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26 June, 2007  
The Establishment v The Upstarts

New LCA “ethical” rules governing lawyer contact with the media are designed to stop hungry lawyers stealing clients from fat lawyers. In understanding ethical rules all the official explanations have to be discounted, until you get to the one that says “money”

imageThe cleverest thing the legal profession has ever done is to create “Codes of Ethics”, although that terminology has gone out of favour.

These codes help to maximise lawyer business and legitimise anti-competitive behaviour. They also provide cover for unethical behaviour, so it was a stroke of genius to call them codes of ethics.

At the same time, it is true that codes of ethics aim to stamp out the worst type of lawyer behaviour. In the appropriately named court case of Re Evill in 1951, England’s Chief Justice said:

“There is nothing worse in any profession than that there should be open fee cutting, if I may use that expression…”

At one time the lawyers did not need to disguise what they were up to. In Queensland, for example, Rule 68A of the Conveyancing Scale banned fee cutting. Rule 81 said:

“The Council [of the Law Society] considers that a practitioner will breach Rule 68A if he holds out to the public generally that he is prepared to undercut the fees of other practitioners… The Council will prosecute practitioners where evidence is available that those practitioners have been engaging in any such activities.”

Now that we have a national competition policy (NCP) drawing up a legal ethics code calls for considerable skill. To start with, a good draftsperson will provide initial bulk by banning lawyers from doing stuff that the ordinary law bans everyone from doing anyway.

If necessary one could insert the entire criminal law, but that would give the game away. If, perchance, it is necessary to declare that horrendously illegal behaviour is in fact “ethical” (because it is so profitable) the best technique is to write the rule backwards.

So, if one wants to write a rule saying, “lawyers are allowed to lie” one should write one saying, “lawyers are not allowed to lie” and then put the real rule at the end.

Rules 32 and 33 of the NSW Barristers Rules are good examples of this technique. Ideally, one should read the first couple of lines of those rules to get hold of the subject, then go to the end and start working backwards.

Once the “rules” have been bulked up and/or written backwards, the “business maximising” and “competition minimising” rules can be secreted all over the place and the code of ethics is complete.

Then the rule makers go down to the ACCC and whack down the (now) heavy “Code of Ethics” on the table. What can the competition police say? “We want you to stop being so ‘ethical’?”

Earlier this month the Queensland Law Society floated a bundle of rehashed “legal ethics” rules for solicitors, which for some unfathomable reason have a title which is expressed in the singular: Legal Profession (Solicitors) Rule 2007.

Rule 19 attracted some media attention. It begins:

“A solicitor must not publish, or take steps towards the publication of, any material concerning current proceedings.”

That is followed by about 50 lines of detail.

Since the media is not in possession of a map of the minefields of duplicity created by codes of legal ethics, media commentary about it was bound to be all over the place.

imageRule 19 was said to be a plot to throttle free speech. Or a plot to torpedo the concept of fair trials. Or a gag on the media. Or a gag on lawyers.

Tim Bugg, president of the Law Council (pic), hardly clarified anything when he said:

“I don’t think free speech can apply to lawyers because they can only speak on behalf of a client. This [rule] does no more than remind lawyers to be very careful. The focus of it all is consumer protection. It is not about the relationships lawyers have with the media.”

On the face of it, that is exactly what it is about. It even talks about solicitors “answering unsolicited questions from journalists”.

However, the underlying agenda was something else again. This is legal ethics, where you have to keep discounting every explanation until you get to one that says “money”.

Rule 19 is entitled “Integrity of Hearings” but that is just more smoke. The law is already full of contempt and sub judice rules which achieve “integrity of hearings”. The true aims of Rule 19 must lie elsewhere.

There are lawyers who have got the good paying clients, and lawyers who are hungry. Traditionally, ethical rules banning touting, conduct unbecoming, advertising and soliciting have been used by the “haves” to keep the “have nots” in line waiting for their turn.

Starving lawyers were forced to look like they weren’t, so the “haves” could keep their fees up. English barrister R.G. Hamilton writes in his book All Jangle and Riot:

“When attorneys (solicitors) walked the streets in Assize towns in search of counsel (a barrister) to brief, the barristers watched like starving dogs hoping to be tossed a bone… Barristers were not allowed to use public conveyances but when the railways came, the rule was changed; barristers might arrive upon the circuit by train … provided they travelled first class.”

These days there are still plenty of starving dogs. Lots of them can be found in the lower echelons of the large law firms, where they have to look like they are being properly paid.

The brouhaha over Rule 19 quickly turned into The Establishment (the Law Council and the QLS) v The Upstarts (the Australian Lawyers Alliance), and from then on other groups of lawyers joined in the fray.

The quickest way to get clients is to get oneself on TV saying interesting stuff. Rule 19 gets in the way of that. Thumbs up to Rule 19 if you’ve already got lots of good clients. Thumbs down if you haven’t.

Advertising bans still exist despite NCP. It helps that the lawyers are the ones who administer NCP. In WA in 1997 the attorney general (a lawyer) said :

“In my time as Health Minister, I formed the view that the medical profession had not begun to comprehend competition policy. Practices that I considered outrageous, they considered did not fall within the contemplation of the competition policy, even assuming, which they did not, that the policy applied to them.”

No one commented on Rule 36 of The Legal Profession (Solicitors) Rule 2007 which continues the anti-advertising traditions. It is not well drafted.

It starts off banning advertising, and then permitting some. It should be written backwards, following the excellent example in the 2004 Queensland Barristers Rule (there’s that unfathomable singularity again) that is resplendent in its simplicity:

Rule 124. “A barrister may advertise.”

Just don’t read the next rule.


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