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DAVID WEISBROT[*]
In January 2000, the Australian Law Reform Commission (ALRC) completed its four-year inquiry into the federal civil justice system, culminating in the publication of its report Managing Justice.[1]
The inquiry was initiated largely because of public concerns about the costs of the system and limited access to justice, delay within the courts, and standards of legal professional representation. Among other things, the ALRC also looked at aspects of legal and continuing judicial education; judicial accountability; lawyers' professional practice standards; government legal work, alternative dispute resolution, the costs of litigation; the provision of legal aid and other forms of assistance; and the utilisation of expert evidence and witnesses.
In order to address these concerns, the ALRC consulted with many hundreds of lawyers, judges and tribunal members, court and tribunal staff, litigants and interest groups, to discuss their experiences and their suggestions for change. The ALRC received about 400 written submissions from various organisations and individuals with an interest in the review, as well as countless phone calls from individuals who wished to relate their experiences (usually 'bad') with lawyers, the courts or tribunals.
To support this anecdotal evidence, the ALRC engaged in the largest and most comprehensive empirical study of the courts ever undertaken in Australia, involving the coding, examination and statistical analysis of about 4000 case files from the Federal Court of Australia, the Family Court of Australia and the major merits tribunals (especially the Administrative Appeals Tribunal (AAT)), with follow-up surveys of the litigants and their lawyers.
The Managing Justice report ultimately made 138 recommendations for reform, covering a wide range of issues and current problems, aimed at the variety of participants and institutions which influence the general quality, and the particular practices and procedures, of the federal civil justice system. Perhaps the most significant conclusion drawn by the ALRC was that while it is obviously important to put in place the right structures, rules, practices and procedures, it is absolutely essential to ensure that these are underpinned by a healthy legal culture.
In the ALRC's view, a 'healthy legal culture' is characterised by its:
• honest, open and self-critical nature
• respect for, and effective communication among, stakeholders
• willingness to adapt and to experiment (or, put another way, one that is not resistant to change)
• commitment to lifelong learning as an aspect of professionalism
• deep ethical sense and commitment to professional responsibility.
Institutions with healthy cultures usually overcome technical deficiencies, while those with unhealthy cultures regularly subvert good systems and frustrate even well-intentioned efforts at reform.
As a consequence of this -and no doubt also in part because of the extensive academic experience and interests of the Commissioners (including two former Deans and a current Chancellor) -the ALRC ultimately devoted a great deal more attention in the final report to matters of legal and judicial education than was originally planned.[2]
In substantial part, the ALRC's argument proceeded from its description of the changing nature of legal practice. The ALRC noted that the paradigm of legal education -and, for that matter, legal ethics - developed during the long period from white settlement through to the 1970s, when:
• the profession was almost entirely private, with only a limited place for public sector lawyers in direct government service (eg in Attorney-General's Departments, land registries etc)
• legal practice was organised around a small separate Bar, and a large number of small (usually solo)
firms of solicitors which survived on a staple diet of monopoly work (guaranteed by statute) in the areas of conveyancing, probate and personal injury
• matters of any real complexity or requiring specialised knowledge were referred to the small, separate Bar
• admission to practice was a matter for each State and Territory, there was very limited mobility among individual practitioners, and law firms rarely strayed across these boundaries
• only a small number of law schools existed, and there were no incentives to compete or innovate.
In the British tradition, apprenticeship dominated as the mode of entry into the legal profession well into the 20th century (whereas universities dominated in Continental Europe from a much earlier period). Although it is now relatively uncommon for someone to be admitted without a university degree in law (and indeed, usually two or more degrees overall), the balance only tipped in the direction of admission through university qualifications in the late 1970s.
There were only six university law schools in Australia through 1960, one in each of the State capitals. Most of the law schools operated with a skeleton staff of fulltime faculty, supplemented with a large number of part time lecturers drawn from the practising profession and the judiciary. Similarly, most students were employed as articled clerks in firms of solicitors during the day, and came to law school afterwards for evening lectures.
The pedagogical method at the university law schools rarely involved any active or experiential learning,nor even much use of the Socratic method. Instead, the principal mode involved the transmission of the lecturer's notes to large groups of students through a formal; lecture, with assessment involving only a formal, written, closed-book final examination.
The focus of university legal education was entirely on the mystery of bodies of substantive (doctrinal) law, mainly: in the core common law are. There was little emphasis on legal research, other than the ability to follow the thread of case law through the published law re orts (English and Australian), and little or no emphasis on legal writing or the development of other professional skills.
Perhaps the ultimate expression of the worship of doctrinal law can be found in the early history of colonial New South Wales. Samuel Terry, an emancipated convict turned successful merchant, managed to obtain the only up-to-date copy of Blackstone's Commentaries -which meant that he had literally cornered the market on legal knowledge.[3]
The nature of the Australian legal profession and the organisation of legal work began to change dramatically from the late-1960s -indeed, one could say much the same about Australian society in general. The 'minerals boom', the massive inflow of investment capital from transnational (especially US and UK-based) corporations, and the associated general growth in Australian business activity led to the emergence of larger, American-style corporate law firms in the financial centres of Sydney and Melbourne.[4]
The sensibility of the times coupled with the 'crash through or crash' style of the Whitlam Labor Government (led by Prime Minister Gough Whitlam and Attorney-General Lionel Murphy –both Sydney barristers), led to fundamental changes in the nature of the Australian legal system, both internally and with respect to the way it related to the rest of the world. Among other things, the Whitlam Government established the federal court system, with the creation of the Federal Court, the Family Court and the AAT; established the ALRC, the Commonwealth Ombudsman, the Human Rights and Equal Opportunity Commission (HREOC), and the Trade Practices Commission (now the Australian
Consumer and Competition Commission); entered into international conventions on labour, human rights, racial discrimination, and world heritage, as well as the Optional Protocol to the ,statute of the 'international Court of justice (accepting the compulsory jurisdiction of the ICJ); and took over primary responsibility for the funding of legal aid and universities.
The number of university law schools doubled during this period to 12, with a 'second wave' of law schools established in Sydney, Melbourne, Brisbane and Canberra. The second wave law schools-especially the University of New South Wales and Macquarie University in Sydney, and Monash University in Melbourne -pioneered a sea change in Australian legal education, stressing a more critical, socio-legal, and inter-disciplinary approach to teaching and scholarship, experimenting with new modes of delivery and assessment, and developing' clinical programs. As a general matter these law schools also followed the American pattern in reducing the number of compulsory subjects, and developing extensive and specialised elective programs.
Since the late 1970s, there has been continuous dynamic change for Australian lawyers, largely externally driven, by:
• the application of competition policy to the market for legal services
• the globalisation of the economy
• the push for greater privatisation and de-regulation
• the explosion of legislation, regulations, and process
• the revolution 'in information technology and communications
• the drive for greater accountability/transparency of public (and major private) institutions
• the drift away from the adversarial mindset and the embrace of alternative forms of dispute resolution (ADR)
• the contestability of legal work for government, with much non-core work now outsourced
• the increase in major client sophistication in the use of lawyers, and in bargaining over fees or the level and quality of services (and consequently much lower levels of client 'loyalty')
• the blurring of the distinction between law firms and rival 'expert business services' or 'knowledge corporations', such as the large accounting firms and management consultancies.
Despite the conclusion of the Pearce Committee's national review of Australian legal education in 1986 that no further law schools ought to be established -having regard to the population, the demand for lawyers, and the poor resourcing of existing programs -the number has since shot up to 30, so it is now the case that the majority of Australian law schools have been in operation for less than two decades. This growth is unparalleled elsewhere else in the western world: during the same period, only a few new law schools were created in Canada, the United Kingdom, New Zealand and the United States.
Not surprisingly, then, lawyer numbers have continued to grow, leading to greater intra-professional competition (particularly when combined with advertising and other changes). There are now over 30,000 practising lawyers in Australia, distributed across about 10,000 legal practices with a population-to-lawyer ratio of about 600:1.
Great strides have been 'made in recent years to move towards a system that effectively delivers mutual recognition and reciprocal practising rights for all Australian lawyers. More remarkably, Australian lawyers increasingly have begun to organise their work on an international basis -so the addition of Adelaide, Perth,· Brisbane and Canberra offices to a formerly 'Sydney' or 'Melbourne' firm quickly has been followed by the establishment of branches in London, New York, Frankfurt, Singapore, Hong Kong and Shanghai.
Australian lawyers are very fortunate in that the recent emergence of a de facto 'World Law' governing international trade and commerce is based on either (or a synthesis of) New York law or London law –and is conducted in English, giving Australian lawyers an important comparative advantage.
Small practices still dominate the Australian legal profession, with 92% of practices comprised of fewer than 20 lawyers, and most of these operating at the local level. However, those 92% of practices account for only 44% of employment in the sector, delivering less than one-third (32%) of the operating profit before tax· for the sector.[5]
The most important trend in the legal profession is the emergence of the large 'mega-firms' with 100 or more partners, engaged in corporate law practice. Only one per cent of practices in Australia employ more than 100 persons, but these now account for 30% of legal employment and 45% of operating profits.[6]
For a relatively small country in terms of population, Australia has spawned a significant number of mega firms. The International Financial Law Review's 1999 rankings show that of the world's 40 largest law firms, six are from Australia-with 22 from the US, nine from the UK only three from continental Europe, and one from Canada. Large Australian firms dominate the Asia Pacific region, providing 11 of the largest 15 firms.
As described above, the development of Australian legal practice appears to be pointing inexorably towards a bifurcation in the organisation of legal work. At one end of the profession, law increasingly will take on the nature and trappings of small business. Success will b dependent on managing to deliver high volume, low margin services in a highly competitive environment -and the key to this will be the routinisation of legal work, to facilitate turnover and keep costs down. This will require strong management skills, adept strategic planning and effective marketing-not typically the province of small firms, or small business in general. At the other end of the spectrum stand the mega-firms; the multidisciplinary practices;[7] the specialised boutique practices (usually split off from the mega-firms); and the leading barristers.
For the latter class of lawyers, professional life will consist mainly of providing high-level strategic planning and advice (including s1,1ch advice in relation to regulatory compliance) and representation for clients (governments, corporations, institutions and some wealthy individuals) that can afford to pay for complex, individually customised advice and problem-solving.[8]
These lawyers will be heavily involved in '!aw-shaping' (issues management, policy development, lobbying, law reform work) to support their clients' interests, as well as in more conventional forms of offering legal advice 'and representation. The working orientation of such lawyers will feature a global outlook (and multicultural sensitivity), multi-disciplinary approaches, team-work. and a premium on 'soft skills' -especially communications.
Much of my own research and writing has focused on the regulation of the Australian legal professions, including matters of professional competence and discipline. As a member of the New South Wales Law Reform Commission (NSWLRC), I undertook a major review of the much-criticised self-regulatory regime for handling complaints about lawyers in that State.[9]
Among other things, the NSWLRCdid a survey of many hundreds of complaints files, looking at both the substance of the complaints and the efficacy of the complaints-handling processes.
One of the most striking conclusions was that very, very few of the complaints resulted from a poor understanding or misreading of doctrinal law; rather, the overwhelming run of complaints related to lawyering skills arid professional behaviour, especially:
• communications with clients (and to a lesser degree, communications with other lawyers, the courts and other regulatory authorities)
• management 6f client relations and files (ensuring that matters progress towards resolution; maintaining full and accurate files, including appropriate file notes; billing records and practices; meeting deadlines, etc)
• proper handing of funds held under trust and related accounts.
None of these matters receive much time or attention in the traditional law school curriculum -yet, working backwards from the disciplinary experience, these are in practice matters that require the most urgent attention.
Among many other things, the NSWLRC recommended that, in accordance with standard quality assurance practices: (a) there be regular 'feedback from the disciplinary process to the profession in order to remedy common problems and improve the standards of the delivery of legal services';[10] and (b) university law schools upgrade their commitment to the teaching of legal ethics and professional responsibility,[11] and do this in the proper spirit and context:
[l]t is adequate to teach legal ethics and professional responsibility as if these are matters of etiquette which must simply be transmitted, committed to memory and recalled on the appropriate occasions (such as at the examination). Rather, these are matters which are bound up in the fundamental nature and essence of lawyering and legal professional practice, which necessitates a process or problem-solving approach to the subject. Ideally this involves, a clinical approach, and certainly the opportunity for reflection and discussion, but in any event we regard the 'large lecture' as an unsuitable pedagogical technique (and the large lecture hall an unsuitable venue) for creating a professional sensibility and developing a thoughtful and lasting commitment to ethical conduct..[12]
It appears that Australian lawyers and law firms increasingly recognise the need to reshape legal education to provide the skills needed for success in practice. Surveys of law graduates and employers indicate that while they rate the acquisition of doctrinal knowledge as 'important', the skills they identified as the most frequently used in practice were oral and written communications, computer skills, time management and document management.[13]
Nevertheless, substantive law still dominates law school teaching and curriculum in Australia, with insufficient adaptation to the changing environment or reflection about the implications of all of this for legal education and scholarship.
I suspect that if Professor Langdell[14] walked into a contemporary law school in Australia or the US -and the rapid advances in genetic technology and cloning may soon make this possible -he would feel right at home. Although the elective programs at modem law schools have expanded enormously and become ever more specialised, and clinical electives are now available, the nature of the core curriculum, the dominance of doctrine, and the basic approach to pedagogy have changed very little. (Contrast this with the likely bafflement of a 19th century professor of medicine, architecture, engineering, dentistry or science who strayed into a modem program in their discipline.)
In Managing justice, the ALRC was particularly critical of the deadening influence of poorly conceived professional admission requirements on the development of Australian legal education, most notably the 'Priestley 11' list of doctrinal areas which individuals must complete in order to fulfil admission requirements. Although this list does not purport to prescribe the curriculum for all law schools, each is under considerable practical pressure to comply so that students can proceed smoothly towards admission.
Among other criticisms, the ALRC questioned the ‘solitary preoccupation with the detailed content of numerous bodies of substantive law' and the arbitrary imposition of a set of 'core' areas of substantive law.[15]
By way of contrast, the ALRC noted that the Macerate Report[16] in the US, and the Canadian Bar Association's 1996 Task Force Report on Systems of Civil Justice, both focused on:
providing law graduates with the high level professional skills and values they will need to operate in a dynamic work environment, and assumes that lawyers will keep abreast of the substantive law as an aspect of professional self development [17]
The ALRC concluded that legal education must be re-oriented 'around what lawyers need to be able to do, [rather than remaining] anchored around outmoded notions of what lawyers need to know'.[18]
In advocating this approach, the ALRC cautioned against perpetuating 'a false polarity between substantive knowledge and professional skills', noting that
It is obviously important to provide law students with a basic grounding in the major areas of substantive law, especially 'building block' areas such as contracts and public law, and to acquaint them with how these areas developed over time -that is, to provide an appreciation of the common law method. Nor is it possible to teach legal professional skills effectively in a substantive vacuum, or in manner wh1ch does not promote intellectual analysis and reflection on law as an art and a social sc1ence as well as a technical or professional service.[19]
Rather, the ALRC emphasised that intellectual refinement should be the aim of skills training in universities: properly conceived and executed, professional skills training should not be a narrow technical or vocational exercise. Rather, it should be fully Informed by theory, devoted to the refinement of the high order intellectual skills of students, and calculated to inculcate a sense of ethical propriety, and professional and social responsibility. [20]
In other words; 'skills training' does not mean practising elocution (however much that may assist most lawyers). Rather, the focus should be on developing a deep understanding of communications in the professional context-with all that implies in terms of communications theory and practice, genres and contexts (including legal and legislative drafting, transactional and scholarly), power relations, client relations, ethics and advocacy.
All of the foregoing should make plain my strong view that there is a powerful disconnection between the traditional, doctrinally focused curriculum of Australian law schools, and the intellectual and professional skills and approaches lawyers now require to succeed in the increasingly dynamic work environment in which they find themselves. And this disconnection is equally strong and unsatisfactory whether a new lawyer is going into the high volume/low margin end of legal practice, or into the customised, problem-solving high end of legal practice, as described above.
As detailed above, most law schools in Australia are new. This has several aspects to it First, the better new schools have recognised the competitive need for innovation, and development of niche identities, with unique strengths in areas of teaching and research. Second, those that have seized on a skills-focused curriculum have been able from the beginning to recruit staff with that in mind, and thus are less likely to meet entrenched staff opposition. However, most new law schools operate on small budgets - even relative to the penury of the sector-and struggle to fund programs requiring more intensive teaching.
Nevertheless, many of the Australian law schools most associated with success in integrating professional skills teaching into the core curriculum 'are 'fourth wave' law schools established after the Pearce Report, including (among others) Newcastle (which operates a fully clinical, 'professional program' for about one-third of its students), Bond, Flinders, Wollongong, Griffith, Murdoch and Western Sydney.
Restructuring a traditional law program, with a traditional faculty, to accommodate a greater role for skills development may be more of a challenge, but it is by no means impossible. Historically conservative law schools such as Melbourne, Queensland, Western Australia and Sydney have taken some steps in this direction in recent years.
Queensland University of Technology (QUT), a 'second wave' School, has become an interesting centre for thinking and innovation in this regard. Referring to the Managing Justice report and concluding that 'the traditional content-based approach of law school curricula has not adequately prepared graduates for the changing legal workplace', QUT has adopted the philosophy that:
skills must be embedded within the processes and content of learning to ensure that learning objectives are met. Teaching and learning approaches and assessment methods are also desirably developed and executed in an authentic learning environment. Therefore, the aim of our curriculum redesign for capability acquisition was to develop these authentic learning environments for students through the adoption of appropriate learning objectives, teaching and learning approaches and assessment methods. In this way, students would be facilitated in their development of both generic and specific (legal professional) skills in conjunction with the ethical and discipline framework they would need to practise as reflective practitioners on graduation. In the past, while universities may have expected their graduates to acquire certain Implicit capabilities, the structured development of those capabilities was either non-existent or left to skills based units divorced from the rest of the curriculum. The focus of our curriculum redesign was to ensure that graduate capabilities should be seen as inextricably linked with the learning of disciplinary content in an explicit rather than implicit manner. Thus, students would be equipped
to proceed into the workforce with the appropriate level of skills acquisition to enable a seamless transition from the academic to the professional environment.[21]
Although appellate case exegesis (in one field of doctrinal law after another) is an important skill for lawyers, it is by no means the only professional skill which young lawyers need to acquire, nor is it arguably even close to the most important . For what it is worth, my own preferred core set of skills would include:
• high order oral and written communications
• negotiation and dispute resolution
• listening (not typically a strength of most lawyers)
• fact-finding
• problem solving and law shaping
• an international and comparative orientation
• management, project management and teamwork skills
• multi-disciplinarity
• sensitivity to the client's experience (whether this means poverty, disability or the pressure of a corporate boardroom).
In my first months as Dean of Sydney Law School, I wrote to staff, students and alumni -and I still very firmly believe -that:
in a changing environment, the best preparation that a law school can give its graduates is one which promotes Intellectual breadth, agility and curiosity; strong analytical and communication skills; and a deep moral and ethical sense of the role and purpose of lawyers in society.
No doubt this will require a greater commitment of resources -or at least a reallocation of existing priorities. However, I believe that we cannot afford not to move purposefully in this direction. The choice for law schools is to continue to prepare their graduates for the 1950s, or to prepare them for the challenges of operating successfully in the modem profession and the global economy.
REFERENCES
[*] DAVID WEISBROT is President, Australian Law Reform Commission; Honorary Professor, Institute for Molecular Bioscience and TC Beime School of Law, University of Queensland; Visiting Professor of Law at the University of New South Wales and Macquarie University.
Formerly Dean of Law at the Universities of Papua New Guinea and Sydney.
© 2004 David Weisbrot email: info@alrc.gov.au
[1] Australian Law Reform Commission, Managing Justice A Review of the Federal Civil Justice System, Report No 89 (2000) <http //www.austlii.edu.au/au/other/alrc/
publications/reports/89/> at 16 November 2004.
[2] See ALRC 89, above n 1, ch 2
[3] D Weisbrot, Australian Lawyers (1990) 165.
[4] 0 Mendelsohn and M Lippman. 'The Emergence of the Corporate Law Firm in Australia' [1979] UNSWLawJl 2; (1979) 3 University of New South Wales Law Journal 78, 79-83.
[5] See 'International Legal Services Advisory Council (ILSAC), Australian Legal Services Export Development Strategy 2003 to 2006, citing Australian Bureau of Statistics' figures from 1999 <http·//www.ag.gov au/agd/www/llshome.nsf> at 16 November 2004.
[6] lbid
[7] Typically, the large international accounting firms with legal divisions, such as Ernst & Young and PricewaterhouseCoopers.
[8] Other less affluent clients may be able to gain some access to these services if the legal profession's traditional acceptance of the 'service ideal' and support for pro bono services is not compromised by the new emphasis on competition and business-like practices: see The Report of the National Pro Bono Task Forte to the Commonwealth Attorney-General (14 June 2001)
[9] New South Wales Law Reform Commission, Complaints Against Lawyers Discussion Paper No 26 (1992), and Scrutiny of the Legal Profession Complaints Against Lawyers, Report No 70 (1993).
[10] NSWLRC Report No 70, above n 9, Recommendation 63 and paras 5.26-5.31
[11] Ibid, Recommendation 62 and paras 520-5.25.
[12] Ibid, para 5.24.
[13] C Roper and S V1gnaendra, Australian Law Graduates Career Destinations (1998) 39.
[14] Professor Langdell was Dean of Harvard Law School from 1875 to 1895 and the most influential reformer of US legal education in the 19th century
[15] ALRC 89, above n 1, paras 2.82-2 84.
[16] American Bar Association, Legal Education and Professional Development - an Educational Continuum (1992)
[17] ALRC 89, above n 1, para 2.21.
[18] Ibid (emphasis in the original)
[19] Ibid, para 2.81.
[20] Ibid, para 2.85.
[21] See S Kift, 'Harnessing Assessment and Feedback to Assure Quality Outcomes for Graduate Capability Development: A Legal Education Case Study', AARE 2002 Conference Papers <http.//www.aare.edu.au/02paplklf02151.htm> at 16 November 2004.
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