The Modern Lawyer

Claudia Neal-Shaw delves into the recent trend which has seen new lawyers choosing to ditch the billables for social change.

“Law is a creatural society. Law is what gives our society shape, certainty and form”.1

There is no doubt that social change continues to battle against commercially driven goals of the legal industry. But what makes a modern lawyer and how do we define the law and the role it plays in our community?

Those studying and working within the law will often be asked ‘Why did you choose law?’ Whilst you quickly consult a few pre-prepared answers, amongst them, there is often a desire to help the greater community and provide segues to social change. This edition of The Full Bench offers a vehicle for discussion on where the legal industry has opportunities to prosper. It may be within pro-bono work on class action cases, reforming asylum seeker laws or at the epicenter in community legal centres.

The Australian and New Zealand Conference on Public and Private Lives held in Brisbane last December discussed the changing behaviour of top tier firms and their employees. Simon Rice suggested a typical week in a young graduate lawyer’s routine was ‘four days of mergers and acquisitions, and one day for social change.’2 This particular panel discussion between legal professionals and academics defined social change as ‘the use of one’s legal skills to effect systemic change’.3

Do many people study and then go on to practice law because they want to effect social change? Yes.

Is this the reality? Sadly, no.

– Sophie Walden, Clayton Utz

This piece explores the evolving nature of the legal industry and how our generation’s changing values inform those of a modern and socially responsible lawyer. Featuring in the article are two informed, practicing legal professionals sharing their opinions on social change:

Terence Williams BA LLB (Witwatersrand) MICS (London) Director, Legal & Contracts for SAS Institute Australia Pty Ltd responsible for Australia and New Zealand since 2006. Admitted in New South Wales in 2000, and first admitted to practice in South Africa in 1991, with extensive private practice and in-house experience in litigation, commercial, maritime and IT fields.

Sophie Walden BA LLB (University of Sydney), second year lawyer at Clayton Utz Sydney.

Who’s accountable and who’s regulating?

Has it become essential for large commercial firms to contribute to the community through volunteer work? It can be difficult to distinguish which organisations are socially responsible and what mechanisms are being used to ensure this. A narrow measure is that the larger the firm and thus the larger resource pool should mandate who has greater social responsibility. However, this can be seen as unequal with Williams suggesting that all legal practitioners should contribute in some way regardless of firm size:

‘Practitioners in small and large firms work hard enough to keep their practices viable… rather than specific corporate responsibility, the practice should be more closely monitored from an ethical and professional value perspective so that the practice of law in general is more “socially responsible”.5

Socially responsible practice is comprised of multiple factors. It stems from an individual’s own morals and ethics but must follow industry codes such as the Australian Solicitors Conduct Rules. The purpose of codes of conduct (regardless of industry) is to regulate and monitor the behaviour of its practitioners leading to a fair and prosperous industry. It is important to remember that volunteering and contributing to the community is a personal choice as Williams highlights:

“Pro bono work is not some form of “credit” or “penance” that enables you to practise in a different way the rest of the time! The volunteer spirit is a great Australian contribution to society, and lawyers who volunteer for pro bono work enjoy personal satisfaction and reward as volunteers”.6

Integration within a legal setting

University allows for law students to volunteer as part of social justice programs and many students actively contribute. This may create an expectation of firms to create similar opportunities for their employees and especially their new graduates. Walden proposes that all firms should have pro bono targets and organise initiatives where lawyers are required to offer advice and guidance at community legal centres or similar projects. Clocking up a certain amount of hours per year in pro bono works allows for a rewarding experience essential for personal and professional development. Clayton Utz has one of the largest pro bono practices out of the top tier commercial law firms. Employees’ performance and salary review is dependent on meeting a minimum of 45 hours of pro bono work per year. Walden confesses ‘it is one of the few times in commercial law that you actually get to help people who really need it on a very personal level’.7

Some law firms can be purely financially guided leading to distrusting clients but also a detachment from socially active and responsible graduates. Horror stories in the media accuse some legal professionals of overcharging for poor work, no guarantees and extending billables to 24 + hours per day. Shining a poor light on an industry that offers essential specialist advice, many firms have responded proactively. Introducing fixed billing quotes as opposed to hefty hourly rates allows firms to forge trustworthy relationships with their clients. The client is ensured a job is well done without suffering ‘bill shock’ at the end of the matter. Some firms attach warranties and guarantees such as ‘no win and your money back’ to ensure their delivery of a quality service. Ethical practices and the importance of socially responsible lawyers must be the root of legal education transferrable to real life scenarios.

Educating law students about social change

A student’s first years of law school focuses on implementing the foundations of the legal profession addressing ethical behaviour, law reform and legal analytical skills. Many of the essential communicational skills are developed allowing them to articulate complex legal concepts to those who require it. Walden agreed that students and legal professionals should be required to complete a quota of pro bono work to avoid working in a withdrawn commercial environment. Becoming a ‘well-rounded lawyer’ is dependent upon one’s ability to expose themselves to situations where disadvantaged and vulnerable people seek those unique legal skills.

The concept of creating a minimum quota of particular pro bono work at set, lower fees was raised as a means to create fairness and equality amongst legal representation. Whilst there is a given right to legal representation for particular sectors, Williams emphasises that many on standard incomes do not satisfy the legal aid criteria, nor can they afford adequate representation.9 The funding needed to fuel such a project is vital to implementation however it highlights a systemic disadvantage for the ‘average person’. It is these intrinsic patterns being recognised and discussed within an educational setting that allows for young minds to approach legal problems differently.

Final thoughts and calls to action

Our version of the modern lawyer may exhibit restlessness and a hunger to effect social change but is counteracted by traditional mechanisms of the legal industry. Some final thoughts from our interviewees encourage realism and personal fulfilment in practicing a profession you are passionate about. Williams shares, ‘examine your heart and personal philosophy closely, because it is entirely possible to practise aligned with professional ethics and values in a fair and equitable way that is both commercially sensible and socially responsible.’10

Walden offers, ‘you need to balance your expectations with reality to avoid being disappointed and disillusioned in the legal profession. Commercial law can be socially responsible but it is not the most satisfying vehicle if you want to ‘change the world’ and affect real social change. You can do your small part, which is extremely rewarding, but that is the extent of it.’11

We wish to extend our thanks to the wonderful interviewees for taking the time to answer these (sometimes a little controversial) questions.

Published in The Full Bench 3rd Edition 2015.

Award for Best Overall Contribution to The Full Bench 2015.