New Zealand Law Society - Sad Thoughts

Sad Thoughts

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For retired lawyers to peruse LawTalk is a glimpse of a new and structured world. The very nature of law firms has changed beyond recognition from the memories we have of the friendly muddle which surrounded our own practices. Law firms were smaller and more personal; they did not carry positions with impressive titles involving marketing, education and computer advancement. And nor did they employ leagues of solicitors working immensely long hours in an effort to be promoted ahead of their fellows. Our clients, admittedly in my case in Christchurch – never the hub of the country – were mostly single individuals or smallish companies, and we added to their number by having gone to school with them, or played golf with them or (more likely) having inherited them from their parents who had been clients in an earlier age.

And yet we interpreted the law correctly (by looking up books) and we represented them in court more than adequately before judges who acted properly on precise principles of justice. And of course we charged a lot less, even taking into account inflation, and yet we lived very comfortable and well-remunerated lives. We took days off when we wanted to, the entire profession closed from Christmas until the end of January (not unfair because most legal work requires lawyers at both ends, and then when one only was away, no colleague stepped in to take his place), and employees either became partners quite soon, or left. I am afraid that our enchanted life no longer exists.

Not much point in recalling it, you might think, but I am not so sure. We should always watch what is going on. My last 20 years in practice were in Sydney, where the rigid re-structuring of the big firms was well in advance of ours (although as a barrister I was not open to the detail, because we were not allowed even to call on the premises of any law firm, even that instructing us). In fact, I was once offered a post as internal director of education for one large firm, which sent me scuttling back to the Bar. There, we did not prepare briefs or have to deal with clients or witnesses, being simply advocates called in at the last moment – or in my case, once as sole counsel halfway through a six-day trial. The firms hired young solicitors mainly on their examination or sporting records, and not, as with me at my Christchurch start, because the senior partner knew my father.

What caused the cosmic shift?

But there are two factors which to my mind have caused the cosmic shift, and they are, first, the effect of large corporate clients, and second, the consequence of the front-loading of court material which is now required.

First, large clients treat their legal firm as an extension of their own business. They have their own in-house lawyers, who prefer to have their opinions supported by the appropriate partner, and who expect the latter to be on call at all times, whenever it suits the corporate suite. The old-world relationship of a client seeking advice from his lawyer has changed into him telling the latter what he wants done. And the annual fees strength of any large company ensures that the law firm must go along. Not that I suggest they do so with reluctance, for money can cure any grievance, but to my mind the firms have lost significant mana. This is perhaps only clearly seen when litigation partners appear in any superior court – there is an unspoken but clear veil over them in the way they are treated by the judges, perhaps almost suggesting that they are seen as mouthpieces rather than as counsel. But I know I am over-affected by how things were in my time, when indeed there were no barristers sole and all counsel were from their own firms. Litigation partners have the same rights as barristers, and often can be better advocates.

Secondly, the amount of material which must be lodged with the court before a hearing may commence is phenomenal, and I have written before in horror of a system which would have been well beyond my abilities. A Christchurch silk told me recently of a two-day hearing in which he was involved, with over 6,000 items of evidence and authorities punched into the court computer, but of which not a single item was looked at. The cost of that preparation falls upon both clients, and increases at once the huge barrier between the courts and the taxpayers who finance them. My last trial in Sydney produced 60 box files of exhibits, but there was no obligation before trial to serve them or proofs of evidence, and lists of authorities only came in at the end when final submissions were due. I have no doubt that our own small-minded legislators have set up a Rolls-Royce system for an Austin Seven journey. And the big law firms have constructed themselves to cope with this. They are not to be blamed for this, but the angels must be weeping somewhere.

This piece was not meant to be a rant about lost glories of the past, but perhaps a sad reminder for current practitioners that their profession has become less admired and more vulnerable. It is not for me to point at the forthcoming digital revolution, but most will be able to see how all but the thinking part of our endeavours will disappear, and the big corporates will do all their conveyancing and non-litigious commercial transactions within their own offices. Most litigation has already been killed by “near-enough” mediation (to avoid the costs of front-ended preparation as above), and ordinary clients will do their own conveyancing just as they now do computer banking. They will make their own wills on their own computers, and perhaps only criminal and family law will persist less changed. Which, oddly enough, may bring to those courts the old-style personal relationship of some lawyers with those minorities of the populace still involved.

In LawTalk I see photographs of keen young lawyers, undoubtedly with the ability and verve that their predecessors have had over the last century or so, but I am sad to say that I mourn for their future. And I apologise for saying so.

John Burn is a former barrister living in Christchurch. He worked as a lawyer and then barrister sole in Christchurch from 1964 to 1980, then as a litigation partner with a Sydney firm for two years before returning to practise as a barrister in Christchurch from 1984 to 1990. From 1991 to 2013 he was a member of the New South Wales Bar in Sydney.

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