the legal profession

This page considers the Australian legal profession.

It covers -

• introduction
• a legal profession
• regulation
• studies

As of June 2002 there were some 11,490 legal practices in Australia (7,566 solicitor practices, 3,670 barrister practices, 41 patent attorney businesses, 18 government solicitor/public prosecutor organisations, 8 legal aid authorities and 191 community legal centres). There were 36,124 solicitors and barristers (with total employment by legal practices of 93,753 people, eg paralegal and secretarial staff), with 3,670 barristers (of whom over 83% were male). The profession thus outnumbered the prison population.

     a legal profession?

What do we mean by 'profession'?

Disagreement about characterisation of the professions – the key attributes that distinguish them from mere occupations or callings – and their operation has been a feature of academic literature over the past century. Broadly we identify a profession in three ways.

The first is through legislation: Australian and overseas statute law demarcates some occupations as being professions, typically those requiring registration and greater supervision (often through a co-regulatory scheme) than ordinary work.

The second is through non-statutory identification by government agencies, with official reports referring to particular professions.

The third is characterisation on the basis of key attributes that are not evident in ordinary occupations, attributes that may be independent of state recognition. Writers claiming a privileged status for a particular profession typically point to -

• skills based on theoretical knowledge
• provision of training and education
• testing the competence of members
• organization
• an ethical code of conduct and
• some degree of altruistic service.

The nature of those attributes has been contested: Ysaiah Ross notes the view that a profession is a

collective assertion of power by producers of special services to achieve upward social mobility, that is, special status … by control over a scarce resource – special knowledge and skills.

That interest in power reflects what is now the classical view of the professions, first articulated by Max Weber and rediscovered every generation. In his writing about law and bureaucracy Weber argued that the crucial attribute of a profession was its autonomy, ie its capacity to remain at an arm’s length from the state in making and administering rules (including those for entry to the profession and work practices).

Autonomy gave practitioners, among other things, a privileged status and often greater economic opportunities than people with jobs such as carpentry that might require considerable skill. It had to be defended, legitimated and signalled.

Can we discern such attributes in looking at the Australian legal system and accordingly identify an Australian legal profession?

Lawyers, to use a label adopted by political scientists Daniel Bell and Machajski, are symbolic analysts. Their skills are based on theoretical knowledge: an emphasis on principle and precedent, especially that transmitted through text, rather than physical repetition that builds the expertise needed in some manual trades.

That knowledge is typically provided by an elite institution, a provider of training to which entry is available only on a selective basis. In Australia we thus see the profession, through its peak body the Law Council, influencing the curriculum at universities and autonomously providing training through the College of Law and similar entities or through pupillage schemes for solicitors and barristers.

The profession is structured and hierarchical. Through bodies such as the law societies it sets requirements for entry of new members, certifies those entrants and existing practitioners (tests initial competence and ongoing compliance with trust fund requirements, a prerequisite for retention of the practicing certificate) and disciplines infringements of its code.

We might choose to refer to a professional code, rather than one that is narrowly or ostensibly ethical. One reason is that the legal profession's rules cover matters such as advertising by practitioners. Another is that the profession's ethical framework in practice has failed to address what in a non-professional setting (such as a factory) would be considered as work abuses, eg requirement in corporate law firms that associates and paralegals work inordinate hours. Notions of gender equity have not made much headway: law and the profession (in particular the Bar) is still predominantly white, male and Christian.

That code does have an ethical element, centred on duty to the court (and compliance with statute law). It is accompanied by recurrent statements from the commanding heights of the profession about altruism, for example the importance of pro bono work by individuals and firms.

The heirs of Weber, such as Richard Abel, offer a more nuanced analysis that is consistent with critiques of the law by figures such as Hans Kelsen, Herbert Hart and Lon Fuller. They questioned whether law has an "inner morality" and note that autonomy has social benefits, rather than merely benefiting practitioners (disparaged as "expensive parasites") .

We might infer that professional codes are a mechanism for addressing tensions between ethics and money (or between ethics and fame, ethics and personal aggrandisement).

Those codes provide framework rather than motivation: much altruism remains personal, "moral courage" is personal rather than corporate. Expressions of ethics by the profession are selective, with for example statements about human rights abuses at Guantanamo but silence about systemic domestic outrages such as the treatment of prisoners, highlighted in for example David Heilpern's Fear of favour: sexual assault of young prisoners (Lismore: Southern Cross Uni Press 1998).

The skill set required for success in the law means that practitioners are necessarily ambivalent about professional codes of conduct and that much legal education involves an ethical re-acculturation towards a "legal way of thinking" that privileges form over content.
One conclusion might be that ethics are existential – lived – rather that put on and off like a coat according to fashion or expediency and independent of a professional code.

Another might be that professional autonomy will continue to be contested. The National Competition Council for example commented (PDF) that

Australian Governments have historically allowed lawyers to take a large role in regulating themselves. … there are inherent dangers in allowing lawyers (or any profession) to make their own rules. There can be a lack of public accountability and the professional associations have the power to work in the interests of members rather than the interests of the public at large. To ensure the broader public interest is being served independence of the legal profession must be balanced with transparency and accountability. Involvement in self-regulatory bodies by people from outside the profession, would appear desirable for example, by having consumers represented on registration and disciplinary boards.

     regulation

The Australian profession is substantially self-regulated. The major professional bodies are the Law Council of Australia (LCA), the national peak entity, and -

• Australian Capital Territory Law Society | here
• Australian Capital Territory Bar Association | here
• Law Society of New South Wales | here
• New South Wales Bar Association | here
• Law Society of the Northern Territory | here
• Northern Territory Bar Association | here
• Queensland Law Society | here
• Bar Association of Queensland | here
• Law Society of South Australia | here
• South Australian Bar Association | here
• Tasmanian Independent Bar Association | here
• Law Society of Tasmania | here
• Law Institute of Victoria | here
• Victorian Bar Inc. | here
• Law Society of Western Australia | here
• Western Australian Bar Association | here

The salient legislation is -

• Legal Profession Act 2006 (ACT) | here
• Legal Profession Act 2004 (NSW) | here
• Legal Profession Act (NT) | here
• Legal Profession Act 2007 (Qld) | here
• Legal Practitioners Act 1981 (SA) | here
• Legal Profession Act 2007 (Tas) | here
• Legal Profession Act 2004 (Vic) | here
• Legal Practice Act 2003 (WA) | here

     studies

Invaluable points of entry to the literature on legal practice as a profession are provided in Lawyers in Society, vol 1-3 (Berkeley: Uni of California Press 1988-89) edited by Richard Abel & Philip Lewis, Abel's English Lawyers between Market and State: The Politics of Professionalism (Oxford: Oxford Uni Press 2003) and 'Lawyers and Legal Services' in The Oxford Handbook of Legal Studies (Oxford: Oxford Uni Press 2003) 796-816 edited by Peter Cane & Mark Tushnet, A shift to a post-structuralist analysis of the legal profession' by James Marshall in 11(1) International Journal of the Legal Profession (2004) 21-31, 'Specialisation, Accreditation and the Legal Profession in Australia and Canada' by Inge Lauw in 1(2) Murdoch University Electronic Journal of Law (1994).

For debate about the nature of professionalism and elite formation see The Culture of Professionalism: The Middle Class & the Development of Higher Education in America (New York: Norton 1978) by Burton Bledstein, Lawyers, the State and the Market: Professionalism Revisited (Basingstoke: Macmillan 1999) by Gerard Hanlon, In an Age of Experts: The Changing Role of Professionals in Politics and Public Life (Princeton: Princeton Uni Press 1994) by Steven Brint, The Rise of Professionalism: A Sociological Analysis, (Berkeley: Uni of California Press 1977) by Magali Larson, The Third Revolution: Professional Elites in the Modern World (London: Routledge 1996) and The Rise of Professional Society: England since 1880 (London: Routledge 1989) by Harold Perkin, 'The politics of professionalism' by Avrom Sherr in 1(1) International Journal of the Legal Profession (2004) 61-68 and The Revolt of the Engineers: Social Responsibility & the American Engineering Profession (Cleveland: Case Western Reserve Uni Press 1971) by Edwin Layton. Weber deserves to be read in full; a convenient set of extracts is provided in Max Weber on Law in Economy and Society (Cambridge: Harvard Uni Press 1954) edited by Max Rheinstein

Works on dominance of the profession by major corporate law firms - and implications for legal ethics as practiced rather than as enunciated by academics - include 'The Nirvana Fallacy in Law Firm Regulation Debates' by Elizabeth Chambliss in XXXIII Fordham Urban Law Journal (2005) 19-151, Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago: Uni of Chicago Press 1991) by Marc Galanter & Thomas Palay, 'Territorial battles and tribal disputes' by Yves Dezalay in 54 Modern Law Review (1991), 'Social Organisation Amongst Australian Lawyers' by Roman Tomasic in 19(3) Journal of Sociology (1983) 447-475, 'Turf wars and market control: competition and complexity in the market for legal services' by Julian Webb in 11(1) International Journal of the Legal Profession (2004) 81-102.

For questions of bias and values in Australian law see The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy 2 ed (London: LexisNexis 2003) by Roger Cotterrell, Less Than Equal: Women and the Australian Legal System (Chatswood: Butterworths 2001) by Patricia Easteal, The Hidden Gender of the Law 2 ed ( Leichhardt: Federation Press 2001) by Reg Graycar & Jenny Morgan, 'Women in the Legal Profession in Australia' by Terry Hutchinson in 12(2) Australian Law Librarian (2005) 23-35 (PDF), Michael Kirby's 1997 speech 'For Today’s Law Students: The Profession You Are Entering (Murdoch Student Law Society Annual Address)' and Lawyers in Conflict: Australian Lawyers and Legal Aid (Leichhardt: Federation Press 2006) by Mary Noone & Stephen Tomsen.

Questions of oversight by the state, self-regulation and reform are highlighted in Making Elite Lawyers: Visions of Law at Harvard and Beyond (London: Routledge 1992) by Robert Granfield, 2010: A Discussion Paper Challenges for the Legal Profession (Braddon: Law Council of Australia 2001), Reforming the Regulation of the Professions: Staff Discussion Paper, (Melbourne: National Competition Council 2001) (PDF) by Rex Smith, Ben Harris & Kate Pearson, Reform of the Legal Professions: National Competition Council Community Information, ( Melbourne, National Competition Council 2001) (PDF), Law Reform Commission of NSW report on Scrutiny of the Legal Profession: Complaints Against Lawyers (1993) and 'Aspects of regulatory reform in the legal profession: Australia, Ireland and the Netherlands' by Edward Shinnick, Fred Bruinsma & Christine Parker in 10(3) International Journal of the Legal Profession (2003) 237-267.

A perspective on the profession's alignment with the state - black or red - is provided in works such as Hitler’s Justice: The Courts of the Third Reich (Cambridge: Harvard Uni Press 1991) by Ingo Müller and In the Name of the Volk: Political Justice in Hitler’s Germany (London: IB Tauris 1997) by H W Koch.

Australian primers for legal practitioners regarding professional codes include Inside Lawyers' Ethics (Cambridge: Cambridge Uni Press 2007) by Christine Parker & Adrian Evans, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia 4 ed (Chatswood: LexisNexis Butterworths 2005) by Ysaiah Ross, and Lawyers' Responsibility & Accountability 3 ed (Chatswood: LexisNexis Butterworths 2007) by Ross & Peter MacFarlane.




   next page  (police and security)