The fusion that dares not speak its name ... How many lawyers does it take ...? ... Solicitors and barristers - differences ... Supreme Court decisions on legal aid rulings in Victoria show the extent of the barristers-judges fusion ... Tulkinghorn explains
Lathering & Shaving: different bits of the same business?
IN a 'fused' legal profession there is no distinction between barristers and solicitors.
In Victoria, by law, the profession is fused. The law, when it was passed, in 1891, reflected what the public wanted.
"Australian clients were of the same democratic temper as their United States counterparts where clients objected to being 'lathered in one shop and shaved in another'."
(See pages 300-302 of Rob McQueen's essay in Lawyers and Vampires: Cultural Histories of Legal Professions.)
Section 10 of Victoria's Legal Profession Practice Act 1891could not have been clearer:
"After the passing of this Act no person shall be admitted to practise as a barrister or solicitor solely, but every person admitted by the Supreme Court shall be admitted both as a barrister and solicitor."
On February 18 Victorian Supreme Court Justice Terry Forrest conceded (see para 44):
"The enactment of the Legal Profession Practice Act 1891 legally fused branches of the legal profession in this State ... This fusion is maintained through the [Legal Profession Act 2004] although the collective term 'barrister and solicitor' has been replaced by 'legal practitioner'.
Despite the best endeavours of the colonial parliament, the independent bar survived and ultimately flourished under its voluntary arrangements ... although occasionally solicitor-advocates appear in the higher courts."
In 1999 High Court Justice Michael Kirby recounted (New South Wales Law Journal, December 1999 page 62) how he was employed by a law firm as a solicitor-advocate who, as part of his soliciting activities, would, "appear in court and save the firm's clients the senseless expense of retaining counsel".
Justice Kirby noted:
"My success rates were at least as good as the barristers and sometimes better."
But it was a tough life, by the standards of lawyers.
"After a heavy day in court, I had to return to the office, interview witnesses, prepare statements, send out the correspondence, arrange subpoenas and do all the other tasks of a solicitor specialising in litigation. It was a gruelling and exhausting time."
So solicitors can act as barristers. The reverse is possible too - barristers who do soliciting. For example, see Schokker v Commissioner of Taxation:
"Mr G.P. Mohen of Law Access went on the record as instructing solicitor for the purposes of the appeal but on the basis that Mr O'Connor [a barrister and senior counsel] would do whatever was necessary in the preparation of the appeal whether it be normally the work of a solicitor or of a barrister."
All of this means that anyone who expatiates on the differences between barristers and solicitors is likely to produce, to borrow John Keats' memorable phrase, "a thing writ in water".
In February, Justice Lex Lasry of the Victorian Supreme Court was faced, in a criminal case, with a defendant for whom Victoria Legal Aid was prepared to fund a barrister for the duration of his trial, but not a solicitor.
Justice Lasry ordered that the trial not commence until the defendant was assured of having a solicitor (as well as a barrister) for all of the trial.
A few days later Victorian Justice Terry Forrest made a similar order in a similar case.
Lasry said that VLA had demonstrated "a lack of insight into the role a solicitor plays", he having provided watery insight himself by listing activities which he understood "the role of a solicitor to regularly include".
But all of the activities he listed could be done by a junior barrister, who could come much cheaper than a law firm solicitor.
A recent article in Lawyers Weekly said:
"A growing number of in-house counsel are bypassing firms and briefing barristers directly ..."
If in-house counsel can cut out law firm solicitors entirely, then one would imagine that there should be scope for Legal Aid authorities to do the same.
There is a pool of "cheap" barristers with lots of experience of soliciting who have apparently left "Magic Circle" firms and have had a decade of practicing as solicitors before they went to the bar. The article added:
"they're great lawyers and as soon as they come to the bar their rate drops from around $700 per hour to $200 per hour."
Lasry could have suggested that the VLA fund an extra (cheap) "barrister". But he didn't. Or he could have said one lawyer is enough. But he didn't.
His approach generally to the issue of "how many lawyers does it take ...?" to properly defend a criminal case would have endeared him to the membership of the Victorian bar.
That may or may not have been his intention.
A decision on that depends on how much one accepts the possibility of another form of legal professional "fusion" - the fusion of the senior barrister class with the judicial class.
A few facts suggest that such "fusion" exists.
In England "sergeants" historically were a high powered sort of barrister.
In A Social History of English Law (1966), Alan Harding, a professor of medieval history, writes (p.173):
"Of 86 advocates who became serjeants between 1400 and 1500, fifty-eight went on to be judges. The consequences of the fusion of the judiciary with the legal profession were immense. Being a judge became largely a matter of technical skill, not of government or politics."
Barristers and Judges belong to the same union. The Victorian bar's annual report for 2012 says that VicBar has 243 active judicial members and 112 retired judicial members out of a total membership of 2,679.
The Law Institute of Victoria noted in 2009:
"Until 1986, only barristers had been appointed as Supreme and County Court judges ..."
While the judicial appointment scales are more even now, they are still heavily weighted in that direction.
Judges and barristers: looking after each other
In England one now sees lawyers flitting between being private barristers most of the time, and sitting as judges for between 15 and 30 days a year.
If the senior barristers are fused with the judges, then one would expect them to look after the interests of each other.
Both will agree that the concept of a fair trial means that each "side" must be heavily loaded-up with lawyers, paid for by the state as required.
It is difficult to stop them doing this, because there are no objective standards specifying how many defence lawyers are "needed" in any particular case.
[In Northern Ireland] ... In 55 percent of cases two defence barristers were assigned, compared to just five percent of cases in England and Wales."
(See: "Exposed: the legal aid 'gravy train' " - Belfast Telegraph.
Instead of adding more lawyers as cases keep getting made more "complex" by the fused barrister-judge cartel, what we need are judges who cut out all the time wasting.
Iconic lawyer Des Sturgess says:
"Once trials ... commence, they drag interminably due to 'incompetent judges ... who take the silliest submission seriously and adjourn the court to ponder it."
(Des Sturgess in QWeekend Magazine, October 8, 2011.)
If we had more solitary lawyers having to work as hard as Kirby did, they'd have less time to dream-up the sorts of submissions that Sturgess was talking about.