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Tulkinghorn
1 July, 2009  
The barrister cartel

How Australia inherited barristerial rorts from the Old Dart … Latest ABS figures show Australian barristers have profit margins four times that of US drug companies … Up there with cocaine dealers


imageOn May 12, 1997 The Australian Financial Review published what the Law Council of Australia later described as an “anti-judiciary editorial” entitled, “Dilute the judges’ cartel”. It said:

“It is to be expected that the judicial class would embrace the mindset of the barristers’ class that most profits from the court system. It would not be expected that the judicial class that runs the courts would cast a rigourous and fresh eye over the system’s rules and procedures to promote the interests of consumers and taxpayers.”

The President of the NSW Law Society, Patrick Fair, replied (20 May 1997) that …

“the idea that judges and lawyers operate a cosy cartel is nonsense.”

England still has Lord Chancellors and until 2005 they headed the English judiciary.

Serjeants were high powered barristers, somewhat higher up the totem pole than a QC or SC.

imageSir John Evelyn (seen here) made an entry in his famous diary for November 26, 1686 :

“I dined at my Lord Chancellor’s, where three Serjeants-at-Law told their stories, how long they had detained their clients in tedious processes by tricks, as if so many highway thieves should have met and discovered the purses they had taken.”

The top judge and three barristers were together cackling with glee at how litigants were being ripped off.

Ellis Bent was the first barrister to hold office as Judge Advocate in NSW. He was in charge of the civil court.

Australian academic Bruce Kercher tells us (Debt, Seduction and Other Disasters pp 22 and 44) that:

“Early NSW was a very litigious place. The accessibility of the civil court in these years was due to its procedural informality, the lack of expensive lawyers, and the low fees it charged … Ellis Bent did not celebrate the egalitarian nature of access to his civil court … Bent introduced high fees in the civil court, we know from his letters that he wanted to live off his share of them and save his salary. He increased fees for claims under 10 pounds to 16s 10d, in place of 2s 6d., taking 10s for himself.”

imageProfessor David Lemmings (pic), in his book Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century has set out how barristers in England in the 1700s faced an economic crisis, which led to them racing into the Chancery Court to create work by milking deceased estates.

Charles Dickens centred his book Bleak House (1852) around it. It would be naïve to think that the judges there (and elsewhere) didn’t know.

Lemmings says Chancery became the most common court in which barristers appeared.

Three-quarters of the bar appeared there every year from 1720 to around 1770.

The Chancery Court got down to 200 cases a year being disposed of, but lawyers were “appearing” in court 50 times a year (on average) in each case.

Up to eight lawyers would be employed in court on each side.

When NSW started importing English barristers in the early 1800s, it was drawing on this pool of “talent”.

In 1799 the entire practising Australian profession was comprised of unreformed convicts.

Not until 1815 was the first unconvicted, qualified lawyer admitted to practise. Bruce Kercher writes that the Governor of NSW was …

“frustrated by the absence of honest, unconvicted lawyers in the colony.”

The godfather of this lawyer mafia was George Crossley who, “was a thoroughly dishonest attorney.He also has the strongest claim to the title of the founder of the legal profession in Australia”.

(See: A Convict Conservative: George Crossley and the English Legal Tradition by Bruce Kercher, 1998, 19 Law in Context 17-30.)

On June 22, the federal Attorney General Robert McClelland introduced into parliament the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009.

imageOnce enacted it will (in theory) ensure that …

“the overarching purpose of … civil practice and procedure … is to facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible.”

The AG began by referring to Charles Dickens’ (snap) “savage tale of litigation in the English Court of Chancery” describing him as a “great English satirist – or writer rather than satirist”.

See second reading speech.

There is no doubt that Dickens was writing the truth. He said so himself in the preface to Bleak House:

“I mention here that everything set forth in these pages concerning the Court of Chancery is substantially true, and within the truth.”

After referring to three specific cases he added:

“If I wanted other authorities for Jarndyce v Jarndyce I could rain them on these pages.”

The members of a cartel must deny its existence. For example, despite the fact that Dickens explicitly said the Jarndyce case was based on fact, the Queensland Court of Appeal has dismissed the book as being “fortunately fictional”.

Fortunately for the CA, one can’t prove a conspiracy exists by demonstrating how well the alleged conspirators are hiding it, despite the popularity of that technique among conspiracy theorists generally.

imageThere needs to be a simple test.

For example, if one wanders down supermarket aisles and finds that everywhere toilet paper costs $100 a roll, then one should infer that there is at least one cartel in existence.

On June 24, 2009 the Australian Bureau of Statistics published its “Legal Services” report for the June 2007-2008 year. And here’s the press release.

This reveals that Australia’s 3,869 barrister businesses have raised their average profit margin to 72.8 percent, a new record.

Previous ABS surveys showed profit margins of 66.5 percent for 2001-2002, 64.7 percent for 1998-1999, and 60.5 percent for 1995-1996.

In 2001, there were 10 American drug companies in the US Fortune 500 list.

Those 10 ranked far above all other American industries in average net return as a percentage of sales.

Their margin was 18.5 percent.

Profit margins for dealers in illegal drugs are a little hard to come by. The Independent noted in 2006 that the UK is one of the world’s most profitable narcotics markets for gangsters.

imageUK cocaine dealers, incidentally, had a profit margin of around 95 percent.

Being a drug dealer carries with it quite a high risk of getting “whacked”, as depicted in various TV series.

Unlike the situation with barristers, profit margins for drug dealers vary a lot from year to year according to supply and demand.

The activities of drug dealers are universally characterised as criminal, whereas when barristers obstruct, defeat, prevent or pervert the course of justice in exchange for monstrous fees, that is classed as “perfectly proper professional conduct” and such conduct, said the entire Australian High Court in 1960, can never be a crime.

Young people on the make should be told: forget about running a cocaine cartel and join the barristers’ cartel instead.

Swipe drug dealers’ gross profits as legal fees. Learn how to steer carefully around proceeds of crime laws. Have the judge on your side. Be respected in society.

Well, perhaps not the last bit.