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Deja Vu
4 December, 2009  

Seventeen years ago there was a huge stoush in Sydney between the bar and the big law firms … The solicitors were pressing for efficiencies and cost savings … The bar would have none of it … From Justinian’s hard copy archive

From Justinian July 1992

The gloves are off

imageTHE LEADERS OF the NSW Bar, the Law Society and big city firms in Sydney have done a deal to keep the lid on their confrontation over the featherbedding in the advocacy trade.

At the last meeting held on the topic at the end of May, 10 silks and representatives of five of the major firms and the Law Society decided that the issue would be taken out of the public arena. There should be no comments to the media about what was going on.

Graham Kelly, the managing partner at Freehills, who formulated the five point plan of objections against bar practices, has gone to ground. “No comment” is the response from Gra Gra’s office following the end of the May meeting.

This should not disguise the fact that the gloves are off. The big firms want change and the bar is very edgy about it.

The bar is mounting a case which includes the following points:

* Some of the firms charge out the boy who pushes the trolley to court a more per hour than junior counsel.

* Why would you brief a solicitor to appear with senior counsel when solicitors at the big firms are more expensive than junior counsel?

* The firms’ overheads are high, we can do the work more cheaply.

* Barristers go to law firms all the time for conferences, so this objection from the firms is out of date.

The top law firms want to break the bar’s arrogance, and if there is any benefit in terms of flexibility and a better deal for clients, then so much the better.

The managing partners of the firms with the biggest muscle are confident they have the power to force changes at the bar. Ultimately solicitors who are serious about it can simply refuse to brief barristers who don’t undertake or provide the service in the way required.

This could lead to a nasty stand off, particularly if the bar uses a few tricks up its sleeve.

The city firms are driven by a concern that the solicitors’ share of the professional services market has been shrinking.

If they can win the right to appear alongside barristers in court it opens up an expansion of business, all in the public interest, of course.

The solicitors’ aggression on this question originally grew out of barristers charging cancellation fees. The Litigation Law and Practice Committee of the society under Normal Lyall had been putting forward all sorts of ideas to shake the bar out of this nice little earner.

But the bar was too slow or unwilling to respond, and suddenly found itself facing an uprising of very angry managing partners and litigation solicitors.

Oddly enough, the thing that has most alarmed the senior members of the bar is the solicitors’ complaint about robing.

This is all at the heart of the bar’s ego and status, and to call for its scrapping is seen by lots of barristers as the most appalling assault on liberty and dignity since Stalin J.

(Strangely, Lord Taylor, the new Lord Chief Justice in England, is talking about doing away with wigs in the superior English courts. In a recent interview on the BBC he is reported to have said: “I believe at a stroke we could disarm a good deal of public misunderstanding of the legal profession if we stopped wearing wigs and gowns in court.”)

The Kelly memo

IT WAS THE memorandum from Freehills’ Graham Kelly that summarised the issues raised at a meeting on April 3 of the managing partners of about 20 city firms that first crystallised the resentment of the big solicitor shops.

These are the points that Kelly made in his memorandum circulated to all participants at the meeting and the President of the Law Society:

“The issues involve restrictive work practices that have a detrimental effect on the public interest. They distort access to justice for the Australian community. Some detract from international competitiveness of the Australian legal profession.”

Abandoning these unjustifiable work practices should be seen as part of the nation’s drive for micro-economic reform to make Australia a more open and competitive society.”

The specific issues identified were:

* Two counsel rule. While formally abolished, in practice it still flourishes. “This is an unjustifiable practice, akin to third line forcing.”

* Refusal to appear with solicitors. Bar rules prohibit counsel appearing with a solicitor advocate. “This is unjustifiable practice, akin to a primary boycott.” The practice ignores the “Substantial expertise available within the major city law firms and limits the benefit of that expertise to clients”.

* Rule against attending solicitors’ offices. In many cases it is plainly more convenient to clients for counsel to work at their solicitors’ offices. All the big city firms have offices that are more spacious, better equipped and with state of the art computers and communication facilities that anything available at the bar. “The bar rule against this is antiquated, steeped in anti-competitive motives. It amounts to an unjustifiable restraint of trade and a boycott,” said Kelly’s letter.

* Cancellation fees. These fees impose unnecessary expense on clients. They also tend to inhibit the settlement of cases, and the practice inhibits the international competitiveness of the Australian legal profession.

* Robing. “Robing has an anti-competitive effect, disturbing what should be a level playing field between advocates … Robing represents a quaint medieval Anglo-Saxon practice in what is now a modern multi-cultural society. It creates an image that the Australian justice system belongs to a different age and background from that of a large proportion of our society.”