Judicial impartiality

Barry Lane takes issues with Marilyn Warren CJ ... By being a member of VicBar and openingly spruiking its cause the CJ might be getting up the nose of the bar's competitors ... It's mostly about self-interest and repelling boarders

On March 5 Victorian Chief Justice, Marilyn (Earl) Warren gave a rousing speech to fellow members of the Victorian bar exhorting them to excel at being excellent advocates.

She called her paper Playing at Futureology - see here and see Justinian's report here.

In her speech, the CJ unabashedly spruiked her fellow members to claw back ground lost to solicitors in the last decade or so. 

She suggested that barristers get out there and sell, sell, sell themselves to corporates and other jurisdictions where they might be able to garner a brief or two.

Is it appropriate for the State's highest ranking judicial officer to proselytise in this way?

In my view, no - for two reasons.

First, it is generally accepted that a judicial officer in our system should not only appear to be independent and impartial but should actually be independent and impartial.

How can judges be independent and impartial when they are members of a professional trade union and are openly supporting and encouraging the interests of the members of that association against competitors in the same profession?

It's a truism that professional associations exist to advance and protect the interests of their members.  Central to that task is to erect and maintain barriers to entry and repel boarders and interlopers.

Although it appears passé these days for relevant associations to express constitutional purposes in such self-interested terms, that's still what they're about, despite what they might proclaim.

Take some of these lofty expressions of concern for others from VicBar's constitution:

"To maintain in the public interest a strong and independent bar in the State of Victoria ... to promote within the executive and legislative arms of the government of Victoria and within the general community, an understanding that a strong and independent bar is indispensable to the rule of law and to the continuation of a democratic society ... To seek to ensure that access to the courts is open to all members of the community ... To arrange training for bar readers and regulate entry to membership of the bar ... To promote the resolution of disputes by mediation, arbitration and other appropriate methods of alternative dispute resolution ... To seek to ensure that as far as practicable chambers are available to counsel ... To seek to promote the welfare of members of the Victorian bar ... [Blah, blah]."

Medical practitioners have a similar commitment to the interests of others:

This comes from the AMA's statement of values and it says the AMA exists to: 

"Promote and advance ethical behaviour by the medical profession and protect the integrity and independence of the doctor/patient relationship ... Promote and advance the public health ... Protect the academic, professional and economic independence and the well being of medical practitioners ... Preserve and protect the political, legal and industrial interests of medical practitioners."

Marilyn Warren: public support for bar's self-interest ... not a good lookNote that the AMA, unlike VicBar, at least concedes that it seeks to "preserve and protect", though not "advance or promote", the political, legal and industrial interests of its members. 

No doubt the AMA was angling to "(promote) the achievement and maintenance of high clinical and ethical standards in medical practice" rather than repel boarders when it recently opposed the establishment of Medicare Locals by the Federal Government.

The Victorian solicitors' trade union - the distinctly public-interest sounding Law Institute of Victoria - has similar objectives to VicBar.

In terms of repelling boarders, LIV has resorted to the courts more often than VicBar – the latest unsuccessful venture being in relation to a non-lawyer conveyancer: see Law Institute of Victoria Ltd v Maric & Anor (March 19, 2008). 

In that case, the CJ along with Appeal Justices Neave and Kellam (former barrister), unanimously dismissed an appeal from the decision of a trial judge (former barrister Justice Robert Osborn) who found against the LIV's contention that Ms Maric was engaging in legal practice without holding the requisite ticket. 

It would be interesting to know if any Victorian solicitor might have felt a sense of unease had the CJ given her speech on March 5, 2008 rather than March 5, 2011.

The second reason is that in closely aligning herself with VicBar and its members, she might be seen to be associating herself with comments of other former members, like Judge Elizabeth Gaynor of the County Court.

In an interview on October 18, 2005 with a VicBar operative, HH is reported to have said:

Question: "You've got a very expressive face so how do you do it when you've having to sit, to preside over something and to just listen as you say and to keep a poker face" 

HH: "I suspect I don't do it particularly well. Look, the main thing is [that] your experiences as a barrister are invaluable because you remember what you wanted from judges and how you wanted judges to behave and you know what's an appropriate way to behave because you've observed it for so long. I just really don't know how people who are appointed to this job who haven't got that sort of level of experience cope. It must be so difficult.

[snip]

The other thing that's really important when you're a barrister to remember is that a lot of the reason that you're doing it for is ego, not altruism. One of the reasons I liked being a barrister was because I have a large, not so much a large ego, but I liked performing, I liked being noticed, I liked being the centre of attention. You need to remind yourself that that's why you're doing these things because you end up being a bit of a pill if you don't, and one of the things I've learnt about being a judge was that I had to withdraw from the arena.

I was laughing with another friend of mine who is also a judge and who was a terrific barrister, she was one of the pioneering criminal women, and we were both laughing about how over the years as soon as a jury come on the bench, you'd automatically light up. A candle would start: 'Look at me, forget the prosecutor, look at me, look at me.' 

What's that [character] in Little Britain? 'Look at me, look at me.' And we were just both laughing because we still did it as judges. We had to train ourselves out of, 'Good morning ladies and gentlemen, look at me, look at me' sort of thing."

Perhaps barristers who are appointed to the bench should do a course in CPD so they are a bit more careful about what they say particularly when they are not in court.