate data should be available to those whose

function it is to ensure that the legal profession meets

society's needs and demands. ll I take it 'to be agreed that

the profession should ·have this object as one of its guiding

stars. Of course, a'fter a period of application to study, it

i~ entipely appropriate that an above-average income should

be expected, together with satisfactory opportuniTies of

self advancement and self fulfilment. But in the end, few

lawyers today would .pssert that the law and the legal pro[ess~on

exist simply to serve their own interests. The profession ~s

not and ought not:·to be -continuing "the self-congratulation 0 r;ocie­

It provides particular services to the community. Its utility

can he measured against the degree to which the services

- 2 -

to home, the South Australian Government and Opposition have

each proposed legislation to effect ,,reforms in t0e l~gal

profession of 'that State.-6 ... , -In"' Re"W: ZeaT~ffra·; a working paper

has been distributed bY·-ohe··-of- -the. Law --Re:f,~rm Committees

concerning pr-oposals to change the disciplinary and complaints

procedures of the I-egal profession. 7 In New South Wales, a

majbr reference has be"en given t.o--the" New South Wales Law

Reform Conuni'Ssion, raising for report an enor'lllDUS range of

maLtel"S critically important, for the. fut-ure- of the' legal

profession in that S~a~e.8 The New South-Wal~s inq~iry will

obviously have implica"tions for the future of the profession

in other States .. The Victoria, L~~ }nsti t.ute, representing

the solic.i tPrs, has acknowledged. thi,s a-~-d _proposes to make

submissions to the N.ew South Wa-les Commissi,on. 9 .

In due course we will all have the benefit of the

informed reportS- of the- _inquirie.s .. They.:;; ~,:i),._t:_s~har~ the future

of the l-egal profes-sion-. TlJ-e. mooS"!:, -T. -ca,n-c'._qq ,is to _identify a

few of the p-roblem ·areas and, in some. -cases, suggest the way

things may develop.

PROBLEMS In 1976 the Law Foundation of rJew South Wales published

the results of a study conducted by ~he Foundation designed

to ascertain public attitudes to the legal profc~~:i6n and )~g~j

institutions. The book by Roinan Tomasic is titled Law, /,,'1w[:',1'$

and the Community. 10 It recog~ises the fact- that it :is

essential that accurate data should be available to those whose

function it is to ensur'e that the legal profession meets

society's needs and demands. II I take it 'to be agreed that

the profession should -n.ave this object as one of its guiding

stars. Of course, a-fter a period of application to study, it

i~ entif'ely appropriate that an above-aver'age income should

be expected, together with satisfactory opportuniTies of

self advancement and self fulfilment. But in the end, few

lawyers today would- __ asser:t that the law and the legal pl"'ofess~on

exist simply to serve their own interests. The profession ~s

not and ought not:'to be -continuing "the self-congratulation 0 r:ocie­

It provides particular services to the community. Its utility

can he measured against the degree to which the services

- 3 -

offered. are those which society needs as well as the efficiency

and probity with which the profession performs -its work.

There are some who say that fundamental changes must

come from the numerous inquiries now afoot. According to

them, we must abandon entirely lawyers' monopolies, overthrow

.~ the adversary system and'coro~it all- lawyers to service to

"the community in a State-run legal corporation. We may come

to that. Some futurologists pr~dict it. 12 ~etting my

sights on more immediate possibilities, I can id-entif'y

practical problems Which, I suggest, ~re capabl~ of fairly

rapid change wi th.out ..altering the basic role and organisd tion

of the profession. In Australia-, anything more. is unlikely

to be achieved in the last quarter "of this century. [ven

fyturology must have limits, particu.larly in a settled and

['edsonably -hQmog~neous and self contented society, as l\uGtr'.:llia

is.

I propose·, therefore, to address myself t;o a number

of limited SUbjects, notably entry to the prGfession,. legal

educeltion, admission t-opr~ctice, t.he structure.of the

profession, its work, methods ·and s.elf., discipline.

ENTRY TO THE PROFESSIONOn the basis of empirical studies, there· seems li t;t It;:

doubt that the average lawyer in Australia does not have dn

average background. A study by Anderson and West;ern in 1965

showed, amongst ·other things, that.,a disproportionate number

of students came from high-income 'families. Incomparison

with students in ·medicine, engineering and· teaching., laW" had

the highest proportion from families in "the top income brachet.

Tv;enty percent came from homes with an income, then, of over

:}U, 000. In engineering, only 10% came from such homes ,'Ind in

teaching 6%. The same survey disclosed that lat-J studenLs were, 1" 1 . 13 T .. t ftne most po 2t~cal y- conservatlve. wenty nlne percen 0_

their fathers were prpfessional men, 6% had fathers in the

legal profession. Only 19% came from working class backgrounds.

Law students had a substant·ially higher percentage who had14attended non-State schools than other groups tested.

- 3 -

offered. are those which society needs as well as the efficiency

and probity with which the profession performs -its work.

There are some who say that fundamental changes must

come from the numerous inquiries now afoot. According to

them, we must abandon entirely laHyers' monopolies, overthrow

the adversary system and- cOTmnit all- lawyers' to service to

"the community in a State-run legal corporation. We may come

h S f 1 · d" 12 S . to t at. orne uturo Oglsts pr~ l.Ct l t. ettlng my

sights on more immediate possibilities, I can id-entif'y

practical problems .which, I suggest, ~re capable of fairly

rapid change wi th.out-.al tering the basic role and organisd tieD

of the profession. In Australia·, anything more. is unlikely

to be achieved in the last quarter "of this century. [ven

fyturology must have limits, particu.larly in a settled and

t'edsonably 'hQmog~neous and self contented society, as l\uGtr'.:llia

is.

I propose', therefore, to address myself 'to a number

of limited subjects, notably entry to the prGfession,. legal

educel.tion, admission to pr~ctice, t.he structure.of the

profession, its work, methods ·and s.elf .. discipline.

ENTRY TO THE PROFESSION On the basis of empirical studies, there· seems li tt J to!

doubt that the average lawyer in Australia does not have dn

average background. A study by Anderson and \<Jestern in 1965

showed, amongst -other things, that .. a disproportionate number

of students came from high-income ·families. In comparison

with students in 'medicine, engineering and· teaching., law' had

the highest proportion from families in 1;he top income bracher.

Tv;enty percent came from homes with an income, then, of over

$U,ooo. In engineering, only 10% came from such homes ,'Ind in

teaching 6%. The same survey disclosed that lat-J studenLs were , 1" 1 . 13 T .. t f tne most po 2t~ca1 y. COTIServatlve. wenty TIlne percen 0_

their fathers were prpfessional men, 6% had fathers in the

legal profession. Only 19% came from working class backgrounds.

Law students had a substant·ial1y higher percentage who had 14 attended non-State schools than other groups tested.

- 4 -

Now, these figures are much Qut of date. They may

well be" affected by the .limits impos-ed by university quotas

and the like. Plainly they are significant. An individual's

value system may be well entrenched by the time he gets to

university. ,If the machiner~: of- the legal system is worked

by a constantly self perpetuating group cho?en from an

unrepresentative sample of the community, this' is bound to

have an effect that distances the -law from the community which

it ultimately serves. In an important -address in May 1968,

Mr. Justice Jacobs put it this way:

"A lawye+> is naturalTy:conservative. Histraining almost inevitably mak~s him soand if is pr"oper that lie 'should be "~5Howeverconservatism must have. its' .1ilJIits:lI •

The 1l1J.mits II of which his Honour.:spoke "are nov.' being plumbed.

Australian society is changing rapidly", lfthe legal professi0J1

i:; to. maintain ~ let alone- expand its relev-ancy, it must t"l'

alert to these changes and able to meet the chellenge of ch~nge.

If a great proportion of its members suffer attitudinal

blinker,S, th~)f w,ill miss the signs of cha,nge.

One thing is sure and it is that women are playing

an increasing role in the profession. The disproportion of

Women is being corrected at every level. This trend is _likely

to continue. In 1940 there were 2 .women~pr~ctising as barristers

in New South Wales (0.7% of all barristers) and 15 solicitors

(1%). In 1975 there were 28 barristers (5%) 'and 304 solic-itor's

(6%). During the period from 1960 to 1974, the percen1:age of

female.s_ among Austral·ian law students rose from 11% to 22%.

Yet, in 197~ the equivaient percentage in medicine and science

was about 33% and zhe overall university percentage, 35%.16

The trend is certainly in the direction of increase. The

appointment of women to the Bench and their gener~l advar.cement

in the profession will not abate.

Allied to this profile of the background of Australian

lawyers is the inevitable question of supply and demand. In

the 1971 Cen~us, 10,.300 Australians described their employmentin a way that was subsequen-tly classified as llla't\l pro-fessiona1". 17

This produced a ratio of practising lawyers to population that

varied from 1:860 in N.S.W. to 1:2330 in W.A. The fi£ures tend

- 4 -

Now, these figures are much out of date. They may

well be" affected by the .limits impos-ed by university quotas

and the like. Plainly they are significant. An individual's

value system may be well entrenched by the time he gets to

university. ,If the machiner~: of- the legal system is worked

by a constantly self perpetuating group cho.sen from an

unrepresentative sample of the community, this' is bound to

have an effect that distances the -law from the community which

it ultimately serves. In an important -address in May 1968,

Mr. Justice Jacobs put it this way :

ITA lawye+, is natural-ly :conservative. His training almost inevitably mak:es him so and if is pr"oper that lie 'should be"~5However conservatism must have. its' .1ilJli ts'II,

The 1I11.mi ts II of which his Honour. :spoke "are neV.' being plumbed.

Australian society is changing rapidly", If the legal profcssi0J1

i:; to. maintain ~ let alone- expand its relev-ancy, it must t"l'

alert to' these changes and able to' meet the chellenge of ch~nge.

If a great prO'pertien of its members suffer attitudinal

blinker,s, th~)f w·ill miss the signs of cha,nge.

One thing is sure and it is that women are playing

an increasing role in the prefession. The disproportion ef

wemen is being corrected at every level. This trend is _likely

to continue. In 1940 there were 2 .:women~pr~ctising as barristers

in New South Wales (0.7% of all barristers) and 15 solicitors

(1%). In 1975 there were 28 barristers (5%) 'and 304 solic-itor's

(6%). During the period from 1960 to 1974, the percen1:age of

female.s_ among Austral·ian law students rose from 11% to 22%.

Yet in 197~ the equivaient percentage in medicine and science

was about 33% and zhe overall university percentage, 35%.16

The trend is certainly in the direction of increase. The

appointment of women to the Bench and their gener~l adva:r.cement

in the profession will not abate.

Allied to this profile of the background of Austral:ian

lawyers is the inevitable question of supply and demand. In

the 1971 Cen~us, 10,.300 Australians described their employment

in a way that was subsequen-tly classified as 1I1a .t\! pro-fessiona1". 17

This produced a ratio of practising lawyers to population that

varied from 1:860 in N.S.W. to 1:2330 in W.A. The fi£ures tend

to suggest a disproportionaTely great number of lawyers

centred in the city of Sydney and Melbourne, a disinclination

to practise in country or remote districts and, because of

the dramatic increases it! the numer'ieal strength of the legal

profession in recent years, a preponderance of young laywers.

Even the present preponderance of very young lawyers is unlikely

to decline. 18 The statistics are interesting:

I cann9t comment upon whether there is an over-supply of

lawyers either.now or. potentially. In New South Wales, the

number.of persons graduating annually will treble between 1970

and 1980. At ..least it can be said that there is a " s trong-,- . 19 .

possibil.i ty" of an over-supply. This phenomenon is most acute

in New South Wales. It may not be present in South Australia

and Western Australia. But the explosion in numbers

unfortunately coincides with an economic downturn which, putting

it at its lowest, make the positio?.for p'ro~pective law

grad~ates within the practising prOfession, more doubtful than

has been the case for decades.

The outcome of ov~r-supply of lawy~rs in some pdrts

of Australia may not be an unrelieved disaster. Indeed it may

have some advantages. It may encourage lawyers in this country

to be more adventurous in their professiona-l careers. 20 I·c

may set them upon the process, well established and developing

in the United States,by which lawyers work in decreasing numbers

in private practice and increasingly for businesses, unions

and others as IIhouse counsel". 2l It may make government practice

more 'attractive.22 It may encourage the next generation of

lawyers to turn their attention to activities where there is

a social need but which are neglected because other work is

more'remunerative.,23 has more "snob value" or is other\o1ise presen1

considered more congenial.

(21% )(13% )(30%)(35%)

39%19%22%20%

Percentage ofrespondents

1973 1967 (est)

Period sinceadmission

Under. 5 years5-9 years ~

10-19 years20 years or more

- 5 -

1;1. %43%23%23%

Percentage ofrespondents

Age

Under 25 years25-34 years

.35-44 years45 years

- 5 -

to suggest a disproportionaTely great number of lawyers

centred in the city of Sydney and Melbourne, a disinclination

to practise in country or remote districts and, because of

the dramatic increases it! the numer'ical strength of the legal

profession in recent years, a preponderance of young laywers.

Even the present preponderance of very young lawyers is unlikely

to decline.18

The statistics are interesting:

Age

Under 25 years 25-34 years

.35-44 years 45 years

Percentage of respondents

1;1. % 43% 23% 23%

Period since admission

Under. 5 years 5-9 years ~

10-19 years 20 years or more

Percentage of respondents

1973 1967 (est)

39% 19% 22% 20%

(21% ) (13% ) (30%) (35% )

I cann9t comment upon whether there is an over-supply of

lawyers either.now or. potentially. In New South Wales, the

number _of persons graduating annually will treble bettveen 1970

and 1980. At_.1east it can be said that there is a "strong / . 19 .

possibil.ity" of an over-supply. This phenomenon is most acute

in New South Wales. It may not be present in South Australia

and Western Australia. But the explosion in numbers

unfortunately coincides with an economic downturn which, putting

it at its lowest, make the positio!, .. for p'ro~pective law

grad~ates within the practising profession, more doubtful than

has been the case for decades.

The outcome of ov.er-supply of lawy.ers in some pdrts

of Australia may not be an unrelieved disaster. Indeed it may

have some advantages. It

to be more adventurous in

may encourage lawyers in this

their professiona.l careers. 20

country

It

may set them upon the process, well established and developing

in the United States,by which lawyers work in decreasing numbers

in private practice and increasingly for businesses, unions

and others as "house counsel".2l It may make government practice

more 'attractive.22 It may encourage the next generation of

laHyers to turn thei!' attention to activities where there is

a social need but which are neglected because other Hark is . . 23

more remuneratlVe., has more "snOb value" or is otherHise presen1

considered more congenial.

- 6 -

LEGAL EDUCATION

There' is not a shadow of doubt that legal education

both in content and method will change rapidly in the last

quarter of this century. In his overview of legal education

in Australia', Professor Derham told 1;:he Conference in 1976 :

"We ar.e· now ~_;.' in a period" 0"£ profoundand rapid change in our society ... Thework of bringing. OUI'_ 'black letter law'into tune with the needs of the time isarduo~s and" exact.~ng-.work c.a:l.).. iIl;g forhigh scholarship and developed legalski-lIs ... If it .is not done, ,no:t _onlylawyers ·but the law itself will fall intodisrepu.te':-.· 24 ..

I believe·:that this perception is- snared in law schools and

colleges of law ·throughout the c~ufl~rY.

There is, of course-, a potential conflict between: the­

functlon of law to provide stability, predictability and

certainty and -its function to react -flexibly to changes in societ~

and changes· imposed by" sc'"i'ence "arid technology. Legal education

has hithertoj~aid excessive emphasis upon the first" feature of

the law. Increasingly it wiil put emphasis upon the second.

This will impose. upon law teachers the-obligation to teach

new skills. At the moment, in 'the analysis of decisions of

"appellate courts, too often discuss:Lon ends "at the very point

where it should proper:1y begin".25. A sc'rutiny of the interests

at stake in judicial decisionmaking and in the framing of

legislation is a proper function of the lawyer. He is trusted.

with touching faith, to help to resolve social conflicts,

many of which will be intense, new and lacking in clear analogous. 26gUldance. "

It is not so long ago that constitutional law was

taugh_"t,,as if it was and should be a mere matter of statutory

construction. I am confident that this vlew will not survive

the present century, even if it does not suffer an earlier death.

It is important that when we deprive lawyers of resort to such

an important myth as "complete and absolute legalism" we should

arm the next generation with the tOOls that will be necessary

to replace that myth. They must be helped to identify and

articulate the interests they are dealing with. Self deception

- 6 -

LEGAL EDUCATION

There" is not a shadow of doubt that legal education

both in c'ontent and method will change rapidly in the last

quarter of this century. In his overview of legal education

in Australia', Prof.essor Derham told 1;=he Conference in 1976 :

"We ar.e· now ~_:F.; in a period' 0"£ profound and rapid change in our society ... The work of bringing. OUI'_ 'black letter law' into tune with the needs of the time is arduo~s and' exact.ing- ,work c.a:l.) .. iI'1:g for hi-gh scho·larship and developed I·egal ski-lIs ... If it .is not done, ,TIQt only lawyers -but the law itself will fall into disrepu.te':-.· 24 ..

I believe ·=that this perception is- snared in law schools and

COlleges of law -throughout the c~ufl~rY.

There is, of course-, a potential conflict between: the­

functlon of law to provide stability, predictability and

certainty and "its function to react-flexibly to changes in societ~

and changes· imposed by· sc""fence ·arid technology. Legal education

has hitherto/laid excessive emphasis upon the first· feature of

the law. Increasingly it wiil put emphasis upon the second.

This will impose. upon law teachers .the -obligation to teach

new skills. At the moment, in --the ami.lysis of decisions of

. appellate courts, too often discuss:Lon ends "at the very point

where it should proper:1y begin".25. A sc'rutiny of the interests

at stake in judicial decisionmaking and in the framing of

legislation is a proper function of the lawyer. He is trusted.

with touching faith, to help to resolve social conflicts,

many of which will be intense, new and lacking in clear analogous . 26 gUldance ..

It is not so long ago that constitutional law was

taugh_"t,,as if it was and should be a mere matter of statutory

construction. I am confident that this vleiv will not sun.rive

the present century, even if it does not suffer an earlier death.

It is important that when we deprive lawyers of resort to such

an important myth as "complete and absolute legalism" we should

arm the next generation with the tools that will be necessary

to replace that myth. They must be helped to identify and

articulate the interests they are dealing with. Self deception

- 7 -

and not hypocrisy, is the enemy here. David Riesman and

~ulius Stone have been teaching this for successive generations

students since"the 194-05. The law moves in tardy, .as

well as mysterious ways. Only now have the first glimmerings

of Stone's perceptions begun to show in jUdicial decisions.

Legal education has a long fuse. If lawyers are to meet the

~hallenge of relevancy, it is importan~, in my view, that

unive~sities develop the oPtion~~ ?ou~ses.that will prepare the

profess-ion of the f1..!ture for its-·t";"~ks. Cqurses on

environmental la~, trade un~ons and the law, law and medicine,

poverty law, civil_rights, consumer law and so on sound curious

to the ear -of those trained in,.a.rigid,..c.urr.iculurn., But when

it is seen that that cu~ricu14m, with,its emphasis upon. property

rights protection, serve only a part of the'community, and

when it is remembered that legal aid will offer the opportunity

of access to the law to different interests in the community,

it is vital that. those-.who.. are coming thr.ough should· acquire

mul t:iple skills in direct-rons that we're unthinkable even a. 27genera t.lon ,ago.

ADMISSION TO PRACTISE

The rules governing.admission to pr~ctise h~ve corne

under scrutiny of late. Steps have been taken which show the

way of th~ future. The President of the Victorian Law

Institute points the way :

"There is a growing need for the professionto be more nationally minded. We aremembers of the one profession whether inpractice in Queensland, Western Australiaor Victoria. Why should there not be acommon code of ethic.s, a common systemof costing and a common professionalindemnity scheme?lI 28

One of the far-seeing provisions introduced by the .Judi-aiary Act

(Amendment) 'BiLL 1976 was that which would permit the appearance

of practitioners admitted in any State to appear before a

State court of another -State when exercising Commonwealth

j'uriscHction. 29 This will begin the process of er'oding the

protective requ"irements of residence by which the sma 11e1" States

have previously excluded practitioners from Sydney and Melbourne.

There is no future in this kind of limitation upon

- 7 -

and not hypocrisy, is the enemy here. David Riesman and

,Julius Stone have been teachi.ng this for successive ge'nerations

students since"the 194-0s. The law moves in tardY,-,as

well as mysterious ways. Only now have the first glimmerings

of Stone's perceptions begun to show in jUdicial decisions.

Legal education has a long fuse. If lawyers are to meet the

~hallenge of relevancy, it is importan~, in my view, that

univer:-sities develop t-he oPtionc3;~ cou:r:ses. that: t.;ill prepare the

Cqurses on

environmental la~, trade un~ons and the law, law and medicine,

poverty law, civil _ rights, consumer law and so 'on sound curious

to the ear ·of those trained in:.a.rigid ... c.urr.iculurn., But when

it is seen that that cu~ricu14m, with,its emphasis upon. property

rights protection, serve only a part of the'community, and

when it is remembered that legal aid will offer the opportunity

of access to the law to different interests in the community,

it is vi tal that. those- .who .. are corning thr.ough should· acquire

mul t:iple skills in direct-rons that we're unthinkable even a . 27 genera t.Lon ,ago.

ADMISSION TO PRACTISE

The rules governing.admission to pr<?.c1;:ise haye corne

under scrutiny of late. Steps have been taken Vlhich show the

way of th.e future. The President of the Victorian Law

Institute points the way :

"There is a growing need for the profession to be more nationally minded. We are members of the one profession whether in practice in Queensland, Western Australia or Victoria. Why should there not be a common code of ethic.s, a common system of costing and a common professional indemnity scheme?!! 28

One of the far-seeing provisions introduced by the .Judi-ciary Act

(Amendment) BiLL 1976 was that which would permit the appearance

of practitioners admitted in any State to appear before a

State court of another -State when exercising Commonwealth

j'urisaiction. 29 This will begin the process of er'oding the

protective requ'irements of residence by which the sma 11e1" States

have previously excluded practitioners from Sydney and Melbourne.

There is no future in this kind of limitation upon

- 8 -

the right to practice within Australia. Already steps hav-e

been taken in Europe, within the markedly differen t legal

systems of the Continent and the United Ki"ngdom; to abolish

discrimination based on frontiers and to ensure reciprocity.

of legal representation. 3D When the' differences of language,

culture a~d his~ory, to say nothing of legal tradition in

that conte"~tare me~sured against the Australian scene, iT makes

the just,ification of State irnpe'dime~ts to practise hard to

perceive. The presence of Federal Courts, the admissiDn of

some practitioners in State courts, the growth of Commonwealth

law and the presc l.e nee of State law s'ocieties clearly point

the way of the future. Although there are obvious difficulties,

given'the present org:i.nisation of-'disci"p"line-'of the pr'-ofession

by the JUdges of the Supreme Courts of the several States, Ipredict th~t the Law Council will give fresh attention to this

l-J{'oblcm. By the turn of the century, I wouJd e~:pPC't ;1 tl~uly

~. national "pr-Ofession e~j"6ying'·comp"iet~ re·ciproci·ty, at" least

before the courts and tribunai':{ in 'eve-r'"Y part of' the coun-rry.. .United States wri~ers are pessimistic about the emergence of

a national Bar in the United States. 31 Some Australian "..Jritcrs

share this pessimism. I do not. F~rces are at work which

will not go into.reverseP2 I have suggested some of them. 1

would only add the general relax~tion in technical requirement~

such as nationality which are evidencea in recent Australian

decisions. 33 ~e have fewer impediments to achieving a national

profession than exist in the United States. The increasing

contact between lawyers in all parts of the country will

diminish the remaining barriers in the way of complete

reciprocity.

STRUCTURE OF TH~ PROFESSION

One of the critical questions before the Ne\·.' S<Juth

Willes Lair! Reform Commission is whether t.he separ:lt i0n of ~ h('

profession between barristers and solicitors should }'crsis~

and, if 'not, whether some form of fusion could or should" b~~

permitted or enforced. That the distinction is not entirely

historical and could have practical implications can be seen

from some at least of the reasons for judgment in the High Court

of Australia in Re NeiZ; ex parte Cinema InternationaZ

Corporation Pty. Limited. 34

- 8 -

the right to practice within Australia. Already steps hav-e

been taken in Europe, wi thin the markedly differen t legal

systems of the Continent and the United Ki'ngdom; to abolish

discrimination based on frontiers and to ensure reciprocity.

of legal representation. 30 \>Jhen the' differences of language,

culture a~d his~ory, to say nothing of legal tradition in

that cont~~t are me~sured against the Australian scene, iT makes

the just.ification of State irnpe'dime~ts to practise hard to

perceive. The presence of Federal Courts, the admissiDn of

some practitioners in State courts, the growth of Commonwealth

law and the prescience of State law s'ocieties clearly point

the way of the future. Although there are obvious difficulties,

given' the present org:i.nisatlon of disci"p-line- of the pr-ofession

by the Judges of the Supreme Courts of the several States, I predict th~t the Law Council will give fresh attention to this

lJ{,oblcm. By the turn of the century, I wouJd e~:pPC't ;1 tl~uly

~. national pr-Ofession enj"oying' complete re"ciproci"ty, at' least

before the court,s and tribunai~': in 'ev'e;"y part of- the coun-rry.

Uni ted Stat-es wri"ters are pessimistic about the emergence of

a national Bar in the United States. 31 Some Australian "driters

share this pessimism. I do not. F~rces are at work which

will not go into.reverseP2 I have suggested some of them. 1

would only add the general relaxi:jtion in technical requircr.lent.s

such as nationality which are evidencea in recent Australian

decisions. 33 ~e have fewer impediments to achieving a national

profession than exist in the United States. The increasjng

contact between lawyers in all parts of the country will

diminish the remaining barriers in the way of complete

reciprocity.

STRUCTURE OF TH~ PROFESSION

One of the critical questions before thc Ne\·.' S<Juth

Willes Lair; Reform Commission is whether t.he sepaT':lt i0n of ~ he

profession between barristers and solicitors should l'crsis~

and, if -not, whether some form of fusion could or should b~~

permitted or enforced. That the distinction is not entirely

historical and could have practical implications can be seen

from some at least of the reasons for judgment in the High Court

of Australia in Re NeiZ; ex parte Cinema InternationaZ

Corporation Pty. Limited. 34

- 9 -

This is not the occasion ~~ ~~~ea~se the argu~ents

·for and against a separate Bar~ It i~.worth noti~g that whilst

there is a strong fe.eling in s~me quarters in Austra.lia 1;hat

separation unduly add~. to legal costs and duplicates- highly

paid work, in the United States, the contrary feeling is abroad.

The Chief Justice of the United States ha~ specifically lamented

the absence of a separate, special~?ed Bar.

Various suggestiohs.ha~7:be~~made to p~rmit or

encourage a changed organisation of -tl1e.pro.f~ssion. Certainly

it must be acknowledg~d that attempt"s; or.. prp.posa·ls in the past

to enforce f~~iort where it· did .n-.qt:-.-exlst: have.. come to nothing:_.- - - 35 . .. -. - -- --- 3·running. into .judicial opposition· - ?r"professional.. preferences. b

In his 1968 lectupe, Mr. Justice Jac?bs suggested ~hat

a better orga.nisation of the pl'ofes.~ion.was that d.?opted by·· the

medical profession, namely a diVis~bn'between those in- - - -- -... -. . ... 37

general practic~ and those. engaged 10 spec1~1 practice. There

seems to be' a.-&idespread view that a greater degree of

5pecialisatio~.wouldadvan~age ~h~. ~o~~\S,and the C?mrnUDit~.38

The Young Solicitors· Group. of the Law Society of

England and Wales proposed a three-tier sFructure made up of

Ca) A legal administratbr~whb dealt withancillary administrative work calledliThe Legal ~xecutivell

Cb) The practitioner to ,whom the client cango direct for advice and assistancecalled "The Lawyer ll

(c) The practitioner of exceptional .abili tyand experience who is consulted by!Ilawyersll to assist in cases df unusualdifficulty or importance, called'"Counsel ll ; 3'9

This organ~sat~on parallels that proposed by Mr. Justice Jacobs,

with the addition of a support group of para-legals who could

no doubt do routine work curre~tly reserved to lawye~s.

Associated with these proposals for change are proposals

for incorporation amongst legal practitioners. Such a proposal

was put forward by the Victorian Law Institute but apparently

- 9 -

This is not the occasion ~~ .r:,~~ear:se the argu!J1ents

·for and against a separate Bar., It i~. worth noti~g that whilst

there is a strong fe.eling in s~me quarters in Austra.1ia 1;hat

separation unduly adds', to legal costs and duplicates· highly

paid work, in the United States, the contrary feeling is abroad.

The Chief Justice of the United Sta'tes ha~ specifically lamented

the absence of a separate, special~?ed Bar.

Various suggestiohs.ha:'7:be~~ made to p~rmit or

encourage a changed organisation of 'the, pro.f~ssion. Certainly

it must be acknowledg~d that attempt's. or._ prp,posa'ls in the past

to enforce f~~iort where it· ~J~ . ~~r exist: ~a:.v~.: come to nothing : 36

running, into .judicial Opposltlon - or"professional.preferences.

In his 1968 lectupe, Mr. Justice Jacobs suggested ~hat

a better orga.nisation of the pl'ofes.~ion was that a,:lopted by' the

medical profession, namely a div'is'ion'between those in . .... .... '. . '.' 37

general practic~ and those, engaged 10 spec1~1 practice. There

seems to be' a ,,&idespread view that a greater degree of

specialisation,.,would advan~a.ge ~h,~. ~o~r.t:s ,and ,the c.?nunuI)i t)!. 38

The Young Solicitors t Group. of the Law Society of

England and Wales proposed a three-tier sFructure made up of

Ca) A legal administra'tbr'-'whb dealt with ancillary administrative work called liThe Legal ~xecutivell

Cb) The practitioner to ,whom the client can go direct for advice and assistance called "The Lawyer!!

(c) The practitioner of exceptional ability and experience who is consulted by "lawyers!! to assist in cases df unusual difficulty or importance, called "Counsel!!; 3'9

This organ~sat~on parallels that proposed by Mr. Justice Jacobs,

with the addition of a support group of para-legals who could

no doubt do routine work curre~tly reserved to lawye~s_

Associated with these proposals for change are proposals

for incorporation amongst legal practitioners. Such a proposal

was put forward by the Victorian Law Institute but apparently

- 10 -

wi thdrawn when the implications of the TY'ade Practices AC.t

were ~ons idered. 4-0

It seems unthinkable to me that lawyers should be

forced into partnership. The trend in the United State~ is. .. .. 41

certa~nly towards er~dlng the role of the sole practltloner..

Indeed .the trend in the. United States is di$tinctly away from. . 4

priva'te ·pra·ctice and to'wards business aRd go,:,ernment engagement.

Any solu~ion wil~_ have-~o ac~ommodate ~tse~f_ to the

substantive law ,a~d co~rt systems which the profession has to

operate., As it_"'i-~__.unlikely that::c.we,: w.ill aba-ndaD entirely the

adversary s~s ;~" the~e' wiil _b~'~. ~~_ed f.o~"'"'_the"for~seeable_future for ~raine4 advocates~ Already th~" Ba~.is tending .to

s~ecialise and, by a proces~ of evolution rather than imposition,

is-"tending_ to mo~e- in the 'dire~tion pr~d.ic,ted by Hr. Justice

Jacobs in 19..68 and .·the You,?g Sol.ici.tors in 1-97,2. ]'iJCl'~. <..lI'L:,

of course, ancj.llary matteFs' that..must be clarified. We must

consider, for 'examJ?~e, ~he the.r.c.e~t.ific:ates of spec ialisa t ion

are needed,.?dvertising of specialties permitted, the ~wo-counse1

rule abolished and so on. Given the adve!:'sary system, the

talents and inc~inations of a limited n~mber of the profession

towards advocacy, t.he his~tory of the deve~opment of a separate

~ar and the other arguments pro and con, my own feeling is that

a separate Bar will survive current scrutiny. At the same

time there is no doubt that peripheral abuses which mar the

present system will disappear, to adapt Mr~ Justice Jacobs,

at the end of " a golden autumn ll•

WORK OF THE PROFESSIONUse of the La~. We are not likely to live to see

the removal of all of the impediments which stand in the way

of use of the law cjnd lawyers by all citizens. Ignorance,

fear, apathy, indifference, an inability to afford fees ,and

a conviction that the law is II stacked up against ll the ord.inary

individual are ~ot likely to disappear by the turn of the

century. Nevertheless, changes are occurring which will tend

to promote a closer approx~mation to the ideal of true equality

before the law. These forces include the rapidly increasing

levels of education in the Australian community, the provision

- 10 -

wi thdra\'!n when the implications of the TY'ade Practices AC.t

were ~ons idered. 4-0

It seems unthinkable to me that lawyers should be

forced ,into partnership. The trend in the United State"s is . .. .. 41

certa~nly towards er~dlng the role of the sole practltloner ..

Indeed .the trend in the. United States is di$tinctly away from . . 4

priva'te ·pra·ctice and to'wards business aRd go,:,"ernment engagement.

Any solu~ion wil;L. have- ,to ac~ommodate .i ts€:t.f. to the

substantive law <a~d co~rt systems which the profession has to

opera te., A~ ~ ~_ "'i-~_-. un~i~e}-y th~ t7:W~:_ w.ill ~ba-ndon entirely the

adversary sys tern., there wiil .be' a. n~_ed f.oJ:''''"'_the" foreseeable.

future fO.r ;traineq advoca:tes~ Already th~ Bar .. is tendin.g to

s~ecialise and, by a proces~ of evolution rather than imposition,

is-"tending_ to mo~e- in the 'dire~tion pr~d.ic,ted by Hr. Justice

Jacobs in 19 .. 68 and .·the You.?g Sol.ici.tors in 1.g7.2. ]'hcl"~. <..II'e,

of course, ancj.llary matte~s' that .. must be clarified. We must

consider, for 'examJ?~e, ~heth~.r .c.e~t.ific:ates of specialisation

are needed, .. .advertising of special ties permitted, the T.wo-counsel

rule abolished and so on. Given the adve!:'sary system, the

talents and inc~inations of a limited n~mber of the profession

towards advocacy, t.he his~tory of the deve~opment of a separate

tsar and the other arguments pro and con, my own feeling is that

a separate Bar will survive curren"t scrutiny. At the same

time there is no doubt that peripheral abuses whiCh mal" the

present system will disappear, to adapt Mr~ Justice Jacobs,

at the end of "a golden autumn ll•

WORK OF THE PROFESSION Use of the Lal.J. We are not likely to live to see

the removal of all of the impediments which stand in the way

of use of the law cjnd lawyers by all citizens. Ignorance,

fear, apathy, indifference, an inability to afford fees ,and

a conviction that the law is II stacked up against ll the ord,inary

individual are ~ot likely to disappear by the turn of the

century. Nevertheless, changes are occurring which will tend

to promote a closer approx~mation to the ideal of true equality

before the law. These forces includ'e the rapidly increasing

levels of education in the Australian community, the provision

- 11 -

of special services for particular disadvantaged groups (as

for example the Aboriginal Legal~Service),the expansion of legal

aid generally and the design of new machinery to resolve disputes

which, though importan~ t'? those ,invo:Lved, do not warrant

in mone.y terms. tJ1e.engagement of.!l laHyer. In this last

cate&ory must be included Ombudsmen, consumer protection

authorities, debt counsell~ng.. services, small claims tribunals43and so on.

. .. ' ,~.; .... 'ill1e "provi~don of s~ch facilities., allied, with the

expansion in ~umQer~, changes pt attitv4es and additions to the

curricula in .l.~gal e.dJlcati.on,. wi).l",.J+Dclqubtedly propel the

1 f · - & -.- 44 -egal pr~ e?s.lon "lnto new ar~as ,0.1.. actlVl.ty.· It J.5 to be

hoped that this occurs be~ause the signs _are definitely.out

that the profession is goin~ to lose at least its monopoly ,in

the volume work .. which has lately provided the great part 01 its. ,income. If oI').~. examin.eE?__ :the aJ::'~_~s ,iI). w1:1ich. until now the

ordinary mem1;>er .at:. th~' cOTIUnj..l.nitY.:nas· used a lawyer, they \o,,'ould

tend to contract to the following; ~ real estate transactions,

especi~lly th~ purqhase of a block of land or horne; matrimoniul

disputes (especially divorce); drawing a .will and administering45 - -

an estate. j

In some parts of Australia only law~ers are permitted

to prepare for reward documents for land conveyancing, probate

administration and the like. Esti~ates vary but it seems a

fair assumption that work of this kind produces about 60% of

the income of lawyers in the Eastern States.46

Neither in

Western Australia nor South Australia do lawyers enjoy a monopoly

of this work. Consequently, in South Australia lawyers share

only 20% of the conveyancing work, the remaio?er being carried

on by registered "landbrokers". Lawyers tend to be utilised

\.-There the transact~on is large, associated with othep dea.lings (-·r

if personal factors are involved. The scale of charges [?~

landbrokers, wi t.h '"",hom lawyers must compete, in South Austra.l iii.

are well below those levied by lawyers in the Eastern States.

On a purchase of a house of $40,00~-the comparative fees are

S .A. $146 V. $485

'I.A. $128 N.S.W. $351

Q. $364

- 11 -

of special services for particular disadvantaged groups (as

for example the Aboriginal Legal~Service),the expansion of legal

aid generally and the design of new machinery to resolve disputes

which, though importan~ tc? those ,invo:Lved, do not warrant

in mone.y terms. tJ:le.engagement of.!1 laHyer. In this last

cate&ljory must be included Ombudsmen, co"nsumer protection

authori ties, debt counsell~ng .. services, small claims tribunals 43 and so on.

. .. ' ,~ .... .. 'lU1e "provi~don of s~ch facilities., allied, with the

expansion in ry.um1;:>er~, changes ,at attitu.4es and additions to the

curricula in .l~gal e.dJlcati.on,.

legal

wi).l.,,_~ciqubtedly

... 44 actJ.vl.ty ..

propel the

It is to be

hoped

pr~fe?s.ion "into new ar~as ,of

that this occurs be~ause the signs _are definitely.out

that the profession is goin~ to lose at least its monopoly ,in

the volume work .. which has lately provided the great part 01 its - , income. If OI').~. examil]eE? __ :the aJ::'-5!_~s .il). wnich. until now the

ordinary meml;>er .at:. th~' conunJlnitY.:nas, used a lawyer, they \o,,'ould

'tend to contract to the ;following;:. real estate transactions,

especi~lly th~ purqhase of a block of land or horne; matrimoniul

disputes (especially divorce).; draw"ing a: .will and administering 45 .

an estate. j

In some parts of Australia only law~ers are permitted

to prepare for reward documents for land conveyancing, probate

administration and the like. Esti~ates vary but it seems a

fair assumption that work of this kind produces about 60% of

the income of lawyers in the Eastern States.46

Neither in

Western Australia nor Soulh Australia do lawyers enjoy a monopoly

of this work. Consequently, in South Australia lawyers shar'e

only 20% of the conveyancing work, the remain?er being carried

on by registered "landbrokers ll• Lawyers tend to be utilised

Hhere the transact~on is large, associated with othep dealings ~-·r

if personal factors are involved. The scale of charges [.0:'

landbrokers, wi t,h '""hom lawyers must compete, in South Austral iii.

are well below those levied by lawyers in the Eastern States.

On a purchase of a house of $40,00~-the comparative fees are

S.A.

'i.A.

$146

$128

v. $485

N.S.W. $351

Q. $364

- 12 -

There may, of course, be other relevant market'factors. fo~ty

thousand dollars purchases a good property in Adelaide but a

very modest one indeed in Sydney. The land market is more

vigorolls in the Eastern States and the communities marginally

more prosperolls. _Th~ difference is still significant. It

cannot be scoffed away. There is no use hiding the fact that

many conveyancing transactions are de facto'performed from

first to last by trained typists. This au~omaticity is

likely to inc~ease rather than diminish with the growing spread

of the TOrrens System, the use of computerisation ahd the

development of ins~rance schemes to pr6te~t against loss. I

think it very likelY'tha't lawyers will'lose their'monopoly on

land conveyancing and t-ha.t this part' 6f th-eir" practice wii]

severely contract to roughly the proportions of-South Australia.

Clearly the loss of such ·volume WOI"k wilT have marked implications

.tor the fu.ture activity and income levels of the pro.tessio-rl.

That is riot" ail. In the Family Law area'significdnt

cl-iangQs have commenced. The "opject- of the Family Law Act j!..j to

['educe to "un ahsolu-te minimum the i~pediments in the WilY oj

(Jjr..solution of marriages. The great ,increase in ,the divorce

rate and in the numbers awaiting divorce, demonSTrate the

effectiveness of the Act in securing this ,object. Simplification, ." , 47

of the law reduces the need for "la"wyering". It makes

yossible .the Il do-i t-yourself l1 kit which has enjoyed some

success in the Family Law area already and is likely to expand

rapidly into other activities including real estate, proba~e,

b f l 'f' 'b' 1 d 48appearances e are pro ~ erat~ng tr~ una s an so on.

If one turns from the work traditionally done by

solicitors, to the work of advocates, it must be admitted that

the Ilevil hour ll was averted when the National Compensation Bill

was forestalled. However, even in recent weeks the Opposition

has reintroduced the National Compen~ation and Rehabilitatio~

Bill 1977.49

The Government has made it plain that the issue

is not dead but that discussions are being had with the States. I" .. II 50with a view to procurlng a nat~onal compensatlon polley .

A Royal Commission is looking into the matter in England, a

Board of Inquiry under Sir John Minogue is examining the no-fault

- 12 -

There may, of course, be other relevant market' factors. fO'IJTY

thousand dollars purchases a good property in Adelaide but a

very modest one indeed in Sydney. The land market is more

vigorous in the Eastern States and the communities marginally

more prosperous. _Th~ difference is still significant. It

cannot be scoffed away. There is no use hiding the fact that

many conveyancing transactions are de facto'performed from

first· to last by trained typists. This au.tomaticity is

likely to inc~ease rather than diminish with the growing spread

of the T~rrens System, the use of computerisation ahd the

development of insl-lrance schemes to protect

think it very likely- that lawyers will " ib~e a-gainst loss. I

their"monopoly on

land conveyancing and t-ha_t this part' 6f th-eir"' practice wii]

severely contract to roughly the proportions of-South Australia.

Clearly the loss of such 'volume WOI"'k wilT have marked implications

ror the fu.ture activity and income levels of the pro1essio-rl.

That is riot, ail. In the Family Law area 'significdnt

cbangC!s have commenced. The 'opject- of the Family Law Act j!.; to

['edUCe! to ,un ahsolu-te minimum the i~pediments in the WilY oj

(lj r.,sol ution of marriages. The great ,increase in. the divorce

rate and in the numbers awaiting divorce, demonSTrate the

effectiveness of the Act in securing this ,object. Simplification , ." , 47

of the law reduces the need for "la·wyering". It makes

yossible .the I!do-i t-yourselfl1 kit which has enjoyed some

success in the Family Law area already and is likely to expand

rapidly int.o other activities including real estate, proba::e,

b f l 'f' 'b' 1 d 48 appearances e ore pro ~ erat~ng tr~ una s an so on.

If one turns from the work traditionally done by

solicitors, to the work of advocates, it must be admitted that

the Ilevil hourI! was averted when the National Componsation Bill

was forestalled. However, even in recent weeks the Opposition

has reintroduced the National Compen~ation and Rehabilitatio~

Bill 1977.49

The Government has made it plain that the issue

is not dead but that discussions are being had with the States

with a view to procuring a I!national compensation policy". 50

A Royal Commission is looking into the matter in England. a

Board of Inquiry under Sir John Minogue is examining the no-fauJt

- 13 -

motor. y..e:hicle accident compensation scheme in Vict0ria~ It

would be a bOfd man. wh~'.:predicted t~at compensation litigation

_would survive in its prescnt..form to the end of the century.

It is a labour-~ntensive, ~os~ly,and unsatisfactory machinery

which impedes reform of the s.ubstantive law. .1 have litt-Ie

doubt, for my own part, that governments of both pOlitical

persuasions will move gradually toward a.sociaL ~ervices-type

solution in which the.role of the advocate. will ~e severely

circumscribed. Similar ..predictio~~ :are made in theUnited. ·51 . -

States al though .there the..~le:a'p to· s.9q~9-1. ?,~curity is likely.

to. pause for a time ~t the stop of- " no ':'-fault .1iability ll.

A ~ terna tive..s. . If these predicd:ions come true, the

legal profession is in the midst of a peri~d of radical change

in its work patterns .. The bulk work ppesen~ly pr.oducing the

·grea~ proportion of~its income will fall ~way.or be~ subs~anti?lly

performed by other interests. Banks·~ insurance compan:i:es~

.Lr~st ·companies, r~al e~"!=ate -brokers:, .debt col;Lect<?rs and-lay

advocates wil~..Fmake marked inroad.~. int6-'~he activities'of the

legal professi~)J"~,.,52,' W,~~~ ~~.~i,.~apP~{l. t~,:,.t!le la~lyers released

by such developm~~!?? Will there be work for them?

I am an optimist. I believe tha~ we can already SEe

the way of the future. Legal aid will redress the bias of

lawyers as ll protectors of the propertied class ll53 and direct

increasing numbers into I'public interest ll areas. 54 The commOn

law has been a poor protector of the environment. Legislation,. 55

particularly armed with changes in the laws governing standlng

(a matter currently before the Law Reform Commission) will

ensure that lawyers of the future become -involved in national

resources litigation. Likewise, I predict, concern with

consumer interests, perhaps armed with a facility of class

actions (also a matter before the Commission) will look increasint;l

to the legal profession to advance their arguments.

Special groups, Aboriginals, ethnic communities and

reform groups will look to lawyers in this country to perform

the reforming work in courtrooms done by·the civil liberties and

coloured people's organisations in th'e United States. We should

- 13 -

motor_ y..e:hicle accident compensation scheme in Vict0ria~ It

would be a bo)..d man. wh~'.:predicted t~at compensation litigation

_would survive in its prescntJorm to the end of the century.

It is a labour -~_ntensive, ~os:t:ly, and un'satisfa-ctory machinery

which impedes reform of the s.ubstantive law. .1 have litt-Ie

doubt, for my own part, that governments of both political

persuasions will move gradually toward a.sociaL ~ervices-type

solution in which the.role of the advocate. will l?e severely

Similar .. predictio~~ :are made in the United circumscribed. . ·51 . -

States although _there

to_ pause for a time ~t the stop of- "no~fault.liabilityll.

A ~ terna tivt3..s. . If these predicd:ions come true) the

legal profession is in the midst of -a per'i,?d of radical change

in it's work patterns .. The bulk wo'rk ppesent-ly pr.oducing the

'great- proportion of~ its income will fall ,..away. Or be~ subs_tanti"dlly

performed by other interests. Banks'~ insurance compan:i:es~

"trust companies, real e~"!=ate -brokers:, .debt col;t.ect<?rs and-lay

advocates will..Fmake marked inroads. into"the activities'of the

legal professi?~,.,52,' W,~~~ ~~,~i,.~a·~p~~. t~,::.t~e lavlyers released

by such developm~~!?? ~-lill there be work for them?

I am an optimist. I believe tha~ we can already see

the way of the future. Legal aid will redress the bias of

lawyers as ll protectors of the propertied class 1l53 and direct

increasing numbers into "public interest ll areas. 54 The common

law has been a poor protector of the environment. Legislation, , 55

particularly armed with changes in the laws governing standlng

(a matter currently before the Law Reform Commission) will

ensure that lawyers of the future become -involved in national

resources litigation. Likewise, I predict, concern with

consumer interests, perhaps armed with a facility of class

actions (also a matter before the Commission) will look increasint;l

to the legal profession to advance their arguments.

Special groups, Aboriginals, ethnic communities and

reform groups will look to lawyers in this country to perform

the reforming work in courtrooms done by·the civil libertieS and

coloured people's organisations in th"e United States. We should

- 14 -

not be afraid of these deve lopments. I tis, pref era ble tha 1:

social disputes and tensions should b! resolve~ in courtroons

rather than elsewhere. Obviously changes of this kind will rais€

for consideration the extent to wh~ch it is right for lawyers

to go beyond mere articulation of their clients' causes, Is

it necessary for the lawyer to advise 'clients about lobbying,

political and media ~ontac~s and so on? How far should the. 56

lawyer have to adopt d' passive "service" role?

I think it is also clear 'that lawyers will play an,"",.

increasi~g role in government service and private business at

the expense of private practice. This is already the trend

in the, United ~tcrtes. I think we wil_l see increasing numbers

work.1.ng in + ~,~e social wel{~r~' ar~~ using sk.iil'~- of negotia t ion,

advice ,·aRd manipulati-on of governme'Ot machinery rather 'than

the adversary skills of conflict.57 If ~he_;'Am":'crican ex;~t'.icn~"c. •. .- ~

is any guide we will probably ~ee an increase in so-calleJ

Ilpre-pa~d" legal_servic~s.58 .Although this has been challenged.

four times bftfore .the .Supreme Court of the United States the,"Bar-has four times been r~buffed. Certainly it is difficult to

see the future of legal aid. However one of the prime problems

which the private' profession will have to grapple with is the

extent to which the middle income earner, unable himself to

afford access to the law and disq~alifxed from ~ssistance by

legal aid schemes, is left in a disadvantageous position short

of true equa1ity before the law. 59

Australian studies plainly show the utility of legal

representation before the courts. Although I predict a growing

number of lay advocates, I have no doubt tha~ legal aid will

ensure that an increasing number of persons are fai!'ly

represented, especially in criminal matters. Given the intensive

training at a high level whis:h the profession requires, th0

re-.alignment of the profession from rout~ne conveyal'lcinr; int.:.l

assisting the resolution of the rcal disputes of our society

is nothing less than a precondition of survival. Retreat

behind monopoly walls to overpriced routine work is the kind

of IIfeather-bedding" which members of the legal profession would

be the first to condemn in other occupations, and rightly so.

- 14 -

not be afraid of these developments. I tis, pref era ble tha 1:

social disputes and tensions should b~~ resolve~ in courtro'or.1s

rather than elsewhere. Obviously changes of this kind will rais€

for consideration the extent to whi.ch it is right for lawyers

to go beyond mere articulation of their client sica uses._ Is

it necessary for the lawye~ to advise 'clients about lobbying,

political and media ~ontacts and s'o on? How far should the

lawyer have to adopt d' passive "service" . 56 role?

I think it is also clear 'that lawyers will play an ,"",.

increasin.g role in governmen't service and private business at

the expense of private practice. This is already the trend

in the, United ~tcites. I think we wi~_l see increasing numbers

work.1.ng in the social wel{~r~' a'r~~ using sk.iil-~- of negotia t ion, • + - , ••

advice ,·aRd manipulat:i-on of governmellt machinery rather 'than

thq asIversary skil.~s o~ conflict.57 If ~he_;'Am":'crican ex;~t'.icn~"c

is any guide ,we will probably !;>ee an increase in so-calleLi

"pre-pa~d"

four times

.. 58 legal. services. .AI though

bftfore _the -Supreme Court of ,-

this has been challenged

the United States the

Bar-has four times been r~buffed. Certainly it is difficult to

see the future of legal aid~ However one of the prime problems

which the private'profession will have to grapple with is the

extent to which the middle income earner, unable himself to

afford access to the law and disqJ.;lalifi'ed from d.ssistance by

legal aid schemes, is left in a disadvantageous position short

of true equa1ity before the law. 59

Australian studies plainly show the utility of legal

representation before the courts. Although I predict a. growing

number of lay advocates, I have no doubt tha't legal aid .... ,ill

ensure that an increasing number of persons are fai!'ly

represented, especially in criminal matters. Given the intensive

training at a high level whis:h the profession requires, tht"

re-.alignment of the profession from rout~nc conveyal'lcinr; int.:.l

assisting the resolution of the real disputes of our society

is nothing less

behind monopoly

than a precondition of survival. Retreat

walls to overpriced routine wcrk is the kind

of IIfeather-beddingl! which members of the legal profession would

be the first to condemn in other occupations, and rightly so.

- 15 -

t1ETHODS

The' use of labour,;...saving equipment has begun in the

legal profession" but in this cou'ntry'as in the United' States,

it'has a long way to go to catch up to business. 60 The use

of computers, particularly for office management and the

retrieval of legal inforrnation6

.1 has only just commenced. There

is' no evidence yet about whether photocopiers and like equipment

have been used to reduce the cost of delivering services to

the comrn~nity, although it seems doubtful to me that it has.

I hope tha t. a fel"J leader's> and the: ·~pro·fe·s sional so..:: ie tie 5

caD take the profes'~ion into' the' c'omput'er ,-age'.' . They must do

battle with the conservatism 'of lawyers", plaTlted by their.

background and fed by the' "v.erY "nature of their ·profession. T1K'1~e

does n~'t yet seem to be abroad 'the' conviction "that the

profession must use ·t~ "the full cos~s-saving devices, nat only

machinel~Y but par.alegal personnel.' lri:·the-" courts structur-e

we see the- beginning O"["·-th.e -rnovemeif't' -1'(( -the" appolntmtW-i-l"t (, f

court administrators and suggestions for a national jUjiciul

ad~inistration.. 62 I hope that aft~r the- present economic trOl":Eh

is passed, ~ufficient ·fund~ ~ill'b"e made" availahle to take ­

further the- Mullin Committee IS :inqulry- i~tb the computeri sa t ion

of legal data. No syste"m lemd's" its-elf mOFe readily to computer

retrieval than the common law system. In a relatively small

legal community, the provision of computer terminals would

also assist in the movement towards uniformity of laws in

appropriate areas. 63

ETHICS AND DISCIPLINE

Ne~ Ethics. I fully realise that any discussion of

ethical standards in the lat.J distresses many lawyers. Why

should this be so? One recent article in the United Stat";;:s

suggests an answer

1tThey view a cha-llenge to their ethics asequivalent to a challenge to' their honestyand believe that, in the final analysis,ethical jUdgments involve highly personal,even semi-religious" decisions as to whatis right and wrong lf

• 64

- 15 -

t1ETHODS

The' use of labour-saving equipment has begun in the

legal profession" but in this' co-u'ntry 'as in the United" States,

it' has a long way to go to ca'tch up to business. 60 The use

of computers, particularly for office management and the

retrieval of legal information6

.l has only just commenced. There

is- no evidence yet about whether photocopiers and like equipment

have been used to I'educe the cost of delivering services to

the commt.:nitY", although it seems doubtful to me that it has.

I hope tha t. a fel"J leader's· and the -'pro·fe"s 5 ienal so..:: ie tie 5

caD take the profes'~ion into' the" c'omput'er --age'.'· They must do

battle with the conservatism 'of lawyers", planted by their.

background and fed by the' " v.ery "nature of their "prOfession. T1K'l~e

does n~'t yet seem to be abroad "the' conviction "that the

profession must use "t~ "the full cos~s-saving devices, not only

machinel~y but par.alegal personnel.' In:" the"" courts structupe

we see the- beginning O"f "-the" rnoverneif't' -r?(i:he" appolntmtW-i"l"t of court administrators and suggestions for a national jUjicial

ad~inistration .. 62 I hope that aft~r the" present economic troL.:lJll

is passed, ~ufficient "fund~"~ill"b"e made" availahle to take

further the"Mullin Committee' 5 :inqulry" i~tb the computerisatjon

of legal data. No syste"m lemds"" its-elf mope readily to computer

retrieval than the common laH system. In a ~elatively small

legal community, the provision of computer terminals wbule

also assist in the movement towards uniformity of laws in

appropriate areas. 63

ETHICS AND DISCIPLINE

Ne!JJ Ethics. I fully realise that any discussion of

ethical standards in the law distresses many lawyers" Why

should this be so? One recent article in the United Stat";;:s

suggests an answer

1tThey view a eha"11enge to their ethics as equivalent to a challenge to" their honesty and believe that, in the final analysis, ethical judgments involve highly personal, even semi-religious" decisions as to what is right and wrong lf

• 64

- 15 -

Events, however, will force a reconsideration of lawyers'

ethics. In the first place, it ~s hardly likely, in a

community learning to live with the Trade Practices Act and

where there ar'e" stringent limits on monopolisation, prohibitions

on resale price maintenance and ge~eral discouragement of

anti-competitive ·activity," that the lega~ profession will

em~rge unscathed whilst others are submitted to legal discipline.

The debate about the appointment and privileges of Queen's

Counsel is not confined to this country.55 In Canada the

coinag~has been debased in some p~ts, leading to a call for

abolition or the title, ,as JI.lisl.eading. More important, it

seems to me, than matters of title are matters of substance.

The rules that require, as_a matter of ethics, the presence

of':~Junior Counsel and· the so.-called lItwo-thirds" rule- for the

fees or Junior Counsel plainly r,equire revision, if not

abolition. Tpe Mo;qpolies and Merger? Commission in Lngland

has struck down the two-couns~·l rule-. 6~ I, predict a similar

fat-e in this co.untr.y. Even i£ a separate Bar survives, as

seems to me lik~ly, it should survive on the services provided

and not artificiallY fixeq minimum fees.

Allied to ~hi9'is the debate about lawyers' adverLising.

Modesty, gentlemanly conduct and the theory of equal professional

skill proscribe advertising by lawyers.' But should this be

so? Some evidence suggests that when professional people are

permitted to advertise, the cost of services provided falls.

It was so in the case of optometrists in the United States.67

The absolute prohibition on 'professional advertising would appeal~

to be in its last days. This is a universal debate embracing

the English profession~8 the United States profession and the

profession in Australia.

The Law Foundation's survey certainly appears to

indicate that many people believe that lawyers are specla~lsea

but do not know how to go about finding a person with the

appropriate specialty. In England, the Monopolies Commission

recommended, putting it generally, that solicitors should be

free to advertise as they wished, including publicly, concerning

their specialties, fees and speed of service. The only proviso

- 15 -

Events, hOHever, will force a reconsideration of lawyers'

ethics. In the first place) it ~s hardly likely, in a

corrununity learning to live with the Trade Pr>aatices Act and

where there ar'e" stringent limits on monopolisation, prohibitions

on resale price maintenance and ge~eral discouragement of

anti-competitive "activity," tha-t the legal. profession will

em~rge unscathed whilst others are submitted to legal discipline.

The debate about the appointment and privileges of Queen's 55 -Counsel is not confined to this country. In Canada the

coinag~has been debased in some p~ts, leading to a call for

abolition or the title, ·as JI.lisl.eading. More important, it

seems to me, than matters of ti-tle are matters of substance.

The rules that require, as a matter of ethics, the presence

of'.-Junior Counsel and' the so.-called lItwo-thirds" rule- for the

fees 0-£ Junior Counsel plainly r,equire revision, if not

abolition. Tpe Mo;qpolies and Merger? Commission in Lngland - - . 55

has struck down the two-counsel rule.' I, predict a similar

fat-e in this co.untr.Y' Even i£ a separate Bar survives, as

seems to me lik~ly, it should survive on the services provi-ded

and not artificiallY fixeq minimum fees.

Allied to ~hi9·is the debate about lawyers' adverLising.

Modesty, gentlemanly conduc.t and the theory of equal professional

skill proscribe advertising by lawyers.' But should this be

so? Some evidence suggests that when professional people are

permitted to advertise, the cost of services provided falls.

It was so in the case of optometrists in the United States. 67

The absolute prohibition

to be in its last days.

the English profession~8

profession in Australia.

on 'professional advertising would appeal~

This is a universal debate embracing

the United States profession and the

The Law Foundation's survey certainly appears to

indicate that many people believe that lawyers are specia~ised

but do not know how to

appropriate specialty.

recommended, putting it

go about finding a person with the

In England, the Monopolies Commission

generally, that solicitors should be

free to advertise as they wished, including publicly, concerning

their specialties, fees and speed of service. The only prGviso

- 17 -

was that the advertisemf£nts :shoiJ~d' not' "claim superiority in

any respect ll over other 'soli'eitors nor contain "inaccuracies

or misleading"statements" ~9 -The Commission did propose a

power iri the Caw Society to p-rohibi:t. advert~sing Ulikely to

bring the profession into disrepute". Certainly this ruling

heralds a change which I believe we are likely to See in

this c:ountry."-

Associated with adv!=rtising is the questior: of persona.l

publicity. One author at ~east be~i~ves that-the limits on

lawyers I speaking out hav.e tended' tb' 5uppf'ess·~the·role which

they might playas representatives of.rion-propertied.interests. 70

Witho~t'embracing-that view en~irely,;and'without~exaggerating

the limits imposed on lawyers, it must··be acknowledged that

the widespread-advent of· leg:l aid. does raise a c~itical.questio:

about the lawyers I .~Ilvolvement in the affair:;, of hi:.; clielll.

Will it be- enough to··take~a 'passive . role?· To what extent

~hould lawY.ers hel:pi~g thE("poor', ·tlie·"Abori"gi"hals' or other

disadvantag~.d 'groups sti~ck-strictly'to··preparing documents and

arguing cases dispassionately in ·court? ·Se>me authors

sincerely feel that thi.s view of l,egal ethics is one desi[.ned

by proper1:;ieq. interests' to uphold"t:he ·'·s~atus··quo in the

distribution Qf wealth in our community. For good or ill, I

believe that we will see the distant, dispassionate, remote

role of the lawyer give way to a more active involvement in

the client's affairs. It really seems the inevitable

consequence of providing funded legal assistance to di5~dv~ntage::i

groups whose litigation sometimes may transcend the parties

to a particular case. Clearly there are limits. The adversary

system is particularly exposed to the potential for abuse. 71

As more and more non-lawyers gain access as advocates to

tribunals and courts, the issue will be starkly posed. Lawyer~,

who are trained to be conscious 01 their uu ty to Ult~ c~)ur' L

and .to the system of the administration of justice dnd wl}(..

are sUbject to discipline for breach, may feel it unf~ir thut

lay advocates, who do not feel bound by the same rules, are

not subject to the same discipline.

- 17 -

was that the advertisemf£nts :shoiJ~d' not' "claim superiority in

any respect ll over other -soli-eitors nor contain "inaccuracies

or misleading" statements" ~9 -The Commission did propose a

power iri the Caw Society to p-rohibi:t. advert~sing Ulikely to

bring the profession into disrepute". Certainly this ruling

heralds a change which I believe we aI'e likely to See in

this c:oun try.- -

Associated with adv!=rtisirig is the questior: of persona.l

publicity. One author at .least be:l:i.e.ves that -the limi ts on

lawyers I speaking out hav.e tended' tb' suppf'ess·-the· role which

they might-playas representatives of.rion-propertied.interests. 70

~<Ji tho,ut -embracing -that view ent,irely, -'"and, without~ exaggera t ing

the limits imposed on lawyers, it must"be acknowledged that

the widespread. advent of, leg:l aid. does raise a c~itical.questio:

about the lawyers I .~nvolvement in the affair:;, of hi:..; client.

Will it be- enough to .. take~a 'passive ·role?· To what extent

~hould lawY.ers hel·pi~g thE("poor', ·tlie''"Abori"ginals' or other

disadvantag~.d "groups sti~ck' strictly 'to-'preparing documents and

arguing cases dispassionately in 'court? ·Se>me authors

sincerely feel that thi.s view of l.egal ethics is one desi[.ned

by proper1:;ieq. interests' to uphold"·the "'s~atus" quo in the

distribution o.f wealth in our c .. ommunity. For good or ill, I

believe that we will see the distant, dispassionate, remote

role of the laT.vyer give way to a more active involvement in

the client's affairs. It really seems the inevitable

consequence of providing funded legal assistance to di5~dvantage::i

groups whose litigation sometimes may transcend the parties

to a particular case. Clearly there are limits. The adversary

system is particularly exposed to the potential for abuse. 71

As more and more non-lawyers gain access as advocates to

tribunals and courts, the issue will be starkly' posed. Lawyer'::>,

who are trained to be conscious 01 their tlu ty to Ult~ c~)ur' L

and .to the system of the administration of justice dna W!}t..

are subject to discipline for breach, may feel it unf.:lir that

lay advocates., who do not feel bound by the same rules, are

not subject to the same discipline.

- 18 -

Fees and COSt8~ Legal ~id.will not be the ~hole

answer to the problem of bringing law within the reach of

everybody who has ·a serious dispute, susceptible to reasoned

resolution.. One disadvantaged cIa-55 is thE7 middle income earner 1,.

does not qualify for legal aid but could not af'ford to become

embroiled in lengthy litigation. Lord Denning has lately

suggest€d that it is time that we started to think about

contingency fees for lawyer? . He explained the system thus

111£ we -win, I get a .'percentage -of. thedamages. If we, lose, I will charge you

':! nothing". 72 -

Writers are already beginning to' urge consideration of this

method 'of funding li'ti'g.lt'i6n/ ,3."' suggestidn ·-that ~ould haye

been regarded as Iitile short of ~caridafo'us--only a" "few' years

ago. 73 The" referenc·e before the Law Reform Commission r"elating

to standing to sue art~ class actions obviously~raises rorcritical consideration the implications of group act ions fOl l

'our cost rules. One of the 'prl'n·clpal"'objections" "to cost

sharing was associated with the ~i~~ ~oncerning a lawyer's proper

distance fro~ his clie~t ~nd his client's interests. But

as that view itself comes under new scrut{ny, so, I belr~ve,

will Qontingency fees.In practical terms, as we all know,

much litigation is already 'conducted on·a.semi-speculative

basis. The introduction 'of contingency .fees, openly negotiated',

might regularise this conduct and ~t the sam~ time open court

doors tor the resolution of serious disputes.

DiscipZine. In all parts of" the common law world

radical changes are occurring in the machinery for and rules

of discipline of the legal profession. In England a Lay

Observer has been appointed to" represent community interest in

internal disciplinary procedures of the Law Society.74 A

similar provision has now been introduced in Scotland.75

A

Law Reform Committee in New Zealand has proposed a similal~

system there. 76 The matter is now before the New South ~cles

Law Relorm Commission but meanwhile, ·in Victoria, changes ha'.'e

been introduced, in advance of legislation, in controls over

disciplinary procedure. One change is that the hearing of77

charges against lawyers is now conducted in the open.

- 18 -

Fees and Costs .. Legal a,id. will not be the- YJhole

answer to the problem of bringing la'w wi-thin the reach of

everybody who has ·a serious dispute, susceptible to reasoned

resolution .. One disadvantaged cIa-55 is thE7 middle income earner 1,.

does not qualify for legal aid but could not af'ford to become

embroiled in lengthy litigation. Lord Denning has lately

suggest€d that it is time that we started to think about

contingency fees for lawyer? . He explained the system thus

111£ we -win, I get a.-percentage of. the damages. If we, lose, I will charge you nothing". 72

Writers are already beginning 'to' urge consideration of this

method 'of funding li'ti'g.iit6n/ a"' suggestidn "that ~ould haye been regarded as Ii tile short of scandalo'us--only a" "few' years

ago. 73 The- referenc-e before the Law Reform Commission r-elating

to standing to sue an'tl class actions obviollsly ... raises for

cri tical consideration the implications of group act ions fOl'

'our cost rules. One of the 'pri-n'cipal-~objections- -to cost

sharing was associated with the 'vie'~ con"cerni'ng a laHyer I s proper

distance frotK his clie~t a:nd 'his c""iie-rlt" 's interests. But

as that view itself comes under new scrut{ny, so, I bel:L~ve,

will Qontingency fees.In practical terms, as we all know,

much litigation is already "conducted on'a.serni-speculative

basis. The introduction -of contingency .fees, openly negotiated',

might regularise this conduct and ~t the sarn~ time open court

doors tor the resolution of serious disputes.

DiscipZine. In all parts of" the common law world

radical changes are occurring in the machinery for and rules

of discipline of the legal profession. In England a Lay

Observer has been appointed to" represent community interest in

internal disciplinary procedures of the Law Society.74 A

similar provision has now been introduced in Scotland.75

A

Law Reform Committee in New Zealand has proposed a similal~

76 system there. The matter is now before the New South \r,'-ales

Law Relorm Commission but meanwhile, 'in Victoria,changes ha'.'e

been introduced, in advance of legislation, in controls over

disciplinary procedur"e. One change is that the

charges against lawyers is now conducted in the

hearing 77

open.

of

- 19 -

Perhaps the most important developments are occurring

in Canada. In British Columbia a Competency BiLL -has be~n

introduced to allow di scipline .0£ lawyers -who "are., found.... .. 78 .

incompetent.. In my view' the moves. to open 'up disciplinary

proceedings ;,. to infuse. arl'.·,{n"dependent· element in them and to

expand the concept-of profes5ional misconduct to include

incompetency and neglect, would go a long way towards meeting

the numerous complaints voiced about the legal profession in

the Law Founctation's·survey. Delay, ".indifference to the client,

lack of sensitivity to his prob1em and ordea1 79 and incompetence

represent the major proble~s for ethics and ~iscipline.

Although, unhappilY, f,raud and· default 'hit the,.he~dlines, it

is the less publi~ised hum~n. failings. tha,t ~_ have mentioned

that poison the relatjonships between the legal pr~fession and

the community. ~RetrainiDg, inclUding compulsory retraininc of. -.. '" .. " .

judges, seem~ scapcely avoidable at a time when the 'law and

legalmach~nery are changing S0, rapid~y. I realise that this

proposal, rece~~ly made in the united~Kingd?m) attracted almost

unanimous opposition from the judiciary. I expect there would

be similar .opposLtion from the profession .. But" the days are-'.. ,'. ..' . - .'.' .

gone when we can rely upon a certificate of competency in the

law to endure a li"fetime. Nor can we be ·sure that the holder

of that certificate will assiduously read, legal material so

that he can adequately serve the community. I entertain little

doubt that in the 21st century those entitled to call themselves

lawyers will be required constantly to renew their skills and

not merely their practising certificates.

CONCLUS IONS

If this sounds like a prescription for radical change,

it is not. The adversary system will survive. Come 10 o'clock,

somebody will have to rise to speak for the client. Government

service and legal aid will surely expand. But with reasondble

prospects of continuing general prosperity, I predict that

the legal profession will continue to enjoy a significantly

affluent future. Its tasks will change. The present bulk

business will be replaced by new work that is more relevant to

modern times. Legal education will become more diverse. The

profession will openly embrace specialisation as its mode of

- 19 -

Perhaps the most important developments are occurring

in Canada. In British Columbia a Competency BiLL -has be.en

introduced to allow discipline .0£ lawyers 'who "are., found .... .. 78 .

incompetent.. In my view' the moves. to open 'up disciplinary

proceedings ;'. to infuse- arf.·,i'n-dependent· element in them and to

expand the concept 'of prafes'sional misconduct -to include

incompetency and neglect, would go a long way towards meeting

the numerous complaints voiced about the legal profession in

the Law Foundation's' survey. Delay, ".indifference to the client, . .'. 79"

lack of sensitivity to his problem and ordeal and incompetence

represent the major problems for ethics and .:discipline.

Although, unhappilY, fraud and· default 'hit the,.he~dlines, it

is the less publi~ised hum~n. failings. tha·t I have mentioned

that poison the relationships between the legal pr.ofession and

the community. ~RetrainiDg, including compulsory retrain~nc of . - ~

judges, seems: sca.~cely avoidable at a time when the 'law and

legal mach·~tiery are changing so, rapid.ly. I realise that this

proposal, recen~t.ly made in the Uni teeL Kingd?m, attracted almost

unanimous opposition from the judiciary. I expect there would

be similar .:..C?P'?osLt .. iop from the_ pr.~.~.ession .. But" the days are

gone when we can rely upon a certificate of competency in the

law to endure a li'fetime. Nor can we be ·sure that the holder

of that certificate will assiduously read, legal material so

that he can adequately serve the community. I entertain little

doubt that in the 21st century those entitled to call themselves

lawyers will be required constantly to renew their skills and

not merely their practising certificates.

CONCLUS IONS

If this sounds like a prescription for radical change,

it is not. The adversary system will survive. Come 10 o'clock,

somebody will have to rise to speak for the client. Government

service and legal aid will surely expand. But with reasondble

prospects of continuing general prosperity, I predict that

the legal profession will continue to enjoy a significantly

affluent future. Its tasks will change. The present bulk

business will be replaced by new work that is more relevant to

modern times. Legal education will become more diverse. The

profession will openly embrace specialisation as its mode of

-·20 -

organisation'"; 'Ph~·. antA-competitive rules -will wi:ther,. There

will be g~eater openness _and,a~cou~tability,tqthe community.

The challenge before-us ~~s,one.~! re~eva~cy. Those who· know

tl;Le his"tory:. at.' the p,rq.f-~l?~~9fl' s.tr:etpI:-?-pg ,as _.i:t: does., in our

civili_sat.ion..,~over :r:ear':+'Y- ei:ght c:en-t;,ur~es, will have no doubt

that it wil-l answer .. the challenge .

.•.. ' ..,. •..

-·20 -

organisation,"; 'Ph~·. ant.~-competi tive rules -will wither,. There

will be g:rea"ter openness _and, ac:::coun.'tability ,tq the communi"ty.

The challenge before-us ,;~s one .C?f. re~eva~cy'. Those who· know

tl;Le hi-story:.o{ the p.rq-f-~!?~~9.~, s.tr:et~l:t?-~g ,as .. i:t: does., in our

civili_sat.ion..,- over :r:ea;r>Jy- ei:ght c:en-t;.ur~es, will have no doubt

that it wil-l answer,the challenge .

.•.. '.,. •.. -

- 21 -

FOOTNOTES

LT.D. Morgan, "The Evolving" Concept of ProfessionalResponsibi-lity", 90 Harvard L.Rev. 702 at p.703 (1977).

2. Q. Johnstone, liThe Private Practitioner", 25 Alabama L.Reo.13 at p,18 (1972).

3. Sir Leslie Scarman, liThe Age of Reform ll, London Times~

5 January 1977, Suppl., p.II.

4-. Aeschylus,. Agamemnon. (tr)., R. Lattimore.

5. (1976) 126 New L.J. 678; 50 A.L.J. 267; 73 Law Soc. Gazette,59).

5. (1975) 2 L.S.B. ~5, 63.

P. New ·Zealand Public and Administrative Law "Reform Committee,Discipline andCompZaints Procedure of the Legal ?rof~ssion,Working Paper, 1976; In.respect of South Africa, see SirHugh Beadle, "Whither. the Legal Profession in South l\frica?"f1975] Rhodesia L.J. 21.

8. (19761 50 A.L.J..383.

9. (l976) 50 Law Inst.Jo. (Vic) 3. C!.. Aust. Fin.Rev., 12 May1977, p.5

10. R. Tomasic, "Law~ Lawyers and the Community", August 1976.

11. Ibid, p.ii.

12. Johnstone, p.17

13. J. Disney, J. Basten, P. Redmond and S. Ross; Lawyers, tobe pUblished mid 1977, p.140. For brevity of reference,this book will be hereafter.ci!=ed as "Disney".

14. S.D. Ross, "The Role of Lawyers in Society", The AustralianQua~terly, March 1966, p.6l at p.62.

15. K.A. Jacobs, liThe Future of the Lega'l· Profession inAustralia ll

, an address delivered to the A.N.V. Law Societ'/Annual Dinner, Canberra, 2 Hay 1968, mimeo, p. 2.

16. Disney, pp.188-9.

17. Disney, p.SO.

18. Disney, p.82.

19. J. Basten and J. -Disney, "Aspects of the Australian LegalProfession", Discussion Paper for the Seminar on Professionsorganised by the Australian Academy of .Social Sciences,Canberra, October 1976, mimeo, pp.7-8.

- 21 -

FOOTNOTES

LT. D. Morgan, "The Evolving" Concept of Professional Responsibi-lit y ll, 90 Harvard L.Ret). 702 at p.703 (1977),

2. Q. Johnstone, liThe Private Practitioner", 25 AZabama L.Reo. 13 at p,18 (1972).

3. Sir Leslie Scarman, liThe Age of Reform ll, London Times~

5 January 1977, Su·ppl., p.II.

4-. Aeschylus,. Agamemnon. (tr)., R. Lattimore.

5. (1976) 126 New L.J. 678; 50 A.L.J. 267; 73 Law Soc. Gazette, 591-

5. (1975) 2 L.S.8. ~5, 63.

7·', New 'Zealand Public and Administrative Law -Reform Committee, Disc:ipline and Comp"La1:nts Procedure of the Legal ?l'oj'tJssion., Working Paper, 1976; In.respect of South Africa, see Sir Hugh Beadle, "Whither. the Legal Profession in South l\frica?" r1975) Rhodesia L.J. 21.

8. (1976) 50 A.L.J .. 383.

9. (l976) 50 Law Inst.Jo. (Vic) 3. Cf .. Aust. Fin.Rev., 12 May 1977, p.5

10. R. Tomasic, "Law'! Lawyers and the Community", August 1976.

11. Ibid, p.ii.

12. Johnstone, p.17

13. J. Disney, J. Basten, P. Redmond and S. Ross, Lawyers, to be published mid 1977, p.140. For brevity of reference, this book will be hereafter.ci!=ed as "Disney".

14. S.D. Ross, "The Role of Lawyers in Societyll, The Australian Qua~terlYJ March 1966, p.6l at p.62.

15. K.A. Jacobs, "The Future of the Lega·l· Profession in Australia", an address delivered to the A.N.U. Law Societ'/ Annual Dinner, Canberra, 2 Hay 1968, mimeo, p.2.

16. Disney, pp.188-9.

17. Disney, p.SO.

18. Disney, p.82.

19. J. Basten and J. ·Disney, "Aspects of the Australian Legal Profession", Discussion Paper for the Seminar on Professions organised by the Australian Academy of .Social Sciences, Canberra, October 1976, mimeo, pp.7-8.

27. Ross, p.65.

- 22 -

.•

•See (1976) 6 EUl'opearz. Commission Bul2etin 13; (1976) 73Law Soc. Gazette~ 365.,

Clause 12

T. Ehrlich and M. Schwartz, lIR"educing the Costs of LegalServices : Possible Approaches by the Federal Government ll

,

a .report 'to the Subcommittee on Representation ofCitizens' interests, U. S. Senate Committe'e on the Judiciary,93d' Congo 2d Sess._ (1974), p.584; Basten and Disney, p.lO.

Disney, p.34.

29.

30.

31.

32.

He Howard (1976-), .unreported., Court o.f App~eal, 59/76(Judgment, 6 July 1976).

34. (1976) 50 A.L.J.R. 501. Contra Murphy J.

20. N.K. Wran, IlLaHyers in a Time of Change", address atSydney University, 26 March 1977, mimeo~ p.4

21. Johnstone, p .13.

22. Disney, pp.94·-5'.

23 ',~_ Basten and ,Disney, p. IL

24. (1976) 50 A.L.J. 577.

33.

28. (1976) 50 La", Inst.Jo. (Via) 105.

25. D. R. Riesman, cited Ross, p.64.

26. Johnstone, p.lS .

35. Judges' Memorandum upon the Administration of Justice Bill1931 (N.S.W.) quoted in (1951) 25 A.L.J. 298 at p.306 andin Disney, p.66f.

37. Jacobs, p.ll.

36. Basten anq Disney, p.3.

44. Ross, p.68.

43. R. Nader, liThe Role of the Lawyer Todayrl, 49 Michigan Sta teB.J. 17 at pp.21, 23 (1970).

42. Johnstone, pp.13, 15.

38. Hangar C.J. cit~d in Disney, pp.67-8; Johnstone, p.14.

39. Disney, p.75.

40. Aust. Fin. Rev., 8 December 1976, p.l.

41. Johnstone, p.1S.

- 22 -

20. N.K. Wran, IILaHyers in a Time of Change", address at Sydney University, 26 March 1977, mimeo~ p.4

21. Johnstone, p.13.

22. Disney, pp.94·-5',

23.,~_ Basten and ,Disney, p.!L

24. (1976) 50 A.L.J. 577.

25. D. R. Riesman, cited Ross, p.64.

26. Johnstone, p.lS . .•

27. Ross, p.65.

28. (1976) 50 La", Inst.Jo. (Vic) 105.

29. Clause 12

30. See (1976) 6 EUl'opearz. Commission Bul2etin 13; (1976) 73 Law Soc. Gazette~ 365., •

31. T. Ehrlich and M. Schwartz, lIR"educing the Costs of Legal Services: Possible Approaches by the Federal Government ll

,

a .report ,to the Subcommittee on Representation of

32.

33.

Citizens' interests, U. S. Senate Committe'e on the Judiciary, 93& Congo 2d Sess._ (1974), p.584; Basten arid Disney, p.lO.

Disney, p.34.

Re Howard (1976-») .unreported., Court o.f ApPieal, 59/76 (Judgment, 6 July 1976).

34. (1976) 50 A.L.J.R. 501. Contra Murphy J.

35. Judges' Memorandum upon the Administration of Justice Bill 1931 (N.S.W.) quoted in (1951) 25 A.L.J. 298 at p.306 and in Disney, p.66f.

36. Basten anq Disney, p.3.

37. Jacobs, p.ll.

38. Hangar C.J. cit~d in Disney, pp.67-8; Johnstone, p.14.

39. Disney, p.75.

40. Aust. Fin. Rev., 8 December 1976, p.l.

41. Johnstone, p.1S.

42. Johnstone, pp.13, 15.

43. R. Nader, liThe Role of the Lawyer Today!!, 49 Michigan Sta te B.J. 17 at pp.21, 23 (1970).

44. Ross, p.68.

54. -Nader, p.23.

48. Morgan, p.707.

- 23 -

Ross, p.61.

Johnstone",' p .13.

Ross, p.75-.-

The ref€rence on" standing "to s&e and ciass actiops WuSgiven to the ~ustralian Law Reform Commission on 1 Fcbr~ary

1977.

Johnst9ne, p.l?

52.

53.

56.·

57.

62. R. B. McKay, liThe Lawyer in the Year 2000 : Three Views j

a New Species rt, 25 Alabama L.Rev. 1 at p.9 CI972).

49. Commonwealth Parliamentary Debates (H of RJ, 24 Feb. 1977,p.425.

45. See Table 4A, Tomasic, p.79--,"

46. Basten and Disney, p.12.

47~ Ehrlich and Schwartz, p.589.

50. Ibid, (Senate), 9 Nov. 1976,!p.1708.

51; EhrlIch' and -Schwartz,· p~5B9.

63. The Law Reform Commission CAust.) AnnuaZ Rep·opt 1975(A.L.R.C.3), p.47.

58. t1org~n, p. 7~2.

59. Ehrlich and Schwartz, p.sa~.

60. Johnstone, p.14.

61. Ehr'lich and Schwartz, p.592.·'

64. Morgan, p.704.

71. M.H. Freedman, lILawyers I Ethics in an Adversar!J Sysi.cm".See review 51 N.Y.V.L.Rev. 348 (1976).

68.. (1976) 126 New L.J. 801; Basten and Disney, p.lS.

65. Disney, pp.44-45.

66. Disney, p.~4.

67. Lhrlich and Schwartz, pp.585-7; 45 V.S. Law Week 2116 (197G:

69. Morggn, p.713.

70. Ross, p.67, 73.

·55.

- 23 -

45. See Table 4A, Tomasic, p.79--,"

46. Basten and Disney, p.12.

47~. Ehrlich and Schwartz, p. 589.

48. Morgan, p.707.

49. Commonwealth Parliamentary Debates (H of RJ, 24 Feb. 1977, p.425.

50. Ibid, (Senate), 9 Nov. 1976,!p.1708.

51; Ehr-l:h:h' and -SchWartz,- p~ 589.

52. Johnstone",' p .13.

53. Ross, p.61.

54. -Nader, p.23.

·55.

56.·

57.

The ref-erence on" stahding" "to su.e and ciass actioflS was given to the 'Australian Law Reform Commission on 1 Fcbrl!.ary 1977.

Ross, p.75-.·

Johnst9ne, p.l?

58. t1org~n, p. 7~2.

59. Ehrlich and Schwartz, p.5.8.~.

60. Johnstone, p.14.

61. Ehr'lich and Schwartz, p.592.·'

62. R. 8. McKay, liThe Lawyer in the Year 2000 : Three Views; a New Species rt

, 25 Alabama L.Rev. 1 at p.9 (1972).

63. The Law Reform Commission CAust.) AnnuaZ Rep·opt 1975 (A.L.R.C.3), p.47.

64. Morgan, p.704.

65. Disney, pp.44-45.

66. Disney, p.~4.

67. Lhrlich and Schwartz, pp.585-7; 45 U.S. LalJ ~/eek 2116 (197(,:

68.. (1976) 126 New L.J. 801; Basten and Disney, p.lS.

69. Morggn, p.713.

70. Ross, p.67, 73.

71. M.H. Freedman, IILawyers I Ethics in an Adversary Sysi.cm". See review 51 N.Y.V.L.Rev. 348 (1976).

- 24 -

79. Ross, p.73.

76. AbOVE, n.7.

Cl976) 1.26 lie" L.J. 976.

74. For comment, see (19'76) 126 _New L.J. 507; (1976) 73 LauSoc. Ga-zette· 6lL

· ~ ....'. i' '

73. H.B. ,Mason, "Possible Alternatives to an AustralianSecurities and Exchange Commission"(~976) 50 A..L.J. 26.

77. (19~76) 50 Law I-nst.-Jo. (Vic)49,9; The Age;, 2 December 1976,

78. Canadian Bar _Association, Nationa-l;, vB-I. 3 (July 1976)) p.'e'~ Ehrlich and Schwartz, p. 597.

72.WaZZe'l'steiner 1i. Mair (No.2) [1_975] 2 W.L.R. 389 at p.39S

75.

· ), , .. '. it '

- 24 -

72. WaZZersteiner 1i. Moir (No.2) [1.975] 2 W.L.R. 389 at p.39S

73. H.B .. Mason, "Possible Alternatives to an Australian Securities and Exchange Commission" (~976) 50 A .• L.J. 26.

74. For comment, see (19·76) 126 .New L.J. 507; (1976) 73 Lau Soc. Ga·2ette· 6lL

75. (1976) 1.26 lie" L.J. 976.

76. Abov.e, n.7.

77. (19~76) 50 Law Tnst.·Jo. (Vic)49,9; The Age;, 2 December 1976,

78. Canadian Bar .Association, Nation-a."!;, v8""1. 3 (July 1976), p. 'e'~ Ehrlich and Schwartz, p. 597.

79. Ross, p.73.