Roderick Pitt Meagher has taken over the leadership of the NSW bar at a crucial time in its history ... Here Justinian gets up close to the man at the helm ... "Idiots" at the Law Reform Commission trying to meddle in bar's affairs ... Finding it hard to escape the Dark Ages ... Meagher's first ever interview ... Justinian, February 1980
Meagher: fighting the Law Reform Commission's "extravagant and silly documents"
IN 1780 William Pitt (The Younger) was admitted to the English bar. Three years later, he became Prime Minister.
His 20 year stewardship of the political fortunes of the most powerful country in Europe is largely remembered for the brush with Napoleon, and the fact that he was succeeded by the luckless Spencer Perceval, the only British Prime Minister who had the distinction of being assassinated.
Exactly 200 years after Pitt went to the bar, his antipodean descendent, on the distaff side, was taking over leadership of the NSW bar, which outside of mother England herself, is today the most prodigious and bounteous group of advocates in the entire Commonwealth.
Roderick Pitt Meagher is a fine adornment to the law, a brilliant scholar, a celebrated raconteur, master of the withering remark, a man of urbanity.
He is also an unabashed conservative, a figure caught in a past and more glorious age.
Meagher is a product of those great Catholic institutions in Sydney, St Ignatius, Riverview, and St John’s College at the University of Sydney. He was dispatched to these corridors of wisdom from the south-west town of Temora, where his family ran the John Meagher chain of country stores, nowadays part of the decidedly Protestant Grace Bros group.
His academic record is one of absolute distinction, double first class honours in Arts and Law, a lectureship at Sydney Law School for 20 years, first in Roman Law, and then also in equity after Sir Anthony Mason relinquished the position to become solicitor-general for the Commonwealth.
Meagher's demeanour is inescapably donnish. His chambers, wonderfully furnished with ancient statues and pottery, cracked leather armchairs which devour their occupants, rugs from the East and profuse clutter, are redolent of the mode of the College Dean school of interior decoration.
Much as it is his most natural habitat, the bar has not been Meagher's sole working environment. He was an articled clerk with the Sydney firm of P.F. Irvine & Co, and after graduation he trampled through the splendors of Greece and Rome for 15 months before returning to a job at Minter Simpson.
It was no ordinary job for a young graduate, but involved research and advice, and virtually no contact with clients. He enjoyed the work so much that he remembers seriously flirting with the notion of not going to the bar at all. His doubts were ultimately overborne and he was admitted to the roll of barristers in 1960.
It is an enduring testimony to his capacity that he has maintained, until this year, a schedule of lectures of up to six hours a week at the university, while conducting a considerable practice.
He has only now taken a year's leave of absence from the lectureships - a move made necessary by his election as president of the bar council.
Even though, as senior vice-president of the bar last year, he was seemingly the logical choice to succeed Trevor Morling as president, there were some who did not see it that way.
Undercover moves were afoot to draft Michael McHugh, the former junior vice-president.
McHugh certainly would have projected a more "user-friendly" image for the bar and been acceptable to some of those on the Law Reform Commission, who see him as less intractable than Meagher. As it happened these manoeuvres came to nought and Meagher was nominated unopposed for the presidency by McHugh himself.
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IT is significant that the NSW bar has handed the mantle to a man of Meagher's disposition at this critical time in its history. Certainly he has been the most vociferous in defending the status quo against the onslaught of the NSW Law Reform Commission's discussion papers.
His frontal attacks on the chairman of the commission, Mr Justice Wootten, and the "silly" documents for which he is responsible, have acted as some sort of rallying call.
The gap between Meagher and the Law Reform Commission is unbridgeable. The commission is constituted by men like Hal Wootten, who played an instrumental role in such things as aboriginal welfare and legal services; Julian Disney, one of the founding fathers of the Redfern Legal Centre; and Judge Martin, an activist in the consumer lobby.
Roderick Meagher's enduring commitments, on the other hand, have been to classical archaeology, the Latin tongue and amassing an overflowing collection of art.
While the Law Reform Commission has ideals like "efficient delivery of legal services and public accountability of the profession", Meagher’s concepts are guided by priorities such as "independence of the bar and the rule of law".
Where the commission advocates the establishment of new structures to ensure public accountability, Meagher sees market forces as being quite sufficient to achieve what is required. He told Justinian:
"The fact is when you are briefed you've got a solicitor there watching you, he can tell whether you are any good or not. If he thinks you are no good, well you just won't get any more briefs.
The other thing is that we do operate in the public market place. Any member of the public can go and see a barrister perform in court and judges in court sometimes express their criticisms of barristers.
Control by consumers is not the way to achieve accountability. What other occupation is controlled by consumers. What would the wharfies do if you put consumers in charge of them? They would go on strike and I would march with them."
Likewise the commission sees the main role of the bar as an important instrument in the delivery of legal services, whereas Meagher says that the true function of the bar is ...
"to maintain its independence and from that basis to ensure the continued primacy of the unchanging and universal verities of the rule of law, whatever the social consequences."
He stresses that barristers and solicitors are quite different animals, as distinct as doctors and dentists.
"This is obvious to everyone except the idiots at the Law Reform Commission. You just take for example the fact that barristers don't have trust accounts and don't do conveyancing."
Consequently, he asserts, that there can be no justification in having solicitors and barristers regulated by the same overriding authority.
Such divergent approaches to the functions and role of the profession have produced a situation where the protagonist and the defender are speaking entirely different languages.
The bar council apparently found some of the terms used by the commission so perplexing that it felt obliged to append a glossary of definitions in its response to the discussion papers.
None of which is to say that the bar is standing absolutely still.
The submissions to the Law Reform Commission indicate the the inquiry into the legal profession has acted as some sort of useful force for introspection.
There is a ready admission from the new president of the bar that declining standards are a worrying feature of life.
In past years most barristers would have served a more elaborate apprenticeship, an articled clerkship, then working as an employed solicitor and even as an associate to a judge.
"Now all those avenues have be closed. The articles system has been abolished, to my infinite regret, and you cannot get judicial associateships these days, because judges for perfectly adequate reasons of their own have taken to having female stenographers as associates," Meagher says.
"The unfortunate upshot of that is that no matter how good you are, and how conscientious you are and how ambitious and determined to do well at the bar, you come to it absolutely cold. It is a real tragedy for aspiring barristers. And of course the whole problem is aggravated by the tidal wave of new arrivals."
There are moves underway to tighten standards by controlling entry and introducing some sort of skills course for fledgling barristers.
Meagher says that the council will soon be having some all day meetings to hammer out policies on a skills course and entry.
He points to the Law Foundation, with its "immense amounts of money", as being the logical body to finance a course of barristerial skills, which would be conducted by practising members of the bar.
He also foreshadows moves which could include a restriction on the number of admissions to the bar in each year and adds that there is also a lot to be said for a dual system of practising certificates, one full and one partial or restricted.
"However these sorts of reforms can only be achieved with the willing cooperation of the courts, the law administrators and the Law Society."
The prevailing attitude on the bar council is rather similar to that of the inner sanctum of the Law Society, namely that any defects in the existing system can be put to rights with a bit of tightening here and there.
In the case of the bar, by a more vigorous commitment to training, coupled with the injection of a lay observer into the disciplinary system.
The notion of the lay observer is only grudgingly embraced. The experience of England seems to have been that lay involvement with discipline and complaints can be achieved in a "harmless" enough fashion.
Meagher accepts the fact that such appointments are to some extent tokenism. "I don’t see any escape from that," he says.
"Likewise all the people the Law Reform Commission want to have on is also tokenism, just in a larger form. The only purpose in having a lay person is to ensure that there is no favouritism being exercised towards barristers. I cannot imagine that a lay person would understand all the ins and outs of half the problems, but at least he ought to be able to get an informed view of whether the procedures are fair."
Even though the bar might discount the likelihood of problems in the disciplinary area, the view as to the extent of the problem is by no means unanimous.
For instance, in the submission responding to the discussion paper dealing with complaints and professional standards the bar council says that its jurisdictional weakness in hearing complaints, where there are disputed questions of fact, has been overcome.
The difficulty in the enforcement of standards by taking disciplinary action against members has always been hampered by the fact that the bar has no statutory authority to compel witnesses to give evidence in instances where the complainant and the barrister disagree over basic facts.
The submission says:
"The bar council instituted in 1978 a system of formal hearings before the ethics committee where disputed questions of fact exist. This defect, to the extent that it was applicable in a very limited number of cases, has thus been overcome."
However Meagher recognises that there is still a weakness.
"There is nothing to stop a witness saying to us 'go and get stuffed'. The fact is that this has never happened, but if it did happen there is nothing we could do about it. If it is a member of the association, then we can impose a fine, or expel him from the association if we wanted to, but he could still practise, or if it was very serious we could move the court."
The bar association also says in its submission that it would "embrace legislative reform" that gave it jurisdiction over non-members.
The fact that the bar has only moved the court perhaps three times in Meagher's memory, and that fines are rarely imposed, is advanced as proof that serious complaints hardly ever arise.
Meagher also admits, quite sanguinely, that matters of negligence and incompetence, that do not amount to professional misconduct, are likely to remain undisciplined.
"What can you do about negligence? This is a problem faced by every professional body. The House of Lords said last century, again and again and again, that mere negligence isn't professional misconduct. What do you do, for example, if you go to a doctor and you've got pneumonia and he fails to diagnose it? You cannot get him struck off.
Much as it is unpalatable to say so mere negligence, to a certain extent is ineradicable. Negligence is very deplorable, but it is a fact of life we all have to live with. You must know tehre are negligent plumbers, bankers and gardeners."
On the other hand, the Law Society is currently attempting to expand its jurisdiction to cover complaints concerning mere negligence, delay and incompetence.
Meagher adds that the bulk of complaints against barristers really do not relate to negligence at all.
"I think the largest area of complaint is clients saying that the barrister didn't say all the things that he or she wanted said.
You see, what clients never understand is that it is not a barrister's duty to say everything. The barrister's duty is to do his best for the client, and he is the judge of what's best. If I deliver myself into the hands of a surgeon he does the operation in the way he thinks the operation should be done."
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THE outpourings from the Law Reform Commission are seen by Meagher as a reflection of the inexperience of the commissioners themselves. "They are inexperienced as to how the law operates," he says.
"There’s Hal Wootten whose whole legal experience at the bar was in the very narrow field of industrial law. I don’t think Wootten would ever have done a criminal case, for example.
One way of testing it is this: If you comb through the CLRs and the State Reports from the time he was admitted to the bar to the the time he gave up practice I think you could find his name appearing solo, that is appearing as a junior or a silk leading someone, about four times, from the period of the mid-fifties to the late sixties."
The accusation of inexperience is not something the NSW Law Reform Commission faces alone.
The British Royal Commission on Legal Services, whose report has been hailed both here and there by the profession, has been consistently criticised in England for precisely the same reason.
Michael Beloff, a barrister who is also the legal correspondent for The Observer said:
"What the commission lacked was any substantial element of active practitioners."
Its membership included such diverse characters as Sir Harold Wilson's press secretary, the director of the London School of Economics and a former head of the radical Legal Action Group.
Julian Disney has stoutly defended the experience of the NSW commissioners.
At the Australian Legal Convention last year he said that the combined experience of the members of the Commission as legal practitioners exceeds 85 years, whereas the combined experience of the commissioners as legal academics is less than eight years.
Despite the fervent nature of the argument, Meagher denies the bar is hostile towards the Law Reform Commission.
"We have done our best to fully cooperate with them. But what one can say is that when they published their first and second papers, there was a general feeling at the bar, which was to my mind fully justified, that they were extravagant and silly documents. Naturally when this happens one must ask oneself is it worth talking any longer to people who produce documents like that."