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1 Lawyers Responsibility and Accountability: Cases, Problems and Commentary Fourth Edition Ysaiah Ross BA (Brooklyn College), MA (San Francisco State University), JD (University of California, Berkeley) Former Member, Law Faculty, University of New South Wales Barrister (NSW), Lawyer (California) Peter MacFarlane BA (Flind), BLegS (Macq), LLM (Syd) Associate Professor, School of Law, University of SA LexisNexis Butterworths Australia 2012 Ross & MacFarlane_FM.indd iii 11/28/2011 1:30:45 PM

2 2 to Ethics Lawyers Relationship CHAPTER Read Y Ross, Ethics in Law: Lawyers Responsibility and Accountability in Australia, 4th ed, LexisNexis Butterworths, Sydney, 2010, Chapter 2. INTRODUCTION 2.1 After dealing with the ethical problems in Chapter 1, it will be realised that many of our decisions in solving these problems are based on our personal values and convictions. As people involved with law, we also know that the sanctions for failing to act ethically are usually quite different from those for the breach of legal norms supported by statute or case law. By contrast, we also know that the legal profession has adopted ethical codes and/or rulings, and that there are many other sources of law, including statutes and cases, governing our professional responsibility. In this chapter, we will first examine why lawyers are generally disliked. We will then look at how lawyers deal with ethical/moral problems. In Chapter 3, we will examine why lawyers are considered to be professionals and how they maintain a virtual monopoly over legislative services. HOW ARE LAWYERS PERCEIVED? 2.2 Besides enjoying a monopoly over the legal system, lawyers are, and throughout history have been, among our leading politicians and business people. According to O Dwyer, The Rule of Lawyers ( July 1996) 31 Australian Lawyer 11, the Howard Government was the most lawyer-dominated government since Federation. He later stated that, before the 2004 election, 19 of the 30-member ministry were lawyers. After the election the number was 15, and as of 2006 it was 13. O Dwyer also points out that, since Federation, John Howard was the 11th lawyer out of 25 prime ministers. See T O Dwyer, Lawyers rule, but should they be ruling the country?, Canberra Times, 13 February 2006, p 11. Julia Gillard in August 2010 became the twelfth lawyer to become Prime Minster out of 27 Australian prime ministers and there is no relief if there is a change of government. The leader of the opposition, Tony Abbott, is also a lawyer. Furthermore, lawyers are in the majority in his shadow cabinet, while in the Gillard cabinet they are only a substantial minority (authors analysis). 11 Ross & MacFarlane_Ch02.indd 11 11/28/2011 1:29:57 PM

3 2.3 Lawyers Responsibility and Accountability: Cases, Problems and Commentary It is curious to note that while the Australian Parliament is still dominated by lawyers, the California state assembly and senate have far fewer lawyers today than 40 years ago. In 1971 there were 58 lawyers out of the 120 legislators, while in 2009 the number was only 21. D Curtis, Fewer lawyer-lawmakers: Does it make a difference? California Bar Journal, March 2009, pp 1 and 7. Do you think having fewer lawyers results in fairer legislation? Does it make the political system work more efficiently? If you started making a list without doing any research, you would probably be able to write down the names of a number of famous lawyers. For example, did you know that the famous French painter, Henri Matisse, started his career as a lawyer? See if you can list them now. In your list, you may have included the names of some famous revolutionaries. How can you reconcile someone becoming a lawyer and also being involved with the overthrow of the legitimate government? 2.3 Apart from their status and power, lawyers are considered to earn enormous incomes. This is not the case when lawyers begin their careers. According to a Mahlab Survey 2010: The New Legal Landscape-Private Practice and Professional Services done in July 2010 the most frequently (mode) occurring salary range for a new graduate starting work in the largest or top tier firms in Sydney was $72,000, Melbourne, $67,000, Brisbane, $65,000, Perth, $57,000 and Adelaide $54,500. The survey only gives mid tier and small firms for Sydney and Melbourne. In Sydney mid tier was $67,000 with small firms at $50,000, while in Melbourne mid tier was $61,000 with small firms at $46,000: see pp 8 10 of Survey, www. mahlab.com.au. By contrast, some of the partners in the leading Australian firms earned as much as $1.5 million in 2006: see L Schmidt and M Priest, Legal bonanza puts partners in millionaires club, Australian Financial Review, 1 September 2006, pp 1 and 58. This figure did not change with the 2010 Survey with the mode for the top tier firms in Sydney being $1,310,000, Melbourne, $1,239,000, Brisbane, $1,050,000, Perth, $1,215,000 and Adelaide, $820,000 (see p 13 of the Survey). 2.4 In the United States, the leading American firms for several years were offering $US125,000 to first year lawyers. In 2006 this figure was raised to $US145,000 and one firm, Simpson Thacher & Bartlette, in early 2007 announced it was offering these new associates $US160,000: see A Lin, Simpson Hikes Pay; First Years Go to $160,000, New York LJ, 23 January 2007, These firms also give large year-ending bonuses of around $US30,000. The Mahlab 2010 Survey at p 18 found that in the top tier New York firms the mode was $155,000, with the top being $160,000. The Survey stated that some of these firms have kept this same salary, $160,000, for these lawyers in their second and third years. The mode in London top tier firms was 59,000, while the mode for American firms operating in London was significantly higher at 79,000. One American firm was paying 100,000 (at p 17). A similar situation of higher starting salaries is happening in Australia with some of the largest American firms opening offices in Sydney and the most recent development being the opening of Clifford Chance (United Kingdom), one of the top three largest firms in the world, of an office in Perth in May See C Merritt, Battle plan targets resource work, The Australian, 18 February 2011, p 29. Even with the huge increase in the value of the Australian dollar and large overseas firms opening in Australia, the American and British starting salaries are still substantially higher than those in Australia. Lawyers are frequently disliked. It is perplexing for the legal profession to find that various opinion polls hold lawyers in low esteem. For example, in the 4 April 2007 Morgan 12 Ross & MacFarlane_Ch02.indd 12 11/28/2011 1:29:58 PM

4 Chapter 2 Lawyers Relationship to Ethics 2.6 Poll, only 36 per cent found lawyers to have a very high or high standard of ethics and honesty. Nurses were the highest at 91 per cent, while car salesmen had the lowest at 4 per cent. In a recent Morgan Poll published 28 June 2010, lawyers were now at 32 per cent, nurses were still the highest at 89 per cent, while car salesmen maintain their lowest ranking going up to 5 per cent. What do you think are the reasons for lawyers being distrusted and disliked? What suggestions can you give for bettering the image of the legal profession? How are lawyers depicted on television and in movies? See the following source material: P Joseph and R Jarvis, eds, Prime Time Law: Fictional Television as Legal Narrative, Carolina Academic Press, North Carolina, 1998; P Bergman and M Asimow, Reel Justice: The Courtroom goes to the Movies, 2nd ed, Andrew and McMell, Kansas City, 2006; Michael Asimow, ed, Lawyers in Your Living Room! Law on Television. ABA Publishing, Chicago, 2009; Bad Lawyers in the Movies (2000) 24 Nova LR 533; M Asimow, Embodiment of Evil: Law Firms in the Movies (2001) 48 UCLA LR 1339; P Bergman, The Movie Lawyer s Guide to Redemptive Legal Practice (2001) 48 UCLA LR 1393; D Papke, Law, Cinema and Ideology: Hollywood Legal Films of the 1950s (2001) 48 UCLA LR 1473; Symposium: Law in Film/Film in Law (2004) 28 Vermont LR 797; M Asimow and S Mader, Law and Popular Culture: A Course Book, Peter Lang, New York, 2004; and M Freeman, ed, Law and Popular Culture, Oxford University Press, Oxford, An organisation dealing with depression problems, Beyondblue, commissioned Beaton Consulting to conduct, in 2007, The Annual Professions Study. In a study of more than 7500 professionals it found that employees in law firms were the most prone to moderate to severe depression. Of those surveyed, more than 15 per cent of the lawyers reported negative thoughtpatterns, low energy, lack of meaning in life and pessimism about the future : Sydney Morning Herald, 24 April 2007, p 3. The survey revealed that lawyers are 50 per cent more likely to suffer than other professionals More than half those surveyed believe it would be helpful to encourage someone with depression to take time off work : R Nickless, Firm stance makes all the difference, Australian Financial Review, 27 April 2007, p 52. One of the problems facing lawyers being treated for mental illness and depression is that the diagnosis can lead to other problems. Olivia Collings states: Despite greater awareness of mental illness and depression in the profession, many lawyers face financial uncertainty following a diagnosis. Legal professionals seeking to insure themselves against loss of income may find it either difficult, or very expensive, to have insurance following diagnosis or treatment. If an individual has a history of mental illness or depression the insurer will view that as being a higher risk, said Moray & Agnew partner and national head of life insurance, Gerry Davies. : ALB Legal News, July 9, 2010, 2.5 What were your reasons for choosing to study law? Has your experience so far in the law school and in outside legal work (if any) met your original expectations? In light of the opinion polls and the surveys showing problems of depression, how do you feel about joining an occupation that is disliked by so many people and causes widespread depression among its members? 2.6 Besides the opinion polls, an example of lawyers being disliked is the number of disparaging remarks that have become the foundation of a lawyer joke industry. An Australian book, S Ross, The Joke s on Lawyers, Federation Press, Sydney, 1996, is based on the notion that lawyers have become one of our main targets for humour. In fact, the author believes that a joke about a lawyer will usually be well received because, unlike jokes about many other 13 Ross & MacFarlane_Ch02.indd 13 11/28/2011 1:29:58 PM

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