explodedlibrary bunker

Keynote Address by Professor Gino Dal Pont, University of Tasmania: Evolution of the legal profession

• The last 20 years, and the last five or so in particular, have witnessed considerable changes in the Regulation of the legal profession.
• Regulation = Controls on the entry into and the practice of law.
• Regulation is needed in areas that lack public trust - therefore more Regulation in legal profession.
• In the 19th Century, "legal profession is the only enlightened class who the people do not distrust" re US legal profession.
• Compare today, Morgan poll [MW: could this be the poll?] on the most trusted professions had lawyers ranked 14th of out of 28. meaning 30% rated lawyers' ethics as high or very high.
• Is there empirical evidence about lawyers' ethical flaws? Note that politicians and journalists, who are critics of lawyers, have even lower public trust than lawyers.
• A barometer for the level of regulation in the legal profession would be the legal profession act in each jurisdiction.
• There's been new legal profession regulation in every Australian jurisdiction.
• Uniformity (the aim of the redrafted legal profession acts) has proven elusive, so has brevity.
• The application of competition principles of the legal profession has generated a shift in the dynamics of the legal profession.
• Practice structures once the domain of the commercial world have infiltrated the legal profession
• The judiciary also regulates the legal profession.
• Courts have presided over an expansion in the use of fiduciary concepts and legislatures have responded to perceptions of lawyer abuse of position by empowering clients in their dealings with lawyers.
• The only profession to which the full force of fiduciary law applies. 
• The Legal Profession is the only profession where the courts can and do over turn costs agreements even though it interferes with freedom of contract (which is a fundamental right). They don't re-open other contracts in the same way.

4 recent evolutionary steps:

• Admission
• Competition principles
• Client empowerment over costs
• Professional discipline

1. Admission to practice

• Good fame and character has always been a requirement, but its been fluid in nature.
• In the 19th century USA, admission was virtually never denied on character related grounds
• Spoke about article "When lawyers were serial killers" which spoke about the practice of duelling amongst lawyers. Anti duelling laws
• "Good fame and character" only started being used in the 20th century, usually for racist reasons. Gino provided an anecdote about his own admission, how there had been a mix up and he had not lined up somebody to vouch for his good fame and character. This turned out not to be huge problem, one of the Court orderlies arranged for a stranger to vouch for him. Only recently in 2004 has academic misconduct been found relevant to good fame and character.
• Only recently, since 2004, has Academic misconduct been found relevant to good fame and character. Re AJG.
• Vic, 2007 - Behaviour in non law subject was held to be relevant.  Student gave partial disclosure of this.  Vic SC revoked his admission. Judges mentioned that standards have changed. "Even ancient peccadillos are relevant" [small, venial sin].
• This decision was enshrined in Vic legislation making academic misconduct relevant.  Amendment to the Victorian Legal profession act that requires applicants provide a report from every academic institution they have attended.
• General misconduct is also relevant eg. property damage, sexual misconduct, any time when an allegation has been made or an investigation has been carried out.  It changes the role of educational institutions into an ethical certifier.  Tension with consumerism.

2. Competition

• Application of competition principles to legal profession - law practise as a business, commoditisation of legal services, advertising.
• Advertising -
•  - Once upon a time, lawyers never advertised, 2005 statement by justice cullinan on this.
• In 1994, Trade Practices Commission recommended relaxing advertising restrictions.  Even after this deregulation, Governments changed their mind and re-regulated personal injury advertising. 
• 2005, these restrictions were challenged in the High Court.  Justice Gleeson - "litigation increases with advertising".
• Evolution in practice structures -
• Historically, the structure has been the partnership.  There are restrictions with incorporated legal practices.  There's a tension between the corporate model (with non-lawyer directors and investors) and legal practices.
• It complicates things.  Non-lawyer directors and investors owe no duty to clients or to the Courts.  Deregulation in this area is not cost neutral.  It assumes that legal services are like any other service.
• The need to regulate in a deregulated environment shows that the legal profession can't be treated like any other business.

3. Costs

• Client empowerment via costs disclosure obligations.
• Such disclosure obligations are unique to the legal profession.
• Cost disclosure to prospective clients allows clients to compare legal service providers based on price.
• Statutory obligations for disclosure of costs estimates include:

an estimate of the total legal costs; or

a range of estimates with an explanation of the variables that may effect the value of the estimate; and

an estimate of the costs payable upon successfully and unsuccessfully completing the matter (which involves the other party's costs).

• To adequately gauge the ultimate cost of an ongoing matter, a practitioner needs to review costs estimates as a matter proceeds.
• There are consequences for inaccurate estimate or too vague estimates.
• Costs agreements can be set aside for incomplete disclosure, even if all the statutory requirements have been followed to the letter.
• Caselaw has even gone so far as to require a Practitioner to advise a client that other lawyers charge according to a court assigned scale as opposed to charging by time and would therefore be cheaper.

4. Professional Discipline

• There has been an ethical evolution relating to legal practitioners' conduct inside and outside of practise.  There's an increase in rigour
• Lawyers mustn't make statements that are false or misleading in court, but many lawyers have thought that this doesn't apply to negotiations.  Up until 2006 no judge condemned dishonest conduct in negotiations.
• Legal Services Comm v Mullins - Client's diagnosis of cancer wasn't disclosed in negotiation.  Relevant to the size of the payout.  This was rejected in the Court, Barrister was fined and reprimanded.
• Confidentiality - before 2009 there were no proceedings attacking breaches of confidentiality.  Schapelle Corby.  Her solicitor gave a national TV interview disclosing damaging confidences from the Corby family.  This solicitor was struck off because of this.  Corby's pro bono QC made similar disclosures in media interviews, he was also punished.
• Courts are also recognising that professional misconduct can also occur outside of legal work. eg. lawyers who shirk their tax responsibilities.  Cummins, Senior barrister for 38 years he hadn't lodged any tax returns.
• Since the late 1990's this has been seen as a significant issue and Such misconduct is now prohibited in most legislation.  There are regulations in Legal Professional Act dealing with it.
• Forced accelerated evolution will continue as long as ethics, competition and costs are politically charged issues.
• Collapsing of regulation under a national banner will continue to accelerate the evolution.
• We haven't reached the peak of this evolutionary tree yet.

Opening Address by Brian Martin, Chief Justice of the NT: Recording history - burning books and the digital age

• The opening address was about the preservation (and destruction) of the historical record in both traditional and modern formats.
• Law Librarians provide a background to a life in the law, often without the recognition we deserve.
• Law librarians very helpful in his legal eduction, the law library was also a place of refuge.
• System of legal references were unintelligible to a young law student - legal learning is very different now.
• With the evolution to the digital age - lawyers and students have become impatient, used to the 60 sec grab of information, no longer willing to learn by browsing books, want instantaneous answers.
• Libraries are in a period of transition, as are judges - Books are being decommissioned.
• With the explosion of material available online comes censorship.
• Censorship has played a significant role in shaping society.
• History is filled with stories of people who've tried to kill free thought.
• Anecdotes about the burning of books:

Destruction of Alexandria library;

burning of 20,000' un-German' books in Nazi Germany;

May 1946 Time magazine article about Allies pulped all "pro-Nazi, militaristic and undemocratic books" books;

Serbian forces attack on in National Library of Bosnia-Herzegovina in the 1990s

Church burning Wycliffe and Tyndale translations of the Bible;

Harrry Potter and Star Wars products burned in modern US.

• The advent of the digital age makes censorship difficult, but not impossible.
• How safe are records in digital forms.
• There are risks and pitfalls that are involved when dealing with long term preservation of information in digital formats.
• There are real concerns about preservation of digital material.
• Hardcopy is safeguard against the loss of our history. 
• Libraries remain an essential feature in the legal landscape
• Judges and practitioners find guidance in the past, and librarians are custodians of this history.
• Libraries are essential to preservation of historical material.

the interior

Yesterday I flew from Sydney to Darwin, my first visit to the Northern Territory. I had a window seat and the sky was mostly clear, and I was able to have a good look at the interior.

During the first half hour, I could see places which I travelled through on my lengthy regular commute from the Blue Mountains. Strathfield, Parramatta, Penrith. I also glimpsed towns of the lower Blue Mountains looking beautiful in the morning sun. I wasn’t able to see my current home of Wentworth Falls, but became captivated by the Grose Valley and the Gardens of Stone - definitely a place I’ll need to visit.

Then I became lost in my book and an hour later I looked up and saw rural Australia fading into outback Australia. No towns, only the occasional road and fence. Every so often a tiny square building - a cattle station? The countryside was flat and dry. There were some trees, but not forests. The main features punctuating the land were dried up rivers and lakes.

There really was nothing out there.

There was a time in my life when I had numerous flights over the USA. That was a very different experience. For one thing, although there were arid places where the farms seemed to dwindle and become fewer, they never really stopped, except in some places in the Rocky Mountains -- which was the other big difference.

I want to make it clear, that the interior of Australia seemed emptier is not a bad thing. Actually, seeing all that emptiness was a profound experience. I wouldn’t want it to be any different.

It’s been almost 3 months since I met L and my life changed. Sad to say, my blogging and writing has been one of the things which has suffered during this time. But I will not blame that on L, there have been other reasons for this. But in general I only have time for so many big things in my life, it’s basically a trinity. Before I didn’t have a relationship, so my life basically consisted of work, recreation and blogging. Now things are closer to this: work, relationship, recreation.

It will be interesting during this month when L is away travelling in the USA and Europe. It is an opportunity to reset things, get back into the habit of blogging, so that when she returns, I’ll continue blogging - which will probably mean less gaming, which is ok.

I should ask myself why this happened. Blogging is more work than reading or playing computer games, but it’s not as draining as work, and I do feel good about it afterwards. I should remember this. Then there have been other disruptive things, such as moving house and different role at work, which have made it difficult for me to blog lately.

One of the characteristics of my blogging is that is that it is prone to prolonged droughts. That said, every so often the conditions are right and I do blog more actively. I am reminded of the dry riverbeds I saw on my flight over central Australia. Most of the time they look quite dead, but when there’s rain, they are full of life.