The prospects for change

Why has reform of the profession been so slow and how do lawyers manage to insulate themselves from a country rapidly changing around them?

There are two main reasons. First, legal training and the year of apprenticeships as young lawyers effectively condition new lawyers into the professional myopia and sort out the non-conformist before he can wield effective power. The profession controls its own hierarchy, the judiciary and in the large part the legislature because the attorney-general is always a lawyer.

Second, because the system is so complex, only lawyers can change it and lawyers are very rigorously disciplined by a number of formal and informal constraints against criticism of their own legal institutions.

It is ironic that one of the most influential groups in a free society should impose such rigorous medieval restraints over the free speech of its own members. But the profession is replete with self-justification and the repression is traditionally explained by the need to prevent lawyers advertising or to prevent the judicial system coming into disrepute.

The sanctions are very powerful because the profession is controlled by separate bodies over both barristers and solicitors, closed societies which determine their own rules and mete out judgement over their own kind when they transgress.

That they are prepared to use that power and use it hard was recently demonstrated when a senior barrister was censured for suggesting, quite correctly it seems to me, that the submission the bar had made on an insurance scheme for motor accidents was based more on its own vested interests than the welfare of the community.

Even more effective are the informal restraints, the quiet nod or telephone call in a close-knit profession. This informal network has given the profession a unique ability to weed out its own black sheep but it is also effective to ensure an orderly succession of people holding broadly similar views in the positions of power.

Now their review of the profession should not be construed as a suggestion of a Machiavellion plot to subvert democracy.

Lawyers have survived precisely because they have been even-handed in the exercise of their power and have changed over the years sufficiently to contain the clamour for reform and bring their own house back into equilibrium. The law still attracts many good intellects.

The interests of the legal profession and the public often conflict. Complexity and legalism may mean more cost for the community but it also means more work for lawyers.

As power moves to those persons with the scarce commodity of expertise, the lawyer who knows his way through the maze of the complex democratic society dominated by specialists and rules, can demand his price to show others through. It is therefore quite wrong to accord lawyers the degree of unquestioned influence they have when it comes to changing laws or legal institutions.

The present piecemeal patching and half-hearted reforms are not enough. Laws and lawyers must serve the need of the whole community. The law reform bodies must break right away from the present institutions and assess the effectiveness of present laws and procedures from a much wider community perspective.

But even more important is the role of the universities. They must, as a central priority, actively generate an informed debate on the direction in which the law and legal institutions are moving.

The government should use its pursestrings to ensure that either sociologists are appointed to law schools or law schools start the huge job of redirecting themselves to so that they place the welfare of the community ahead of the perpetuation of the legal profession in its present form.

Both law students and lawyers must be taught the skills and be given the perspective to break the vicious self-perpetuating circle of an increasingly irrelevant profession clinging ever more tenaciously to its power.

Lawyers are still in the best position to initiate effective social change because of their training in the discipline of detailed analytical skills and experience in working with the rules of our present system.

But if the legal institutions do not accord with the needs of the community they must be rejected. The time is ripe for lawyers to do some determined thinking about where our society is going.