The cost of the law

By Legal Eagle

Rob Hulls seems to have it in for barristers. He’s attacked them over their opposition to acting judges, and now he’s having a go at them for allegedly charging exorbitant fees which put legal services out of the the reach of ordinary people. Well, they are an easy target – no one loves a lawyer. In today’s Opinion section of The Age, Hulls has said:

The cost of justice, particularly when you have some barristers charging up to $14,000 a day, is prohibitive for the average person. We don’t want our courts to become a fiefdom for large corporate entities to take action against each other in the full knowledge that their legal fees are tax-deductible.

It is time to acknowledge that the courts are a public resource paid for by taxpayers and should be used responsibly, efficiently and effectively. They are not a forum for highly paid barristers to display their thespian attributes or to use as a vehicle to increase their bank balances, or for corporations to put off the need to sit down and resolve matters appropriately.

Resolving disputes outside the adversarial process gives parties ownership of the outcomes and inevitably results in long-term, sustainable solutions.

I have long thought that it is difficult for the average person to know where to turn when they are presented with a legal problem. The law is often confusing, and you could spend a good deal of money in fighting an action. I think I would have difficulties affording the services of an equivalent adviser such as myself: and I was hardly a law firm partner.

But I don’t know why Hulls is picking on barristers specifically. Surely the first port of call for any litigant is to seek advice from a solicitor? If he’s going to take a shot at barristers, why not solicitors too? Personally, I have long been a critic of the six-minute billing unit which is intrinsic to the way in which solicitors bill their clients: I think they drive up costs for clients and promote inefficiency. They also make the culture for young lawyers very unhealthy (one is judged on how many units per day one bills, so obviously the longer you stay at work, the better you perform).

Further, Hulls’ depiction of $14,000-a-day barristers is hardly accurate. He makes it sound like all at the Bar are raking in these sort of amounts, whereas the fact of the matter is that most are not. In fact, I can’t think of many barristers who could charge $14,000 a pop – one possibility comes to mind, but that’s it. Indeed, young barristers often earn a pittance at the Bar, and I know of a number of friends and acquaintances who had to quit after a year or two at the Bar because they didn’t make enough to make ends meet. I also know of a number of young barristers who have done well in early years – but nothing like $14,000 a day!

A number of people have identified a somewhat cynical motive behind Hulls’ attack on the Bar. Jeremy at An Onymous Lefty (a barrister himself) says:

Community legal centres and Victoria Legal Aid are seriously struggling with the lack of funding from Rob Hulls’ department – and that’s what’s really making the law inaccessible for Victorians.

Hulls’ grandstanding is quite outrageously cynical.

In an opinion piece also published today in The Age, Ben Schokman, a lawyer with the Human Rights Law Resource Centre, makes a number of points about the Victorian government’s own obligations in relation to legal services:

  1. The Government must increase funding to community legal centres and to Legal Aid. It is lack of availability of these services which means people are unable to access legal services.
  2. Court procedures must be simplified. The complex processes act as a barrier to people trying to get their argument across.
  3. The Government must provide adequate services for disadvantaged litigants, such as interpreters.

Both Schokman and Jeremy also make the point that many solicitors and barristers perform pro bono work – that is, they act for litigants for free. This is something which Hulls conveniently forgets to mention.

Also alternative dispute resolution is not the answer to every problem: as Schokman comments, a litigant will still be disadvantaged in a mediation if she is unrepresented or inadequately represented. And no matter what you do, some people just want their day in court.

My own experience from working in the Victorian Court system is that courts are also underfunded and under-resourced. How can a court be expected to perform super-efficiently if it is not properly resourced? Perhaps things have improved in the intervening years since I worked in the Court system, but somehow I doubt it. It has to be said that the Court and the Judges did a fantastic job despite this.

So, don’t swallow Hulls’ spin about rich barristers. Sure, there are some damn rich barristers out there, but the picture is a lot more complex than that, and there are many more issues, including Hulls’ own department’s refusal to fund various legal services adequately.

20 Comments

  1. Posted June 11, 2008 at 4:20 pm | Permalink

    I think his primary point, which in my view is largely correct, is that the length, complexity and cost of running typical legal proceedings under the adversarial system is completely unacceptable. However a far better extrapolation would probably be to point out that it is corporates using the courts as a playground, with paper-heavy trials lasting months at a time to work out if some nong was obliged under clause 586 of their contract to paint the wall dark blue instead of light, etc, which clog up the courts.

    I see no ulterior motive for jeremy, bless his socks, for defending the commercial nature of the bar. Sorry jezza ;p

  2. Sinclair Davidson
    Posted June 11, 2008 at 4:59 pm | Permalink

    Here is my take. Short.

  3. Posted June 11, 2008 at 5:29 pm | Permalink

    Um I’m just wondering why in Satan’s blood red cave are legal splashes tax deductable for corporations? Is it just corporations?

    It’s kinda like being a rock star viz fashionable apparell, drinks and clubbing etc – if you can afford it you don’t have to pay.

    Surely that would drive the price up.

  4. Posted June 11, 2008 at 5:34 pm | Permalink

    Sure, there are some damn rich barristers out there, but the picture is a lot more complex than that, and there are many more issues, including Hulls’ own department’s refusal to fund various legal services adequately.

    There was a profile of Tom Hughes (Robert’s bro) in the Financial Review mag a couple weeks back. Apparently there is a wider concern that barristers are becoming the playthings of corporations.

  5. Posted June 11, 2008 at 5:51 pm | Permalink

    It’s probably worth mentioning Milton Friedman’s point that the legal profession, like the medical profession, is an extremely powerful union running something very close to a closed shop. That tends to drive the price up just a tad.

    Barristers to my mind aren’t really the problem (self-interest will get you everywhere, natch), but the high cost of solicitors’ services certainly is. I do think one useful reform in Qld has been the right for clients to approach barristers directly.

    Another suggestion to improve access to the law: legalise contingency fees.

  6. Posted June 12, 2008 at 10:57 am | Permalink

    > How can a court be expected to perform super-efficiently if it is not properly resourced?
    Or if what money that does get “given” to court resourcing is squandered because the requirements for new systems are not understood so the money is spent, but the capabilities of the system aren’t improved…
    See the Vic Auditor’s Diatribe on the CJEP that was supposed to make courts more efficient (including an “E*Brief” system).

    I also wonder if there should be a standard fee, equivalent to that for medicos (short consultation, long consultation, small procedure, conveyance, discovering security interests, …..) defined as a set of benchmarks that allows comparison of a fee from a particular legal professional to the benchmark…. this would encourage legal firms to improve efficiency and cut the times they spend, rather than have incentives to drag things out.

    I’ve got a backburner post myself on some low-hanging-fruit efficiency gains that could be made in not a few legal firms by better internal processes…

    Mind you, I think Hulls is right about corporates hogging the system.

    LE said on pantyhose: “these days I’ve ditched ’em” …. hmmm…. I’m pondering pregnancy, fluid retention in ankles, utility of good “support” hose/stockings….

  7. TerjeP
    Posted June 12, 2008 at 4:55 pm | Permalink

    I think I would have difficulties affording the services of an equivalent adviser such as myself: and I was hardly a law firm partner.

    If you earn X dollars per hour and the government takes a significant slice of X then your capacity to afford your own services will always be limited. Most professionals can’t afford to buy much of their own services or goods or those of equivalent value.

    The net effect of taxation is that the only people that can afford our services on mass are those that are richer than us and/or the government. Hence carpenters do their own plumbing, engineers do their own financial planning and we all do home maintenance and domestic chores that we would probably prefer to out source. All of this lowers the efficiency that we would enjoy if we stuck with the high levels of specialisation and efficiency that a truely free market engenders.

    Setting aside tax the cost of law would be cheaper if there were less laws. If we had more economists and less lawyers in parliament I can’t help feeling the outcome would be a lot better.

  8. Nanuestalker
    Posted June 17, 2008 at 11:51 pm | Permalink

    I don’t know about other states but in Victoria we have to make the usual cost disclosure…but unlike the plumber or electrian etc. who probabaly charge more per hour they don’t have “Even if you agreed to pay these costs, guess what you can complain and waste my time answering to LIV if you complain so I lose my margin” GMAFB!

  9. Posted June 18, 2008 at 5:22 pm | Permalink

    How the F does that help anything???

    Now now. It never hurts to advertise. 🙂

  10. Posted June 18, 2008 at 6:43 pm | Permalink

    One of things that fascinates me about lawyers is that they’re the only profession who seem to be conctantly engaged in criticism of themselves.

    At least some of you.

  11. pedro
    Posted June 22, 2008 at 5:53 am | Permalink

    Yes LE you are correct, but finding an alternative way of billing can be hard and the bigger the firm the geater the incentive to standardise. I look forward to your billing post.

  12. Posted June 22, 2008 at 8:00 am | Permalink

    Pedro, just had to let you out of our very hungry spam can – apologies for the delay!

One Trackback

  1. By Club Troppo » Missing Link Daily on July 22, 2008 at 6:45 am

    […] Legal Eagle joins Jeremy Sear in condemning Victorian A-G Rob Hulls’ slagging of barristers’ fees and asks: what about overcharging solicitors? […]

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