skepticlawyer

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.

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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.